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An Act To Amend, To Transpose Directives 73/2010/eu And 78-2010-Eu, The Law Of 16 June 2006 On Public Offers Of Investment Instruments And Admission Of Investment Instruments To Trading On Regulated Markets, The Law

Original Language Title: Loi modifiant, en vue de transposer les Directives 2010/73/UE et 2010/78/UE, la loi du 16 juin 2006 relative aux offres publiques d'instruments de placement et aux admissions d'instruments de placement à la négociation sur des marchés réglementés, la loi

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belgiquelex.be - Carrefour Bank of Legislation

17 JULY 2013. - An Act to amend, with a view to transposing Directives 2010/73/EU and 2010/78/EU, the Act of 16 June 2006 on public offerings of investment instruments and admissions of instruments for trading in regulated markets, the Act of 2 August 2002 on the supervision of the financial sector and financial services, the Act of 1er April 2007 on public tenders, the Act of May 2, 2007 on the advertisement of significant participations in issuers whose shares are admitted to trading on a regulated market and bearing various provisions and the Act of August 3, 2012 on certain forms of collective management of investment portfolios, and bearing various provisions (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART Ier. - General provisions
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act includes the following:
1° of Directive 2010/73/EU of the European Parliament and of the Council of 24 November 2010 amending Directive 2003/71/EC on the prospectus to be published in the event of an offer to the public of securities or for the admission of securities to the negotiation and Directive 2004/109/EC on the harmonization of transparency obligations with respect to information on issuers whose securities are admitted to trading on a regulated market;
2° of Articles 5 and 7 of the Directive 2010/78/EU of the European Parliament and of the Council of 24 November 2010 amending the 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/CE with regard to the pension powers of the European Supervision Authority (European Banking Authority), the European Authorities
PART II. - Amendments to the Act of 16 June 2006 on public tenders for investment instruments and admissions of instruments for trading in regulated markets
Art. 3. The following amendments are made to section 3 of the Act of 16 June 2006 relating to public tenders for investment instruments and admissions of instruments for trading in regulated markets:
1° in paragraph 2, b), the words "100 people" are replaced by the words "150 people";
2° in paragraph 2, (c) and (d), the amount of 50,000 euros is replaced by an amount of 100,000 euros";
3° in paragraph 2, e), the words "in the European Economic Area" are inserted between the words "total amount" and the words "is lower";
4° in paragraph 4, the word "only" is deleted under points 1° and 2°;
5° in paragraph 5, the amount of 2,500,000 euros is replaced by an amount of 5, 000,000 euros.
Art. 4. Article 4, § 2, 1°, of the same law is replaced by the following:
"1° deposits of money sought or received by institutions or institutions referred to in section 68bis, paragraphs 1er1° to 5° and 7°; "
Art. 5. Section 9 of the Act, as amended by the Royal Decree of 27 April 2007 and by the Royal Decree of 3 March 2011, is supplemented by a 9° written as follows:
9° the "ESMA": the European Financial Markets Authority (European Securities and Markets Authority) as established by Regulation (EU) No 1095/2010 of the European Parliament and Council of 24 November 2010. "
Art. 6. Section 10 of the Act, as amended by the Royal Decree of 3 March 2011, is replaced by the following:
“Art. 10. § 1er. For the purposes of this Act, "skilled investors" must be heard:
1° professional customers referred to in Appendix A of the Royal Decree of 3 June 2007 on the rules and procedures for transposing the Directive on the Markets of Financial Instruments;
2° the considerations eligible under Article 3, § 1erthe Royal Decree of 3 June 2007 mentioned above.
§ 2. Investment companies and credit institutions communicate their classification of professional customers and eligible counterparties to issuers and offerers who apply for them without prejudice to the Privacy Act of 8 December 1992 in respect of personal data processing. "
Art. 7. The following amendments are made to section 13 of the Act:
1° the words "as an activity" are deleted;
2° the words "the placement of a public offer" are replaced by the words "the placement of investment instruments".
Art. 8. The following amendments are made to section 14 of the Act:
1° 1° is replaced by the following:
"1° "Guideline 2004/109/EC": Directive 2004/109/EC of the European Parliament and the Council of 15 December 2004 on the harmonization of transparency obligations with respect to information on issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC; »;
2° the 2° is replaced by the following:
"2° "Guideline 2003/71/EC": Directive 2003/71/EC of the European Parliament and the Council of 4 November 2003 on the prospectus to be published in the event of an offer to the public of securities or for the admission of securities to the negotiations, and amending Directive 2001/34/EC, as amended by Directive 2010/73/EU of the European Parliament and the Council of 24 November 2010; »;
3° 5° is replaced by the following:"5° "the law of August 3, 2012": the law of August 3, 2012 on certain forms of collective investment portfolio management; "
Art. 9. § 1. In Article 15, § 1, 2° of the same law, the amount of 2,500 000 euros is replaced by an amount of 5,000 euros.
