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3 AOUT 2012. - Act respecting certain forms of collective investment portfolio management (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART 1^re. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act provides for the partial transfer of (a) the Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of the legislative, regulatory and administrative provisions concerning certain institutions of collective investment in securities (OPCVM) (refonte), (b) the Directive 2010/78/EU of the European Parliament and the Council of 24 November 2010 amending the Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 2003^er July 2010 implementing measures of the Directive 2009/65/EC of the European Parliament and the Council with regard to organizational requirements, conflicts of interest, business conduct, risk management and the content of the agreement between the depositary and the management company, and (d) Directive 2010/44/EU of the Commission of 1^er July 2010 on measures to implement the Directive 2009/65/EC of the European Parliament and the Council with regard to certain provisions relating to mergers of funds, master-food structures and notification procedure.
Art. 3. For the purposes of this Act and the decrees and regulations made for its execution, it is understood that:
1° by "collective investment agency": an organization, Belgian or foreign, whose exclusive purpose is the collective investment of financial means;
2° by "public collective investment organization":
(a) a collective investment organization that collects its financial resources, in Belgium or abroad, through a public offer of shares, whether negotiable or not;
(b) a collective investment organization that collects its financial resources, in Belgium or abroad, partially through a public offer of securities, whether negotiable or not;
3° by "institutional collective investment organization": a collective investment organization that collects its financial resources, in Belgium or abroad, exclusively from institutional or professional investors acting on their own account, and whose securities can only be acquired by such investors and which is registered in accordance with the provisions of this Act or the decrees taken for its execution;
4° by "private collective investment agency": a collective investment organization that collects its financial means, in Belgium or abroad, exclusively from private investors acting on their own behalf, and whose securities can only be acquired by such investors or by other investors under the conditions determined by the King and which is registered in accordance with the provisions of this Act or the orders made for its execution;
5° by "group investment agency with a variable number of shares": the collective investment organization whose shares are, at the request of the participants, redeemed or refunded, directly or indirectly, to the assets of that organization at a price calculated on the basis of its inventory value. Is assimilated to such redemptions or refunds the fact for the organization to act so that the value of its shares admitted to negotiations on a MTF or a regulated market does not significantly deviate from their inventory value;
6° by "fixed-number collective investment organization": the collective investment organization whose shares are not redeemed at the request of the dependants of the assets of the collective investment organization;
7° by "collective investment agency in receivables", the organization of which:
(a) the exclusive object is the collective placement in the authorized class of investments referred to in Article 7, paragraph 1^er, 7° ; and
(b) the shares are not redeemed at the request of the dependants of the assets of the collective investment organization;
8° "collective placement organization that meets the requirements of Directive 2009/65/EC": a collective investment organization that invests in the investment category provided for in Article 7, paragraph 1^er, 1° ;
9° "a collective investment organization that does not meet the requirements of Directive 2009/65/EC": a collective investment organization that invests in one of the investment categories provided for in Article 7, paragraph 1^er2° to 9°;
10° by "joint investment fund": the collective investment organization that is in the form of a contract, consisting of an indivis heritage managed by a collective investment organization management company on behalf of the participants, whose rights are represented by securities;
11° by "investment corporation": the collective investment organization that is in the statutory form, constituted, in accordance with the provisions of this Act and its enforcement orders, in the form of an anonymous company, a share-sponsored company or a simple limited partnership;
12° by "collective investment management company": the Belgian legal company or the foreign law company whose usual activity consists in the collective management of portfolios of public collective investment organizations in a professional capacity;
13° by "public offer" :
(a) in respect of collective investment bodies under Belgian or foreign law that collect their financial resources in Belgium:
(i) any communication addressed, in any form and by any means, to persons and presenting sufficient information on the terms and conditions of the offer and the securities to be offered in such a way as to put an investor in a position to decide to buy or subscribe these securities, and that is made by the collective investment agency, by the person who is able to assign the securities or on their behalf.
Is presumed to act on behalf of the collective investment organization or the person who is in a position to assign the securities, any person who directly or indirectly receives remuneration or benefit on the occasion of the offer.
(ii) admission to negotiations on a MTF or a regulated market that is accessible to the public;
(b) in respect of the collective investment bodies of Belgian law, which collect their financial resources abroad, any transaction, carried out abroad, relating to the securities of such a collective investment agency where this transaction is subject, in the country concerned, to a particular regulation for the protection of public savings, such as, inter alia, an obligation of prospectus or other similar reporting obligation;
14° by "offering": a person who makes a public offer or a person who, with respect to the public offer as referred to in Article 3, 13°, (a), (ii), applies for admission to negotiations;
15° by "intermediation": any intervention, even as a temporary or incidental activity, and in any capacity whatsoever, in respect of investors in the placement of a public offer of securities of collective investment bodies, referred to in Article 3, 13°, (a), (i), on behalf of the Offeror or collective investment agency, against remuneration or benefit of any kind directly granted and
16° by "titles of a collective investment organization":
a) the shares of collective investment organizations, and
(b) any other financial instruments that the collective investment organization is, if any, authorized to issue in respect of the authorized investment category for which it has opted in accordance with section 7;
17° by "parts of collective investment organization":
a) the shares of an investment corporation, and
(b) representative titles of indivisible rights in a mutual fund;
18° by "parties": holders of shares of a collective investment organization;
19° by "multilateral trading system (Multilateral trading facility - MTF)": a multilateral system, operated by an investment company, a credit institution or a market company, which ensures the meeting within itself and according to non-discretionary rules of multiple buyer and seller interests expressed by third parties for financial instruments, in a way that leads to the conclusion of contracts in accordance with the provisions of Chapter 2 of the Act of 2 August 2002/39/
20° by "regulated market": any regulated, Belgian or foreign market referred to in article 2, 3°, 5°, or 6°, of the law of 2 August 2002;
21° by "collective management of portfolios of collective investment organizations":
the performance by a collective investment organization management corporation of the management functions of collective investment organizations, whether they are carried out as a collective investment organization management corporation designated by a collective investment organization or under a terms of reference or business contract entered into with a collective investment organization in accordance with section 42;
22° by "management functions of collective investment organizations":
(a) the management of the investment portfolio of the collective investment agency;
(b) the administration of the collective investment organization, including:
(i) the accounting management services of the collective investment organization, including the establishment and publication of annual accounts;
ii) responses to requests for information from members of the collective investment organization;
(iii) the portfolio assessment and the determination of the securities value of the collective investment organization (including tax aspects);
(iv) monitoring compliance with the legal and regulatory provisions applicable to the collective investment organization;
(v) keeping the register of holders of titles;
(vi) the distribution of income between categories of securities and types of shares of the collective investment organization;
(vii) the issuance and redemption of shares of the collective investment agency;
(viii) the termination of contracts, including the sending of the securities of the collective investment agency;
(ix) the recording of operations and the preservation of related documents;
(c) the marketing of securities of collective investment organizations;
23° by "investment services":
(a) individual portfolio management: the management of portfolios on a discretionary and individualized basis, as part of a mandate given by the client when these portfolios have one or more financial instruments referred to in section 2, 1°, of the Act of 2 August 2002;
(b) the investment board: the provision of personalized recommendations to a client with respect to one or more transactions involving one or more financial instruments referred to in section 2, 1°, of the Act of August 2, 2002;
24° by "collective investment management company designated by a collective investment agency": the management company that manages a mutual investment fund, in accordance with Article 11, § 1^eror the management corporation that is designated by an investment corporation in accordance with section 44;
25° by "collective investment organization managed by a collective investment organization management corporation": unless otherwise specified, a collective investment organization for which a collective investment organization management corporation carries out management functions referred to in section 3, 22°, whether as a collective investment organization management corporation designated by the collective investment organization or under a terms of reference or contract entered into with a collective investment organization
26° by « feeder » :
(a) a collective investment organization that meets the requirements of Directive 2009/65/EC, or a compartment of that collective investment organization, which has been authorized to invest, by derogation from the risk distribution principle referred to in Article 9, at least 85% of its assets in shares of another collective investment organization that meets the requirements of Directive 2009/65/EC or a compartment of that organization (named "master"), or
(b) a public investment agency with a variable number of Belgian legal shares that does not meet the requirements of Directive 2009/65/EC, or a compartment of that collective investment organization, which was authorized to invest, by derogation from the risk distribution principle referred to in Article 9, at least 85% of its assets in shares of another public collective investment agency with a variable number of Belgian legal shares that meet or not the terms of Directive 2009/65/EC or the terms of the Directive 2009/65/EC;
27° by "master" :
(a) a collective investment organization that meets the requirements of Directive 2009/65/EC or one of its compartments:
(i) having at least one feeder meeting the requirements of Directive 2009/65/EC among its participants,
ii) that is not himself a feeder, and
(iii) that does not own parts of a feeder, or
(b) a Belgian collective investment agency that meets the requirements of Directive 2009/65/EC or one of its compartments:
(i) having at least one feeder not meeting the requirements of Directive 2009/65/EC among its participants,
ii) that is not himself a feeder, and
(iii) that does not own parts of a feeder, or
(c) a public investment agency with a variable number of Belgian legal units not meeting the requirements of Directive 2009/65/EC or one of its compartments:
(i) having at least one feeder not meeting the requirements of Directive 2009/65/EC among its participants,
ii) that is not himself a feeder, and
(iii) that does not own parts of a feeder;
28° by "key information for the investor" or "key information document for the investor": a short document that contains the information essential to the investor and that is established for each public collective investment agency with a variable number of shares in accordance with Regulation 583/2010;
29° by "customers of the collective investment management company": any natural or legal person, or any other entity, including the professional pension institutions referred to in section 2, 1° of the Act of 27 October 2006 relating to the control of professional pension institutions for the benefit of which the management society of collective investment bodies exercises one of the management functions referred to in section 3, 22° or presets a service referred to in section 23;
30° by "marketing securities of collective investment organizations": the public offer within the meaning of Article 3, 13°, (a), (i), for a collective investment agency, including the receipt and transmission of orders relating to the securities of the said collective investment agency. Is presumed to act on behalf of the collective investment organization, any person who receives, directly or indirectly from the collective investment organization, compensation or benefit on the occasion of the public offer or receipt and transmission of orders relating to the securities of that collective investment organization;
31° by "clean funds": the concept of equity, in the sense of the definition given in the regulation made pursuant to section 206;
32° by "qualified participation": the direct or indirect detention of at least 10 p.c. of the capital of a corporation or of the voting rights attached to the securities issued by that corporation, or any other opportunity to exert a significant influence on the management of the corporation in which an interest is held; the calculation of voting rights shall be in accordance with the provisions of the Act of 2 May 2007, as well as those of its enforcement orders; is not taken into account the voting rights or shares held as a result of the firm taking of financial instruments and/or the placement of financial instruments with firm commitment, provided that, on the one hand, these rights are not exercised or otherwise used to intervene in the management of the issuer and that, on the other hand, they are transferred within one year of their acquisition;
33° by "close links":
(a) a situation in which there is a link of participation, or (b) a situation in which companies are related enterprises, or (c) a relationship of the same nature as under (a) and (b) above between a natural person and a legal person;
34° by "control, participation, link of participation, parent company, subsidiary and related company": these concepts within the meaning of the definition given in the execution orders of section 235;
35° by "the branch of a collective investment organization management company": an operating seat that is a non-legally owned part of a collective investment organization management company and that directly carries out, in whole or in part, the activities authorized by the approval of the collective investment organization management company; several operating seats created in the same State by a collective investment management company with its head office in another State are considered to be a single branch;
36° by "Reception Member State of a collective investment management company": the Member State of the European Economic Area, other than Belgium, on the territory of which a Belgian collective investment management company operates by the establishment of a branch or in the free provision of services;
37° by "credit institution": any establishment referred to in Parts II to IV of the Act of 22 March 1993;
38° by "financial institution": any enterprise referred to in Article 3, § 1^er5° of the Act of 22 March 1993;
39° by "investment company": any company referred to in Book II, Parts II to IV, of the Act of 6 April 1995;
40° by "open consultation": the procedure referred to in Article 2, 18°, of the Act of 2 August 2002;
41° by "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;
42° by "MAF": the Autorité des services et marchés financiers, referred to in Article 44 of the Act of 2 August 2002;
43° by "Bank": the National Bank of Belgium, referred to in the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium;
44° by "Law of July 22, 1953": the Act of July 22, 1953 creating an Institute of Directors of Entry and organizing public supervision of the profession of company reviewer;
45° by "law of July 9, 1975": the Act of July 9, 1975 on the control of insurance companies;
46° by "Act of 4 December 1990": the Act of 4 December 1990 on financial transactions and financial markets;
47° by "Act of 22 March 1993": the Act of 22 March 1993 on the Status and Control of Credit Institutions;
48° "Law of 6 April 1995": the Law of 6 April 1995 on the Status and Control of Investment Companies;
49° by "law of 22 February 1998": the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium;
50° by "Act of 2 August 2002": the Act of 2 August 2002 on financial sector monitoring and financial services;
51° by "Act of 20 July 2004": the Act of 20 July 2004 on certain forms of collective investment portfolio management;
52° by "Law of March 22, 2006": the Act of March 22, 2006 on the intermediation of banking and investment services and the distribution of financial instruments;
53° by "Law of June 16, 2006": the Act of June 16, 2006 on public tenders of investment instruments and admissions of trading instruments in regulated markets;
54° by "law of 2 May 2007": 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;
55° by "Act of February 16, 2009": the Act of February 16, 2009 on reinsurance;
56° by "Guideline 2004/39/EC": Directive 2004/39/EC of the European Parliament and the Council of 21 April 2004 on the markets of financial instruments, amending Council Directives 85/611/EEC and Directive 93/6/EEC and Directive 2000/12/EC of the European Parliament and the Council and repealing Council Directive 93/22/EEC;
57° by "Guideline 2006/43/EC": Directive 2006/43/EC of the European Parliament and the Council of 17 May 2006 on the legal controls of annual and consolidated accounts and amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC;
58° by "Guideline 2009/65/EC" : the Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of the legislative, regulatory and administrative provisions concerning certain collective investment bodies in securities (OPCVM) (refonte), as amended by the Directive 2010/78/EU of the European Parliament and the Council of 24 November 2010 amending the Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 20031/EC, 2003/EC, 2003/41/EC
59° by Regulation 583/2010: Regulation (EU) No. 583/2010 of the Commission of 1^er July 2010 implementing the Directive 2009/65/EC of the European Parliament and of the Council on key information for the investor and the conditions to be met when providing key information for the investor or prospectus on a sustainable medium other than paper or through a website;
60° by Regulation 584/2010: Regulation (EU) No 584/2010 of the Commission of 1^er July 2010 implementing the Directive 2009/65/EC of the European Parliament and the Council with regard to the form and content of the standard notification letter and attestation for the OPCVMs, the use of electronic communications between competent authorities for notification purposes and on-site verification, investigation and information exchange procedures between competent authorities;
61° by "Guideline 2010/44/EU": Commission Directive 2010/44/EU of 1^er July 2010 on measures to implement the Directive 2009/65/EC of the European Parliament and the Council with regard to certain provisions relating to mergers of funds, master-food structures and notification procedure.
