Posted the: 2013-08-30 Numac: 2013011420 SERVICE PUBLIC FÉDÉRAL ÉCONOMIE, P.M.E., CLASSES average and energy July 31, 2013. -Legislation to strengthen the protection of users of financial products and services as well as the powers of the Authority's services and financial markets, and wearing various provisions (II) (1) PHILIPPE, King of the Belgians, all, present and future, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -Disposition introductory Article 1. This Act regulates a matter referred to in article 77 of the Constitution.
CHAPTER 2. -Amendments of Act of 4 December 1990 on financial transactions and the financial markets article 2. in Book VII, title I, Duke, of the law of 4 December 1990 on financial transactions and financial markets, chapter I, containing the articles 220 to 223, as amended by the royal decree of 3 March 2011, is hereby repealed.
CHAPTER 3. -Amendments of Act of 2 August 2002 on the supervision of the financial sector and financial services s. 3. article 87 of the Act of 2 August 2002 on the supervision of the financial sector and financial services, renumbered by the law of May 2, 2007, is supplemented by a paragraph 4 as follows: "§ § 4 4»
Where facts submitted to the Court are the subject of an action for injunction based on article 125, it cannot be ruled on the criminal action unless a cast in res judicata decision relatively to the action for an injunction. ».
S. 4. in the title of chapter V of the Act, including sections 120 to 124 and renumbered by the law of May 2, 2007, the words "and intervention of the FSMA repressive courts" are replaced by the words ', intervention of the FSMA before the criminal courts and injunction.
S. 5 section 122 of the Act, as amended by the royal decree of November 12, 2012, 21 ° to 25 ° are replaced by the following: '21 ° to the applicant, against the refusal of registration decided by the FSMA under article 32 of the law of August 3, 2012 on certain forms of collective management of investment portfolios , or when the FSMA has not acted within a period of three months from the date of the introduction of a complete dossier. In the latter case, the application for registration is expected to rejected.
An appeal is open to the Agency against the refusal of registration decided by the FSMA under article 162, § 2, paragraph 2, of the aforementioned Act of 3 August 2012;
22 ° to the undertaking for collective investment, against the refusal of authorisation, refusal of approval or refusal of acceptance decided by the FSMA under sections 34, 36, paragraph 1, 45, paragraph 1, 47, paragraph 2, or 51, paragraph 4, of the Act on August 3, 2012, supra, or when the FSMA has not acted within a period of three months from the date of the introduction of a complete dossier. In the latter case, the request for registration, approval or acceptance is supposed to.
23 ° to the undertaking for collective investment, against decisions of the FSMA taken under article 111, § 1, paragraph 2, 3 ° and 6 °, and article 157 section 164 of the Act on August 3, 2012. The appeal suspends execution of the decision unless the FSMA decides otherwise in the case of serious risk to creditors or the participants;
24 ° to the plaintiff, against the decisions taken by the FSMA for authorisation under articles 191 and 192 of the Act on August 3, 2012. An appeal is open to the applicant when the FSMA has not acted within the time limits established in paragraph 1 of article 191. In the latter case, the use is treated as if it had been a rejection of the application;
25 ° to the collective investment management company, against the decisions of the FSMA taken pursuant to paragraph 3 of section 227 of the Act on August 3, 2012; ».
6. the chapter VI of the Act, containing the articles 125 to 128, is repealed.
S. 7. article 125 of the Act repealed by the royal decree of 25 March 2003, was re-established in drafting next and inserted in chapter V: «art.» 125. the president of the tribunal de commerce finds and orders the cessation of an act or activity, even criminally punishable, which: 1 ° is referred to in article 86bis;
2 ° is a violation of the law of August 3, 2012 on certain forms of collective management of investment portfolios, to the law of 16 June 2006 relating to public offers of investment instruments and admission of investment instruments to trading on regulated markets or the takeover Act of April 1, 2007 , or to the provisions adopted in implementation of these laws, or fails to comply with the decisions of the FSMA taken on the basis of the above-mentioned acts;
3 ° is an offence, on the part of undertakings or persons referred to in article 45, § 1, paragraph 1, 2 ° or 3 °, to the rules referred to in article 45, § 1, paragraph 1, 3 °, or § 2;
4 °, with the aim of protection of public savings or users of financial products or services, for persons determined or subject to specific conditions, and is qualified by the King, on the advice of the FSMA, act or activity which the termination may be ordered under this section.
It may order the prohibition of these acts or activities when they have not yet begun, but they are imminent.
He may give the offender a time to put an end to the infringement, when the nature of the offence requires. It can grant the lifting of termination when terminated to the offence.
The president of the commercial court is not competent when the Court of appeal of Brussels is exclusively competent pursuant to article 41 of the takeover Act of April 1, 2007.
» Art. 8. article 126 of the same Act, repealed by the royal decree of 25 March 2003, was re-established in drafting next and inserted in chapter V: «art.» 126. where the offence relates to an advertisement or publication, termination action may be brought at charge of one who took the initiative of advertising or the publication in question.
