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21 DECEMBER 2013. - Act respecting various provisions concerning the financing of small and medium-sized enterprises (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 1^er. - Definitions and application field
Art. 2. For the purposes of this Act, are defined as follows:
1° the credit intermediary: a natural or legal person who does not act as a lender and who, in the course of carrying out his business or business activities, against a remuneration that may be monetary or take any other form of economic benefit that has been agreed upon:
(a) presents or proposes credit contracts to businesses;
(b) assists enterprises by making preparatory work for credit contracts other than those referred to in (a);
(c) enters into credit contracts with companies on behalf of the lender. is assimilated to it, the person who offers or consents credit contracts, where such contracts are subject to an immediate assignment or subrogation for the benefit of another registered lender, designated in the contract;
2° the lender: any natural or legal person or group of such persons who consent to a credit in the course of his or her business activities, except for the person or group of persons who offer or conclude a credit contract when the contract is subject to an immediate assignment or subrogation for the benefit of an authorized lender designated in the contract;
3° the credit contract: any contract under which a lender consents or undertakes to consent to a credit to a business in the form of a loan or other similar facility, with the exception of credit contracts that fall under the law of 12 June 1991 on consumer credit and the law of 4 August 1992 on mortgage credit;
4° the undertaking: the undertaking as referred to in section 2, paragraph 1^er, 1°, of the Act of 6 April 2010 on market practices and consumer protection, or a person exercising a liberal profession as referred to in Article 2, paragraph 1^er, 1°, of the Act of 2 August 2002 on misleading advertising and comparative advertising, abusive clauses and remote contracts with respect to liberal professions, which meets at the time of the application of the credit the applicable criteria set out in Article 15, § 1^erThe Code of Societies.
Art. 3. This Act applies to credit contracts concluded with a company having its place of business or head office in the European Economic Area, provided that:
1° the lender carries on business or business in Belgium, or
2° the lender by any means directs this activity to Belgium or to several countries, including Belgium,
and that the credit contract falls within the framework of this activity in Belgium.
CHAPTER 2. - Must be rigorous
Art. 4. The lender, the credit intermediary and the company behave in good faith and equitably in their mutual legal relations. The information they provide must be correct, clear and not misleading.
CHAPTER 3. - Have information
Art. 5. The lender and, where applicable, the credit intermediary shall request the credit contracting company and, where appropriate, to the person who constitutes a personal security right, the relevant information that they consider necessary to assess the feasibility of the proposed project for which the credit is requested, their financial situation and their reimbursement capacities and their current financial commitments. The company and, where applicable, the person who constitutes a personal security right shall be required to respond accurately and fully to it.
Art. 6. The lender and, where applicable, the credit intermediary seek, in the context of the credit contracts they usually offer or for which they usually intervene, the type of credit best suited, taking into account the financial situation of the company at the time of the conclusion of the credit contract and the purpose of the credit.
Art. 7. § 1^er. Lenders and, where applicable, credit intermediaries provide the company, at the time of the application for credit, with an appropriate explanatory notice to allow it to have an overview of the forms of credit that are appropriate to it. In any case, the explanatory notice includes the most important features of the forms of credit adapted to the company and the specific implications associated with it for the company. The explanatory notice also mentions the name and address of the designated competent body in accordance with section 8, paragraph 2, 2 °, of the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments.
§ 2. It is handed over to the company, at the time of the offer of credit, on request and without charge, a copy of the draft of the credit agreement.
The draft credit agreement shall be annexed, on the same basis, a summary information document, the contents of which shall be determined by the code of conduct referred to in Article 10.
§ 3. This section does not apply if, at the time of application, the lender is not prepared to enter into the credit agreement with the business.
CHAPTER 4. - Refusal of a credit
Art. 8. In the event of a refusal to grant a credit, the lender and, where appropriate, the credit intermediary inform the company of the essential elements on which the refusal is based or that have influenced the risk assessment, in a transparent and understandable manner, either in writing or or orally. The company may obtain that the verbal notification is clarified in writing. This provision does not affect the lender's contractual freedom and does not create a right to credit for the company.
CHAPTER 5. - Advance payment
Art. 9. § 1^er. The company has the right to repay in whole or in part and at any time the balance of the remaining capital due in advance, without this right being subject to the fulfilment of additional conditions, with the exception of the remployment allowance as defined in § 2 .
She advises the lender of his intention by registered letter to the position, at least ten working days before the refund.
§ 2. If the credit cannot be described as an interest loan as referred to in Article 1907bis of the Civil Code, the employment allowance, if stipulated, cannot exceed six months of interest, calculated on the amount refunded and at the rate fixed in the contract, for credits to companies whose initial amount does not exceed 1 million euros.
For credits to companies whose amount exceeds 1 million euros, without prejudice to section 1907bis of the Civil Code, the amount of the employment allowance is contractually established between the lender and the company, provided that this amount must be in accordance with the calculations set out in this respect in the code of conduct referred to in Article 10.
§ 3. No compensation is payable in the following cases: the advance refund in the execution of an insurance contract conventionally intended to guarantee the reimbursement of the credit, the consolidation of existing credits in the same lender, or the non-substantial amendment to the credit agreement.