PART 2. - Collective investment organizations
LIVRE 1^er. - Scope of application
Art. 4. § 1^er. Are subject to the provisions of this Part:
1° Belgian public collective investment bodies;
2° foreign collective investment organizations whose securities are the subject of a public offer in Belgium.
§ 2. Belgian collective investment organizations that do not collect their financial resources through a public offer of shares, including institutional and private collective investment organizations, are subject to the provisions of this Part only if they are registered in accordance with the provisions of this Act or the decrees and regulations made for its enforcement.
§ 3. Not subject to the provisions of this Act or to those of the decrees and regulations made for its execution:
1° companies whose securities are or have been the subject of a public offer in Belgium and whose activity consists primarily in the exercise of joint control or control over other companies within the meaning of Articles 5 to 9 of the Code of Companies, or the holding of participations within the meaning of Article 13 of the Code of Companies;
2° companies
(a) the securities of which are or have been the subject of a public offer in Belgium, where such securities are, up to 90% of their nominal value or their accounting pair and the price to which they are offered, or to a different percentage to be determined by the King, unconditionally and irrevocably guaranteed by a Member State of the European Economic Area or by one of its regional or local authorities; and
(b) that are subject to special legislation to promote investments in non-listed companies and that are required, under the legislation or their statutes, to comply with information obligations equivalent to those applicable in accordance with Article 10, § 1, 1° to 3°, of the Act of 2 August 2002.
However, a corporation referred to in 1° of this paragraph may request or retain the registration as a fixed number public collective investment agency that invests in the assets referred to in Article 7, paragraph 1^er, 5°, 6°, 8° and 9°.
Art. 5. § 1^er. For the purposes of Article 3, 13°, (a), (i), the following offers of securities of collective investment organizations do not have a public character:
1° offers of securities addressed only to institutional or professional investors;
2° offers of securities to less than 100 natural or legal persons, other than institutional or professional investors;
3° the offers of securities, other than shares of collective investment organizations with varying number of shares, which require a counterparty of at least 50,000 euros per investor and by securities category;
4° offers of shares of collective investment organizations with varying number of shares, which require a counterparty of at least 250,000 euros per investor and by securities category;
5° the offers of securities, other than shares of collective investment bodies with varying number of shares, whose nominal unit value is at least 50,000 euros;
6° the offers of securities of which the total amount is less than 100,000 euros, calculated over a 12-month period.
Where there is a resale of securities that have previously been the subject of one or more of the offers referred to in paragraph 1^erthe definition referred to in Article 3, 13°, (a), (i), and the criteria referred to in paragraph 1^er this subsection applies to determine whether this resale is a public offer.
§ 2. For the purposes of Article 3, 13°, (a), (ii), the King may define the concept of public.
§ 3. For the purposes of this Act, "institutional or professional investors" must be heard:
1° national, regional and community governments;
2° the European Central Bank, the National Bank of Belgium and other national central banks, international or supranational organizations, the Fonds des Rentes, the Fonds de protection des dépôts et des instruments financiers and the Caisse des Dépôts et Consignations;
3° legal, Belgian and foreign persons, approved or regulated as operators in the financial markets, including:
(a) Belgian and foreign credit institutions referred to in Article 1^er2 of the Act of 22 March 1993;
(b) Belgian and foreign investment companies whose usual activity is to provide or offer to third parties one or more professional investment services and/or to carry out one or more investment activities within the meaning of Article 46, 1°, of the Act of 6 April 1995;
(c) the following insurance companies:
(i) companies and insurance organizations referred to in Article 2, §§ 1^er and 3 of the Act of 9 July 1975 on the Control of Insurance Companies;
(ii) foreign insurance companies that do not operate in Belgium; and
(iii) Belgian and foreign reinsurance companies;
(d) Belgian or foreign vocational pension institutions referred to in article 2, 1 of the Act of 27 October 2006 on the control of professional pension institutions;
(e) Belgian and foreign collective investment agencies;
(f) Belgian and foreign collective investment management companies;
(g) intermediaries, both Belgian and foreign, in long-term investment instruments, within the meaning of Article 4 of the Act of 16 June 2006, concerning raw materials;
(h) other financial, Belgian and foreign institutions, approved or regulated;
4° Belgian and foreign entities, other than those referred to in the 5th of this paragraph, not approved or unregulated as operators in financial markets, whose exclusive social object is investment in investment instruments within the meaning of Article 4 of the Act of 16 June 2006;
5° companies, funds or other similar entities of foreign law whose main activity is to invest in securities of collective investment bodies or in securitization structures, or to finance collective investment organizations or securitization structures, provided that such companies, funds or other similar entities of foreign law are financed, for that purpose, exclusively to institutional or professional investors recognized by or under this paragraph, or to the foreign
6° the coordination centres referred to in Royal Decree No. 187 of 30 December 1982 relating to the establishment of coordination centres;
7° other Belgian and foreign legal entities, other than those referred to in 1° to 6° of this paragraph, which, according to their last annual or consolidated accounts, meet at least two of the following three criteria: an average number of employees equal to or greater than 250 persons throughout the year, a total of the balance sheet greater than 43,000 euros and an annual net turnover greater than 50,000 euros;
8° other legal persons, companies and foreign institutions that are considered, according to the law they fall under, either as institutional or professional investors, or as qualified investors for the application of Directive 2003/71/EC of 4 November 2003 concerning the prospectus to be published in the event of an offer to the public in securities or for the admission of securities to the negotiation, and amending Directive 2001/34/EC, or are considered as institutional or professional investors according to the practices.
The King may extend the concept of institutional or professional investors for the purposes of this Act by distinguishing, if any, according to the type or class of collective investment organizations:
1° to natural persons residing in Belgian territory who have expressly requested MSDS to be considered as institutional or professional investors and who meet at least two of the following three criteria:
(a) they made significant transactions in the securities market at least 10 per quarter on average over the previous four quarters,
(b) the value of their securities portfolio, as defined in section 5 of the Act of 16 June 2006, exceeds 500,000 euros,
(c) they work or have worked in the financial sector for at least one year in a professional position requiring knowledge of securities placement within the meaning of section 5 of the Act of 16 June 2006;
2° to all or part of the legal persons having their statutory seat in Belgian territory who have expressly requested the MSDS to be considered institutional or professional investors and who do not meet at least two of the three criteria referred to in paragraph 1^er7° of this paragraph.
FSMA sets up a register of the persons concerned. The King determines the registration procedure in this register and the terms and conditions of access to this register for third parties.
§ 4. For the purposes of Article 3, 4°, the King may define:
1° what should be heard by private investors;
2° the conditions and modalities for private investors to assign securities, issued by the private collective investment agency.
LIVING 2. - Collective placement bodies of Belgian law
PART 1^er. - Provisions common to all Belgian law collective investment agencies
Art. 6. Belgian law collective investment organizations fall under one of the following three categories:
1° the mutual funds of a variable number of shares or investment companies of variable capital;
2° the fixed-number joint investment funds or fixed-capital investment companies;
3° the common debt investment funds or debt investment companies (named "SIC").
Art. 7. A collective investment organization is required to use the financial means it collects in one of the authorized investment categories listed below:
1st placements meeting the requirements of Directive 2009/65/EC;
2° financial instruments and liquidity;
3° raw materials, options and futures contracts on raw materials;
4° options and futures contracts on securities, currencies and contracts on stock market indices;
5° real property;
6° high-risk capital;
7° receivables held by third parties and transferred to the collective investment agency by an assignment agreement under the terms and conditions established by the King;
8° financial instruments issued by companies not listed;
9° other placements authorized by the King.
The King, by order taken on the advice of the MSDS, defines the authorized classes of investments referred to in paragraph 1^er.
Art. 8. § 1^er. Net proceeds of the mutual fund or investment corporation are determined and distributed or capitalized in accordance with the management regulations or the regulations.
§ 2. The rights assigned to each share are equal; different categories of shares may not be created unless:
1° the management regulations or the statutes provide for the creation of two types of shares, the net product being distributed for one type and capitalized for the other;
2° the statutes of a variable capital investment company provide, in accordance with the criteria and conditions fixed by the King by decree taken on the advice of the FSMA, the creation of different classes of shares denominated in different currencies or that bear different fees or commissions, or that differ according to other criteria determined by the King, excluding any differentiation in terms of participation in the results of the portfolio of the corporation the decision of the board of directors to create a new class of shares, pursuant to such a statutory provision, amends the statutes, without a general assembly having to be convened to do so;
3° the regulation of the management of a common investment fund with a variable number of shares provides, in accordance with the criteria and conditions fixed by the King by order taken on the advice of the FSMA, the creation of different classes of shares denominated in different currencies or that bear different costs or different commissions, or that differ according to other criteria determined by the King, excluding any differentiating funds in terms of participation in the results of the portfolio the decision of the management company to create a new class of shares, pursuant to such a provision of the management regulations, amends the latter, without a general assembly having to be convened to do so;
4° the statutes of a variable capital investment corporation or a debt investment corporation or the regulation of the management of a variable-number mutual fund provide for the possibility of creating different categories of shares in accordance with sections 12, 17, 25 or 28;
5° the statutes of a fixed capital investment company create different categories of shares;
6° the regulation of the management of a common debt investment fund or the statutes of a debt investment company create different categories of shares. Management regulations or statutes determine the terms and conditions for the distribution, between the various categories of shares, of amounts paid by debtors of the receivables composing the debt portfolio.