§ 2. Article 15, § 5 is replaced by the following:
Ҥ 5. On the advice of FSMA, the King may adapt or supplement, in the manner it determines, the requirements set out in this Act in the event of a public offer made through a website of investment instruments other than securities. "
Art. 10. The following amendments are made to Article 16, § 1erthe same law:
1° the opening sentence is replaced by the following:
« § 1er. By derogation from section 15 and without prejudice to section 57/1 and the orders made for its execution, this Act does not rule:"
2° to 4°, the words "and instruments of the monetary market" are inserted between the words "non-capital securities" and "issued by a Member State";
3° to 6° :
(i) the words "and instruments of the monetary market" are inserted between the words "non-capital securities" and "existingly or repeatedly issued";
(ii) the words “as long as these non-capital securities” are replaced by the words “as long as these investment instruments”; and
(iii) under (ii), the words "other types of securities" are replaced by the words "securities";
4° to 7° :
(i) the words "and instruments of the monetary market" are inserted between the words "non-capital securities" and "existingly or repeatedly issued";
(ii) the amount of Euro50,000 is replaced by Euro75,000;
(iii) the words “as long as these non-capital securities” are replaced by the words “as long as these investment instruments”; and
(iv) under (ii), the words "other types of securities" are replaced by the words "securities";
5° 1° is added, as follows:
"Intakes to negotiation on a regulated Belgian market of options and future contracts when these admissions to negotiation are requested by the market company that organizes the regulated market concerned".
Art. 11. The following amendments are made to section 18 of the Act, as amended by the Royal Decree of 3 March 2011:
1° in paragraph 1er(a) and (i), the amount of Euro2,500 000 is replaced by Euro5,000;
2° under paragraph 1 (d)er and 2, the words ", of a split" are inserted between the words "of a fusion" and the words "or in return for contributions other than in cash";
3° in paragraph 1er(e) the words "existing shareholders" are inserted between the words "paid dividends" and the words "in the form of shares of the same class";
4° paragraph 1er(f) is replaced by the following:
"(f) the securities offered to administrators or former or existing employees either by their employer or by a related company, provided that the offerer has its statutory seat or central administration in the European Economic Area and that a document containing information on the number and nature of the securities offered, as well as on the reasons and terms of the offer be made available to the interested parties; »;
5° paragraph 1er, g) is replaced by the following:
"(g) the securities offered to administrators or to former or existing employees either by their employer or by a related corporation, where the offerer is not established in the European Economic Area, provided (1) that these securities are admitted to the negotiation, either on a regulated market or on a market outside the European Economic Area considered by the European Commission as equivalent to a regulated market and (2) that a document containing adequate information »;
Paragraph 1er, h) is deleted.
Art. 12. Article 20 of the Act, the current text of which will form paragraph 1era paragraph 2 is inserted, as follows:
Ҥ2. Derogation from paragraph 1er, intermediaries referred to in section 56 may, when reselling investment instruments as part of a public offer, reuse a previously established prospectus provided that:
(a) the issuer or offerer consents in writing, in accordance with the terms and conditions established by the European Commission in accordance with Directive 2003/71/EC;
(b) the prospectus is still valid;
(c) that the prospectus be made available to the public in accordance with section 21. "
Art. 13. § 1er. The following amendments are made to section 21, paragraph 2, of the Act:
1° to paragraph 1er, c), is replaced by the following:
"in an electronic form on the issuer's website or, where appropriate, on that of the financial intermediaries that place or sell the relevant investment instruments, including those responsible for the financial service, or";
2° Paragraph 2 is replaced by the following:
"The issuers or persons responsible for drafting the prospectus who publish their prospectus in accordance with the terms and conditions referred to in (a) or (b) must also publish it in accordance with the terms and conditions referred to in (c). "
§ 2. Paragraph 7 was added, as follows:
Ҥ 7. Any possible supplement to the prospectus must be published at least in the same manner as the initial prospectus.
The right to revocation available to investors who have accepted the offer must be brought to their attention in accordance with the terms referred to in paragraph 2, (a) or individually at the time of publication of the supplement unless the new fact or rectification of the error or inaccuracy resulting in the publication of this supplement is either in a positive way to influence the evaluation of the instruments of public placement in Belgian territory, or is without influence on this assessment. "
Art. 14. Paragraphs 1er and 2 of Article 22 of the same Law, the amount of 2,500 000 euros is replaced by an amount of 5,000 euros.
Art. 15. Section 24, paragraph 2 of the Act is replaced by the following:
Ҥ2. Except where the prospectus relates to the admission to negotiation on a regulated market of securities other than capital with a nominal unit value of at least 100,000 euros, the prospectus must include a summary that provides, in a concise and non-technical manner, the key information in order to help investors considering investing in the relevant securities. The summary is prepared in a standardized format to facilitate comparability with similar securities summaries.
Key information is the essential and appropriately structured information that must be provided to investors in order to enable them to understand the nature and risks of the issuer, the guarantor and the securities offered to them or are admitted to trading on a regulated market and, without prejudice to paragraph 4, point (b), to determine the offers that should continue to be considered.
