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30 JULY 2013. - An Act to strengthen the protection of users of financial products and services as well as the competence of the Autorité des services et marchés financiers (I) (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. § 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
§ 2. This Act provides for the transfer of certain provisions of Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010 amending Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC, 2004/109/EC, 2005/60/CE, 2006/48/CE, 2006/49/EC and 2009/65/EC with regard to the competences of the European Supervisory Authority (European Banking Authority)
PART I^er. - Amendments to the Act of 25 June 1992
on the land insurance contract
Art. 2. Section 140 of the Act of 25 June 1992 on the land insurance contract, replaced by the Act of 26 April 2010 and amended by the Royal Decree of 3 March 2011, is supplemented by four paragraphs written as follows:
"If the MSDS finds that an insurance company, an insurance intermediary or a claims settlement office does not comply with the provisions of this Act or the orders and regulations made for its execution, it may enjoin the person or company concerned to be in good standing within the time limit it determines, without prejudice to the possibility of applying, if any, section 21octies of the 1975 Insurance Act.
Without prejudice to the other measures provided by law, if the person or company to which it has directed an injunction remains in default upon the expiry of the above-mentioned period, the MSDS may, as the person or company has been able to assert its means:
1° to inflict on the latter an attack which cannot be, per day delay calendar, greater than 50,000 euros, nor, for the ignorance of the same injunction, greater than 2.500,000 euros;
2° make public its view of the offence or the breach in question.
Without prejudice to the other measures provided for by law, FSMA may, where it finds an offence under this Act or the orders and regulations made for its execution in the head of an insurance company, an insurance intermediary or a claims settlement office, impose an administrative fine on the offender, which cannot exceed, for the same fact or for the same set of facts, 2.500.000 euros.
The treasury and fines imposed under this section are recovered to the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains. "
PART II. - Amendments to the Act of 27 March 1995 on intermediation in insurance and reinsurance and the distribution of insurance
Art. 3. Article 10, paragraph 1^er, of the Act of 27 March 1995 on intermediation in insurance and reinsurance and the distribution of insurance, which was last amended by the Royal Decree of 3 March 2011 and the Act of 13 December 2012, the following amendments are made:
1° to 6° ter, the words "and 12quater" are replaced by the words ", 12quater and 12sexies";
2° the 7° is replaced by the following:
"7° pay the contributions to the operating costs of the MSDS, determined in accordance with section 56 of the Act of 2 August 2002".
Art. 4. In section 10bis, 1°, of the same law, inserted by the law of February 22, 2006 and amended by the law of April 6, 2010, the words "the necessary professional honesty" are replaced by the words "the necessary fitness and professional honesty".
Art. 5. In the title of chapter IIbis of the same law, inserted by the law of February 22, 2006, the words "Required Information" are replaced by the words "Required Information Obligations and Other Rules of Conduct".
Art. 6. In chapter IIbis of the Act, a section 4 entitled "Section 4. Other rules of conduct".
Art. 7. In section 4 of chapter IIbis of the same law, inserted by section 6, an article 12sexies is inserted as follows:
"Art. 12sexies. § 1^er. Insurance intermediaries must act in an honest, fair and professional manner that best serves the interests of their clients. The information they provide must be correct, clear and not misleading.
In their intermediation activity, insurance intermediaries must comply with the rules of conduct applicable to insurance companies. By deliberately decreed in the Council of Ministers, taken on the advice of FSMA, the King may, for all categories of insurance intermediaries or some of them, provide for an appropriate version of these rules of conduct or declare some of these rules in whole or in part not applicable, in order to take into account the particularities of their role.
§ 2. Insurance intermediators only carry their intermediation activity on insurance contracts, which they themselves, their distribution officials, and those referred to in Article 3, paragraph 2, that they occupy, know and are able to explain to customers the essential characteristics.
Insurance companies offer to subscribe only insurance contracts whose distribution managers and the persons referred to in Article 2, § 3, paragraph 2, they occupy, know and are able to explain to customers the essential characteristics.
§ 3. Without prejudice to the provisions of articles 26 and 27 of the Act of 2 August 2002, the King is entitled to establish, by order deliberately in the Council of Ministers, taken on the advice of the FSMA, pursuant to § 1^er and 2, rules of conduct and rules to prevent conflicts of interest, which insurance intermediaries must respect.
§ 4. The King may, by order deliberately in the Council of Ministers, take on the advice of the FSMA, amend, complete, replace or repeal the other provisions of this Act in order to align its contents with the rules of conduct referred to in this section and to ensure consistency with these rules. Orders made under this authorization shall be repealed in full law if they have not been confirmed by law within twelve months after publication to the Belgian Monitor. "
Art. 8. In section 15bis of the Act, inserted by the Act of 22 February 2006 and amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° in paragraph 1^er, 1°, the words "for a maximum amount of 25,000 euros per offence or of maximum 500 euros per day of delay" are replaced by the words "that cannot be, per day of delay, greater than 5,000 euros, nor, for the misgiving of the same injunction, greater than 75,000 euros or, in the case of an insurance company, to 2.500.000 euros. »;
2° in paragraph 2, the words "§3" are replaced by the words "§ 2".
Art. 9. Section 16 of the Act, replaced by the Act of 22 February 2006 and amended by the Act of 31 July 2009 and the Royal Decree of 3 March 2011, is replaced by the following:
“Art. 16. § 1^er. Without prejudice to the other measures provided for by law, FSMA may, when it finds an offence under this Act or the orders and regulations made for its execution in the head of an insurance or reinsurance intermediary, impose an administrative fine on the latter, which cannot exceed, for the same fact or for the same set of facts, 75,000 euros.
Without prejudice to other measures provided for by law, FSMA may, when it finds an offence under this Act or the orders and regulations made for its execution in the head of an insurance or reinsurance company, impose an administrative fine on the latter, which cannot exceed, for the same fact or for the same set of facts, 2.500,000 euros.
§ 2. The fines imposed under this section are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains. "
PART III. - Amendments to the Act of 6 April 1995
relating to the status and control of investment companies
Art. 10. In Article 109, § 2, of the Law of 6 April 1995 on the Status and Control of Investment Companies, inserted by the Law of 2 August 2002 and amended by the Law of 20 June 2005 and the Royal Decree of 3 March 2011, the words "5,000 euros" are replaced, in the French version, by the words " 2.500 euros".
Art. 11. In Article 148, § 4, of the same Act, last amended by the Act of 31 July 2009, the following amendments are made:
1° to 6°, the words ", and 139" are deleted;
2° it is inserted a 6° /1 written as follows:
“6° /1 those who do not comply with articles 137, paragraph 1^er, and 139".