Management regulations or statutes may provide priority shares.
§ 3. The statutes of a debt-investment corporation or the management regulation of a common debt-investment fund stipulate that the benefit of the corporation or fund is distributed or reserved for subsequent distribution or for coverage of risks of default of payment of receivables.
Art. 9. A collective investment organization is managed or administered in accordance with the risk allocation principle and in a manner that ensures autonomous management and the exclusive interest of securities holders issued by the collective investment organization.
PART 2. - Public collective investment bodies
CHAPTER 1^er. - General provisions
Section 1^re. - Group institutions with varying number of public shares
Art. 10. Collective placements with varying number of public shares are the exclusive purpose of collective placement in one of the categories of authorized investments referred to in Article 7, paragraph 1^er, 1°, 2°, 3°, 4° and 9°, for which there is a market, in accordance with the provisions of this Law, of decrees and regulations made for its execution and of their rules of management or their statutes.
Collective investment organizations with a variable number of public shares may only proceed to the placement of the financial means they collect in a given authorized class of investments if it has been defined by the King in accordance with Article 7, paragraph 2. Such placement shall be carried out in accordance with such terms and conditions.
Art. 11. § 1^er. The rights of participants in a joint investment fund are represented by nominative, (b) dematerialized or, (c) to the extent permitted by the applicable legal provisions, to the bearer.
Compliance with the provisions of this Part and the orders and regulations made for its implementation, relating to a joint investment fund, is the responsibility of the collective investment organization management company.
§ 2. A mutual fund is considered to be Belgian if it is listed under section 33.
§ 3. Any mutual funds with a variable number of shares shall be designated by a particular name; the latter must include the words "common investment funds with varying numbers of public shares of Belgian law" or "open public funds of Belgian law", or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er, does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. Members of a mutual fund are held for the debts of the fund only to the net assets of the fund and to the pro rata of their participation.
The creditors of the collective investment organization management company or participants do not have recourse on the assets of the fund, which only meet debts, commitments and obligations that, in accordance with the purpose described in the management regulations, may be charged with the assets of the fund.
The collective investment management company represents the mutual fund and its participants towards third parties and may, in the cases and conditions specified in the management regulations, represent the participants in court without revealing the identity of the participants.
§ 5. Any input is made in cash. This provision does not apply in the event of the contribution of the assets of a collective investment organization listed in section 33 or in the event of the contribution of the basket of securities comprising an index, where the mutual fund management regulation provides that the investment policy of the mutual fund is intended to reproduce a specified securities index.
§ 6. In the event of dissolution, liquidation, merger or any other restructuring of a common investment fund, the provisions of Book IV, Title IX, or Book XI of the Corporate Code, as long as they apply to investment companies with variable capital, are, with the exception of Article 195bis of the Corporate Code, applicable by analogy.
Art. 12. § 1^er. The Regulation respecting the management of the variable-number pool of investments that has chosen for the categories of authorized investments referred to in Article 7, paragraph 1^er, 1° or 2°, may empower the collective investment organization management company to create different categories of shares each corresponding to a separate part, or compartment, of the heritage. In this case, the creation of each compartment gives rise to a public offer of the category of representative parts of the said part of the heritage.
The compartments should not be mentioned individually in the management regulations. In the event that the compartments are referred to individually in the management regulations, the decision of the collective investment management company to create a new class of shares amends the collective investment organization, without a general assembly having to be convened to do so.
§ 2. In accordance with the equality of participants, the Management Regulations provide for the method of charging fees for all the mutual fund of placement and per compartment, as well as the method of exercising the right to vote, approval of the annual accounts and granting of the discharge to the board of directors of the collective investment organization management corporation by the General Assembly.
§ 3. In the event of dissolution, liquidation, merger or any other restructuring of compartments of a common investment fund, the provisions of Book IV, Title IX, or Book XI of the Corporate Code, as long as they apply to investment companies with variable capital, are, with the exception of Article 195bis of the Corporate Code, applicable by analogy.
Each compartment of a common investment fund is liquidated separately, without the liquidation of another compartment. Only the liquidation of the last compartment entails the liquidation of the mutual fund.
§ 4. By derogation from Articles 7 and 8 of the Mortgage Act of 16 December 1851 and Article 11, § 4, paragraphs 1^er and 2, the rights of participants and creditors relating to a compartment or born in connection with the formation, operation or liquidation of a compartment are limited to the assets of that compartment.
In the event of the creation of different compartments in the heritage, any undertaking or operation is, in respect of the counterparty, imputed unequivocally to one or more compartments. The directors of the collective investment organization management corporation shall be jointly and severally liable, either to the members of the fund or to the third parties, for any damages arising out of breaches of the provisions of this paragraph.
By derogation from Articles 7 and 8 of the Mortgage Act of 16 December 1851 and Article 11, § 4, paragraphs 1^er and 2, the assets of a specified compartment shall exclusively meet the rights of the participants in that compartment and the rights of the creditors whose debt was born in connection with the formation, operation or liquidation of that compartment.
Art. 13. The Management Regulations include the provisions defining the purpose of the mutual fund, the specific rules of management or administration applicable to it and the respective rights and obligations of the collective investment organization management company, the depositary and the participants.
The management rules may be amended by a decision of the general meeting of participants.
The management regulations determine the cases and conditions under which the collective investment organization management corporation is entitled to exercise the voting rights attached to the financial instruments included in the mutual fund.
Art. 14. § 1^er. It must be held, each year, at least one general meeting of the participants of a mutual fund at the place, day and time indicated in the Management Regulations. The General Assembly shall hear the management report and the report of the Commissioners on the annual accounts and shall discuss the annual accounts of the mutual fund. The General Assembly decides on the approval of the annual accounts, including the allocation of the outcome of the mutual fund.
§ 2. The Board of Directors of the collective investment organization management corporation and the Commissioner of the mutual fund may convene a general meeting of participants in a joint investment fund, if applicable per compartment.
They are required to convene this General Assembly, if any by compartment
1° where participants who represent a fifth of the outstanding share of the mutual fund and who establish that they have held them for three months, apply to make a decision regarding the replacement of the collective investment organization management corporation;
2° for any decision to amend the regulation of the management or modification of the class of authorized investments, any decision to dissolve, wind up, melt, split or operation assimilated to a merger or split, or any decision to make or dispose of universality or industry;
3° each time the mutual fund management regulations provide for the convocation of the general meeting of participants;
4° in order to appoint a business reviewer to perform the duties of Commissioner of the mutual fund in accordance with section 101.
§ 3. The Management Regulations determine the method of convening, deliberation and decision of the general assembly of participants, in accordance with the provisions of the Code of Companies, provided that they are declared, by or under this Act, applicable by analogy to the mutual funds of investments or their compartments, as well as the method of making available to participants of the mutual fund of placement of the annual report, the report of the auditors and annual accounts.
In the event that the Regulation of Management of the Common Investment Fund provides, in accordance with Article 8, § 2, 3°, the creation of different classes of shares, Article 560 of the Code of Companies is applicable.
Art. 15. A variable capital investment company, known as "sicav", is incorporated as an anonymous company.
Its capital varies, without modification of the statutes, due to the issuance of new shares or the redemption of its shares.
A sicav may not carry out any activities other than that provided for in Article 3, 1 and 2°, (a), nor hold any assets other than those necessary for the realization of its statutory object.
Art. 16. § 1^er. The sicav is subject to the Corporations Code, except for derogations under or under this title or the Corporations Code.
§ 2. By derogation from Article 78 of the Code of Societies, the social name of the sicav and all the documents emanating from it, must contain the mention "public variable capital corporation of Belgian law" or "public sicav of Belgian law", or its name is immediately followed by these words. If the class of authorized investments for which it has opted in accordance with section 7, paragraph 1^er, does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 3. Social capital is always equal to the value of the net assets. It cannot be less than Euro1,200,000.
§ 4. Any input is made in cash. This provision does not apply in the event of the intake of assets of a collective investment organization listed in section 33 or in the event of the intake of the basket of securities comprising an index, where the statutes of the collective investment agency provide that the investment policy of the collective investment organization is intended to reproduce a specified securities index.
§ 5. The shares must be fully released from the subscription; they are without designation of their nominal value.
It cannot be created from non-representative shares of capital.
§ 6. Articles 78, 79, paragraph 1^er, 96, 4°, 5° and 6°, 141, 184, § 1^erparagraphs 2 and 5 and 2, 189 bis, 190, § 1^erparagraphs 3 and 4, 195 bis, paragraph 1^er, 3°, 196, paragraph 1^er, 5°, 439 to 442, 445 to 448, 453, paragraph 1^er, 1°, 458, 460, paragraph 1^er, 463, paragraph 3, 465, paragraph 3, 466, paragraph 4, 476, 477, 479, 483, 484, 506, 508, 533, § 2, 533bis, 533ter, 536, § 2, 542, 546, paragraph 2, 547 bis, 557, 558, paragraphs 2 and 3, 560, 581, 582 to 590, 5927,^er, 1°, 712, § 1^er, 1°, 722, § 1^er, 1°, 736, § 1^er, 1°, 751, § 1^er, 1° and 781, § 1^er, 1° of the Corporations Code shall not apply, without prejudice to any other exemptions to the Corporations Code provided for by or under this title or the Corporations Code.
The General Assembly may not validly deliberate and decide on amendments to the statutes unless the purpose of the proposed amendments has been specifically indicated in the convocation.
Without prejudice to Article 10, paragraph 1^er, section 559 of the Corporate Code is applicable.
Derogation from paragraph 1^erArticle 560 of the Corporate Code is applicable in the case referred to in Article 8, § 2, 2°.
Art. 17. § 1^er. The status of the sicav that has opted for the authorized investment categories referred to in Article 7, paragraph 1^er, 1° or 2°, may authorize the board of directors to create different categories of shares each corresponding to a separate part, or compartment, of the heritage. In this case, the creation of each compartment gives rise to a public offer of the category of representative parts of the said part of the heritage.
The compartments should not be mentioned individually in the statutes. In the event that the compartments are mentioned individually in the statutes, the Board's decision to create a new class of shares amends these, without a general assembly having to be convened to do so.
§ 2. In accordance with the equality of participants, the statutes provide for the method of charging fees for the entire investment company and per compartment, as well as the method of exercising the right to vote, approval of the annual accounts and granting of the discharge to the directors and commissioners by the General Assembly.
§ 3. In the event of dissolution, liquidation, merger or any other restructure of compartments of a sicav, the provisions of Book IV, Title IX, or Book XI of the Code of Companies, provided that they apply to sicav, are, with the exception of Article 195bis of the Code of Companies, applicable by analogy.
Each compartment of a sicav is liquidated separately, without giving rise to the liquidation of another compartment. Only the liquidation of the last compartment entails the liquidation of the sicav.
§ 4. The rights of participants and creditors relating to a compartment or born in connection with the formation, operation or liquidation of a compartment are limited to the assets of that compartment.
In the event of the creation of different compartments in the heritage, any undertaking or operation is, in respect of the counterparty, imputed unequivocally to one or more compartments. The directors shall be jointly and severally liable, either to the investment corporation or to third parties, for any damages arising out of breaches of the provisions of this paragraph.
By derogation from sections 7 and 8 of the Mortgage Act of 16 December 1851, the assets of a specific compartment are exclusively entitled to the rights of participants in this compartment and to the rights of creditors whose debt was born in connection with the establishment, operation or liquidation of that compartment.
