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26 DECEMBER 2013. - Act respecting various provisions concerning thematic loans (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - Introductory provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - Definitions and scope
Art. 2. For the purposes of this Act, are defined as follows:
1° vouchers: securities other than capital referred to in Article 16, § 1^er, 6°, of the Act of 16 June 2006 relating to public tenders of investment instruments and admissions of trading instruments to regulated markets issued continuously or repeatedly by credit institutions;
2° term deposit: a long-term deposit and interest rates previously set;
3° insurance contract: an insurance contract under branch 21 "A life insurance, not related to an investment fund, with the exception of nuptiality and birth insurance" as set out in Schedule I to the Royal Decree of February 22, 1991 establishing general regulations for the control of insurance companies.
4° private investors: investors who are not qualified investors within the meaning of section 10 of the Act of 16 June 2006 on public tenders of investment instruments and admissions of trading instruments in regulated markets;
5° credit institution: a Belgian credit institution with an approval in accordance with Article 7 of the Act of 22 March 1993 relating to the status and control of credit institutions or a credit institution that is under another member state of the European Economic Area and which carries out banking activities in Belgium under Title III of the Act of 22 March 1993 relating to the status and control of credit institutions;
6° insurance company: a Belgian legal insurance company or under the law of a non-member State of the European Economic Area approved on the basis of article 2bis of the law of 9 July 1975 relating to the control of insurance companies or an insurance company under the right of another Member State of the European Economic Area that operates in Belgium on the basis of Chapter Vter of the law of 9 July 1975
7° Recipient of the funding: an authority, a public body or a company, whether or not in a collaborative agreement;
8° authority: the State and its territorial authorities;
9° public body: organizations and individuals as referred to in Article 2, 1°, (c) and (d), the Public Procurement Act of 15 June 2006 and certain contracts of work, supplies and services;
10° company: a company referred to in Article 1^er the Act of 17 July 1975 relating to the accounting of enterprises, which does not act as a consumer within the meaning of Article 2, 3°, of the Act of 6 April 2010 on market practices and consumer protection, or a non-profit association, which are established in Belgium or in another Member State of the European Economic Area and which have an institution through which they operate all or part of their activities in Belgium;
11° Eligible project: a project with a socio-economic or societal purpose, and whose income is subject to tax in Belgium;
12° funding: any credit contract of a minimum seven-year term, for which a credit institution grants or grants credit to the beneficiary of the financing, in the form of a loan, or any other comparable financing, including furniture or real estate leasing or any direct or indirect investment of a minimum of seven years by an insurance company in a beneficiary of the financing;
13° Thematic loan-citizen: the activity of an institution of credit to collect money through the issuance of cash vouchers or the opening of term accounts under the conditions and terms set out in this Act and uses these funds to finance eligible projects or the activity by which an insurance company attracts financing means by offering insurance contracts under the conditions and terms determined in this Act and
14° BNB: the National Bank of Belgium as referred to in the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium;
15° the FSMA: the Autorité des Services et Marchés Financiers as referred to in section 2, paragraph 1^er, 21°, of the Financial Sector Supervision and Financial Services Act of 2 August 2002.
16° active sufficiently liquid and at low risk: debt securities issued or guaranteed by central administrations, issued by central banks, international organizations, multilateral development banks or regional or local authorities of the Member States, which would receive a risk weight of 0% pursuant to the provisions of Part III, Part II, Chapter II (standard method) of Regulation No. 575/2013 of the European Parliament and of the Council of June 26, 2013
Art. 3. This Act is applicable to credit institutions and insurance companies that offer thematic loans in Belgian territory.
CHAPTER 3. - Modalities for the collection of funding for thematic loans
Section 1^re. - Collection of funds by credit institutions
Art. 4. For the purpose of financing eligible projects, credit institutions may, from the date of coming into force of this Act, appeal to savings through the issuance of cash or the opening of term deposits.
By deliberate order in Council of Ministers on the proposal of the Minister of Economy and the Minister of Finance, the King may determine the maximum amount of funding that may be collected annually pursuant to paragraph 1^er. This maximum amount is apportioned among the credit institutions in accordance with the terms defined in the Royal Decree of 17 July 2012 on the coverage of the operating costs of the National Bank of Belgium related to the control of the financial institutions, pursuant to Article 12bis, § 4, of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium.