PART IV. - Amendments to the Act of 2 August 2002
Financial Sector Monitoring and Financial Services
Art. 12. Article 2, paragraph 1^er, of the Act of 2 August 2002 on financial sector oversight and financial services, which was last amended by the Royal Decree of 12 November 2012, the following amendments are made:
1° 21° is replaced by the following:
« 21° « FSMA » : the Autorité des services et marchés financiers, in German « Autorität Finanzielle Dienste und Märkte » and in English « Financial Services and Markets Authority »; »;
2° 27° is supplemented by the words ", as well as any natural or legal person who uses other financial services or financial products referred to in the relevant provision";
3° on 39°, repealed by the Royal Decree of March 31, 2011, is reinstated in the following wording:
"39° "financial products": savings, investment or insurance products; »;
4° on 40°, repealed by the Royal Decree of March 31, 2011, is reinstated in the following wording:
"40° "financial services": services that relate to one or more financial products; "
5° the paragraph is supplemented by the 42°, 43°, 44° and 45° written as follows:
"42° "saving account": an account that materializes the receipt of money deposits by credit institutions referred to in section 68bis, paragraph 1^er, 1°, of the Act of 16 June 2006 relating to public tenders of investment instruments and admissions of instruments of placement in regulated markets, excluding payment accounts within the meaning of section 2, 8°, of the Act of 10 December 2009 on payment services;
43° "ESMA": the European Financial Markets Authority (European Securities and Markets Authority) as established by European Regulation No. 1095/2010 of the European Parliament and Council of 24 November 2010;
44° "EBA": the European Banking Authority (European Banking Authority) as established by European Regulation No. 1093/2010 of the European Parliament and the Council of 24 November 2010;
45° "EIOPA": the European Insurance and Occupational Pensions Authority (European Insurance and Occupational Pensions Authority) as established by European Regulation No. 1094/2010 of the European Parliament and the Council of 24 November 2010. "
Art. 13. In section 3 of the Act, replaced by the Royal Decree of 27 April 2007, the following amendments are made:
1° in paragraph 1^erParagraph 3 is replaced by the following:
"The list of Belgian regulated markets approved under paragraph 1^er and any changes to this list are published to the Belgian Monitor by the Minister. The Minister communicates this list to ESMA, other Member States and the European Commission. Each amendment results in a similar communication. The list is posted on the FSMA website. »;
2° Paragraph 3 is supplemented by a paragraph which reads as follows:
"Any withdrawal of approval is notified to ESMA. "
Art. 14. In section 7, § 6, of the Act, paragraph 2, inserted by the Royal Decree of 27 April 2007 and amended by the Royal Decree of 3 March 2011, is replaced by the following:
"Without prejudice to §§ 3 and 4 and notwithstanding the possibility of Belgian regulated market companies to directly inform market companies organizing other regulated markets, the market company organizing a Belgian regulated market that suspends the negotiation or deletion of a financial instrument makes its decision public and communicates relevant information to the FSMA. FSMA informs ESMA and relevant authorities of other Member States. "
Art. 15. Section 10 of the Act, paragraph 8, replaced by the Act of 2 May 2007 and amended by the Royal Decrees of 19 December 2010 and 3 March 2011, is replaced by the following:
Ҥ 8. The Public Prosecutor's Office informs the FSMA of any summons it makes, for a bankruptcy declaration or for the purposes of the Business Continuity Act of January 31, 2009, with respect to a issuer whose financial instruments are allowed to negotiate on a regulated Belgian or foreign market.
The Registrar of the Commercial Court shall inform FSMA, as soon as possible and no later than twenty-four hours, of any request for the commencement of a judicial reorganization procedure filed by a transmitter referred to in paragraph 1^erany decision made by the court to declare a bankruptcy in respect of such a transmitter, any decision made by the president of the court in respect of such a transmitter under section 8, paragraph 1^er, the Bankruptcy Act of August 8, 1997, and any decision made by the court on the report of the delegated judge or on the application or citation of the public prosecutor in respect of such a transmitter under the Act of January 31, 2009 referred to above.
Paragraphs 1^er and 2 do not prejudice the obligations of issuers with respect to information to be provided to the public. "
Art. 16. Article 13, § 1^erin the same Act, as amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° to the single paragraph, the word "two" is replaced by the word "ten";
2° the single paragraph is supplemented by the following sentence:
"Beyond this period, the suspension may be imposed by royal decree, taken on the proposal of the FSMA. »;
3° the paragraph shall be supplemented by two paragraphs as follows:
"In the event of exceptional circumstances disturbing or at risk of disrupting the operation or stability of a Belgian regulated market, one or more financial instruments allowed to negotiate on a Belgian regulated market or issuers of these instruments, FSMA may, after having previously requested the Bank's opinion, take measures to restrict the terms and conditions for the negotiation of financial instruments for a period not exceeding one month. The application of these measures may be extended and, where appropriate, its terms and conditions may be adapted by the MSDS, after having previously requested the Bank's notice and for a period not exceeding three months from the first decision. These measures are made public. Over the above-mentioned period, the application of these measures may be extended by Royal Decree, on the proposal of FSMA.
The measures referred to in paragraph 2 relate directly or indirectly to all financial instruments admitted to negotiations on a Belgian regulated market, or those of those instruments that they cite more accurately. They may relate to the negotiation of these financial instruments both in the relevant market and outside of this market, as well as to the negotiation, in any place, of financial instruments whose value depends on the said financial instruments or which relate to the issuer of these financial instruments or to a company related to the issuer. Actions may include both negotiation and positions related to one or more of the aforementioned financial instruments. "
Art. 17. In the title of chapter II, section 7, of the same law, the words "related" are deleted.
Art. 18. In section 25 of the Act, last amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° in paragraph 3, paragraph 2, the words “§ 1^er, 1°," are replaced by the words "§ 1^er »;
2° in paragraph 3, paragraph 2 is supplemented by the words "or which concern the issuer of a financial instrument referred to in 1° or 2° of the preceding paragraph or a corporation related to that issuer";
3° the article is supplemented by a paragraph 5 as follows:
Ҥ 5. It is prohibited for any person to provide false or misleading information or data or to engage in any other act that constitutes manipulation of the calculation of a reference index.
For the purposes of this paragraph, it is necessary to hear by "reference index" any commercial index or published digit, obtained by application of a formula to the value of one or more underlying assets or prices, including price estimates, interest rates or other values, or survey data, and by reference to which the amount to be paid under a financial instrument is determined.
This paragraph applies to the extent that the acts in question are carried out in Belgium or from Belgian territory, whether the reference index is calculated in Belgium or abroad. "
Art. 19. In section 26 of the Act, replaced by the Royal Decree of 27 April 2007 and amended by the Royal Decrees of 3 March 2011 and 12 November 2012, the following amendments are made:
1° 3 subparagraphs as follows are inserted between subparagraphs 1^er and 2:
"Insurance companies must act in an honest, fair and professional manner that best serves the interests of their customers. The information they provide must be correct, clear and not misleading. These undertakings are, in respect of their transactions in Belgian territory, subject to the other rules of conduct provided for by and under articles 27, 28 and 28bis, except for exemptions provided by or under this Act.
The King may, by order deliberately in the Council of Ministers, take on the advice of the MSDS, declare the rules of conduct provided by and under sections 27, 28 and 28 bis in whole or in part not applicable to insurance companies, in order to ensure that only the types of insurance it determines are subject to these rules or, more generally, to consider the fact that insurance contracts are offered to customers.
The King may also, by order deliberately in the Council of Ministers, taken on the advice of the FSMA, provide for insurance companies a suitable version of some of these rules of conduct, in order to specify the scope and scope of these rules for insurance companies and, more generally, to consider the fact that insurance contracts are offered to customers. Orders made under these authorizations are repealed in full law if they have not been confirmed by law within 12 months of their publication to the Belgian Monitor. The previous sentence does not apply to exemptions from the rules of conduct that are not provided for in sections 27, 28 and 28 bis, but under those sections.
Without prejudice to the foregoing, the King may, by order deliberately in the Council of Ministers, taken on the advice of the FSMA, also provide rules to prevent conflicts of interest, that insurance companies must respect in their transactions in Belgian territory. »;
2° in current paragraph 2, which becomes paragraph 5, the words "in execution of section 28ter" are replaced by the words "by paragraph 2".