Rules relating to judicial reorganization and bankruptcy are applied in a compartment without such a reorganization or bankruptcy may result in the reorganization of the judicial system or the bankruptcy of the other compartments or investment society. Creditors may contractually limit or waive their right to request the dissolution, liquidation or bankruptcy of the compartments or the investment company itself.
Section 2. - Fixed-number collective investment bodies
Art. 18. Fixed-number collective investment organizations are the exclusive purpose of collective placement in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 2° to 9°, in accordance with the provisions of this Act, of the decrees and regulations made for its execution and of their management regulations or their statutes.
Fixed-number collective investment organizations may only make the investment of the financial means they collect in a given authorized class of investments if it has been defined by the King in accordance with Article 7, paragraph 2. Such placement shall be carried out in accordance with such terms and conditions.
Art. 19. § 1^er. Article 11, § 1^er, 2 and 4, and sections 13 and 14 apply to fixed-number mutual funds.
§ 2. In the cases referred to in 14 § 2, paragraph 2, 1°, 2° and 3°, the general assembly of the participants can only validly deliberate if the participants present represent at least half of the number of the shares in circulation.
If this condition is not fulfilled, a new summons is necessary and the new assembly shall deliberate validly, regardless of the portion of the outstanding shares represented by the participants present.
The two preceding paragraphs are not applicable to the deliberations and decisions referred to in Article 14, § 1^er.
§ 3. Any common fixed-number investment funds shall be designated by a particular name; This includes the words "common investment funds with fixed numbers of public shares of Belgian law" or "public closed funds of Belgian law", or is immediately followed by these words. If the class of authorized investments for which it has opted in accordance with section 7, paragraph 1^er does not derive from its name, the indication of this category must always immediately follow its name.
§ 4. In the event of issuance of new shares against cash intake, they must be offered before the holders of the previously issued shares.
§ 5. In the event of the dissolution, liquidation or restructuring of a common fixed-number investment fund, the provisions of Book IV, Title IX or Book XI of the Corporations Code shall apply by analogy.
Art. 20. A fixed capital investment company (named "scaf") is incorporated in the form of an anonymous corporation or a share-sponsored corporation.
A sicaf may not carry on any activities other than that provided for in Article 3, 1 and 2°, (a) or hold other assets other than those necessary for the realization of its statutory object.
Art. 21. § 1^er. Sicaf is subject to the Corporations Code to the extent that it is not derogated by or under this title.
§ 2. By derogation from Article 78 of the Code of Societies, the name of the sicaf and all the documents emanating from it contain the mention "public fixed-capital corporation of Belgian law" or "public sicaf of Belgian law", or its name is immediately followed by these words. If the class of authorized investments for which it has opted in accordance with section 7, paragraph 1^er, does not appear in its name, the indication of this category must always immediately follow its name.
§ 3. Social capital cannot be less than Euro1,200,000. He must be fully released. For the purposes of section 634 of the Corporate Code, the minimum capital shall be the amount provided for in this subsection.
§ 4. Sections 111, 439, 440, 448, 477 and 616 of the Corporate Code are not applicable.
Without prejudice to Article 18, paragraph 1^er, section 559 of the Corporate Code is applicable.
§ 5. As part of the establishment of an obligation to give priority to existing participants in the award of new titles, the King may, by order made on the advice of the MSDS, provide for derogations from the minimum term of the subscription period provided for in section 599 of the Corporations Code.
Section 3. - Collective investment in public debts
Art. 22. Collective investment organizations in public receivables shall invest the financial means they collect in the authorized investment category referred to in section 7, paragraph 1^er, 7°, in accordance with and to the extent permitted by the provisions of this Act, by decrees and regulations made for its execution and by regulation of management or their statutes.
Art. 23. In accordance with the terms and conditions agreed, the collective investment agency in receivables may charge the original assignor of receivables recovery and other duties relating to the conservation and realization of rights relating to receivables.
This does not prejudice the delegation, by the original assignor of the receivables, of the tasks referred to in this paragraph to an entity specializing in this type of management, provided that the initial assignor of the receivables is subject to a prudential control regime and that this delegation is in accordance with the prudential rules and standards in this matter. The initial assignors who have comparable institutional status and have organizational homogeneity and who have established the same portfolio of receivables awarded under equivalent criteria are considered to be the original assignor for the purposes of this paragraph.
Where a receivable is transferred by or to a collective investment agency in receivables within the meaning of this Act, section 1328 of the Civil Code and section 26 of the Consumer Credit Act of 12 June 1991 and section 8 of Chapter 2, Title I of Book II of the Commercial Code, and sections 18 and 20 of the Act of 15 April 1884 relating to agricultural borrowing are not applicable to that assignment. The same provisions are not applicable where a receivable is given in pledges to or by a collective bargaining agency within the meaning of this Act.
Where receivables are transferred to or by a collective investment agency in receivables within the meaning of this Act, the assignee shall, by the sole performance of the formalities prescribed by Book III, Title VI, Chapter VIII of the Civil Code, obtain all rights in the insurance agreements that the assignor has to guarantee the receivables transferred. A pledge of these same rights to or by a collective investment agency in receivables is made by the fulfilment of the formalities prescribed by the provisions of Book III, Title XVII of the Civil Code or Title VI, Book I of the Commercial Code.
Art. 24. § 1^er. Articles 11, §§ 1^er, 2 and 4, 13, paragraphs 1^er and 2, 14 and 19, §§ 2 and 4, apply to the mutual funds of debts.
§ 2. Any mutual fund for debts must be designated by a particular name; the latter should include the words "a common fund for public debts of Belgian law" or be followed immediately by these words.
§ 3. In the event of the dissolution, liquidation or restructuring of a joint debt-investment fund, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy.
Art. 25. § 1^er. The settlement of the management of a common debt investment fund may empower the collective investment management company to create different categories of shares each corresponding to a separate, or compartmentalized portion of the assets. In this case, the creation of each compartment gives rise to a public offer of the category of representative parts of the said part of the heritage.
§ 2. Article 12, § 1^erParagraph 2, §§ 2 and 4 shall apply to mutual funds of debts.
§ 3. In the event of the dissolution, liquidation or restructuring of a compartment of a common receivables fund, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy.
Each compartment of a common debt fund is liquidated separately, without giving rise to the liquidation of another compartment. Only the liquidation of the last compartment entails the liquidation of the mutual fund for receivables.
Art. 26. A SIC is incorporated in the form of an anonymous corporation or a share-sponsored corporation.
A SIC may not carry out any activities other than that provided for in Article 3, 1 and 2°, (b), nor hold any assets other than those required to carry out its statutory object.
Art. 27. § 1^er. SIC is subject to the Corporate Code to the extent that it is not derogated from this title or under it.
§ 2. By derogation from Article 78 of the Code of Societies, the name of a SIC and all the documents emanating from it contain the words "investment company in public debts of Belgian law" or "Public SIC of Belgian law" or its name is followed immediately by these words.
§ 3. The statutes determine the amount of the fixed share of social capital.
The amount referred to in paragraph 1^er cannot be less than 61,500 euros and must be fully released.
The SIC is variable capital in excess of the fixed share of social capital. This part of the capital may be reduced without modification of the statutes, depending on the reimbursement of claims, in accordance with the terms and conditions prescribed by the statutes. In the event that the corporation has issued bonds or borrowed within the limits set out in section 75, a capital reduction may only be effected as long as repayments of bonds or loans are made.
§ 4. Sections 439, 440, 441, 448, 477 and 616 of the Corporate Code, as well as sections 613 and 614 of the Corporate Code for the variable portion of capital, are not applicable to ICS.
Without prejudice to Article 3, 7°, (a), Article 559 of the Corporate Code is applicable.
Art. 28. § 1^er. The statutes of a SIC may empower the board of directors to create different categories of shares each corresponding to a separate part, or compartment, of the heritage. Section 560 of the Corporate Code is not applicable.
The creation of each compartment gives rise to a public offer of the class of representative parts of the said part of the heritage, without prejudice to Article 3, 2°, b). This paragraph is not applicable to shares that represent the minimum capital referred to in Article 27, § 3, paragraph 2, provided that for each compartment created, the said part of the heritage is also financed by financial means collected partially by means of a public offer of securities.
In the event that the compartments are mentioned individually in the statutes, they are modified by the decision of the board of directors to create a new class of shares, without a general assembly being convened to do so.
§ 2. In accordance with the equality of participants, the statutes provide for the method of charging fees for the entire investment company and per compartment, as well as the method of exercising the right to vote, approval of the annual accounts and granting of the discharge to the directors and commissioners by the General Assembly.
§ 3. In the event of the dissolution, liquidation or restructuring of compartments, the provisions of Book IV, Title IX or Book XI of the Code of Companies shall apply by analogy to the compartments.
Each compartment of a SIC is liquidated separately, without giving rise to the liquidation of another compartment. Only the liquidation of the last compartment will result in the liquidation of the SIC.
§ 4. The rights of participants and creditors relating to a compartment or born in connection with the formation, operation or liquidation of a compartment are limited to the assets of that compartment.
In the event of the creation of different compartments in the heritage, any undertaking or operation is, in respect of the counterparty, imputed unequivocally to one or more compartments. The directors shall be jointly and severally liable, either to the members of the fund or to the third parties, for any damages arising from breaches of the provisions of this paragraph.
By derogation from sections 7 and 8 of the Mortgage Act of 16 December 1851, the assets of a specific compartment are exclusively entitled to the rights of participants in this compartment and to the rights of creditors whose debt was born in connection with the establishment, operation or liquidation of that compartment.
Rules relating to judicial reorganization and bankruptcy are applied in a compartment without such a reorganization or bankruptcy may result in the reorganization of the judicial system or the bankruptcy of the other compartments or investment society. Creditors may contractually limit or waive their right to request the dissolution, liquidation or bankruptcy of the compartments or the investment company itself.
Art. 29. § 1^er. Sections 568 to 580 of the Corporate Code are, unless otherwise provided in the conditions of issuance, applicable to holders of bonds or other receivables issued by a collective investment agency in receivables.
In the event of issuance of bonds or other receivables by a common debt fund, the obligations of the issuing corporation or its board of directors under sections 568 to 580 above are imposed on the fund's collective investment organization management corporation.
One or more representatives of the mass of the holders of receivables belonging to the same issue or class of titles may be appointed, provided that the conditions of issue contain rules relating to the organization of the general assemblies of the holders of the relevant receivables. These representatives may bind all holders of debt titles of the same program or category and represent them in respect of third parties or in court, within the limits of the missions entrusted to them, without having to justify their power other than by presentation of the act by which they were appointed. They can take legal action and represent the holders of debt securities in any bankruptcy, reorganization or similar procedure without having to reveal the identity of the holders of receivables they represent.
These representatives exercise their powers in the sole interest of the holders of receivables that they represent and are required to report to them under the terms and conditions set out in the conditions of issuance or in the decision to appoint.
The representatives of the holders of receivables are appointed either before the issuer's issuance, or, if their appointment takes place after the issuance, by the general assembly of the holders of the receivables concerned. Their powers are fixed under the conditions of issue or, if not, by the general assembly of the holders of the relevant debtors.
The general assembly of the holders of the relevant receivables may revoke, at any time, the representative(s) so designated provided that it simultaneously designates one or more other representatives.
Except as a more restrictive provision contained in the conditions of issuance, the General Assembly shall rule by a simple majority of the titles represented.
Representatives of the holders of receivables must be approved by FSMA. The King, by order made on the advice of the MSDS, defines the conditions of accreditation, the rules of advertising relating to the appointment, powers and revocation of representatives, the possible limits to the powers conferred on them and the rules relating to their independence from the assignor, the management society of collective investment bodies and the collective investment agency in receivables.