In the light of the offer and the relevant securities, the key information includes:
(a) a brief description of the risks associated with the issuer and potential guarantors, as well as the essential characteristics of the issuer and the guarantors, including assets, liabilities and the financial situation;
(b) a brief description of the risks associated with the investment concerned and the essential characteristics of that investment, including any rights attached to securities;
(c) the general terms and conditions of the offer, including an estimate of the expenses incurred for the investor by the issuer or offerer;
(d) the terms and conditions of admission to negotiation;
e) the reasons for the offer and the intended use of the harvested funds.
The summary contains a warning that:
a) that it must be read as an introduction to the prospectus, and
(b) any decision to invest in the relevant securities must be based on a comprehensive review of the prospectus, and
(c) that, where an action concerning the information contained in the prospectus is brought before a court, the complainant may, according to the national law of the State in which the said court is located, have to bear the costs of translation of the prospectus before the commencement of judicial proceedings,
(d) that no civil liability may be attributed to anyone on the basis of the only summary, or its translation, except misleading, inaccurate or contradictory content with respect to other parts of the prospectus or if it does not, read in conjunction with other parts of the prospectus, provide essential information to assist investors when considering investing in these securities. "
Art. 16. The following amendments are made to section 26 of the Act:
1° paragraph 1er is replaced by the following: "The information to be included in the prospectus shall be provided by Regulation No. 809/2004 or any other delegated act adopted by the European Commission pursuant to Directive 2003/71/EC. »;
2° in paragraph 2, 2°, the words "or any other delegated act adopted by the European Commission pursuant to Directive 2003/71/EC" are added in fine.
Art. 17. The following amendments are made to section 27 of the Act, as amended by the Royal Decree of 3 March 2011:
1° in paragraph 2, the words "in this Act or in Regulation No. 809/2004 if it considers" are replaced by the words "in this Act, in Regulation No. 809/2004 or in any other delegated act adopted by the European Commission pursuant to Directive 2003/71/EC if it considers";
2° in paragraph 3, the words "under Regulation No. 809/2004" are replaced by the words "under Regulation No. 809/2004 or any other delegated act adopted by the European Commission pursuant to Directive 2003/71/EC";
3° a paragraph 4 is inserted, as follows:
“§4. The information concerning the guarantor may be omitted when a prospectus is established pursuant to Article 16, § 2, as part of an operation dealing with securities unconditionally and irrevocably guaranteed by a Member State. "
Art. 18. The following amendments are made to section 28 of the Act, as amended by the Royal Decree of 3 March 2011:
1° in paragraph 1erthe words "Without prejudice to Article 29" are deleted;
Paragraph 3, paragraph 2 is replaced by the following:
"When a significant change or a new fact likely to affect the investor assessment occurs after the approval of the latest version of the registration document, the securities note provides information that should normally be included in the registration document, unless that information is provided in a supplement established in accordance with section 34. "
Art. 19. In section 29 of the Act, as amended by the Royal Decree of 3 March 2011, subsection 2 is replaced by the following:
“§2. If the final terms and conditions of the offer are not included in the basic prospectus or in a supplement, they are deposited with the FSMA and, when the transaction is carried out on Belgian territory, published in accordance with Article 21, §§ 2, 3 and 5, as soon as possible, at each public offer, if possible before the launch of the public offer or the admission to the negotiation.
In order to meet the requirement to provide the key information referred to in Article 24, § 2, paragraph 2, the summary of the basic prospectus is completed when establishing the final terms of the offer in accordance with the terms and conditions established by the European Commission in a delegated act adopted pursuant to Directive 2003/71/EC. The completed summary should not be submitted for further approval.
The final terms of the offer may only contain information relating to securities and may not be used as a supplement to the basic prospectus.
The prospectus must contain either the criteria or conditions on which the final price of the offer and the final number of securities offered will be determined, or the maximum price of the offer. "
Art. 20. Article 30, paragraph 1erParagraph 1erthe same Act, as amended by the Royal Decree of 3 March 2011, is replaced by the following:
"Information may be included in the prospectus by reference to one or more documents previously published or simultaneously and approved by the competent authority or filed in accordance with Directive 2003/71/EC or Directive 2004/109/EC. This information is the latest available to the transmitter. "
Art. 21. Section 32 of the Act, as amended by the Royal Decree of 3 March 2011, is amended as follows:
Paragraph 3 is replaced by the following:
“§3. Within 10 business days from the date of submission of a complete record, the MSDS shall notify the issuer, offerer or solicitor of admission to the negotiation, as the case may be, as well as the EMA and the market enterprises that may be concerned, its decision is to approve the prospectus or refuse to approve the prospectus. A copy of the prospectus is forwarded to ESMA during this notification. »;
Paragraph 7 is replaced by the following:
Ҥ 7. The final version of the approved prospectus must be submitted to the MSDS prior to publication. FSMA makes it accessible to ESMA. "
Art. 22. Section 33 of the Act, as amended by the Royal Decree of 3 March 2011, is replaced by the following:
“Art. 33. The FSMA may decide, within three working days from the date of receipt of the notice referred to in section 32, § 1erto delegate approval of a prospectus to the competent authority of another Member State of the European Economic Area, with the agreement of the European Economic Area and with prior notification to the ESA. The MSDS shall promptly notify the issuer, offerer or person seeking admission to the negotiation and shall communicate the record to the competent authority to which approval is delegated. The deadlines for the control and approval of the prospectus begin to run until the date of this notification. The responsibility for the approval of the prospectus is governed by the rules applicable to the competent authority to which approval of the prospectus was delegated. "
Art. 23. Section 34 of the Act is amended to read:
1° in paragraph 1er, the words "if it is after the close of the offer" are inserted between the words "on the market concerned" and the words "is mentioned in a supplement to the prospectus".
