Posted the: 2013-12-31 Numac: 2013003461 SERVICE PUBLIC FÉDÉRAL FINANCES 21 December 2013. -Law on 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 have adopted and we endorse the following: Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
-Definitions and scope article 2. for the purposes of this Act, are defined as follows: 1 ° the credit intermediary: a natural or legal person who is not acting as a lender and which, within the framework of the exercise of its business or professional, against remuneration, which may be pecuniary or take any other form of economic benefit subject to an agreement: a) presents or offers credit business contracts;
b) assists companies by carrying out credit of other preparatory work contracts than those referred to in point a);
(c) concludes credit agreements with companies on behalf of the lender. Is equated to it, the person who offers or consents credit agreements, where these contracts are the subject of assignment or subrogation immediate benefit another lender approved, designated in the contract;
2 ° the lender: any physical or legal person or any group of persons who grants credit in the context of his commercial or professional activities, with the exception of the person or a group of persons who offers or concludes a credit agreement when the contract of assignment or subrogation immediate for the benefit of a designated in the contract approved lender;
3 ° credit agreement: any agreement whereby a creditor grants or promises to grant to a company a credit in the form of a loan or any other similar facility, with the exception of credit agreements falling under the application of the consumer credit Act of 12 June 1991 and act of 4 August 1992 on mortgage credit;
4 ° the company: the company as referred to in article 2, paragraph 1, 1 °, of the law of April 6, 2010 on market practices and consumer protection, or the person exercising a liberal profession as referred to in article 2, paragraph 1, 1 °, of the Act of 2 August 2002 on misleading advertising and comparative advertising unfair and distance contracts in relation to the liberal professions, which at the time of the request for credit to the criteria fixed in article 15, § 1, of the Code of corporations.
S. 3. this Act applies to credit agreements concluded with a company having its registered office in the European economic area, or establishment provided that: 1 ° the lender performs its commercial or professional activity in Belgium, or 2 ° the lender by any means, directs this activity to the Belgium or to several countries, including the Belgium, and that the credit agreement falls under this activity in Belgium.
CHAPTER 2. -Duty of rigorous art. 4. the lender, the credit intermediary and Enterprise behave in good faith and fairly in their mutual legal relations. The information they provide must be correct, clear and not misleading.
CHAPTER 3. -Duty to information art.
5. the lender and, where appropriate, the credit intermediary asked the company seeking a credit agreement and, where appropriate, to the person who constitutes a personal safety, relevant information that they consider necessary in order to assess the feasibility of the proposed project for which credit is requested, their financial situation and repayment abilities, and their ongoing financial commitments. The company and, if applicable, the person which is a personal safety are required to respond accurately and complete.
S. 6. the lender and, where applicable, the credit intermediary seek, under the credit agreements they usually offer or for which they are usually the type of credit best suited, taking into account the financial situation of the company at the time of the conclusion of the credit agreement and of the purpose of the credit.
S. 7 § 1. Lenders and, where applicable, credit intermediaries provide to company, at the time of the request for credit, adequate instructions to enable it to have an overview of the forms of credit that are adapted to him. The explanatory note in any case takes the most important characteristics of the forms of credit tailored to the company and the specific implications related to the company. The leaflet also refers to the name and address of the competent body designated in accordance with article 8, paragraph 2, 2 °, of the law of 22 March 2006 on intermediation in banking services and investment services and the distribution of financial instruments.
§ 2. It is presented to the company at the time of the supply of credit, on simple request and free of charge a copy of the draft credit agreement.
Draft credit agreement is annexed, on the same media, a brief Backgrounder, whose content is fixed by the code of conduct referred to in article 10.
This section does not apply if, at the time of the request, the lender is not willing to conclude the credit agreement with the company.
CHAPTER 4. -Refusal to grant a credit art.
8. in the event of refusal to grant a credit, the lender and, where applicable, the credit intermediary shall inform the company of the essential elements on which the refusal is based or who have influenced the assessment of risk, and transparently and in understandable terms to the company either in writing, orally or. The company can get that verbal notification be clarified in writing.
This provision shall not affect the contractual freedom of the lender and does not qualify for the credit for the company.
CHAPTER 5. -Prepayment s. 9 § 1. The company has the right to refund in whole or in part and at any time the balance of the outstanding capital balance in advance, although this right may be subject to the fulfillment of additional conditions, with the exception of reinvestment allowance as defined in § 2.
Notify the lender of its intention by registered mail, at least ten working days before the refund.
§ 2. If credit cannot be qualified loan interest as referred to in article 1907bis of the civil Code, the allowance for re-use, if it has been stipulated, cannot exceed six months interest, calculated on the amount repaid and the rate specified in the contract, for loans to companies with the initial amount does not exceed EUR 1 million.
For credits to the companies which the amount exceeds EUR 1 million, without prejudice to article 1907bis of the civil Code, the amount of reinvestment allowance is determined contractually between the lender and the company, being understood that this amount must be in accordance with the terms of calculation laid down in this respect in the code of conduct referred to in article 10.
§ 3. No indemnity is payable in the following cases: the prepayment in execution of a contract of insurance for conventionally to guarantee repayment of the credit, the consolidation of existing loans from the same lender, or the non-substantial amendment of the credit agreement.
CHAPTER 6. -Code of conduct art.