Art. 20. In section 27 of the Act, replaced by the Royal Decree of 27 April 2007 and amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° paragraph 1^er is replaced by the following:
« § 1^er. When offering or providing financial products or services, regulated companies ensure that they act in an honest, fair and professional manner that best serves the interests of their customers. When offering or providing investment services, they comply in particular with the rules of conduct set out in paragraphs 2 to 12. »;
2° in paragraph 2, the sentence "All information, including advertising, addressed by the regulated company to potential customers or customers, is correct, clear and not misleading. » is replaced by the following sentence:
"In the supply or supply of financial products or services, all information, including advertising, addressed by the regulated company to customers or potential customers, is correct, clear and not misleading. »;
3° a paragraph 2bis is inserted as follows:
Ҥ 2bis. Paragraphs 1^er and 2 also apply to credit institutions under the law of a member state of the EEA, authorized to carry out their activities in Belgium in the free provision of services, when they market savings accounts on Belgian territory. "
Art. 21. Section 28ter of the Act, inserted by the Act of 2 July 2010 and amended by the Royal Decree of 3 March 2011, is replaced by the following:
« § 1^er. Are covered by this section, the credit institutions referred to in Article 26, paragraph 1^er, as well as credit institutions under the law of an EEA Member State, authorized to carry out their activities in Belgium in the free provision of services.
§ 2. When a credit institution presents a savings account as a savings deposit benefiting from the application of Article 21, 5°, of the Income Tax Code 1992, it must meet the criteria set out in Article 2 of the Royal Decree of 27 August 1993 for the execution of the Income Tax Code 1992.
§ 3. In order to promote the honest, fair and professional treatment of savers, the King can enact rules to promote transparency and comparability of savings accounts marketed in Belgian territory. In this context, the King may make provisions regulating the extent of the offer of savings accounts benefiting from the application of section 21, 5°, of the Income Tax Code 1992, and the conditions under which a credit institution may submit the offer of a savings account.
§ 4. The King may also set rules on the content and mode of presentation of promotional communications and other documents and notices relating to an open savings account with a financial institution.
§ 5. For the purposes of this article, it is necessary to hear by "participants" the holders of a savings account, or the natural or legal persons who wish to enter into a savings account opening contract, and who are not professional customers within the meaning of section 2, 28°. "
Art. 22. Article 29, 5°, of the same law, inserted by the law of 2 July 2010, is supplemented by the following sentences:
"These rules may relate to the negotiation of the financial instruments referred to above both in the relevant market and outside of this market, as well as to the negotiation, in any place, of financial instruments whose value depends on the said financial instruments or that relate to the issuer of these financial instruments or to a company related to the issuer. These rules may also refer to positions relating to one or more of the aforementioned financial instruments. "
Art. 23. In chapter II, section 7, subsection 3, of the Act, a section 30bis is inserted as follows:
"Art. 30bis. On the advice of the Supervisory Board and after having requested at least one month in advance the advice of the Consumer Council, created by the Royal Decree of 20 February 1964 establishing a Consumer Council, the ADMSP's Management Committee may, without prejudice to the competences vested in the Minister with the Economy in its powers, establish regulations that, taking into account the interests of users of financial products or services:
1° prohibit or subject to restrictive conditions the marketing or certain forms of marketing, to retail customers, financial products or certain categories of financial products;
2° promote, by providing for the mandatory mention of a label or otherwise, the transparency of such products, certain categories of such products or risks, prices, remuneration and fees related to such products;
3° recommend a reference questionnaire to define the investor profile of financial products users.
For the purposes of this article, it is necessary to hear by "marketing" the presentation of the product, in any way, in order to encourage the customer or potential customer to purchase, subscribe, adhere to, accept, sign or open the product concerned.
Section 64, paragraph 3, is applicable to these regulations. "
Art. 24. In section 33 of the Act, as amended by the Royal Decree of 3 March 2011, the words "of this chapter" are replaced by the words "of this chapter and of the decrees and regulations made for its execution".
Art. 25. In section 34 of the Act, replaced by the Act of 2 May 2007 and amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° in paragraph 1^er, 1°, the words "or other natural or legal persons subject to the rules concerned" are inserted between the words "financial intermediaries" and the words ", members of one";
2° in paragraph 2, paragraph 3, the words "a Belgian regulated market" are replaced by the words "a Belgian regulated market or MTF".
Art. 26. Article 35, § 1^er, of the same Act, replaced by the Act of 2 May 2007, and amended by the Royal Decree of 3 March 2011, the following amendments are made:
(a) in the 1st, replaced by the Act of 2 July 2010, the words "if investment services are not provided unlawfully" are replaced by the words "if there is no offence as referred to in section 86bis";
(b) Paragraph 1^er is completed by a 3° written as follows:
"3° respond to requests for information from ESMA, IOPA, EBA and the European System Risk Committee. "
Art. 27. In section 36 of the Act, last amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° to § 1^erParagraph 1^er, the words "established in Belgium" are deleted and the words "of its enforcement orders" are replaced by the words "of decrees and regulations made for its execution";
2° in § 2, the words "of his execution orders" are replaced by the words "of the decrees and regulations taken for his execution".
Art. 28. In chapter II, section 8, of the Act, an article 37ter is inserted as follows:
"Art. 37ter. FSMA assumes the missions to the competent authority pursuant to Regulation (EU) No. 236/2012 of the European Parliament and the Council of 14 March 2012 on the uncovered sale and certain aspects of the exchange contracts on credit risk, and ensures compliance with these regulations and arrangements made on the basis or in accordance with these regulations.
Notifications to be sent to FSMA under sections 5 to 8 of the regulations are made on the terms and conditions that FSMA determines and makes public on its website.
FSMA may take the measures and exercise the powers that, under these Regulations, in particular articles 13.3, 14.2, 17, 18 to 23 and 37, fall within the purview of the competent authority. Where these measures or powers relate to sovereign debt securities, the FSMA shall, however, act on the Minister's advice that, within the authority concerned, has the Finance in its responsibilities, or on the advice of the Debt Agency or the other competent authority for the securities of the sovereign debt concerned.
For the purpose of carrying out these missions, FSMA may:
(1) exercise the powers referred to in articles 34, § 1^er, 1°, (a) and (b), and 35 in respect of any natural or legal person;
2° exercise the powers referred to in articles 79, 80, 81, 82, 1 and 2°, 83 and 84 in accordance with the terms provided for in these articles.
Without prejudice to paragraph 4, the MSDS is empowered to require, in some cases, the natural or legal person who enters into a credit risk exchange contract that it provides:
1° an explanation of the purpose of the transaction, indicating whether the transaction is intended to cover a risk or pursue another objective;
2° the information specifying the underlying risk, when the transaction is carried out for cover purposes.
Sections 36 and 37 are applicable in the event of a breach of obligations and prohibitions arising from the above-mentioned regulation and the provisions made on the basis or in accordance with these regulations, as well as in the event of an offence against the measures taken by the MSDS under these Regulations. "
Art. 29. In chapter II, section 8, of the Act, an article 37quater is inserted as follows:
"The FSMA assumes the missions to the competent authority by Regulation (EC) No. 1060/2009 of the European Parliament and Council of 16 September 2009 on credit rating agencies. "
Art. 30. In section 39 of the Act, as amended by the Royal Decrees of 24 August 2005 and 3 March 2011, the following amendments are made:
1° paragraph 2 is supplemented by a 3° written as follows:
"3° that relate to financial instruments that are not allowed to negotiations on alternative markets or trading systems referred to in 1° or 2°, but whose value depends on a financial instrument referred to in 1° or 2° or that concern the issuer of a financial instrument referred to in 1° or 2° or a company related to that issuer. »;
2° the article is supplemented by a paragraph 3 written as follows:
Ҥ3. Are punished by imprisonment from one month to two years and a fine of 300 euros to 10,000 euros, those who provide or attempted to provide false or misleading information or data or who engage or have attempted to engage in any other equivalent act in order to intentionally manipulate the calculation of a reference index.