2° in paragraph 2, the words "and published at least under the same terms" are deleted;
Paragraph 3 is replaced by the following:
Ҥ3. In the event of a public offer of securities, investors who have already agreed to purchase or subscribe to securities before the supplement is published have the right to revoke their acceptance for two working days after the publication of the supplement, provided that the new fact, error or inaccuracy referred to in paragraph 1er prior to the final closing of the public offer and the delivery of securities. This deadline may be extended by the issuer or offerer. The date on which the right to revocation ends is indicated in the supplement. "
Art. 24. Section 35 of the Act is amended to read:
1° paragraph 1er is replaced by the following:
« § 1er. A prospectus remains valid twelve months after its approval for public tenders or admissions to negotiations on a regulated market provided that it is updated in accordance with section 34. »;
2° in paragraph 2, the words "after publication" are replaced by the words "after its approval".
Art. 25. The following amendments are made to section 36 of the Act, as amended by the Royal Decree of 3 March 2011:
1° in paragraph 1erParagraph 1erthe opening sentence is replaced by the following:
"When a prospectus is subject to the approval of the MSDS or has been approved by the MSDS, the issuer, offerer or person seeking the admission to the negotiations, who wishes to offer the securities covered by the prospectus to the public in the territory of one or more other member States of the European Economic Area or to request the admission of these securities to the negotiations on one or more regulated markets located on the other
2° in paragraph 1erParagraph 1er, (iii), the words "prospectus or" are introduced between the words "translation of" and the words "profile summary";
3° paragraph 1er is supplemented by a fourth preambular paragraph:
"At the same time, FSMA transmits the prospectus approval certificate to the applicant. "
4° the article is supplemented by a paragraph 4 written as follows:
Ҥ4. When the final terms of the offer are not included in the basic prospectus or in a supplement, the issuer communicates them to the competent authorities of the other Member States of the European Economic Area on whose territory the operation takes place, as soon as possible in each public offer and if possible before the launch of the public offer or the admission to the negotiation. "
Art. 26. The following amendments are made to section 37 of the Act:
1° in paragraphs 1er and 2, the amount of Euro2,500 000 is replaced by an amount of Euro5,000;
2° in paragraph 2, the words "or any other delegated act adopted by the European Commission pursuant to Directive 2003/71/EC" are inserted between the words "of Regulation No. 809/2004" and the words "by the competent authority".
Art. 27. The following amendments are made to section 38 of the Act, as amended by the Royal Decree of 3 March 2011:
1° in paragraph 1erParagraph 1er, 4°, the introductory sentence is replaced by the following: "MAF and AEM received notification of a file including:"
2° in paragraph 1erParagraph 1er, 4°, (iii), the words "prospectus or" are inserted between the words "translation of" and the words "profile summary";
Paragraph 2 is replaced by the following:
“§2. If significant new facts or material errors or inaccuracies within the meaning of section 34 occur or appear after the approval of the prospectus, FSMA and ESMA may draw the attention of the competent authority to approve the prospectus on the need to update the information contained in the prospectus. If the prospectus is the subject of an additional charge, this supplement will benefit from the passport under the conditions set out in § 1er. "
4° in paragraph 3, the words "and communicated by the issuer to the FSMA in each public offer, as soon as possible and if possible before the launch of the public offer or the admission to the negotiation. are added in fine;
5° a paragraph 4 is added, as follows:
Ҥ4. The MSDS publishes on its website a list of certificates for approval of prospectus and supplements that have been notified to it in accordance with paragraph 1er, by inserting, where appropriate, a hypertext link to the publication of these documents on the website of the authority which approved the prospectus, the issuer's website or the regulated market concerned. "
Art. 28. Section 39 of the Act, as amended by the Royal Decree of 3 March 2011, is replaced by the following:
“Art. 39. When FSMA determines that irregularities have been committed by the issuer, the offerer or the financial institutions responsible for the public tender procedure, it shall inform the competent authority to approve the prospectus and ESMA.
If, in spite of the measures taken by the competent authority to approve the prospectus or due to the inadequacy of these measures, the issuer, offerer or public-proposal financial institutions continue to violate the applicable legislative or regulatory provisions, FSMA may, after informing the competent authority to approve the prospectus and ESMA, take all necessary measures to protect investors. FSMA informs the European Commission and ESMA of these measures as soon as possible. "
Art. 29. In section 42 of the Act, the amount of Euro2,500 000 is replaced by an amount of Euro5,000.
Art. 30. Section 44, paragraph 2, of the Act is replaced by the following:
Ҥ2. The prospectus includes a summary that provides, in a concise and non-technical language, key information to help investors who are considering investing in the investment instruments concerned. The summary is prepared in a standardized format to facilitate comparability with the summaries of similar investment instruments.