CHAPTER 6. - Code of Conduct
Art. 10. § 1^er. The representative employers' organizations, referred to in Article 7 of the coordinated laws of 28 May 1979 on the organization of the Average Classes, which defend the interests of P.M.E. and the representative organization of the credit sector, are responsible for developing common agreement within three months of the publication in the Belgian Monitor of this Act, a code of conduct, which stipulates at least the following:
1° the contents and form of the explanatory notice and the summary information document as referred to in Article 7, §§ 1^er and 2, subparagraph 2;
2° the terms and conditions for information deemed necessary to assess the financial situation and the repayment faculties of the enterprise as referred to in Article 5, paragraph 1^erin particular the documents that the company must provide to the lender to demonstrate;
3° the procedure for calculating the remployment allowance for loans to enterprises as provided for in Article 9, § 2, paragraph 2;
4° the content of the information that must be provided to the company in the event of a refusal to grant credit by the lender, as referred to in Article 8.
The King sets the date of entry into force of the Code of Conduct and makes it mandatory by Royal Decree deliberated in the Council of Ministers.
§ 2. Failing the code of conduct referred to in § 1^er within a period of three months following the coming into force of this Act or in the absence of ratification by the King as referred to in the preceding paragraph, the King is entitled to determine the terms and conditions for the provisions referred to in § 1^er, 1° to 4°, by Royal Decree deliberated in Council of Ministers.
CHAPTER 7. - Civil sanctions and abusive clauses
Art. 11. If the lender, or if applicable the credit intermediary, has not complied with or breached the provisions referred to in section 6, the judge may, without prejudice to the consequences of common law, order the free conversion of the credit to a form of credit that is more appropriate, taking into account the financial situation of the business at the time of the conclusion of the credit contract and the purpose of the credit.
Conversion referred to in paragraph 1^er is not considered a refinancing of the debt. Existing safeguards and security rights are maintained.
The conversion referred to in paragraph 1 shall be effected only from the date of the decision of the court before it.
Art. 12. In case of violation of Article 9, § 2, paragraph 1^er, and § 3, the employment allowance is limited to the compensation provided for in these provisions.
In the event of a violation of Article 9, § 2, paragraph 2, where Article 1907bis of the Civil Code is not applicable, the judge shall determine in fairness the compensation due, in accordance with the calculations set out in that regard in the code of conduct referred to in Article 10.
Any criminal clause, regardless of the manner in which it is formulated, which attributes to the lender, directly or indirectly, an additional amount in the event of an advance refund, in addition to the compensation provided for in Article 9, §§ 2 and 3.
Art. 13. In credit contracts between a lender and a business, are in any case abusive, the terms and conditions or combinations of clauses and conditions that are intended to:
1° provide for an irrevocable commitment of the company, while the performance of the lender's benefits is subject to a condition whose realization depends on its sole will;
2° except in the event of non-performance on the part of the enterprise, authorize the lender to unilaterally terminate the fixed-term contract, without reasonable compensation for the enterprise, except for the case of force majeure;
3° except in case of non-performance on the part of the company, authorize the lender to unilaterally terminate the indefinite contract without a reasonable notice period for the company, except for the case of force majeure;
Any abusive clause is prohibited and void. The contract remains binding on the parties if it can remain without abusive clauses.
CHAPTER 8. - Evaluation
Art. 14. This Act and the code of conduct referred to in section 10 shall be subject to an assessment every two years.
The King may, on the proposal of the Minister of Finance and the appropriate minister for SMEs, make amendments to this code of conduct, by Royal Decree deliberated on the advice of Ministers.
The King sets out the terms and conditions of the assessment referred to in paragraph 1^er, by Royal Decree deliberated in Council of Ministers.
The assessment referred to in paragraph 1^er is made after prior notice of FSMA, the National Bank of Belgium and the OMBUDSFIN Financial Conflict Mediator.
CHAPTER 9. - Control by FSMA
Art. 15. FSMA as referred to in section 2, paragraph 1^er, 21°, of the Financial Sector Supervision and Financial Services Act of 2 August 2002 ensures compliance with:
1° of articles 4 to 8 and of decrees taken for their execution;
2° of the provisions of the code of conduct and the decrees referred to in Article 10, which give effect to the provisions of § 1^erParagraph 1^er, 1°, 2° and 4° of this article; and
3° of the provisions of paragraphs 3 and 4.
For the exercise of her surveillance mission, she has
1° in respect of lenders and credit intermediaries of the powers referred to in Articles 34, § 1^er1°, 36 and 36bis of the Act of 2 August 2002;
2° in respect of any natural person and legal person, the competences referred to in Article 35, §§ 1^er and two of the same law.
Loans and credit intermediaries establish appropriate policies and procedures and apply the necessary organizational and administrative arrangements to ensure compliance with the provisions set out in sections 4 to 8.
They shall ensure that the data relating to the credit award process is retained to enable FSMA to monitor compliance under sections 4 to 8.
CHAPTER 10. - Transitional provision and entry into force
Art. 16. This Act applies to credit contracts entered into from the date of its entry into force.
This Act comes into force ten days after its publication to the Belgian Monitor.
By derogation from the previous paragraph, articles 5, 6, 7, 8, and 11 come into force on the date fixed by the King and no later than the first day of the third month following the date of their publication to the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 21 December 2013.
PHILIPPE
By the King:
Minister of Finance,
K. GEENS
Minister of Average Classes, E.P., Independents and Agriculture,
Mrs. S. LARUELLE
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2013-2014.
House of Representatives.
Parliamentary documents. - Bill No. 53-3088/001. - Amendments, No. 53-3088/002. - Text adopted by the Commission, No. 53-3088/004. - Text adopted in plenary and transmitted to the Senate, No. 53-3088/005.
Full report: 5 December 2013.
Senate.
Parliamentary documents. - Project transmitted by the Chamber, No. 5-2389/1. - Text adopted by the Commission: not amended. - Text adopted in plenary and subject to Royal Assent: not amended.
Annales: December 17, 2013.