For the purposes of this paragraph, it is necessary to hear by "reference index" any commercial index or published digit, obtained by application of a formula to the value of one or more underlying assets or prices, including price estimates, interest rates or other values, or survey data, and by reference to which the amount to be paid under a financial instrument is determined.
This paragraph applies to the extent that the acts in question are carried out in Belgium or from Belgian territory, whether the reference index is calculated in Belgium or abroad. "
Art. 31. In section 40 of the Act, amended by the Act of 23 December 2005 and the Royal Decrees of 24 August 2005 and 3 March 2011, the following amendments are made:
1° in paragraph 4, 3°, the words "alternatives referred to in 1° or 2° of the preceding paragraph" are replaced by the words "alternatives referred to in 1° or 2°";
2° in paragraph 4, 3°, the words "financial instrument referred to in 1° or 2° of the preceding paragraph" are replaced by the words "financial instrument referred to in 1° or 2° or that concern the issuer of a financial instrument referred to in 1° or 2° or a corporation related to that issuer";
3° in paragraph 7, the words "in article 39 or" are inserted between the words "infring" and the words "in §§ 1^er2 or 3";
4° in paragraph 8, paragraph 1^erthe words "Article 8, § 1^er, of Council Directive 89/592/EEC of 13 November 1989 on the coordination of regulations relating to initiated operations, are replaced by the words "Article 11 of the Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on initiation operations and market manipulations (market abuse)";
5° in paragraph 8, paragraph 1^er, the words "under articles 5 and 6, second sentence, of the same Directive" are deleted.
Art. 32. In section 45 of the Act, replaced by the Royal Decree of 3 March 2011 and amended by the Acts of 28 July 2011 and 13 November 2011, the following amendments are made:
1° in paragraph 1^erParagraph 1^er2°, point d is repealed;
2° in paragraph 1^erParagraph 1^er, 3°, a, the words "arrested for its execution" are replaced by the words "arrests and regulations made for its execution";
3° in paragraph 1^erParagraph 1^er, 3°, e, the words "3bis" are deleted;
4° in paragraph 1^erParagraph 1^er5°, the words "eparators and investors" are replaced by the words "users of financial products or services and borrowers", and the words "financial services" are replaced by the words "financial services or credits";
5° in paragraph 1^erParagraph 1^er, 6°, the words "separators and investors" are replaced by the words "users of financial products or services";
6° in paragraph 2, paragraph 1^er, before the last draws, the words "the transparency of prices" are replaced by the words "transparent, by the mandatory mention of a label or in any other way, risks, prices".
Art. 33. In the same law, an article 45ter is inserted as follows:
"Art. 45ter. Without prejudice to the exercise of its competence with respect to the institutions and persons referred to in Article 45, § 1^erParagraph 1^er, 2° and 3°, the FSMA may, at least once a year, request external complaints services to provide, in the areas it determines, anonymized and aggregated data on the nature of the most frequent complaints and on the follow-up that has been reserved to them by these services. External complaints services provide the necessary response to these requests. "
Art. 34. In section 49 of the Act, replaced by the Royal Decree of 3 March 2011, the following amendments are made:
1° in paragraph 3, paragraph 2 is repealed;
2° in paragraph 9, the words "11 and 51" are replaced by the words "1°, 2° or 3°";
3° in paragraph 9, the words "and savers" are replaced by the words "and other users of financial products or services";
4° Paragraph 9 is supplemented by a paragraph which reads as follows:
"In order to develop its action plan for the purpose of carrying out the mission referred to in Article 45, § 1^erParagraph 1^er, 6°, the steering committee shall also conduct a public consultation organized in accordance with section 64, paragraph 2, or a more focused consultation of the representatives of the main parties concerned. "
Art. 35. In section 53 of the Act, replaced by the Royal Decree of 3 March 2011, the words "in paragraph 2" are, in paragraph 3, replaced by the words "in paragraph 2".
Art. 36. In section 54, paragraph 2, of the Act, inserted by the Act of 2 July 2010, the following amendments are made:
1° the word "separating" is replaced by the words "users of financial products or services and borrowers";
2° the words "consumers of financial services" are replaced by the words "users of financial products or services and borrowers".
Art. 37. In section 65 of the Act amended by the Royal Decree of 3 March 2011, the following amendments are made:
1st paragraph 1^er is supplemented by the following sentence:
"Without prejudice to paragraph 2, the president of the FSMA, or if any the management committee of the FSMA as a whole, is heard annually by the appropriate committee of the House of Representatives in the month following the publication of the report on the activities of the FSMA. »;
2° in paragraph 2, the words ", or if any, the management committee of the FSMA as a whole" are inserted between the words "President of the FSMA" and the words "may be heard".
Art. 38. In section 72 of the Act, replaced by the Act of 2 July 2010 and amended by the Royal Decree of 3 March 2011, paragraph 3 is supplemented by a paragraph which reads as follows:
"The FSMA informs ESMA when it publishes a decision regarding a breach in Chapter II and provides EMA with an annual overview of decisions made for this type of breach. "
Art. 39. In chapter III of the Act, after section 73, a section 5bis entitled "Section 5bis. Publication of borders".
Art. 40. In section 5bis of chapter III of the Act, inserted by section 39, an article 73bis is inserted as follows:
"Art. 73bis. Where an offence imposed by the MSDS pursuant to this Act or other legal or regulatory provisions governing the missions of the ADMDS is incurred, the ADMSP shall make its decision on its website public in a nominative manner, and the reasons for that decision, as well as the fact that the infringement is incurred, unless the publication is liable to seriously disrupt the financial markets or to cause damage to the financial markets. "
Art. 41. Article 75, § 1^erin the same Act, last amended by the Act of 28 July 2011, the following amendments are made:
1° it is inserted a 1° bis written as follows:
"1° bis to the Bank; »;
2° to 13°, the words "Ministry of Economic Affairs" are replaced by the words "Federal Public Service Economy, SMEs, Average Classes and Energy" and the words "and payment services" are replaced by the words ", market practices and payment services";
3° 14° is replaced by the following:
"to the Belgian Competition Authority; »;
4° it is inserted a 21° written as follows:
"21° within the limits of European regulations and directives, to ESMA, IOPA and EBA and to the European Committee on Systemic Risk. "
Art. 42. Section 77 of the Act, paragraph 1^er, as amended by the Royal Decree of 25 March 2003, is replaced by the following:
« § 1^er. Without prejudice to sections 74 to 76 and the provisions of specific laws, FSMA cooperates with the foreign competent authorities who exercise one or more competencies comparable to those referred to in Article 45, as well as with EMA, EBA and IAOPA, within the limits of European regulations and directives. When it enters into cooperation agreements with other competent authorities, it shall inform ESMA, EBA and IPOA, as appropriate.