Key information is the essential and appropriately structured information that must be provided to investors in order to enable them to understand the nature and risks of the issuer, guarantor and investment instruments that are available to them or are allowed to negotiate on a regulated market and, without prejudice to paragraph 4, point (b), to determine the offers that should continue to be considered.
In the light of the offer and investment instruments concerned, the key information includes the following:
(a) a brief description of the risks associated with the issuer and potential guarantors, as well as the essential characteristics of the issuer and the guarantors, including assets, liabilities and the financial situation;
(b) a brief description of the risks associated with the investment concerned and the essential characteristics of that investment, including any right attached to investment instruments;
(c) the general terms and conditions of the offer, including an estimate of the expenses incurred for the investor by the issuer or offerer;
(d) the terms and conditions of admission to negotiation;
e) the reasons for the offer and the intended use of the harvested funds.
The summary contains a warning that:
a) that it must be read as an introduction to the prospectus, and
(b) any decision to invest in the relevant investment instruments must be based on a comprehensive review of the prospectus, and
(c) that no civil liability may be attributed to anyone on the basis of the only summary or translation except misleading, inaccurate or contradictory to other parts of the prospectus, or if it does not, read in conjunction with other parts of the prospectus, provide essential information to assist investors when considering investing in these investment instruments. "
Art. 31. The following amendments are made to section 48 of the Act, as amended by the Royal Decree of 3 March 2011:
1° in paragraph 1erthe words "Without prejudice to Article 49" are deleted;
Paragraph 3, paragraph 2 is replaced by the following:
"When a significant change or a new fact likely to affect the investor assessment occurs after the approval of the last version of the registration document, the investment instrument note provides information that should normally be included in the registration document, unless that information is provided in a supplement established in accordance with section 53. "
Art. 32. In section 49 of the Act, as amended by the Royal Decree of 3 March 2011, subsection 2 is replaced by the following:
“§2. If the final terms of the offer are not included in the basic prospectus or in a supplement, they are published in accordance with Article 21, §§ 2, 3 and 5 and filed with the FSMA, at each public offer, as soon as possible, if possible before the launch of the public offer or the admission to the negotiation.
In order to meet the requirement to provide the key information referred to in Article 44, § 2, paragraph 2, the summary of the basic prospectus is completed when establishing the final terms of the offer. The completed summary should not be submitted for further approval.
The final terms and conditions of the offer may only contain information about the investment instruments and may not be used as a supplement to the basic prospectus. The prospectus must contain either the criteria or conditions on which the final price of the offer and the final number of investment instruments offered will be determined, or the maximum price of the offer. "
Art. 33. Article 50, § 1erParagraph 1er the same Act, as amended by the Royal Decree of 3 March 2011, is replaced by the following: "Information may be included in the prospectus by reference to one or more documents previously published or simultaneously and approved by the competent authority of the Member State of origin or by the MSDS under this chapter, or filed in accordance with Directive 2003/71/EC or Directive 2004/109/EC. This information is the latest available to the transmitter.
Art. 34. The following amendments are made to section 53 of the Act:
1° in paragraph 1er, the words "if it is after the close of the offer" are inserted between the words "on the market concerned" and the words "is mentioned in a supplement to the prospectus. »;
2° in paragraph 2, the words "and published at least under the same terms" are deleted;
Paragraph 3 is replaced by the following:
Ҥ3. In the event of a public offer of investment instruments, investors who have already agreed to purchase or subscribe to the investment instruments before the supplement is published have the right to revoke their acceptance for two working days after the publication of the supplement, provided that the new fact, error or inaccuracy referred to in subsection 1 is prior to the final closure of the public offer and the delivery of the investment instruments. This deadline may be extended by the issuer or offerer. The date on which the right to revocation ends is indicated in the supplement. "
Art. 35. The following amendments are made to section 54 of the Act:
1° paragraph 1er is replaced by the following:
« § 1er. A prospectus remains valid twelve months after its approval for public tenders or admissions to the negotiation referred to in this chapter, provided that it is updated by the required elements under section 53. »;
2° in paragraph 2, the words "after publication" are replaced by the words "after its approval".
Art. 36. Section 55 of the Act is replaced by the following:
"Art. 55. § 1er. This title applies to any placement of investment instruments in Belgian territory.
§ 2. Derogation from paragraph 1er, this title is not applicable:
1° to the placement of investment instruments issued by collective investment organizations;
2° in the event of an offer not in a public nature, referred to in Article 3, § 2(a), (b) or (e). "
Art. 37. The following amendments are made to section 56 of the Act, as amended by the Royal Decree of 27 April 2007:
1° to paragraph 1erthe words "in the context of public tenders of investment instruments referred to in this title" are deleted;
2° paragraph 1er(e) is replaced by the following:
"(e) the exchange companies referred to in Book II, Title II, of the Act of 6 April 1995 on the Status and Control of Investment Businesses; »
Paragraph 2 is replaced by the following:
"Paragraph 1er does not prejudice the possibility for the offerer or the issuer:
(a) to place the instruments it emits itself,
(b) entrust this task to intermediaries in banking or investment services listed in section 7, § 3 of the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments, in the event that the issuer or offerer is a regulated company within the meaning of this Act, or
(c) entrust this task to a company related to the issuer or offerer in the event that the offer is directed to members of the related company staff. "
Art. 38. Section 57, paragraph 2, paragraph 2 of the Act is deleted.