The cash vouchers referred to in paragraph 1st meet the following conditions:
a. they are not subordinate, convertible or exchangeable;
b. they do not give the right to subscribe or acquire other types of securities and are not related to a derivative instrument;
c. they produce the receipt of refundable deposits;
d. they are at least 5 years of age and may not be reimbursed before the expiry of this period, except in case of death;
e. they are covered by a deposit guarantee system in accordance with Directive 94/19/EC on deposit guarantee systems;
f. minimum cash intake as referred to in paragraph 1 is not more than 200 euros;
g. sufficient access to private investors;
h. The rate of interest granted is consistent with the market.
The term accounts referred to in paragraph 1 meet the following conditions:
a. they are not subordinate;
b. they produce the receipt of refundable deposits;
c. they are at least 5 years of age and may not be reimbursed before the expiry of this period, except in case of death;
d. they are covered by a deposit guarantee system in accordance with Directive 94/19/EC on deposit guarantee systems;
e. the minimum intake by term deposit as referred to in paragraph 1 shall not exceed 200 euros;
f. they are sufficiently accessible to private investors;
g. the interest rate that is granted is consistent with the market.
By deliberate order in Council of Ministers on the proposal of the Minister of Economy and the Minister of Finance, the King may determine the formula for calculating the minimum interest rate applicable to each credit institution concerned to the credit vouchers issued or term deposits opened under this Act.
The King may, on the proposal of the Minister of Economy and the Minister of Finance, and after the advice of the FSMA, determine the rules to ensure that cash and term accounts are sufficiently accessible to private investors.
Section 2. - Collection of financing by insurance companies
Art. 5. For the purpose of financing eligible projects, insurance companies may, from the date of the coming into force of this Act, raise funding by offering insurance contracts that meet the following conditions:
a. the insurance transaction has a minimum duration of 10 years;
b. the insurance transaction is concluded against payment of a single premium;
c. by derogation from article 114, paragraph 1^er, from the law of June 25, 1992 on the land insurance contract, the insurance taker may make a maximum annual purchase of 5% of the theoretical redemption value;
d. the awarded guaranteed return is in accordance with the market and is not less than the guaranteed return for the proposed similar insurance transactions with the same duration by the relevant insurance company;
e. the contract provides for death coverage equal to the life benefit inventory reserve;
f. the insurance contract is covered by the Special Fund for the Protection of Deposits, Life Assurance Contracts and Capital of Chartered Cooperative Corporations, as set out in the Royal Decree of 14 November 2008 implementing the Act of 15 October 2008 on measures to promote financial stability and in particular establishing a State guarantee relating to credits granted and other transactions carried out in the context of financial stability,
g. the minimum commercial premium by insurance contract as referred to in paragraph 1^er up to 200 euros;
h. the insurance transaction is sufficiently accessible to private investors.
By deliberate order in the Council of Ministers on the proposal of the Minister of Economy and the Minister of Finance, the King may determine the maximum amount of funding that may be collected annually pursuant to paragraph 1st. This maximum amount is distributed among insurance companies in accordance with the terms defined in the Royal Decree of 17 July 2012 on the coverage of the operating costs of the National Bank of Belgium related to the control of financial institutions, in accordance with Article 12bis, § 4, of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium.
The King may, on the proposal of the Minister of Economy and the Minister of Finance, and after the advice of the FSMA, determine the rules to ensure that the insurance transaction is sufficiently accessible to private investors.
Section 3. - Interbank loans
Art. 6. For the purpose of financing eligible projects, credit institutions may, from the date of entry into force of this Act and without prejudice to section 10, enter into interbank loans with another credit institution.
Interbank loans referred to in paragraph 1^er are granted exclusively by means of funding collected by the issuance of vouchers or the opening of term deposits that meet the requirements of section 4.
Credit institutions that enter into interbank loans are not allowed to use the means of financing thus acquired to grant interbank loans themselves.
Credit institutions that grant interbank loans under this section shall ensure the final assignment of such loans in accordance with sections 9 to 11 of this Act.
Section 4. - Accounting treatment
Art. 7. The means of financing which are collected by credit institutions in accordance with Article 4, the income of the assets referred to in Article 11, § 1^er, and inter-bank borrowings entered into in accordance with Article 6, as well as funding [and inter-bank loans granted through these funds and assets acquired under Article 11, shall be included in separate accounts specifically provided for this purpose of the accounting of the credit institution in such a way that these means of financing and assignment may be identified.