When a competent authority of the European Economic Area fails to respond within a reasonable time to a request for information, cooperation, initiation of investigation or on-site verification, including a request for authorization of the presence of members of the MSDS personnel alongside the staff of the foreign authority, or where a competent authority of the European Economic Area rejects such a request, the MSDS may refer to that refusal or that
In particular, FSMA may refer to ESMA cases of inaction or rejection of requests based on Articles 34, § 3, and 77bis for the application of the binding mediation procedure provided for in Article 19 of European Regulation No. 1095/2010. "
Art. 43. In section 77bis of the Act, inserted by the Royal Decree of 27 April 2007, the following amendments are made:
1° in paragraph 1^er, the 4° is replaced by the following:
« 4° Where FSMA is satisfied that acts that violate the provisions of the above-mentioned Directives are or have been done in the territory of another Member State, or that acts infringe on financial instruments negotiated on a regulated market located in another Member State, it shall inform the competent authority of that other Member State and ESMA in such a manner as closely as possible. If FSMA has been informed by an authority of another Member State that identical acts have been carried out in Belgium, it shall take the appropriate measures and communicate to the authority that has informed it and to ESMA the results of its intervention and, to the extent possible, the important elements that have taken place in the interim. The competent authorities of the various Member States which are competent for the purposes of Article 10 of the above-mentioned Directive 2003/6/EC shall consult each other on the follow-up to their action. »;
2° in paragraph 2, paragraph 2 is replaced by the following:
"In such a case, it shall inform the competent authority who has submitted the application and EMA by providing them with information as detailed as possible on the procedure or judgment in question. »;
Paragraph 3 is replaced by the following:
“§3. With regard to the competences referred to in § 1^er, (a),
1° without prejudice to Article 226 of the EC Treaty, FSMA may, when its request for information is not received in a timely manner or is rejected, bring this deficiency to the attention of ESMA in order to enable it to implement the means of action provided for in European Regulation No. 1095/2010;
2° without prejudice to its obligations in the context of criminal proceedings, the MSDS may only use the information it has received from a competent authority for the purpose of exercising the control of compliance with Articles 25 and 25 bis and in administrative or judicial proceedings related to that exercise. However, if the competent authority communicating the information consents to it, the MSDS may use this information for other purposes or transmit it to the competent authorities of other Member States;
3° the FSMA may request that an investigation be conducted by the competent authority of another Member State in the territory of the latter. It may also request that certain members of its staff be allowed to accompany those of the competent authority of that other Member State during the investigation.
A competent authority of another Member State may request an investigation by the MSDS in Belgium. It may also request that certain members of its staff be allowed to accompany those of the MSDS during the investigation.
However, the investigation is fully under the control of the Member State in whose territory it is carried out.
FSMA may refuse to conduct an investigation under an application under paragraph 2 where this investigation is likely to affect the sovereignty, security or public order of Belgium, or where a judicial procedure is already initiated for the same facts and against the same persons in Belgium, or where such persons have already been tried for the same facts in Belgium. In this case, it shall notify the competent authority who has submitted the application and EMA by providing such detailed information as possible on the procedure or judgment concerned.
Without prejudice to Article 226 of the EC Treaty, FSMA may, where its request to initiate an investigation or to allow its staff to accompany those of the competent authority of the other Member State does not receive any action within a reasonable period of time or is rejected, bring this deficiency to the attention of ESMA in order to enable it to implement the means of action provided for in European Regulation No. 1095/2010. "
Art. 44. In section 77ter of the Act, inserted by the Royal Decree of 27 April 2007, paragraph 2 is replaced by the following:
"The minister informs the European Commission, ESMA, as well as other member states of the European Economic Area. "
Art. 45. In the same Act, the title of Section 7 of Chapter III is replaced by the following:
"Inquiries powers, administrative fines and measures in the event of unlawful supply or supply of financial products or services and penal provisions".
Art. 46. In section 78 of the Act, amended by the Act of 14 February 2005 and by the Royal Decree of 3 March 2011, the following amendments are made:
1° a paragraph is inserted between paragraphs 2 and 3:
"The MSDS may also, in respect of any natural person and legal person, be provided with all information necessary to carry out its financial market surveillance mission, referred to in Article 45, § 1^erParagraph 1^er, 1°, to monitor developments related to the monitoring of Belgian, European and international financial markets and to determine the direction of its surveillance policies in this area. »;
2° paragraphs 3 and 5 old, becoming paragraphs 4 and 6, are repealed.
Art. 47. In the same law, an article 78bis is inserted as follows:
"Art. 78bis. Where this Act or other legal or regulatory provisions governing the FSMA's missions confer on FSMA the power to communicate information or documents, the persons or undertakings in question are required to transmit such information or documents to FSMA within the time and form determined by FSMA. Without prejudice to the application of specific provisions of the relevant legislation, sections 36 and 37 are applicable in the event of a breach of that obligation. "
Art. 48. In section 83 of the Act, reinstated by the Act of 2 May 2007, the following amendments are made:
1° in paragraph 1^er4, the words "paragraphs 4 and 5" are replaced by the words "paragraphs 5 to 7";
2° in paragraph 2, paragraph 1^er, the words "of the steering committee" are replaced by the words "of the sanctions committee";
3° in paragraph 2, paragraph 2, the words "of the steering committee" are replaced by the words "of the sanctions commission" and the words "under Article 36, § 2," are deleted.
Art. 49. In the same law, an article 86bis is inserted as follows:
"Art. 86bis. § 1^er. As part of the control referred to in Article 45, § 1^erParagraph 1^er, 5°, FSMA may impose an administrative fine, which cannot exceed, for the same fact or for the same set of facts, 2.500.000 euros, to any person who:
1° operates in Belgium or from Belgian territory the business of insurance or reinsurance enterprise, credit establishment, investment company, management company of collective investment organizations, professional pension institution, mortgage enterprise, exchange office, insurance or reinsurance intermediary, intermediary in banking services and investment services, other adviser §^erParagraph 1^er, 2° or 3°, without having been approved, registered or registered for that purpose in accordance with the applicable legal or regulatory provisions, or after having renounced such approval, registration or registration or having been withdrawn, revoked, revoked or suspended such approval, registration or registration;
2° does not comply with section 137 or section 139 of the Act of 6 April 1995 relating to the status and control of investment enterprises;
3° provides payment services in Belgium without meeting the provisions of sections 5, 39 and 46 of the Act of 21 December 2009 relating to the status of payment establishments, access to the activity of payment service provider and access to payment systems;
4° publicly offers titles of a Belgian collective investment agency or a group investment agency of foreign law, whereas it is not registered or registered in accordance with the Act of 3 August 2012 on certain forms of collective investment portfolio management or when registration or registration has been terminated or revoked, or in the absence of a measure of suspension or prohibition referred to in the aforementioned Act;
5° does not comply with section 68bis of the Act of 16 June 2006 on public tenders for investment instruments and admissions of instruments for trading in regulated markets.
If the same facts or behaviour may result in the imposition of a fine by the MSDS or the Bank both under paragraph 1^er only under the relevant legislation, paragraph 1^er may be applied.
§ 2. FSMA may apply to persons referred to in paragraph 1^er to terminate, immediately or within the time it determines, the activity concerned or to comply, within the time it determines, with the provisions of the relevant legislation.
A person who has been able to assert his or her means and who, at the expiry of the time limit set by the MSDS, fails to comply with an injunction addressed to him or her under paragraph 1^er, the FSMA can inflict a breach that can not, per calendar day, exceed 50,000 euros, nor, in total, exceed 2.500,000 euros.