Art. 39. Section 57/1 of the Act, as set out in section 28 of the Act of 7 July 2010, is replaced by the following:
"Art. 57/1. The King may, under the conditions and in the light of the modifications that He determines, declare all or part of the provisions of this title and titles VII, XI and XIII, applicable to offers of investment instruments that are made on Belgian territory and that are not covered by Article 57, including to offers referred to in Article 16".
Art. 40. Article 60, § 2, of the same law, as amended by the Royal Decree of 3 March 2011, is supplemented by a second paragraph, as follows:
“If communications of a promotional nature, other documents and opinions referred to in paragraph 1er contain information that the MSDS cannot verify compatibility with the information contained in the prospectus only if it has the approved version of the prospectus, the five working days specified in paragraph 2 begins to run from the approval of the prospectus by the MSDS in accordance with section 32, 41 or 52 or from the notification provided in section 38, § 1er4°, as applicable. "
Art. 41. The following amendments are made to section 61 of the Act, as amended by the Royal Decree of 3 March 2011:
1° in paragraph 2, the words ", by the other delegated acts adopted by the European Commission pursuant to Directive 2003/71/EC" are inserted between the words "Regulation No. 809/2004" and the words "or by the decrees taken pursuant to this Act";
2° in paragraph 3, the words ", or if it does not, read in conjunction with the other parts of the prospectus, provide essential information to help investors when considering investing in the relevant investment instruments" are added in fine.
Art. 42. The following amendments are made to section 64, paragraph 1er the same Act, as amended by the Royal Decree of 3 March 2011:
1° in the opening sentence, the words "100 natural or legal persons" are replaced by the words "150 natural or legal persons";
2° to the third dash, the words "the MSDS has been previously seized of an application for registration in accordance with section 28 of the Act of 20 July 2004 or section 127 of that Act, as the case may be, or" are replaced by the words "the MSDS has been previously seized of an application for registration in accordance with section 30 or section 162 of the Act of 3 August 2012, or received notice referred to in section 93
3° in the fourth dash, the words "the list referred to in section 31 of the Act of 20 July 2004 or section 129 of that Act as the case may be" are replaced by the words "the list referred to in section 33 of the Act of 3 August 2012 or section 149 of that Act, as the case may be."
Art. 43. Title X of the same Act, entitled "Annual Information", is deleted.
Art. 44. The following amendments are made to section 67 of the Act, as amended by the Royal Decree of 3 March 2011:
1° in paragraph 1er, b), the words "in the context of public offer" are replaced by the words "in the context of a public offer or not";
2° in paragraph 1er(e), (f), (g), (h) and (o) the words "or other acts adopted by the European Commission pursuant to Directive 2003/71/EC" are inserted after the words "of Regulation No. 809/2004";
3° in paragraph 1er, c), the words "the offerer, the issuer or the person seeking admission to the negotiation" are replaced by the words "the offerer, the issuer, the person seeking admission to the negotiation or the intermediaries designated by them";
4° in paragraph 1er, k), the words "the bidder, the issuer or the person seeking admission to the negotiation" are replaced by the words "the offerer, the issuer, the person seeking admission to the negotiation or the intermediaries designated by them";
5° paragraph 1er, n), is replaced by the following: "to make public the fact that the issuer, offerer, person seeking admission to the negotiation or intermediaries designated by them do not comply with their obligations unless the advertisement would seriously disrupt the financial markets or cause disproportionate prejudice to the parties involved; »;
Paragraph 1er is supplemented by two subparagraphs as follows:
"ESMA is empowered to take part in the on-site inspections referred to in point (o) when carried out jointly with one or more competent authorities of other member states of the European Economic Area.
Where the decision concerns communications of a promotional nature or other documents and notices referred to in Article 58 and the person who initiated the communication, document or notice in question is not domiciled in Belgium and has not designated a person responsible for his or her domicile in Belgium, this decision may also be addressed to the following persons:
1° the publisher of the promotional communication, the document or notice broadcast in written form, or the producer of the promotional communication or the notice broadcast in audiovisual form;
2° the printer or director, if the publisher or producer does not have their domicile in Belgium and did not designate a responsible person with his domicile in Belgium;
3° the distributor as well as any person who knowingly contributes to the fact that the promotional communication, the document or the notice produces its effect, if the printer or director do not have their domicile in Belgium and did not designate a responsible person with his domicile in Belgium. »;
Paragraph 2 is replaced by the following:
Ҥ2. Decisions referred to in paragraph 1er are notified by registered letter to the position with acknowledgement of receipt, to the issuer, offerer, person seeking admission to the negotiation or intermediaries designated by them, as the case may be, and to the relevant market enterprises, as appropriate as to persons referred to in paragraph 1erParagraph 2."