§ 2. A collective investment agency in receivables may, for the benefit of holders of bonds or debt securities, referred to in section 2, 31°, (b), of the Act of 2 August 2002, which it issued or will issue, give in pledge the receivables and other assets that the collective investment agency in receivables has acquired or will acquire in accordance with the provisions of title VI of Book I of the Commercial Code.
Unless otherwise provided in the pledge agreement, the pledge shall include, in full law, the income of the pledged receivables or the funds received in payment and the receivables and financial instruments in which they are invested.
Section 17, 3°, of the Bankruptcy Act of 8 August 1997 does not apply to amendments, additions or replacements with respect to the purpose of the gage referred to in this subsection, provided that the gage is established at the latest at the time of issuance of secured claims and that amendments, additions and replacements are made in accordance with the provisions of the gage agreement or in accordance with the second paragraph of that subsection.
Without prejudice to other means of enforcement provided by law, the President of the Commercial Court orders, at the request of all holders of secured receivables, that the pledge will remain in payment to them, up to the competition of an estimate made by an expert.
CHAPTER 2. - Access to activity
Section 1^re. - Registration
Art. 30. Any collective investment organization submitted under this heading shall, before commencing its activity in Belgium, be required to register with FSMA. The same obligation is applicable, if applicable, for the compartments of the collective investment organization.
Art. 31. The application for registration is accompanied by a record that meets the conditions set out by the MSDS and establishes that it is satisfied with the conditions set out in this title and by the decrees and regulations made for its execution and that includes the elements specified by the MSDS.
FSMA may request any additional information necessary to appraise the application for registration.
The collective placement agency shall promptly provide the MSDS with the information necessary for the permanent maintenance of the registration file.
Art. 32. FSMA shall include the collective investment agencies and, where appropriate, the compartments that meet the conditions set out in this title and the orders and regulations made for its execution and which are actually publicly available. It shall rule on the application for registration within three months of the introduction of a complete file for investment companies that do not make use of the possibility provided for in section 44 and within two months of the introduction of a complete file for collective investment organizations that make use of this possibility.
The registration of group placement organizations with varying number of shares or compartments of such organizations shall be maintained notwithstanding any decision of the collective placement organization, made in accordance with this Act and the decrees and regulations made for its execution, to discontinue the public offer of its parts or parts of its compartments.
Art. 33. FSMA prepares annually a list of Belgian law collective investment agencies and compartments, registered under this title. This list is published annually on its website. The changes to the list between two annual publications are made public at regular intervals on the FSMA website.
The list can include entries and sub-rubbers.
Section 2. - Registration conditions
Art. 34. A collective investment organization and, where appropriate, its compartments are listed on the list of Belgian collective placement agencies and may only commence their activities if the following conditions are met:
1° FSMA has accepted the choice of the collective investment organization management company of the mutual investment fund or has approved the investment company;
2° FSMA approved the management regulations or the statutes of the collective investment organization;
3° where applicable, FSMA accepted the choice of the depositary of the collective investment agency.
Sub-section 1^re. - Acceptance of the choice of the collective investment organization management company of the mutual fund
Art. 35. § 1^er. With respect to mutual funds that do not meet the requirements of Directive 2009/65/EC, the collective investment management company must
(a) be approved in accordance with Part III of this Act to perform all the management functions referred to in Article 3, 22°;
(b) have its registered office and central administration in Belgium.
With respect to mutual funds that meet the requirements of Directive 2009/65/EC, may serve as a management corporation,
(a) the collective investment management companies whose statutory headquarters and central administration are located in Belgium provided that they are approved, in accordance with Part III of this Act, to perform all the management functions referred to in Article 3, 22°;
(b) under the conditions set out in this Act, collective investment management companies that fall under the right of another Member State of the European Economic Area.
Compliance with the provisions of this Act and the orders and regulations made for its implementation, applicable to the mutual fund, shall be the responsibility of the collective investment management corporation designated under paragraph 1^er or 2.
§ 2. The program of activities of the collective investment management corporation referred to in section 189 must establish that the management structure, administrative, accounting, financial and technical organization and internal control of the collective investment organization are appropriate to the authorized investment category for which the mutual fund has chosen.
§ 3. The functions of a collective and depositary investment organization management corporation cannot be performed by the same corporation.
Art. 36. The replacement of the collective investment organization management company of the mutual fund is subject to the prior acceptance of the FSMA.
FSMA rules within two months of the introduction of a complete file.
Art. 37. The King may set the conditions for acceptance of the choice of the collective investment organization management company of the mutual investment fund according to the authorized investment categories open to mutual funds.
Sub-section 2. - Accreditation of the investment company
Art. 38. The investment company must demonstrate that it is satisfied with the provisions of this title.
Without prejudice to articles 42 and 44, § 3, its statutory seat and its central administration must be located in Belgium.
Art. 39. § 1^er. The effective management of the investment company must be entrusted to at least two individuals or private companies with limited liability and, as a permanent representative within the meaning of Article 61, § 2, of the Corporate Code, the sole partner and manager of the company. Individuals and permanent representatives of the unipersonal limited liability private companies referred to in this provision must have the necessary professional honourability and adequate experience to perform these functions, in accordance with Article 9 and in light of the authorized investment category for which the investment company has chosen.
§ 2. Individuals who take part in the administration or management of an investment company, without participating in its effective management, must have the necessary professional honesty and expertise, as well as the appropriate experience to perform their tasks.
§ 3. The investment company shall priorly inform the FSMA of the proposal for the appointment or renewal of the appointment, as well as the non-renewal of the appointment or revocation of persons participating in the administration, management or effective management of the investment company.
In the event of a proposal to appoint a person to take part in the administration, management or effective management of the investment company, the investment company shall communicate to the FSMA the information and documents that will enable it to determine whether the person has the necessary professional honesty and expertise and the appropriate experience, as referred to in §§ 1^er and 2.
ADMSP shall, within a reasonable time, issue notice of any proposed appointment or renewal of an appointment. Where a proposal for the appointment or renewal of an appointment relates to a person who participates in the effective management, the appointment or renewal of the appointment may only be made if the ADMSP has made a notice in accordance.
When it comes to the proposal to appoint a person who first participates in the administration, management or effective management of a company controlled by the MSDS in accordance with Article 45, § 1^er, 2°, from the law of 2 August 2002, FSMA consults the Bank beforehand.
The Bank shall notify FSMA within one week of receipt of the notice request.
The investment company also informs the FSMA of the possible division of tasks between those involved in the administration, management or effective management of the investment company, as well as significant changes in this division of labour.
Art. 40. Individuals who participate in the administration, management and effective management of the investment company may not be in one of the cases referred to in section 19 of the Act of 22 March 1993.
Art. 41. § 1^er. For the performance of the management functions referred to in Article 3, 22°, the investment company must have a management structure that is specific to it and is appropriate to the activities it carries out or intends to perform.
An appropriate management structure includes a coherent and transparent organizational structure that provides for adequate separation of functions, and a well-defined, transparent and coherent accountability framework.
The King specifies, by order taken on the advice of the FSMA, what should be heard by appropriate management structure.
§ 2. The investment company must also have the material, human and technical means to provide it with an administrative, accounting, financial and technical organization that is specific to it and that is appropriate to the activities it carries out or intends to carry out.
It should include monitoring and security mechanisms in the information and communications technology field appropriate to its activities.
The King specifies, by order taken on the advice of the MSDS, what should be heard by proper and appropriate administrative, accounting, financial and technical organization.
§ 3. The investment company must organize an adequate internal control, whose operation is evaluated at least once a year.
Internal control procedures include rules:
(a) in respect of the detention or management of investments in financial instruments to invest its initial capital;
(b) ensuring, at a minimum, that each transaction of the investment company or, where appropriate, its compartments may be reconstituted as to its origin, to the parties concerned, to its nature, and at the time and place where it was carried out;
(c) ensuring that the assets of the investment company are invested in accordance with the statutes of the investment company and the legal and regulatory provisions in force.
With respect to its administrative and accounting organization, the investment company must organize an internal control system that provides a reasonable degree of certainty as to the reliability of the financial reporting process, so that, in particular, annual accounts and semi-annual accounts, as well as the annual report and semi-annual report, are consistent with the existing accounting regulations.
The King specifies, by order taken on the advice of the FSMA, what must be heard by adequate internal control.
§ 4. The investment company takes the necessary measures to be able to have an adequate independent audit function on an ongoing basis.
The King specifies, by order taken on the advice of the FSMA, what should be heard by appropriate independent audit function.
ADMF may grant exemptions to the provisions of paragraph 1 where the relevant investment company determines that this requirement is not proportionate and appropriate given the nature, scale and complexity of its activity. FSMA may set specific conditions for the granting of these exemptions.
§ 5. The investment company takes the necessary measures to be able to have an adequate independent compliance function at all times, to ensure that the investment company respects its directors, its effective officers, its employees and its agents, the rules of law relating to the integrity of the activity of an investment company.
The King specifies, by order taken on the advice of FSMA, what should be heard by appropriate independent compliance function. It may determine cases in which MSDS may grant exemptions from the provisions made under this paragraph.
§ 6. The investment company must have an adequate risk management function and an appropriate risk management policy.
The King specifies, by order taken on the advice of the MSDS, what should be heard by appropriate risk management function and appropriate risk management policy. It may determine cases in which MSDS may grant exemptions from the provisions made under this paragraph.
The investment company must use a risk management method, adapted to the authorized investment category for which it has chosen, which allows it to control and measure at any time the risk associated with the positions and their contribution to the overall risk profile of the portfolio, or, where appropriate, to the overall risk profile of the various compartments of the investment company.
The investment company must use a method for a precise and independent assessment of the value of the voluntary derivatives in its portfolio or, where applicable, in the different compartments.
The King specifies, by order taken on the advice of the FSMA, the procedures for the evaluation of voluntary derivatives.
The investment company must communicate to the FSMA, once a year and whenever it so requests, a report giving a fair picture of the types of financial instruments used, the underlying risks, the quantitative limits and the methods chosen to assess the risks associated with derivative transactions. FSMA may, by regulation made in accordance with section 64 of the Act of 2 August 2002, specify the rules applicable to this matter.
§ 7. The investment company is developing an adequate integrity policy, which is regularly updated.
The King specifies, by order taken on the advice of the FSMA, what should be heard by appropriate integrity policy.
The investment company must be structured and organized so as to minimize the risk that conflicts of interest do not adversely affect the interests of holders of securities of the investment company.
The King specifies, by order taken by the FSMA, the rules and obligations in this matter.
The investment company develops appropriate rules applicable to personal, direct and indirect transactions, carried out on financial instruments by the investment company, its directors, its effective officers, its employees and its agents.
The King specifies, by order taken by the FSMA, the rules and obligations in this matter. These rules and obligations relate at least to:
- the persons concerned to whom these rules and obligations are applicable;
- personal transactions that are deemed to be contrary to the law;
- the terms under which the persons concerned are required to notify their personal transactions to the investment company;
- the way in which investment companies must maintain a registration of personal transactions.
§ 8. The organization of the investment company must allow it to provide, at the request of any holder of securities, additional information to those made public in the prospectus and annual and semi-annual reports, on the quantitative limits that apply to the management of the risks of the investment company, on the methods used to meet these limits, and on the recent evolution of the risks and returns of the assets comprising the authorized investment category for which it has been authorized.
§ 9. The persons responsible for the effective management of the investment company shall, under the supervision of the board of directors, take the necessary measures to ensure compliance with the provisions of §§ 1^er 8.
Without prejudice to the provisions of the Code of Companies, the board of directors must control at least once a year if the investment company complies with the provisions of §§ 1^er to 8 and paragraph 1^er and takes note of the appropriate measures taken.
Effective management officials report at least once a year to the Board of Directors, the FSMA and the Approved Commissioner on compliance with paragraph 1^er and on the appropriate measures taken.
This information is transmitted to the FSMA and to the authorized commissioner on the terms and conditions that the FSMA determines.
§ 10. The Authorized Commissioner shall, in due course, provide the Board with a report on important issues arising in the exercise of its legal oversight mission, and in particular on the serious deficiencies identified in the financial reporting process.