§ 3. Section 37 applies to fines and fines imposed pursuant to paragraphs 1^er and 2.
§ 4. If it finds the existence of activities referred to in paragraph 1^er or if it has reasonable grounds to consider that such activities exist, the ADMDS may issue a warning. In the interest of users of financial products or services, FSMA may also refer to the facts or circumstances that gave rise to this warning.
FSMA may also publish warnings issued by foreign control authorities in similar materials.
§ 5. If FSMA acts, under this section, against a person who exercises the activity of a professional pension institution in the circumstances described in § 1^erParagraph 1^er, 1°, it may bring the decisions made under the preceding paragraphs that it has the power or obligation to make public, to the knowledge also of the persons and organizations referred to in Article 149, § 2, of the Act of 27 October 2006 relating to the control of professional pension institutions. "
Art. 50. In section 87 of the Act, renumbered by the Act of 2 May 2007 and amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° paragraph 1^er is completed by the 3° and 4° written as follows:
"3° those who do not follow an injunction addressed to them pursuant to section 36 or article 86bis;
4° those who do not comply with the requirements of a judgment or judgment rendered as a result of a cessation action based on Article 125. "
2° a paragraph 2bis is inserted as follows:
Ҥ 2bis. Any use, by the party under the investigation of the auditor referred to in section 70, of information obtained with respect to the investigation or of elements under the investigation, which would have the purpose and effect of obstructing the conduct of the investigation or impairing the privacy, physical or moral integrity or property of a person cited in the record, is to be punished.
Any other person called to lend or lend assistance to the auditor's investigation under section 70 shall be held incommunicado. Whoever violates this secret is punished by the penalties provided for in Article 458 of the Criminal Code. »;
3° in paragraph 3 the words « §§ 1^er and 2 are replaced by the words "§ 1^er2 and 2 bis."
Art. 51. Section 87bis of the Act, inserted by the Royal Decree of 3 March 2011, is supplemented by a paragraph 5, which reads as follows:
“§ 5. Derogation from paragraphs 1^erparagraph 3, 2, subparagraphs 1^er and 3, 3 and 4, the application and control of compliance with this article by mutualist societies referred to in sections 43bis, § 5, and 70, §§ 6, 7 and 8, of the law of 6 August 1990 on mutualities and national mutuality unions, fall within the competence of the Office for the Control of Mutuals and National Mutual Unions.
For the exercise of these competencies, the National Mutual Unions and Mutual Unions Control Board shall apply the provisions of the FSMA regulations pursuant to paragraph 2, paragraph 2. The provisions of this regulation applicable to mutualist companies are made on the advice of the National Mutual Unions and Mutual Unions. When the National Mutual Unions and Mutual Unions Control Board implements the provisions of this Regulation, it is necessary to read "Office for the Control of Mutual Mutuals and National Mutual Unions" instead of "MAF". »
Art. 52. Article 87ter, § 1^erParagraph 3, of the Act, inserted by the Royal Decree of 3 March 2011, is repealed.
Art. 53. In the same law, the title of section 10 of chapter III, inserted by the Royal Decree of 3 March 2011, is supplemented by the words "and access to websites".
Art. 54. Section 87quater of the Act, inserted by the Royal Decree of 3 March 2011, the current text of which will form paragraph 1^er, is supplemented by paragraphs 2 and 3 as follows:
“§2. The establishments referred to in Article 45, § 1^erParagraph 1^er, 2° and 3°, provide FSMA, no later than 10 bank working days following its application, with permanent access to parts of their websites that are reserved for their customers, but without giving access to the individual data of their customers.
§ 3. The provisions of articles 36 and 37 shall apply in the event of a breach of obligations under or under this article. "
Art. 55. In chapter III of the Act after section 87quater, a section 11 entitled
“Section 11. - Mystery shopping.
Art. 56. In section 11 of chapter III of the Act, inserted by section 55, an article 87quines is inserted as follows:
"Art. 87quinquies. To exercise its control over the rules referred to in Article 45, § 1^erParagraph 1^er, 3°, and § 2, the FSMA may charge members of its staff or third parties mandated by its care to visit companies or persons referred to in Article 45, § 1^erParagraph 1^er, 2° and 3°, as well as their actual and employee leaders, independent agents acting on their behalf and their employees, presenting themselves as potential customers or customers, without having to disclose their status as members of the MSDS staff or third parties mandated by the MSDS and without having to specify that the information obtained during this visit may be used by the MSDS for the purpose of exercising its control.
In the context of the mission entrusted to it by Article 45, § 1^erParagraph 1^er, 5°, FSMA may also exercise the power referred to in paragraph 1^er in respect of persons who perform the operations or perform the activities concerned or who are suspected of carrying out these operations or of carrying out these activities, as well as their employees.
The King, on the advice of the FSMA, may extend the exercise of the power of the MSDS referred to in paragraph 1^er the monitoring of compliance with other rules that it indicates to this effect, provided that these are rules that must be applied in direct relations with potential customers or customers and at which the MSDS is responsible for monitoring. "
PART V. - Amendments to the Programme Law (I)
of 24 December 2002
Art. 57. In section 58quater of the Program Law (I) of 24 December 2002, inserted by the Act of 27 October 2006, the following amendments are made:
1° in paragraph 2, the words "will have been heard or at least summoned" are replaced by the words "has been able to assert its means" and the words "a fine at a maximum of 1.875,000 euros per offence or of a maximum of 2.500 euros per day of delay" are replaced by the words "a breach that cannot be, per day of delay, greater than 50,000 euros, or not known, for the misgiving
2° a paragraph 2bis is inserted as follows:
“§ 2bis. Without prejudice to the other measures provided for in this Act or other laws and regulations, FSMA may, where it finds an offence under this Act or the orders and regulations made for its execution, impose an administrative fine on the person responsible, who may not exceed, for the same fact or for the same set of facts, 2.500,000 euros. »;
Paragraph 3 is replaced by the following:
Ҥ3. The treasury and fines imposed under this section are recovered to the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains. "
PART VI. - Amendments to the Act of 28 April 2003 on supplementary pensions and the tax system of supplementary pensions and certain additional benefits in social security
Art. 58. In section 49quater of the Act of 28 April 2003 on supplementary pensions and the tax system of supplementary pensions and certain additional benefits in respect of social security, inserted by the Act of 27 October 2006, the following amendments are made:
1° in paragraph 2, the words "was heard or at least summoned" are replaced by the words "has been able to assert its means" and the words "a fine at a maximum of 1.875,000 euros per offence or of a maximum of 2.500 euros per day of delay" are replaced by the words "a breach that cannot be, per day of delay, greater than 50,000 euros, or known, for the misgiving
2° a paragraph 2bis is inserted as follows:
“§ 2bis. Without prejudice to the other measures provided for in this Act or other laws and regulations, FSMA may, where it finds an offence under this Act or the orders and regulations made for its execution, impose an administrative fine on the person responsible, who may not exceed, for the same fact or for the same set of facts, 2.500,000 euros. »;
Paragraph 3 is replaced by the following:
Ҥ3. The treasury and fines imposed under this section are recovered to the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains. "
PART VII. - Amendments to the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments
Art. 59. Article 8, paragraph 1^erof the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments, as amended by the Acts of 31 July 2009 and 13 December 2012, the 10th is replaced by the following:
"10° pay the contributions to the operating costs of the MSDS, determined in accordance with section 56 of the Financial Sector Supervision Act. "
Art. 60. In section 14 of the Act, the following amendments are made:
1° paragraph 1^er is replaced by the following:
« § 1^er. Intermediaries in banking and investment services must act in an honest, fair and professional manner that best serves the interests of their customers. The information they provide must be correct, clear and not misleading.