Art. 45. The following amendments are made to section 68 of the Act, as amended by the Royal Decree of 3 March 2011:
1° to paragraph 1erthe words "ESMA and" are added between "with" and "the competent authorities of the other member states of the European Economic Area";
2° a point 6° is added to paragraph 1er, as follows:
"6° with ESMA, in particular with a view to providing it with all the information necessary to carry out its mission";
3° a paragraph 3 is added, as follows:
"The MSDS may refer to the MAES where requests for cooperation, in particular for information exchange, have been rejected or have not been implemented within a reasonable period of time. "
Art. 46. The following amendments are made to section 68bis of the Act, inserted by section 254 of the Royal Decree of 3 March 2011 and amended by the Act of 27 November 2012:
1° the opening sentence of the first paragraph is replaced by the following:
"Only the following individuals and institutions may appeal to the public in Belgium for the purpose of receiving deposits of money or other reimbursable funds in view, on term or on prior notice or to receive such deposits or reimbursable funds from the public in Belgium;"
2° point 1° of the first paragraph is replaced by the following:
"1° credit institutions listed in section 13, section 65 or section 66 of the Act of 22 March 1993 relating to the status and control of credit institutions";
Paragraph 3 is replaced by the following:
"Paragraph 1er is also applicable to the appeal to the public and the collection of refundable funds from the public made outside Belgium from the Belgian territory by persons or companies established in Belgian territory. "
Art. 47. In section 71 of the Act, as amended by the Royal Decree of 3 March 2011, the words "or Regulation No. 809/2004" are replaced by the words ", Regulation No. 809/ 2004 or delegated acts adopted by the European Commission pursuant to Directive 2003/71/EC".
Art. 48. In Title XIV of the Act, Chapter Ier, having section 73, as amended by the Royal Decree of 3 March 2011, is repealed.
PART III. - Amendments to the Act of 2 August 2002
Financial Sector Monitoring and Financial Services
Art. 49. In section 10 of the Act of 2 August 2002 on financial sector surveillance and financial services, replaced by section 42 of the Act of 2 May 2007 and amended by the Royal Decree of 19 December 2010, the following amendments are made:
1° in paragraph 2, paragraph 3, the words "at § 1er and are inserted between the word "targeted" and the words "at § 3";
2° in paragraph 2, paragraph 4, the words "50 000 euros" are replaced by the words "100 000 euros";
3° in paragraph 2, a paragraph that reads as follows is inserted between paragraphs 4 and 5: "The derogation referred to in the preceding paragraph also applies to debt securities of a nominal unit value of not less than 50,000 euros that were already allowed to negotiate on a regulated market before December 31, 2010, for the duration of these debt securities. »;
4° in paragraph 3, 1°, (b) is replaced by the following:
"(b) issuers who have their registered office in a non-member State of the European Economic Area and who have chosen Belgium as a member State of origin in accordance with Article 7, § 1erParagraph 1er, (iii) of the Act of 16 June 2006 on public tenders for investment instruments and admissions of trading instruments in regulated markets; »;
5° in paragraph 4, paragraph 2, the words "50 000 euros" are replaced by the words "100 000 euros";
6° in paragraph 4, a paragraph written as follows is inserted between paragraphs 2 and 3: "For the purposes of § 2, paragraph 5, the debt titles in a currency other than the euro are assimilated to debt securities of a nominal unit value of at least 50,000 euros when the counter-value of the nominal unit value at the date of issue is equivalent to at least 50,000 euros. "
PART IV. - Amendments to the Act of 2 May 2007 on the advertisement of significant participations in issuers whose shares are allowed to negotiate on a regulated market and with various provisions
Art. 50. Section 5 of the Act of 2 May 2007 on the Advertising of Important Interests, paragraph 1er is replaced by the following: "This chapter applies to participations in issuers having their registered office in Belgium and to participations in issuers who have their registered office in a country not a member of the European Economic Area and who have chosen Belgium as a Member State of origin in accordance with Article 7, § 1erParagraph 1er(iii) Act of 16 June 2006. "
Art. 51. In section 16 of the Act, a paragraph is inserted between paragraphs 1er and 2:
"The FSMA then informs ESMA of the exemption granted. "
Art. 52. In article 21, paragraph 2, of the same law, the words "and EMA" are inserted between the words "the European Commission" and the words "the measures taken".
PART V. - Amendment to the Act
1er April 2007 on public tenders
Art. 53. § 1er. The following amendments are made to Article 6, § 3, of the Law of 1er April 2007 on public procurement offers:
1° to 2°, the word "100" is replaced by the word "150";
2° to 3°, the word "50,000" is replaced by the word "100 000";
§ 2. Paragraph 4 is inserted in section 6, as follows:
“By derogation from § 1er and without prejudice to the possible obligation, in the head of the Offeror, to open its offer of acquisition in Belgium, do not constitute public tenders for acquisition in Belgian territory:
1° the fact for a qualified intermediary established in Belgium to notify its customers, who have entrusted them with their deposits, of the launch of a public offer of acquisition on the said securities outside Belgian territory, in order to allow them to bring their securities to the offer, if any;
2° the fact for the Offeror to accept the titles referred to under the 1°, when brought to it by Belgian residents.