Art. 42. § 1^er. The investment company may entrust to a third party, by contract of mandate or business contract, the exercise, on its own behalf, of one or more of the management functions referred to in Article 3, 22°, (a), (b) or (c), with, inter alia, compliance with the conditions set out below.
1° The decision to assign certain management functions to a third party must be notified prior to FSMA. This notification shall establish that it is satisfied with the conditions of this Article.
2° The exercise of adequate control of the investment company cannot be hindered.
3° It may not be prejudiced to the obligation of the investment corporation to carry out its business in accordance with Article 9.
4° The exercise of the management function referred to in Article 3, 22°, (a) may be entrusted to a third party only by, inter alia, the compliance with the conditions set out below.
(a) The exercise of this function can only be entrusted to a company subject to a prudential control regime. It must have an administrative, accounting, financial and technical organization appropriate to the nature of the management functions entrusted to it and to the authorized investment category for which the investment company has chosen. Directors and persons who in fact provide effective management must have the necessary professional honesty and the appropriate experience to perform these functions.
(b) Without prejudice to (a), with respect specifically to investment companies that have opted for the class of authorized investments referred to in section 7, paragraph 1^er, 1° or 2°,
i. the exercise of the management function referred to in section 3, 22°, (a) may be entrusted only to a company authorized to provide investment services referred to in section 46, 1°, 4 of the Act of 6 April 1995 or to a collective investment management company;
ii. the investment distribution criteria set periodically by the investment company must be met.
(c) The performance of the management functions referred to in Article 3, 22°, (a) may not be entrusted or insured by the depositary of the investment company, or by any other company whose interests may be in conflict with those of the investment company or with those of the holders of securities.
(d) Without prejudice to point (c) above, the King shall determine, by order made on the advice of the FSMA, the conditions under which the investment companies that have opted for a class of authorized investments other than those referred to in Article 7, paragraph 1^er, 1° or 2°, may entrust to a third party the exercise of the management function referred to in section 3, 22°, a).
5° The exercise of the management function referred to in Article 3, 22°, (b) may be entrusted to a third party only by, inter alia, the compliance with the conditions set out below.
(a) The exercise of this function can only be entrusted to a company subject to a prudential control regime. It must have an administrative, accounting, financial and technical organization appropriate to the nature of the management functions entrusted to it and to the authorized investment category for which the investment company has chosen. Directors and persons who in fact provide effective management must have the necessary professional honesty and the appropriate experience to perform these functions.
(b) The exercise of this function can only be entrusted to a company established in Belgium.
Paragraph 1 is not applicable to the missions and duties referred to in section 23, paragraph 1^erprovided that this delegation of management functions has been approved prior to FSMA.
(c) With respect to collective investment organizations meeting the requirements of Directive 2009/65/EC, the exercise of this function may, however, be entrusted to a collective investment organization management company that falls under the right of another Member State of the European Economic Area, under the conditions set out in this Act.
(d) By derogation from point (a) above and without prejudice to the application of point (b) above, fixed-capital investment companies may entrust the performance of the management function referred to in section 3, 22°, (b), (i) to an approved reviser, an authorized accountant or an accountant. The company must operate in a company and have an administrative, accounting, financial and technical organization appropriate to the nature of the management functions entrusted to it and to the authorized investment category for which the investment company has chosen. Directors and persons who in fact provide effective management must have the necessary professional honesty and the appropriate experience to perform these functions.
A third party to whom the management function referred to in section 3, 22°, (b), (i) is entrusted must present sufficient independence with respect to the Commissioner. The provisions of articles 183bis to 183sexies of the Royal Decree of 30 January 2001 implementing the Code of Companies are applicable to him mutatis mutandis.
(e) The performance of the management functions referred to in Article 3, 22°, (b), (i), (iii), (iv) and (ix) may not be entrusted or insured by the depositary of the investment company, or by any other enterprise whose interests may be in conflict with those of the investment company or those of the holders of securities.
6° When the exercise of management functions is entrusted to a company under the law of a non-member State of the European Economic Area, this undertaking must be subject in its State of origin to a monitoring equivalent to that referred to in paragraph 4(a) and which is exercised permanently by a public authority. Cooperation between the supervisory authorities concerned must be ensured through collaborative agreements.
7° Measures are put in place that allow investment company leaders to effectively control at any time the business activity with which the mandate contract or business contract is entered into.
8° The directors of the investment company must be able to give at any time additional instructions to the company to which management functions are entrusted and to terminate the mandate contract or the business contract with immediate effect when it comes to the interests of the holders of securities.
9° Measures are put in place to ensure continuity of the management functions under this contract when the contract is terminated for any purpose.
10° The prospectus of the investment company referred to in section 57, paragraph 1^er, must indicate the management functions that the investment company has entrusted to a third party.
§ 2. The investment company cannot resort to § 1^er to such a extent that the presence of the material, human and technical means required by section 41 is insufficient to ensure compliance with section 41.
§ 3. When a third party has been assigned to perform certain management functions in accordance with § 1^er uses itself to a third party entity to perform the management functions entrusted to it, §§ 1^er and 4 are applicable.
For investment companies that opted for the authorized investment category referred to in section 7, paragraph 1^er, 5° or 7°, the King determines, by order taken on the advice of the MSDS, the conditions under which the delegation by the third party referred to in paragraph 1^er of material tasks related to management functions referred to in Article 3, 22°, (b), may derogate from paragraph 1^er.
§ 4. The fact that the investment company has entrusted a third party with the performance of certain management functions referred to in Article 3, 22°, is without impact on its responsibility or on that of the depositary.
Art. 43. If there are close ties between the investment company and other natural or legal persons, these links cannot hinder the exercise of adequate control of the investment company.
If the investment company has close ties with a natural or legal person under the law of a non-member State of the European Economic Area, the legislative, regulatory and administrative provisions applicable to that person or their implementation cannot hinder the exercise of adequate control of the investment company.
Art. 44. § 1^er. When the investment company does not have, in accordance with section 41, a management structure that is specific to it and that is appropriate to the activity it intends to carry out, or material, human and technical means that it provides an administrative, accounting, financial and technical organization and an internal control that is specific to it and that is appropriate to the activity it intends to carry out, it must designate a management company of aggregated investment organizations for the purpose of
In this case, articles 41 and 42 are not applicable.
The functions of a collective and depositary investment organization management corporation cannot be performed by the same corporation.
Compliance with the provisions of this Act and the orders and regulations made for its enforcement, applicable to the investment corporation, is the responsibility of the collective investment organization management corporation designated in accordance with paragraph 1^er.
§ 2. With respect to investment companies that do not meet the requirements of Directive 2009/65/EC, cannot be designated under § 1^er that collective investment organizations,
(a) which are approved in accordance with Part III of this Act to perform all the management functions referred to in Article 3, 22°; and
(b) whose statutory and central headquarters are located in Belgium.
The program of activities of the collective investment organization management corporation referred to in section 189 must establish that the management structure and the administrative, accounting and technical organization of the collective investment organization are appropriate to the authorized investment category for which the investment corporation has opted.
The King may set the conditions for acceptance of the choice of the collective investment management company designated in accordance with § 1^er by categories of authorized investments open to investment companies.
§ 3. For investment companies that meet the requirements of Directive 2009/65/EC, may be designated under § 1^er the management societies of collective investment bodies that fall under the right of another Member State of the European Economic Area, under the conditions established by this Law.
Art. 45. The choice of the collective investment management company must be accepted by the ADMF and the replacement of the designated collective investment management company is subject to the prior acceptance of the ADMF.
FSMA rules within two months of the introduction of a complete file.
Subsection 3. - Approval of the management and status regulations
Art. 46. The King, by order taken on the advice of FSMA, determines the minimum content of the rules of management and statutes.
Art. 47. FSMA shall verify the compliance of the management regulations or the statutes of the collective investment organization with the provisions of this title and the orders and regulations made for its execution.
Any changes to the management regulations or statutes are subject to the prior approval of the MSDS.
FSMA rules within two months of the introduction of a complete file.
Art. 48. The management of a mutual fund must be deposited with the ADMSP and, if amended, in a coordinated version.
Any interested person may be aware of the regulations filed with the MSDS.
Art. 49. The Regulations or Regulations are annexed to the prospectus referred to in section 57, paragraph 1^er and are part of it.
The collective investment organization shall ensure that the management regulations or regulations annexed to the prospectus referred to in section 57, paragraph 1^er, either at any time up to date and in accordance with the text filed with the FSMA or the Registry of the Commercial Court as the case may be.
The prospectus and the reports referred to, respectively, to articles 57, paragraph 1^er and 88, § 1^erParagraph 1^er, bear the mention that the official text of the management regulations or statutes is filed with the FSMA or the Registry of the Commercial Court as the case may be. In the event of a dispute, only the text submitted to the MSDS or to the Registry of the Commercial Court, as the case may be, is authentic.
Sub-section 4. - Acceptance of the choice of the depositary
Art. 50. § 1^er. The King, by order taken on the advice of the FSMA, determines the cases in which a collective investment agency must have a depositary, as well as the missions of the latter and the conditions that it must fulfil, taking into account the category of authorized investments for which the collective investment agency has chosen.
§ 2. Without prejudice to paragraph 1^er, may only intervene as a depositary for collective institutions with a variable or fixed number of shares, the following institutions and companies:
1° the credit institutions referred to in Part II of the Act of 22 March 1993 and the branches of credit institutions under the law of another Member State of the European Economic Area referred to in Part III of the Act;
2° the National Bank of Belgium;
3° the foreign exchange companies and investment companies established in Belgium, which are subject to the law of 6 April 1995.
Without prejudice to paragraph 1^er, in respect of collective investment organizations in receivables, may intervene as depositary the natural or legal persons designated individually or by category by the King, by order taken on the advice of the MSDS.
Art. 51. FSMA accepts the choice of depositary when evidence is provided that the administrative, financial and technical organization of the depositary allows it, in view of the class of authorized investments of the collective investment agency, to exercise the activity of depositary, as well as the evidence that persons who represent the depositary and who in fact manage the activity of depositary possess the necessary professional honesty and the appropriate experience with regard to the class of authorized investments Section 40 applies to persons referred to above.
FSMA can revoke its acceptance.
Any replacement of the depositary is subject to the prior acceptance of the MSDS. The latter notifies its agreement or refusal of replacement within fifteen days of receipt of a complete file.
FSMA rules within two months of the introduction of a complete file.
Art. 52. § 1^er. The custodian and collective investment management company, in the performance of their respective functions, act independently and exclusively in the interest of the participants.
§ 2. The depositary may not exercise effective management functions within the investment corporation of which he or she is depositary or within the collective investment organization management corporation designated by the collective investment organization of which he or she is depositary.
The appointees, within the board of directors of the investment corporation or the management corporation of the designated collective investment bodies, on presentation of the undertaking that assumes the functions of depositary of that investment corporation or of the collective investment organization that has designated that collective investment organization management corporation, may not exercise effective management functions within the said investment corporation or within the said collective investment corporation.
§ 3. The King, by order taken on the advice of the FSMA, determines the rules to be followed by the depositary in order to avoid a conflict of interest with holders of securities of the collective investment agency.
Art. 53. § 1^er. If a feeder does not have the same depositary as its master, the two depositaries conclude an exchange of information agreement to ensure the successful completion of their respective obligations.
The King, by order made on the advice of the MSDS, determines the content and terms of the agreement referred to in paragraph 1^er.
§ 2. Where they comply with the requirements set out in this section and in the provisions made for its execution, neither the master's or feeder's custodian shall be deemed to infringe any rule restricting the disclosure of information or in relation to the protection of data, such as section 458 of the Criminal Code or the law of 8 December 1992 relating to the protection of privacy in respect of the processing of personal information that restricts the disclosure, or any The fact of complying with these requirements does not entail any liability of any kind for the depositary or for any person acting on his behalf.