10 § 1. Employers representative, referred to in article 7 of the statutes address of May 28, 1979 on the Organization of the Middle Classes, who defend the interests of SMEs and the representative of the credit sector are responsible for developing by mutual agreement within a period of three months following the publication in the Moniteur belge of this Act, a code of conduct, which requires at least the following : 1 ° the content and the form of the explanatory and succinct Backgrounder such as referred to in article 7, §§ 1 and 2, paragraph 2;
2 ° modalities in what concerns information that is deemed necessary to assess the financial situation and faculties of repayment of the company as referred to in article 5, paragraph 1, in particular documents that the company must provide to the lender to prove;
3 ° the terms of calculation of the indemnity for re-use for loans to such 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 refusal of granting of 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 are confers binding by royal decree deliberated in the Council of Ministers.
§ 2. Absence of the code of conduct referred to the § 1 within a period of three months following the entry into force of this Act or in the absence of ratification by the King as referred to in the preceding paragraph, the King is empowered to establish modalities for the provisions in the § 1, 1 ° to 4 °, by royal decree deliberated in the Council of Ministers.
CHAPTER 7. -Civil penalties and unfair s. 11. If the lender, or if applicable credit intermediary, has failed or has contravened the provisions referred to in article 6, the judge may, without prejudice to the consequences of common law, order the conversion without the credit charges in a form of credit whose type is better suited, in light of the financial situation of the company at the time of the
conclusion of the credit agreement and of the purpose of the credit.
The conversion referred to in paragraph 1 is not considered to be a debt refinancing. The existing collateral and guarantees are maintained.
The conversion referred to in the first subparagraph only takes effect only as from the date of the decision of the court seised.
S. 12. in the event of a violation of article 9, § 2, paragraph 1, and paragraph 3, reinvestment allowance is limited to the allowance provided for by those 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 determines in fairness the compensation due, in accordance with the calculation set out in that regard in the code of conduct referred to in article 10.
Is void of full right, any penalty clause, regardless of how it is formulated, which assigns to the lender, directly or indirectly, an additional amount in the event of early repayment, in addition to the allowance provided for in article 9, §§ 2 and 3.
S. 13. in contracts concluded between a lender and a business credit, are in any case abusive clauses or the combinations of clauses and conditions which are designed to: 1 ° provide an irrevocable company commitment, while the performance of the lender is subject to a condition which depends on his own will;
2 ° except in the case of non-observance on the part of the enterprise, authorize the lender to unilaterally terminate the contract term, without reasonable compensation to the company, except for the cases of force majeure;
3 ° except in the case of non-observance on the part of the enterprise, authorize the lender to unilaterally terminate the contract without a reasonable period of notice for the company, apart from the case of force majeure;
Any abusive clause is prohibited and void.
The contract remains binding on the parties if it can exist without the unfair terms.
CHAPTER 8. -Assessment s. 14. the Act and the code of conduct referred to in article 10 shall be subjected to an assessment every two years.
Upon proposal by the Minister of finance and the Minister for SMEs, the King may make changes to this code of conduct, by royal decree deliberated in the Council of Ministers.
The King lays down the procedures of the assessment referred to in paragraph 1, by royal decree deliberated in the Council of Ministers.
The assessment referred to in paragraph 1 is made after prior notice of the FSMA, of the National Bank of Belgium and the Ombudsman in financial conflicts OMBUDSFIN.
CHAPTER 9. -Control by the FSMA art. 15. the FSMA as referred to in article 2, paragraph 1, 21 ° of the Act of 2 August 2002 on the supervision of the financial sector and financial services monitors compliance of the application: 1 ° sections 4 to 8 and orders adopted in implementation thereof;
2 ° of the provisions of the code of conduct and by-laws referred to in article 10, which give execution to the provisions of § 1, paragraph 1, 1 °, 2 ° and 4 ° of this article;
and 3 ° of the provisions of paragraphs 3 and 4.
For the exercise of its monitoring mission, it has 1 ° with respect to the lenders and intermediaries of credit of the competences referred to in articles 34, § 1, 1 °, 36 and 36A of the law of 2 August 2002;
2 ° with respect to any individual and any legal person the skills referred to in article 35 §§ 1 and 2 of the Act.
Lenders and credit intermediaries are implementing policies and adequate procedures and apply the organizational and administrative provisions necessary to ensure compliance with the provisions laid down in articles 4 to 8.
They shall retain the data relating to the process for granting of credit to the FSMA to monitor compliance with the provisions laid down in articles 4 to 8.
CHAPTER 10. -Provision transitional and coming into force s. 16. this Act applies to credit agreements concluded from the date of its entry into force.
This Act comes into force ten days after its publication in the Moniteur belge.
By way of derogation from the preceding subparagraph, 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 in the Moniteur belge.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given at Brussels, December 21, 2013.
PHILIPPE by the King: the Minister of finance, K. GARG the Minister of Middle Classes, SMEs, the self-employed and Agriculture, Ms. S. LARUELLE. the Minister of Justice, Ms. A. TURTELBOOM sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Note (1) Session 2013-2014.
House of representatives.
Parliamentary papers. -Bill, no. 53 - 3088/001. -Amendments, no. 53-3088/002. -Text adopted by the commission, no. 53-3088/004.
-Text adopted in plenary meeting and transmitted to the Senate, no. 53-3088/005.
Full record: 5 December 2013.
Parliamentary papers. -Draft transmitted by the Chamber, no. 5-2389/1. -Text adopted by the commission: unamended. -Text adopted in plenary meeting and submitted to the Royal assent: unamended.
Annals: 17 December 2013.