PART VI. - Amendments to the August 3, 2012 Act on Certain Forms of Collective Investment Portfolio Management
Art. 54. In Article 3, 3° of the Act of August 3, 2012 on certain forms of collective investment portfolio management, the words "institutional or professional investors" are replaced by the words "eligible investors".
Art. 55. § 1er. The following amendments are made to Article 5, § 1erParagraph 1er of the same law:
1° to 2°, the word "100" is replaced by the word "150";
2° to 3° and 5°, the word "50,000" is replaced each time by the word "100 000";
3° to 6°, the words "in the European Economic Area" are inserted between the words "total amount" and the words "is lower".
§ 2. Article 5, § 3, is replaced by the following provision:
Ҥ3. For the purposes of this Act, "institutional or professional investors" must be heard:
1° professional customers referred to in Appendix A of the Royal Decree of 3 June 2007 on the rules and procedures for transposing the Directive on the Markets of Financial Instruments;
2° the considerations eligible under Article 3, § 1er of the above-mentioned Royal Decree of 3 June 2007.
Investment companies and credit institutions communicate their classification of professional clients and eligible counterparties to collective investment organizations that apply to them without prejudice to the Privacy Act of 8 December 1992 in respect of personal data processing. »
§ 3. In the same article, a § 3/1 is inserted, as follows:
"For the purposes of this Act, it is necessary to hear by "eligible investors" investors referred to in paragraph 2 and investors designated by the King under paragraph 3, 1°, excluding investors referred to in paragraph 3, 2°.
Institutional or professional investors are considered eligible investors.
Nevertheless, the King may, by Royal Decree taken on the advice of FSMA:
1° extend the notion of eligible investor by distinguishing, where appropriate, according to the type or class of alternative collective investment organizations, to any or part of the legal persons who are not considered as institutional or professional investors and who have requested to be registered in the register of eligible investors;
2° restrict the notion of eligible investor by distinguishing, where applicable, according to the type or class of alternative collective investment organizations.
FSMA shall register eligible investors referred to in paragraph 3, 1°. The King determines the registration procedure in this register and the terms and conditions of access to it for third parties. "
Art. 56. § 1er. The title of Part 2, Book 2, Title 2, Chapter 2, Section 3 of the Act is replaced by the following:
"Prospectus and key information for the investor regarding the public offer of shares of collective investment organizations with varying number of shares, other documents relating to the public offer of shares of collective investment organizations with varying number of shares and intermediation in public offers of securities of collective investment organizations".
§ 2. Part 2, title 2, chapter 2, section 3, subsection 1rethe same law shall be replaced by the following:
"Prospectus and key information for the investor regarding the public offer of shares of collective investment organizations with varying number of shares and other documents relating to the public offer of shares of collective investment organizations with varying number of shares".
Art. 57. In articles 56, 60, § 3, paragraph 1er, 64, § 1er, 1°, 3°, 5° and § 2, 66, 67, 68, 69, paragraph 2, 70, paragraphs 2 and 3 and 287, 2° to 5° of the same law, the words "Notices, advertisements and other documents that relate to a public offer of securities of a collective investment agency" are each replaced by the words "variable, advertisements and other documents that relate to a public offer of shares of a collective investment agency.
Art. 58. In articles 61, paragraph 1er, 152, paragraph 1er, 154, § 4, paragraphs 2 and 163, paragraph 2 of the same law, the word "100" is each time replaced by the word "150".
Art. 59. In section 65, subsection 3 is repealed.
Art. 60. In articles 117, § 3, 119, § 4, 120, § 3, 122, § 4, 123, § 3, paragraphs 1er, 2 and 3 and 126, § 4, the words "institutional or professional investors" or "institutional or professional investor" are each replaced by the words "eligible investors" or "eligible investor". »
Art. 61. In Article 123, § 3, paragraph 4, of the same law, the words "to a single institutional or professional investor, provided that it is an institutional or professional investor referred to in Article 5, § 3, 5°" are replaced by the words "to a single investor eligible for as long as it is a professional investor referred to in point (4) of Part I, paragraph 1erfrom Appendix A to the Royal Decree of 3 June 2007 on the rules and procedures for transposing the Directive on the Markets of Financial Instruments. »
PART VII. - Transitional provisions
Art. 62. With the exception of the exchange of information and mechanisms for cooperation with EMA, sections 1 to 48, 53, 55 to 59 do not apply to transactions that are in progress on the date of its entry into force.
Art. 63. Collective placement agencies and, where appropriate, their existing compartments on the date of entry into force of this Act shall retain their qualification notwithstanding the amendments made by section 54.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 17 July 2013.
ALBERT
By the King:
Minister of Economy,
J. VANDE LANOTTE
Minister of Finance,
K. GEENS
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) References to parliamentary work:
Documents of the House of Representatives:
53 2852/(2012/2013):
001: Bill.
002: Amendments.
003: Report on behalf of the Commission.
004: Text adopted in plenary and transmitted to the Senate.
Annales de la Chambre : 27 juin 2013.
Documents of the Senate:
5-2175 - 2012/2013:
001: Project referred to by the Senate.
002: Amendments.
003: Report made on behalf of the commission.
004: Annex.
005: Decision not to amend.
Annales du Sénat : 10 juillet 2013.