The funding provided by means of financing collected by insurance companies in accordance with Article 5 is a cantoned fund within the meaning of Article 57 of the Royal Decree of 14 November 2003 on life insurance activity.
On the proposal of the Minister of Finance, the King may specify more detailed accounting rules as defined in the preceding paragraphs.
Section 5. - Mandatory information
Art. 8. In the advertisement as well as in any other documents, contractual or non-contractual and announcements relating to cash vouchers, term deposits issued or opened pursuant to this Act or insurance contracts offered under this Act, it is explicitly mentioned that cash vouchers are issued, term deposits are opened or insurance contracts are offered under the Act of 26 December 2013 on thematic loans and that the provisions of this Act apply.
CHAPTER 4. - Allocation of funding through thematic citizen loans
Section 1^re. - Eligible projects
Art. 9. In order to take into account for funding under a thematic loan, projects must have a socio-economic or societal purpose. The King determines, by order deliberately in Council of Ministers on the proposal of the Minister who has the Finance in his office and the Minister who has the Economy in his office, the list of projects that meet these criteria.
At the request of the funding recipient, the Minister of Finance makes a preliminary notice on the compliance of a project with the criteria contained in the Royal Order referred to in paragraph 1^er. The King, on the proposal of the Minister of Finance, rules the procedure for requesting notice.
Section 2. - Authorized allocation of funding
Art. 10. The means of financing collected in accordance with Article 4 shall be allocated in the year up to 90% to the financing of eligible projects or to the granting of an interbank loan in accordance with Article 6.
To meet the requirement under paragraph 1^er, credit institutions and insurance companies are authorized to:
1° finance joint projects, either in the form of credit consolidation or another form of co-financing;
2° to allocate the funds collected for the financing of projects through public-private collaboration;
3° affect the funding resources collected for the partial funding of a project.
Art. 11. § 1^er. Pending their allocation to eligible projects in accordance with Article 10, the funds collected are invested in liquid and low-risk assets.
The assessment of the means of financing that, within the limits set out in section 10, should not be allocated to the grant of eligible projects must also be invested in liquid and low-risk assets.
Assets referred to in the preceding paragraphs must be paid in accordance with the market. They may not be assigned as cover assets as referred to in Article 64/3, § 3, 2°, of the Act of 22 March 1993.
Revenues of assets referred to in paragraph 1^er shall be allocated for the financing of projects, if any after deduction of interest paid to holders of cash or term deposits issued or opened under section 4 or after deduction of interest or beneficiary interest due to insurance holders of insurance contracts offered under section 5.
§ 2. The BNB may, on a reasoned request from the credit or insurance company, grant a temporary exception to the provisions of subsection 1^er for prudential reasons. In this case, the BNB simultaneously imposes measures to ensure that the credit or insurance company meets the obligation referred to in Article 10.
Section 3. - Mandatory information
Art. 12. Advertising, as well as any other document, whether contractual or non-contractual, and funding advice under this Act, formally mention that funding has been agreed under the Act of 26 December 2013 on thematic loans and that the provisions of this Act apply to it.
CHAPTER 5. - Control of thematic loans
Section 1^re. - Control by BNB
Art. 13. The National Bank of Belgium monitors compliance with articles 6, 7, 10 and 11 of this Act. To this end, it has all the powers conferred upon it in accordance with the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium and the special laws applicable to credit institutions and insurance companies.
Art. 14. § 1^er. The credit institutions regularly communicate to the NBB a detailed situation that includes at least the following:
1° the amount of funding collected as referred to in Article 4, broken down into cash, term deposits and interbank loans contracted in accordance with Article 5, as well as income from investments made in accordance with Article 11, § 1^er;
2° an overview of the allocation of funds collected as referred to in sections 9 to 11, broken down into funded projects, investments and interbank loans;
3° the necessary elements enabling the BNB to control whether the conditions of this law and its enforcement orders are met by the credit institution.
The situation is established in accordance with the rules determined by BNB regulation which also sets the reporting frequency. In addition, the BNB may prescribe that other encrypted data or explanations are regularly provided to it in order to verify whether the provisions of this Act or its enforcement orders are complied with.
§ 2. Insurance companies regularly report to the BNB a detailed situation that includes at least the following:
1° the amount of the funds collected as referred to in Article 5 and the income of the investments made in accordance with Article 11, § 1;
2° an overview of the allocation of funds collected as referred to in articles 9 and 11, § 1, broken down into funded projects and investments;
3° the necessary elements enabling the BNB to control whether the conditions of this Act and its enforcement orders are met by the insurance company.