Intermediaries in banking and investment services must, in their intermediation activity, comply with the rules of conduct applicable to regulated companies. The King may, by order deliberately in the Council of Ministers, taken on the advice of the FSMA, provide for brokers in banking and investment services a suitable version of these rules of conduct or declare some of these rules in whole or in part not applicable, in order to take into account the particularities of the role of broker. »;
2° it is inserted a paragraph 1^erbis as follows:
« § 1^erbis. Intermediaries in banking and investment services do not carry their intermediation activities into banking and investment services only on products of which themselves and people, referred to in Article 13, who they occupy, know and are able to explain to customers the essential characteristics.
Regulated companies only offer banking services and investment services that deal with products whose people, referred to in section 13, occupy, know and are able to explain to customers the essential characteristics. »;
3° in paragraph 2, the words “of § 1^er are replaced by the words “of § 1^er or § 1^erbis and the words "and in conformity with the provisions of European law" are repealed.
Art. 61. In section 22 of the Act, as amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° in paragraph 1^er, 1°, the words "of up to 250,000 euros per offence or of up to 5,000 euros per day of delay" are replaced by the words "that cannot be, per day of delay, greater than 5,000 euros, nor, for the ignorance of the same injunction, greater than 75,000 euros or, in the case of a regulated company, to 2.500,000 euros. »;
2° in paragraph 2, the words "§3" are replaced by the words "§ 2".
Art. 62. Section 23 of the Act, as amended by the Act of 31 July 2009 and the Royal Decree of 3 March 2011, is replaced by the following:
“Art. 23. § 1^er. Without prejudice to other measures provided for by law, FSMA may, when it finds an offence under this Act or the orders and regulations made for its execution in the head of an intermediary in banking and investment services, impose an administrative fine on the latter, which cannot exceed, for the same fact or for the same set of facts, 75,000 euros.
Without prejudice to other measures provided for by law, FSMA may, when it finds an offence under this Act or the orders and regulations made for its execution in the head of a regulated company, impose an administrative fine on the latter, which may not exceed, for the same fact or for the same set of facts, 2.500.000 euros.
§ 2. The fines imposed under this section are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains. "
PART VIII. - Amendments to the Act of 27 October 2006
on the control of professional pension institutions
Art. 63. In section 150 of the Act of 27 October 2006 on the Control of Professional Retirement Institutions, as amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° to paragraph 1^er, the words "may impose a fine on it for a maximum of 1.875,000 euros per offence or a maximum of 2.500 euros per day of delay" are replaced by the words "may, the institution having been able to assert its means, inflict a breach on it that cannot be, per day delay schedule, greater than 50,000 euros, nor, for the misknowledge of a same in0.000 euros;
2° to paragraph 2, the words "that cannot be less than 2,500 euros or higher, for the same fact, to 1.875,000 euros" are replaced by the words ", which cannot exceed, for the same fact or for the same set of facts, 2.500,000 euros";
3° paragraph 3 is repealed;
4° to paragraph 4, which becomes paragraph 3, the word "finals" is replaced by the words "treintes and fines".
PART IX. - Civil sanctions
Art. 64. In chapter II, section 7, subsection 3, of the Financial Sector Supervision and Financial Services Act of August 2, 2002, an article 30ter is inserted as follows:
"Art. 30ter. § 1^er. Without prejudice to the common law and notwithstanding any provision contrary to the user of financial products and services, in the event that a person referred to in paragraph 2 commits, on the occasion of a financial transaction defined in paragraph 2, a breach of one or more of the provisions listed in paragraph 3 and that the user of the financial products or services concerned suffers damage as a result of that transaction, the transaction concerned is, unless otherwise, presumed to result.
Persons referred to in paragraph 1^er are:
1st persons referred to in Article 26, paragraph 1^erand agents in banking and investment services;
2° credit institutions, investment companies and collective investment management companies, with respect to their investment services under Article 6, paragraph 3, of Directive 2009/65/EC, under the right of another Member State of the European Economic Area and operating in Belgium under the guise of the free provision of services;
3° without prejudice to 1° and 2° and for the purposes of paragraph 3, 3° of this article only, credit institutions subject to the right of a Member State of the European Economic Area, authorized to carry out their activities in Belgium in the free provision of services, when they market savings accounts in Belgian territory;
4° without prejudice to the 1°, to the extent provided by the King by deliberate decree in the Council of Ministers, insurance companies, insurance intermediaries and intermediaries in banking and investment services.
§ 2. For the purposes of paragraph 1^er, "operation" means, as the case may be, in the broadest sense of the term, the purchase, sale, subscription, loan, exercise, placement, exchange, refund, detention, supply or delivery of a particular product or financial service.
§ 3. The presumption established in paragraph 1^er is applicable in case of violation of the following legal provisions:
1° Articles 27, § 2 and 3 to 7 of the Law of 2 August 2002, as enforced by the provisions referred to in paragraph 4, 1°;
2° Article 27, § 2bis, of the law of 2 August 2002, as carried out by the provisions referred to in paragraph 4, 1°, only in that this article refers to the provisions of paragraph 2 of the same article, and to the exclusion of those of paragraph 1^er;
3° in the case of an investment company under the law of another Member State of the European Economic Area and carrying out its activities in Belgium without establishing branches, the legal provisions of the original Member State transposing Article 19, paragraphs 2 to 7 of Directive 2004/39/EC, as enforced by the provisions referred to in paragraph 4, 2°;
4° the provisions designated by the King pursuant to paragraph 4.
§ 4. By decree deliberated in the Council of Ministers,
1° the King designates the provisions of the decrees and regulations made under articles 27, §§ 2 to 7, 28ter, 30bis and 45, § 2, of this Act, of article 12sexies of the law of 27 March 1995 relating to the intermediation in insurance and reinsurance and the distribution of insurances and of article 14 of the law of 22 March 2006 relating to the intermediation in banking services^erparagraph 2, also give rise to the application of paragraph 1^er;
2° the King completes the provisions referred to in paragraph 3, 2°, by all or part of the provisions of Directives 2004/39/EC and 2006/73/EC.
§ 5. This section applies to the extent that the relevant act referred to in subsection 2 occurred after the coming into force of this Act.