However, when one who has taken the initiative is not resident in Belgium and has not designated a person responsible for having its domicile in Belgium, termination action may also be brought in support of:-the editor advertising or written publication or the producer of advertising or audio-visual publication;
-the printer or the Director, if the Publisher or producer do not have their domicile in Belgium and have not appointed a person responsible for having its domicile in Belgium;
-the dispenser as well as anyone who helps knowingly that advertising or publication to produce its effect, if printer or the Director do not have their domicile in Belgium and have not appointed a person responsible for having its domicile in Belgium. ».
S. 9. article 127 of the Act, as last amended by the royal decree of 3 March 2011, is replaced by the following and inserted into chapter V: «art.» 127 § 1. Action based on article 125, paragraph 1, 1 °, is formed in the application: 1 ° of the FSMA.
2 ° of the Minister having finance in his/her attributions, the Minister having the economy in charge of the Pensions Minister in charge or of the Minister having the Protection of the consumer in his or her attributions;
3 ° of the persons concerned;
4 ° of an association aimed at the defence of the interests of consumers and enjoying legal personality, provided that it is represented to the Consumer Council;
5 ° with a professional or interprofessional grouping with legal personality.
By way of derogation from the provisions of articles 17 and 18 of the Judicial Code, associations and groups referred to the 4 ° and 5 ° can sue for the defence of their statutorily defined collective interests.
§ 2. The action based on article 125, paragraph 1, 2 °, 3 ° or 4 ° is formed exclusively at the request of the FSMA.
§ 3. The action based on section 125 can no longer be brought one year after the facts which it relies have ended.'.
S. 10. article 128 of the Act repealed by the royal decree of 25 March 2003, was re-established in drafting next and inserted in chapter V: «art.»
128. § 1. In any of the proceedings, the president may seek the advice of the FSMA, unless the action was formed by the FSMA.
The president may, in any of the proceedings, request the opinion of the Bank, if the following conditions are fulfilled: 1 ° the termination action brought in charge of an establishment referred to in article 36/2 of the organic law of the Bank or the termination action relates to activities reserved for institutions referred to in this provision. 2 ° the action for an injunction was formed by the FSMA and president also seeks the opinion of the FSMA.
These notices are made within fifteen days, except extension of this deadline by the president. In the event that the notice would not be rendered in this possibly extended, the proceedings are continued. A copy of the request and the advice received is paid to the record of the proceedings.
§ 2. The action based on section 125 is formed and educated according to the forms of the referee.
It is held on the action, notwithstanding any prosecution on grounds of the same facts before a criminal court.
The judgment is enforceable provision, notwithstanding any appeal and without security.
§ 3. Any decision on an action based on article 125 is in the week, and to
the diligence of the clerk, communicated to the FSMA, except if the decision is made at his request.
In addition, the Registrar is required to inform without delay the FSMA to appeal against any decision in accordance with article 125.
§ 4. The president may authorize the display of its decision or summary that he wrote, during the period that it may determine, both outside and inside the establishments of the offender, and authorise the publication of judgement or his summary by way of press or in any other manner, all at the expense of the offender.
However, these advertising measures may be permitted only if they are likely to contribute to the cessation of the Act impugned activity or its effects.
President fixed the amount that the part a measure of advertising has been granted pursuant to paragraph 1, which ran the measure despite an action brought in time against the judgment shall pay to the party at the expense of which the advertising has been enforced, if it is overturned on appeal. ».
CHAPTER 4. -Changes of Code judiciary art. 11 article 589 of the Judicial Code modified as last amended by the Act of August 13, 2011, 2 ° is replaced by the following: 2 ° in article 125 of the Act of 2 August 2002 on the supervision of the financial sector and financial services;
S. 12. in article 605ter of the Code inserted by the law of 2 August 2002, the words "article 18ter of the Act of 2 March 1989 on advertising of the major holdings in listed companies and regulating takeover bids" are replaced by the words "article 41 of the Act of April 1, 2007 relating to the takeover bids.".
13. article 633ter of the Code, inserted by the law of 2 August 2002, is repealed.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given to Brussels, July 31, 2013.
PHILIPPE by the King: the Deputy Prime Minister and Minister of consumers, J. VANDE LANOTTE the Deputy Prime Minister and Minister of the Interior, Ms. J. MILQUET. the Minister of Justice, Ms. A. TURTELBOOM. the Minister of finance, K. GARG sealed with the seal of the State: the Minister of Justice, Ms. A. TURTELBOOM _ Note (1) Session 2012-2013.
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 meeting and forwarded to the Senate, 53-2873 - No. 4.
Compte rendu intégral. -16 and July 17, 2013.
-Draft transmitted by the House of representatives, 5-2215 - No. 1. -Report 5-2215 - No. 2. -Text adopted at the plenary and subject to Royal assent, 5-2215 - No. 3.
Annals of the Senate.
-18 July 2013.
See also: 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 meeting and transmitted to the Senate, 53-2872 - No. 6.
Compte rendu intégral. -16 and July 17, 2013.
-Project mentioned by the Senate, 5-2214 - No. 1. -Report 5-2214 - No. 2. -Decision not to amend, 5-2214 - No. 3.
Annals of the Senate. -18 July 2013.