The situation is established in accordance with the rules determined by BNB regulation which also sets the reporting frequency. In addition, the BNB may prescribe that other encrypted data or explanations are regularly provided to it in order to verify whether the provisions of this Act or its enforcement orders are complied with. "
Art. 15. With a view to the effective implementation of this Act and the measures taken pursuant to it, BNB cooperates, where applicable, with the FSMA, as well as with the authorities of other States with similar competence to its own.
BNB may exchange confidential information with these authorities in accordance with the provisions of articles 36/13, 36/14 and 36/16 of the Act of 22 February 1998.
Art. 16. The BNB's fees for the control referred to in this chapter are borne by credit institutions and insurance companies in accordance with the terms set out in the Royal Decree of July 17, 2012 carrying out Article 12bis, § 4, of the Law of February 22, 1998.
Section 2. - Control by FSMA
Art. 17. § 1. FSMA ensures compliance with Articles 4, paragraphs 3 and 4, Article 5, paragraph 1^erand section 8 of this Act.
§ 2. Without prejudice to the application of section 18, and with the exception of the control of sections 5 and 8, with respect to insurance contracts, the control of the MSDS shall be exercised prior to the issuance of a new type of cash or the opening of a new type of term deposit. When the period of offer of a cash or term deposit exceeds the six months, a new screening takes place every six months.
FSMA may determine by regulation the information to be provided by credit institutions in the event of prior inspection in accordance with § 2, paragraph 1^er. This information contains at least the documents referred to in Article 8. FSMA shall take action within five working days of receipt of this information.
Credit institutions may only publish the documents referred to in Article 8 if the MSDS has communicated no objection in this regard, given the requirements set out in Article 4, paragraphs 3 and 4, and Article 8.
§ 3. Without prejudice to the application of section 18, insurance companies may apply to the MSDS, prior to the offer of a new type of insurance contract, to conduct a screening check of compliance with sections 5 and 8. When, in the case of such an application, the period of offer of an insurance contract exceeds the six months, prior checks shall be made every six months.
FSMA determines by regulation the information that insurance companies must provide in the case of such an application. This information includes at least the documents referred to in Article 8 The FSMA is within five business days of receiving this information.
§ 4. For the purposes of §§ 2 and 3, an instrument is of a new type, if this instrument has other characteristics in relation to the instruments previously submitted to the MSDS, including the interest rate, except if it is a rate of interest resulting from the application of adjustment criteria previously fixed in the offer.
§ 5. For the exercise of the powers of this section, FSMA has all the powers conferred on it by the Financial Sector Supervision and Financial Services Act of August 2, 2002, and by the special laws applicable to credit institutions.
Art. 18. Credit institutions and insurance companies regularly communicate to the FSMA a detailed situation that includes at least the following:
1° in respect of credit institutions, the amount of the funds collected under section 4, broken down on the one hand in cash and term deposits, and on the other hand, whether or not the means of financing come from individual investors;
2° with respect to insurance companies, the amount of the funds collected referred to in Article 5, broken down according to whether or not the means of financing come from individual investors;
In addition, FSMA may request credit institutions and insurance companies all other necessary elements to control whether the conditions of this Act and its enforcement orders under its control are met by the credit institution or the insurance company.
The content of the above-mentioned situation is established by regulation by the MSDS which also sets the reporting frequency.
Art. 19. In the event of non-compliance with the provisions of this law which it monitors compliance, FSMA may take the measures referred to in Article 67, § 1^er, i) to o), and §§ 2 to 5, of the Act of 16 June 2006 relating to public tenders of investment instruments and admissions of instruments for trading in financial markets and article 36 of the Act of 2 August 2002 on the supervision of the financial sector and financial services.
Art. 20. With a view to the effective implementation of this Act and the measures taken pursuant to it, FSMA cooperates, where applicable, with the BNB, as well as with the authorities of other States with similar competence to its own.
FSMA may exchange confidential information with these authorities in accordance with the provisions of articles 75 and 77, §§ 1^er and 2 of the Financial Sector Supervision and Financial Services Act of 2 August 2002.