A violation of the legal provisions referred to in paragraph 3 may only be invoked for the purposes of this article for a period of five years from the time the user of the financial products and services concerned has been aware of the damage or aggravation, and in any case may no longer be invoked beyond a period of twenty years from the day following the day on which the violation occurred. »
Art. 65. In the same Act, an article 86ter is inserted as follows:
"Art. 86ter. § 1^er. Without prejudice to the common law of civil liability and notwithstanding any stipulation contrary to the investor, the applicant or the insured, the judge cancels,
1° the subscription of securities of Belgian or foreign public investment bodies, where the collective investment agency concerned does not have the approval or registration required by the applicable legal or regulatory provisions, or has waived the approval or registration or has been withdrawn, removed, removed, revoked or suspended that approval or registration;
2° the subscription of securities of Belgian or foreign public collective investment bodies, where the management company of the relevant collective investment bodies does not have the approval required by the applicable legal or regulatory provisions, or has waived or has been withdrawn, removed, removed, revoked or suspended such approval;
3° any agreement entered into in contravention of section 68bis of the Act of 16 June 2006 relating to public tenders for investment instruments and admissions of instruments for trading in a regulated market;
4° any agreement for the supply or supply of services and investment activities, concluded while the supplier concerned does not have the approval required by the applicable legal or regulatory provisions, or has waived or has been withdrawn, removed, removed, revoked or suspended such approval;
5° any life insurance contract in Branch 21, 23 and 26 entered into while the insurance company does not have the approval required by the applicable legal or regulatory provisions, or has renounced the approval or has been withdrawn, terminated, revoked or suspended the approval or after the approval has expired ex officio;
6° any life insurance contract belonging to Branches 21, 23 and 26 concluded while the insurance and reinsurance intermediary concerned does not have the approval required by the applicable legal or regulatory provisions, or has waived or has been withdrawn, removed, removed, revoked or suspended such approval or after such approval has expired on its own initiative;
7° any agreement for the supply or supply of financial products or services, concluded at the intervention of a person engaged in intermediation in banking and investment services, while it does not have the approval required by the applicable legal or regulatory provisions, or has waived or has been withdrawn, removed, revoked, revoked or suspended that approval or after the approval has expired.
Notwithstanding any provision that is contrary to the investor, the applicant or the insured and without prejudice to paragraph 3, the damage caused by the purchase or subscription of the financial product concerned or by the conclusion of the agreement concerned shall be presumed to result from the violation referred to in paragraph 1^er.
The presumption set out in the preceding paragraph may also be invoked in respect of the regulated business operating in Belgium and using an intermediary in banking and investment services or an insurance intermediary in the cases referred to in paragraph 1^er6° or 7°.
§ 2. Without prejudice to common law sanctions, the borrower's obligations are fully reduced to the amount borrowed when the lender concerned was not registered in accordance with the legal or regulatory provisions applicable at the time of the grant of the mortgage, or in case the lender was granted after the lender has renounced the registration or has been withdrawn, terminated, revoked or suspended the registration.
The borrower retains the benefit of the term and timing of the refund.
§ 3. The provisions of paragraphs 1^er and 2 are not applicable when the company or the person concerned has the approval, registration or authorization required by law in its Member State of origin and carries out its activities in Belgium through the establishment of a branch or the free provision of services without the formalities imposed on that effect by the applicable European directives have been complied with.
§ 4. By deliberately decreed in Council of Ministers, the King extends the application of all or part of this article to violations of the provisions of the decrees made under articles 28ter, 30bis and 45, § 2, if and to the extent that these decrees establish a regime providing for the prior approval of information documents intended for users of financial products and services. "
Art. 66. In the Act of 16 June 2006 relating to public tenders of investment instruments and admissions of instruments for trading in regulated markets, an article 68ter is inserted as follows:
"Art. 68ter. § 1^er. Without prejudice to the common law of civil liability and notwithstanding any provision contrary to the investor, the judge cancels the purchase or subscription of investment instruments when such purchase or subscription has been made on occasion
1° of a public offer referred to in Article 20 where there has been no prior publication of an approved prospectus either by the MSDS or by the competent authority of another Member State of the European Economic Area;
2° of a public offer referred to in section 55 where section 56 was not respected; or
3° of an offer referred to in Part VI where the provisions of section 60 were not complied with by the person with whom or through which the investor contracted.
The provisions of paragraph 1, 1° shall not apply where a prospectus approved by the competent authority of another Member State of the European Economic Area is published in Belgium before a public offer without Article 38, § 1^er4°, was not respected.
§ 2. Notwithstanding any stipulation contrary to the investor, the damage caused by the purchase or subscription of the investment instruments concerned is presumed to result from the violation of the legal provisions referred to in paragraph 1^er. »
Art. 67. In the Act of 3 August 2012 on certain forms of collective investment portfolio management, an article 285bis is inserted as follows:
"Art. 285bis. § 1^er. Without prejudice to the common law of civil liability and notwithstanding any stipulation contrary to the investor, the judge cancels the purchase or subscription of securities of collective investment organizations when such purchase or subscription has been made on occasion
1° of a public offer of shares of a collective agency with a variable number of shares of Belgian law where the provisions of articles 57 and 60, § 1^erhave not been respected;
2° of a public offer of shares of a grouping agency with a variable number of shares of foreign law that does not meet the requirements of Directive 2009/65/EC where the provisions of Articles 57 and 60, § 1^er, have not been respected in accordance with Article 165, § 1^er;
3° of a public offer of shares of a foreign collective investment agency that meets the requirements of Directive 2009/65/EC where FSMA has not received the notification referred to in Article 93, paragraph 3, of Directive 2009/65/EC and the prospectus or key information for the investor has not been transmitted to the competent authorities of the Member State of origin in accordance with Articles 74 and 82 of Directive 2009/65/EC;
4° of a public offer of the titles of a collective investment agency of Belgian or foreign law where article 71 was not respected; or
5° of a public offer of securities of a collective institution of Belgian or foreign law where the provisions of articles 60, § 3, 155, § 1^erParagraph 1^er 166, § 1^er, were not respected by the person with whom or through which the investor contracted.
§ 2. Notwithstanding any stipulation contrary to the investor, the damage caused by the purchase or subscription is presumed to result from the violation of the legal provisions referred to in paragraph 1^er. »
TITRE X. - Abrogatory provisions
Art. 68. The Royal Decree of September 23, 2008 determinating certain acts constituting market abuse, as amended by the Royal Decree of September 22, 2009, is repealed.
PART XI. - Entry into force
Art. 69. This Act comes into force on the tenth day of its publication to the Belgian Monitor.
Derogation from paragraph 1^erArticles 28 and 68 produce their effects on 1^er November 2012; for the purposes of Article 17 of Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on the uncovered sale and certain aspects of the exchange contracts on credit risk, Article 28 nevertheless produces its effects on 1^er September 2012.
Derogation from paragraph 1^erArticles 7, 19 and 60 come into force on 1^er January 2014.
However, the provisions of Articles 7, 19 and 60 that authorize the King to provide for appropriate rules or to declare certain rules in whole or in part not applicable, come into force in accordance with paragraph 1^er.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 30 July 2013.
PHILIPPE
By the King:
Deputy Prime Minister and Minister of Consumers,
J. VANDE LANOTTE
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2012-2013.
House of Representatives:
Documents. - Bill, 53-2872 - No. 1. - Annexes, 53-2872 - No. 2. - Amendments, 53-2872 - No. 3. - Report, 53-2872 - No. 4. - Text adopted by the commission, 53-2872 - No. 5. - Text adopted in plenary and transmitted to the Senate, 53-2872 - No. 6.
Full report. - 16-17 July 2013.
Senate.
Documents. - Project referred to by the Senate, 5-2214 - No. 1. - Report, 5-2214 - No. 2. - Decision not to amend, 5-2214 - No. 3.
Annales of the Senate. - 18 July 2013.
See also:
House of Representatives:
Documents. - Bill, 53-2873 - No. 1. - Report, 53-2873 - No. 2. - Text corrected by the commission, 53-2873 - No. 3. - Text adopted in plenary and transmitted to the Senate, 53-2873 - No. 4.
Full report. - 16-17 July 2013.
Senate.
Documents. - Project transmitted by the House of Representatives, 5-2215 - No. 1. - Report, 5-2215 - No. 2. - Text adopted in plenary and subject to Royal Assent, 5-2215 - No. 3.
Annales of the Senate. - 18 July 2013.