Art. 54. In the event that the collective investment management company is established in a Member State of the European Economic Area other than Belgium, the depositary enters into a written agreement with the collective investment management company, covering the provision of the information necessary to enable the depositary to comply with its obligations under this Act and the decrees and regulations made for its implementation.
The King, by order taken on the advice of the FSMA, may specify the obligations applicable to the depositary of a collective investment organization managed by a collective investment management company established in a Member State of the European Economic Area other than Belgium, including the elements to be included in the agreement to be concluded between the depositary and the management society of collective investment bodies.
Art. 55. The management regulations, statutes or agreements between the investment corporation or the collective investment organization management corporation and the depositary may not mitigate, limit or exclude the liability of the investment corporation.
The liability of the depositary is not affected by the fact that it entrusts to a third party all or part of the assets of which it has custody.
Section 3. - 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 securities of collective investment organizations and intermediation in public tenders of securities of collective investment organizations
Sub-section 1^re. - 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 securities of collective investment organizations
Art. 56. This subsection rules:
1° the prospectus and key information for the investor regarding the public offer of shares of collective investment organizations with varying number of shares;
2° the notices, advertisements and other documents that relate to a public offer of securities of a collective investment agency, which announce or recommend such offer.
Art. 57. A public offer of shares of a group investment agency with a variable number of shares can only be made after a prospectus and a key information document for the investor has been made public.
In the event of a public offer of securities of a collective investment organization, other than that referred to in paragraph 1^era prospectus is made public in the cases and in the manner prescribed by the law of 16 June 2006.
Art. 58. § 1^er. The prospectus contains the information that is necessary for the public to be able to bring to full knowledge a judgment on the proposed placement and, in particular, on the risks inherent in the placement and on the rights attached to the shares.
It includes a clear and easy-to-understand description of the risk profile of the collective investment organization, regardless of the instruments in which it invests.
The prospectus specifies the extent to which social, ethical and environmental aspects are taken into account in the implementation of the investment policy.
§ 2. The information contained in the prospectus must be kept up-to-date, in particular, by any developments that may influence the public's judgment.
Art. 59. § 1^er. Key information for the investor includes appropriate information on the essential characteristics of the collective investment organization concerned, to be provided to investors so that investors can reasonably understand the nature and risks of the investment product proposed to them and, consequently, make informed investment decisions.
§ 2. Key information for the investor is written in a concise and non-technical language. They are established in a common format, allowing comparisons, and are presented in such a way that they can be understood by retail investors.
Key information for the investor is correct, clear, not misleading and consistent with the relevant parts of the prospectus.
§ 3. The essential elements of key information for the investor are kept up to date.
Art. 60. § 1^er. The prospectus, key information for the investor and their potential updates can only be made public after being approved by the MSDS.
Derogation from paragraph 1^er, the King shall indicate, according to their object, the information contained in the prospectus and in the key information for the investor who, when updated in accordance with Article 58, § 2 and Article 59, § 3, may be made public without prior approval of the MSDS. Notwithstanding this paragraph, any update must be communicated to the MSDS prior to its publication in the form of a version of the prospectus incorporating the relevant update.
§ 2. The prospectus of a collective investment organization that has designated a collective investment organization management company under the right of another Member State in accordance with Article 44, and its possible updates, must be communicated, upon request, to the competent authorities of the Member State of origin of that collective investment organization management company.
§ 3. Notices, advertisements and other documents that relate to a public offer of securities of a collective investment organization that advertise or recommend such an offer may only be made public, regardless of their mode of publication, after being approved by the FSMA.
ADMSP may determine the terms and procedures under which approval of the documents referred to in paragraph 1^er can be done. FSMA takes into account the nature and content of these documents, including the standardised and recurring nature of the documents, the media used and the investment policy of the collective investment organization.
Art. 61. Any communication made in Belgian territory, to the attention of more than 100 natural or legal persons, other than institutional or professional investors, that is, to provide information or advice or to induce requests for information or advice relating to shares of collective institutions with a variable number of shares created or not yet created that are or will be the subject of an offer for sale or subscription, where such communication emanates from an organization of measure
1° the offer falls into one of the categories referred to in Article 5, § 1^erParagraph 1^er, 4° or 6°, or
2° a public tender and key information for the investor has been duly approved by the FSMA.
Is presumed to act on behalf of the collective investment organization or the person who is in a position to assign the securities, any person who directly or indirectly receives remuneration or benefit from the collective investment organization or the person who is in a position to assign the securities.
Art. 62. The prospectus and its updates contain the indication that they are published after being approved by the MSDS in accordance with Article 60, § 1^erand that this approval does not include any appreciation of the opportunity and quality of the offer, nor of the situation of the one who realizes it.
Except for the indication referred to in paragraph 1^er and the indications provided by regulation 583/2010, no mention of the intervention of the MSDS may be made in the prospectus, the key information for the investor or their updates, or in the notices, advertisements or other documents that relate to the offer or that announce or recommend it.
Art. 63. § 1^er. Key information for the investor is pre-contractual information.
Notwithstanding paragraph 1, no person shall be liable on the sole basis of the key information for the investor, including the translations of the information, unless that information is misleading, inaccurate or inconsistent with the relevant parts of the prospectus. Key information for the investor contains a clear warning in this regard.
§ 2. Notwithstanding any stipulation that is unfavourable to investors and without prejudice to the application of § 1^erpersons designated in accordance with § 3, paragraph 1^er, are held in solidarity with the interested parties, the repair of the damage caused by the absence or misleading or inaccurate nature of the information in the prospectus, the key information for the investor or their updates.
The prejudice suffered by the investor is presumed to result, unless otherwise proven, from the absence or misleading or inaccurate nature of the information in the prospectus, the key information for the investor or their updates, where this absence or misleading or inaccurate character was likely to create a positive feeling in the market or to positively influence the purchase or acquisition price.
§ 3. Without prejudice to the provisions of § 1^er, the prospectus clearly indicates who is responsible for the entire prospectus and key information for the investor and their updates. Responsible persons are identified by their name and function, or, in the case of legal persons, by their name and registered office.
Only the Offeror, the collective investment organization and the designated collective investment organization management company, or their bodies, may assume responsibility for the entire prospectus and its updates.
The prospectus resumes a statement by the responsible persons certifying that, to their knowledge, the prospectus data and key information for the investor are in conformity with the reality and do not contain an omission that would alter its scope.
Without prejudice to paragraphs 1^er and 2, the prospectus may indicate the persons responsible for part of the prospectus and its updates.
§ 4. Notwithstanding any stipulation that is contrary to investors, the Offeror, the Collective Investment Organization, the Management Company of Designated Collective Investment Organizations or the intermediaries designated by them shall be liable to compensation for the damage caused by any document referred to in Article 60, § 3, and that is published on their initiative, which is misleading, inaccurate or contradictory in respect of the prospectus, to the information that is essential to the investor or
The prejudice suffered by the investor is presumed to result, unless otherwise proven, from the misleading, inaccurate or contradictory nature of the prospectus, the key information for the investor or their updates and supplements, of information contained in a document referred to in section 60, § 3, or of the non-compliance of such a document with the provisions prescribed by or under section 64, where that inaccurate, inaccurate
Art. 64. § 1^er. Without prejudice to § 2, the King may, by order made on the advice of the FSMA, in respect of the publication of the following documents:
1° to determine, depending on the type of offer and the purpose of the offer, the minimum content and mode of presentation of the prospectus and its updates, as well as the minimum content and mode of presentation, notices, advertisements and other documents that relate to a public offer of securities of collective investment organizations or that announce or recommend it;
2° without prejudice to Regulation 583/2010, determine, depending on the type of offer and the purpose of the offer, the minimum content and the mode of presentation of the key information for the investor;
3° to determine, depending on the type of offer and the purpose of the offer, the deadlines and modes of publication of the prospectus, key information for the investor and their updates, as well as the deadlines and modes of publication of notices, advertisements and other documents that relate to a public offer of securities of collective investment organizations or that announce or recommend it;
4° determine under which conditions it can be answered to a public offer of shares of collective investment organizations with varying number of shares on the basis of the prospectus or key information for the investor;
5° to determine under what conditions the prospectus, key information for the investor and their updates, as well as notices, advertisements and other documents that relate to a public offer of securities of collective investment bodies or that announce or recommend it may be made public by posting on the website of the collective investment organization, the management company of designated collective investment organizations, from the third party to § 2^er, which was entrusted with the exercise of the management function referred to in section 3, 22°, c).
§ 2. Notices, advertisements and other documents that relate to a public offer of securities of collective investment organizations that advertise or recommend such an offer must meet the following conditions:
1° they indicate that a prospectus and a key information document for the investor have been, are or will be published and indicate where investors can obtain them;
2° the information contained therein may not be misleading or inaccurate;
3° the information they contain is compatible with the information contained in the prospectus and in the key information for the investor and their updates and supplements if these documents have already been published or should be included if they are published later.
Promotional communications must be clearly recognizable as such.
Art. 65. § 1^er. Anyone who proposes to publicly offer shares of a group investment agency with a variable number of shares shall notify FSMA in advance.
§ 2. A notice referred to in § 1^er, is attached a record prepared in accordance with the requirements of the MSDS, including:
1° the prospectus project and the draft key information document for the investor established pursuant to sections 58, 59, 62, 63 and 64, and the orders made for their execution;
2° the draft of the notices, advertisements and other documents that relate to the offer, which announce or recommend it, that are prepared on the initiative of the Offeror, the collective investment agency, the management company of collective investment organizations or by the intermediaries designated by them;
3° any special reports prescribed under the law of the companies that are related to the operation;
4° the possible reports of experts to which the prospectus refers;
5° any other relevant document for the review of prospectus and key information for the investor.
§ 3. Anyone who proposes to publicly offer securities of a collective investment organization, other than those referred to in § 1^erdiscloses to the FSMA the draft notices, advertisements and other documents that relate to the offer, which announce or recommend it, that are prepared on the initiative of the Offeror, the Collective Investment Organization, the Management Society of Collective Investment Organizations or the intermediaries designated by them, when making the notice referred to in sections 32 and 52 of the Act of 16 June 2006.
Art. 66. Without prejudice to Article 65, § 2, 2°, and § 3, anyone who proposes to make public notices, advertisements and other documents that relate to a public offer of securities of a collective investment agency, who announce such an offer or recommend it in advance to FSMA.
Art. 67. FSMA may require individuals who have given the notice referred to in sections 65 and 66 to complete the file with all the information necessary to assess the complete and adequate nature of the information, as the case may be, in the prospectus, in the key information for the investor or in their updates, as well as to assess the complete and adequate nature of the information taken in the notices, advertisements and other documents that relate to a public offer of securities
Art. 68. Without prejudice to article 32, paragraph 1^er, last sentence, FSMA decides, within fifteen working days after receiving a complete record, either to approve, as the case may be, the prospectus, the key information for the investor, their updates, or the notices, advertisements and other documents that relate to a public offer of securities of a collective investment organization, which announce such offer or recommend it, or to refuse to approve,
Art. 69. When FSMA has not made any of the decisions referred to in Article 68, the persons who have given the notice provided for in Articles 65, §§ 1^er and 3, and 66, may, by registered mail, put the MSDS in place. This notice may be made at the earliest of the expiry of a period of 15 working days from the date of the last application, by the MSDS, of additional information within the meaning of section 67, or, in the absence of such a request, not earlier than the expiry of a period of 15 working days from the date of the notice referred to in sections 65, §§ 1^er and three, and 66.
If, on the expiry of 15 business days from the date of the time limit referred to in paragraph 1^er, the FSMA remains in default, either to make the decision, citing the missing elements, that the file cannot yet be considered complete, or to make one of the decisions referred to in section 68, the application for approval, as the case may be, of the prospectus, of key information for the investor, of their updates or notices, advertisements and other documents that relate to a public offer of securities of an advertising agency
Art. 70. The decisions referred to in Article 68 are brought to the attention of the persons who have given the notice provided for in Articles 65, §§ 1^er and three, and 66. If this is an offer referred to in Article 3, 13°, (a), (ii), these decisions are also brought to the attention of the relevant market companies.