CHAPTER 6. - Criminal provisions
Art. 21. Without prejudice to the application of more severe penalties under the Penal Code, will be punished by imprisonment from one month to one year and a fine of 50 euros to 10,000 euros or only one of these penalties that:
- breaches the provisions of articles 6, 7, 10 or 11 or orders made under them;
- does not comply with a command taken by the MSDS under section 19;
- refuses to provide the information and documents requested by the BNB or the MSDS for the control of the application of this Act and the orders and regulations made for its execution or that opposes the investigative measures taken by the BNB or the MSDS or that makes a false statement.
Art. 22. Any information from the offence leader under the provisions referred to in section 21 against a credit institution or an insurance company must be brought to the attention of the Federal Public Service Finance by the judicial authority that is seized of it.
CHAPTER 7. - Tax provisions
Art. 23. Article 171, 3° quinquies, of the Income Tax Code 1992, inserted by the Act of 28 December 2011 on various dipositions, is supplemented as follows: "
"and income from cash or term deposits that are proposed by credit institutions for the financing of a thematic loan as referred to in the Act of 26 December 2013 and provided that such credit or term deposits are in accordance with the criteria and conditions specified in the said Act;"
Art. 24. In section 269 of the same Code, replaced by the Program Act of 27 December 2012 and last amended by the Act of 21 December 2013 on various tax and financial provisions, the following amendments are made:
1° In § 1^er, 1°, the words "in the provisions under 2° to 4°" are replaced by the words "in the provisions under 2° to 4° and 7°";
2° § 1^er is supplemented by the 7th written as follows:
"7° to 15 pc. for income from cash or term deposits that are proposed by credit institutions for the financing of a thematic loan as referred to in the law of 26 December 2013 and provided that such credit or term deposits meet the criteria and conditions specified in the said law."
Art. 25. In article 175/3 of the Code of Miscellaneous Duties and Taxes, a paragraph 3 is inserted, which reads as follows:
"By derogation from paragraph 1^er, the tax is reduced to 1.10 per cent for insurance contracts that meet the criteria and conditions of the Act of December 26, 2013, with various provisions for thematic loans. ".
Art. 26. Where it can only be determined that the means of financing collected by the issuance of cash or the opening of term deposits under section 4 have been processed and allocated in accordance with sections 6, 7, 10 and 11, the credit institution concerned shall be liable to the payment of an amount equal to 10% of the revenues paid or allocated to the holders of the relevant cash or term deposits.
The debt of the credit institutions of the head of the application of the preceding paragraph constitutes a tax debt. Its recovery is carried out in accordance with the rules applicable to movable pre-payment.
The rates of the movable pre-payment and the tax of the natural persons provided for in sections 23 and 24 remain for the holders of the relevant cash and term deposits.
Art. 27. Where it cannot be determined that the financing resources collected by the offer of insurance contracts under Article 5 have been processed and allocated in accordance with Articles 7 and 11, § 1^er, the insurance company concerned is required to pay the difference between the amount of the tax deducted annually on insurance transactions on the premium(s) paid and the amount of the annual tax on insurance transactions that would have to be payable on the premium(s) of the insurance contract if it had not been offered under this Act.
The debt of the insurance company of the head of the application of paragraph 1^er constitutes a tax debt. Its recovery is carried out according to the rules applicable to the annual insurance tax.
The rate of the annual insurance tax referred to in section 25 remains for the insurance licensees of the insurance transactions concerned.
CHAPTER 8. - Evaluation
Art. 28. This Act and its enforcement orders are subject to an evaluation.
The Minister who has the Finance in his or her powers and the Minister who has the Economy in his or her powers shall prepare an assessment report that is submitted to the Council of Ministers within two years of the coming into force of this Act.
CHAPTER 9. - Entry into force
Art. 29. This Act comes into force on 1^er January 2014.
Sections 23 and 24 apply to interest paid or awarded from 1^er January 2014.
Orders made pursuant to this Act shall lose all effect if they are not ratified by law no later than two years after the date of their entry into force.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 26 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. 53-3217/001. - Annexes, No. 53-3217/001. - Text adopted by the Commission, No. 53-3217/004. - Text adopted in plenary and transmitted to the Senate, No. 53-3217/005.
Full report: 18 December 2013.
Senate
Parliamentary documents. - Project transmitted by the Chamber, No. 5-2418. - Text adopted by the Commission: not amended. - Text adopted in plenary and subject to Royal Assent: not amended.
Annales: December 19, 2013.