Only persons who have given the notice provided in Articles 65, §§ 1^er and 3, and 66, may, in accordance with Article 121, § 1^erParagraph 1^er, 5°, of the Act of 2 August 2002, to lodge an appeal against the refusal of the MSDS referred to in section 68 to approve, as the case may be, the prospectus, the key information for the investor, their updates or notices, advertisements and other documents that relate to a public offer of securities of a collective investment organization, which announce such an offer or recommend it, or against the implied decision to reject paragraph 2.
ADMSP approval decisions as appropriate, prospectus, key information for the investor, their updates or notices, advertisements and other documents that relate to a public offer of securities of a collective investment agency, which announce or recommend such an offer, are not subject to appeal.
Sub-section 2. - Intermediation
Art. 71. Only the following persons or establishments may practice intermediation in the context of public tenders of securities of collective investment bodies, referred to in Article 3, 13°, (a), (i), carried out in Belgium:
(a) the European Central Bank, the National Bank of Belgium and other central banks of the European Economic Area member states;
(b) credit institutions listed in the list provided for in section 13 of the Act of 22 March 1993, with the exception of municipal savings funds;
(c) branches established in Belgium of credit institutions under the law of another Member State of the European Economic Area, registered in accordance with Article 65 of the Act of 22 March 1993;
(d) credit institutions not established in Belgium that fall under the right of another Member State of the European Economic Area and operate in Belgium in accordance with Article 66 of the Act of 22 March 1993;
(e) the stock exchange companies referred to in Book II, Title II, of the Act of 6 April 1995;
(f) portfolio management and investment consulting companies referred to in Book II, Title II, of the Act of 6 April 1995;
(g) investment companies operating under the law of another Member State of the European Economic Area and operating in Belgium under Book II, Title III, of the Law of 6 April 1995;
(h) branches established in Belgium of investment companies under State law that are not members of the European Economic Area and operate in Belgium in accordance with Book II, Title IV, of the Law of 6 April 1995;
(i) investment companies under the law of States that are not members of the European Economic Area and operate in Belgium through the provision of services, provided that their intervention as an intermediary is in accordance with the statute to which they are subject under the decrees carried out under Book II, Title IV, of the law of 6 April 1995;
(j) the collective investment management companies listed in section 193 of this Act;
(k) the management societies of collective investment bodies under the law of another Member State of the European Economic Area and operating in Belgium pursuant to Book III of Part III of this Law, provided that their intervention as an intermediary is in accordance with the statute to which they are subject under the decrees taken pursuant to Book III above;
(l) the management societies of collective investment bodies under the law of States that are not members of the European Economic Area and operate in Belgium under Book III of Part III of this Law, provided that their intervention as an intermediary is in accordance with the statute to which they are subject under this Law.
Paragraph 1^er does not prejudice the possibility for the Offeror or the collective investment agency to collect the acceptances of its offer of securities.
CHAPTER 3. - Exercise of activity
Section 1^re. - Investment policy
Art. 72. A collective investment organization that has opted for the class of authorized investments referred to in Article 7, paragraph 1 is prohibited^er, 1°, change this choice.
Art. 73. Collective investment organizations that opted for one of the authorized investment categories referred to in Article 7, paragraph 1^er, 3° to 9°, can always hold short-term investments and cash in an incidental or temporary manner.
Art. 74. Without prejudice to Article 7, paragraph 2, the King, by order made on the advice of the MSDS, shall determine the obligations and prohibitions to which collective investment bodies are subject in respect of the class of authorized investments for which they have chosen and, in particular:
1° the risk allocation coefficients;
2° with respect to collective investment organizations in receivables, the modalities for managing the risks of default of payment;
3° the conditions under which collective investment organizations that opted for one of the authorized investment categories referred to in Article 7, paragraph 1^er, 3° to 9°, may hold financial instruments and liquidity;
4° if collective investment organizations are authorized to carry out the following transactions and, where applicable, the limits and conditions of such authorization:
(a) the loan;
(b) the sale on the basis of an uncovered position;
(c) the firm capture and guarantee of good end of programming and the subscription of any financial commitments to third parties;
(d) the loan of securities, the granting of credits or the granting of security rights to guarantee third party obligations;
(e) disposal-retrocession agreements (repurchase agreements).
Art. 75. By derogation from section 74, 4°, (a), collective investment organizations in receivables may, within the limits provided for by their regulations or statutes and within the limits set by the King by order taken on the advice of the MSDS, issue obligations and other debt securities and enter into borrowings or credits to finance the debt portfolio or to manage the default risks of payment of creditors.
Section 2. - Master-feeder structures
Art. 76. If at least two of the participants of a master's degree in Belgian law are feeders, this master's degree is, for the purposes of Article 10, deemed to collect its financial resources through a public offer of shares.
Art. 77. The investment of a feeder in a given master, which exceeds the King's limit, is subject to the prior approval of FSMA. The feeder must, for this purpose, transmit to FSMA the documents determined by the King, established in one of the national languages or in a language accepted by FSMA.
The King defines the terms of the approval procedure.
The feeder only invests in the master's shares once the internal agreements or rules of conduct referred to in sections 53, 78 and 107 have entered into force.
The feeder actually controls the activity of the master.
Art. 78. The master provides the feeder with all the documents and information necessary to ensure that the latter meets the requirements of the legislation. To this end, the feeder concludes an agreement with the master.
When the master and feeder are managed by the same collective investment organization management company, the agreement may be replaced by internal rules of conduct ensuring compliance with the requirements set out in this section.
The King, by order taken on the advice of the FSMA, determines the content and terms of the agreement and the internal rules of conduct referred to in this article.
Art. 79. § 1^er. If a master is liquidated, the feeder is also liquidated, unless FSMA approves:
1° the investment of at least 85% of the feeder assets in the shares of another master, or
2° the modification of the management regulations or the feeder's statutes in order to allow it to be converted into a collective investment organization that does not have the quality of feeder.
§ 2. If a master merges with another collective investment organization or is split into two or more collective investment organizations, the feeder is liquidated, unless FSMA accepts only the feeder:
1° continues to be a feeder of the master or another collective investment organization that is the result of the fusion or splitting of the master,
2° invests at least 85% of its assets in the shares of another master that is not the result of fusion or splitting, or
3° amends its management regulations or statutes to convert to non-feeder.
§ 3. The King, by order taken on the advice of FSMA, determines the procedure to be followed by the feeder in the event of the master's liquidation, merger or split.
Art. 80. The King shall establish, by order made on the advice of the MSDS, the provisions and procedures to be followed by the feeders and masters for the purpose of ensuring the protection of the interests of the participants, at least with regard to the determination of the net inventory value, the provision of particular information to participants and the MSDS and fees and commissions.
Section 3. - Obligations and prohibitions
Art. 81. § 1^er. It is prohibited for a collective investment organization to acquire a quantity of securities of the same corporation, such that, given the structure and dispersion of the shareholding of the corporation, such securities would enable it to influence the management of the corporation or the designation of its directors.
The King, by order taken on the advice of the FSMA, sets the limits to detention by a group placement agency, of securities of the same class of a same issuer.
§ 2. It is prohibited for a collective investment organization to commit to voting in a specific manner with the titles it manages or to vote according to the instructions of other persons whom the participants gathered in the general assembly. It is prohibited for a collective investment organization to commit to not selling securities, granting a right of pre-emption, or to conclude any other agreement that would hinder its management autonomy.
Any convention to the contrary is null.
§ 3. The King may, by order taken on the advice of the MSDS, provide for exceptions to paragraphs 1^er and 2 for collective investment organizations that have opted for authorized investment categories referred to in Article 7, paragraph 1^er, 5°, 6°, 8° and 9°, in order to take into account the characteristics of the assets comprising the aforementioned authorized investment categories.
§ 4. Paragraphs 1^er and 2 do not apply in cases where an investment company has established subsidiaries that are themselves collective investment organizations within the meaning of section 4.
§ 5. The collective investment organization reports in its annual report on its policy on the exercise of voting rights attached to the securities it manages. In particular, it mentions and justifies the manner in which voting rights have been exercised or the reasons why voting rights have not been exercised.
Art. 82. The investment company strives to deviate conflicts of interest and, when such conflicts cannot be avoided, it ensures that participants are treated fairly.
The King, by order made on the advice of the FSMA, determines the rules to be followed by the investment company, by the management company of designated collective investment organizations and by the third parties referred to in section 42 to avoid conflict of interest with holders of securities of the collective investment organization. The King establishes:
(a) minimum criteria for the detection of conflicts of interest;
(b) independence requirements for conflict of interest management;
(c) conflict of interest policy rules;
(d) rules on the management of activities leading to conflict of interest; and
(e) rules requiring the development of appropriate and effective strategies for the exercise of voting rights related to instruments held in managed portfolios.
Art. 83. The investment company complies with the following principles:
- in the exercise of its activity, faithfully and fairly and with the skill, care and diligence that is required, to the best of the interests of the participants and the integrity of the market;
- it has the resources and procedures necessary to complete and effectively utilize its activities;
- it complies with all regulations applicable to the exercise of its activities in order to promote the best interests of participants and the integrity of the market.
The King shall, by order taken on the advice of the MSDS, decide on the rules of conduct that the collective investment organization is required to comply with in the performance of its management functions referred to in Article 3, 22°, taking into account the nature of the management function concerned. These rules shall at least include:
- the setting of appropriate criteria to act faithfully and fairly, with the necessary competence, care and diligence, in the exclusive interest of the participants and in accordance with the principle of equality between them;
- the formulation of principles to ensure that collective investment organizations effectively use the resources and procedures required to complete their activities; and
- the obligations of collective investment agencies in the enforcement and processing of orders, taking into account the principle of better enforcement.
Article 223, § 2 is applicable mutatis mutandis.
Art. 84. § 1^er. In the event of dissolution, liquidation, merger or any other restructuring of collective investment bodies or their compartments, the collective investment bodies, their management companies, their depositaries, their commissioners or other legal controllers of the independent or depositary accounts designated in this framework shall comply with the provisions, decided by the King on the advice of the MSDS, in particular to ensure the protection of the interests of the participants in such matters as assessment, of costs related to On the advice of the FSMA, the King also determines the conditions under which the regulations or regulations and the prospectus must meet in the course of these operations, the conditions under which such an operation is authorized or not, and the rules governing the control exercised by the FSMA and defining the competence and obligations of the latter in the course of these operations.
In this context, the King may, taking into account the other obligations determined by his care or the specificity of the collective investment bodies, provide for exemptions to articles 444, 533 and 602, and the provisions of Book XI of the Code of Societies. The King may also set the conditions under which, in the event of a merger by constitution of a new compartment, the transfer of the assets of a single compartment or common investment fund to a new compartment may be effected, by derogation from section 672 of the Code of Societies, which shall not be constituted by the latter.
§ 2. In the event of a merger or any other restructuring, the information which, according to the rules determined by the King, must be transmitted for approval to the FSMA, shall be communicated in one of the national languages or in a language accepted by the FSMA, in accordance with the rules of Belgian law in force, as well as, if the beneficial collective placement body is originating from another Member State, in the official language or in one of the official languages of the State
The information that the collective investment bodies concerned with the merger or any other restructuring shall, according to the rules determined by the King, be required to provide to their participants, shall be communicated in the official language or in one of the official languages of each Member State where the shares of these collective investment bodies may be marketed, or in a language accepted by the competent authorities of these Member States.
Section 4. - Emission and public offering of securities of a collective investment organization
Art. 85. § 1^er. The shares of the collective investment organizations with a variable number of shares are issued and redeemed by the collective investment organization to the inventory value, if any increased or reduced the fees and commissions provided by the management regulations or the statutes. The inventory value is calculated each day that the issue and the redemption of the shares are authorized by the Management Regulations or the Regulations.
§ 2. The participating collective investment agency shall designate a credit institution registered on the list referred to in Article 13 of the Act of 22 March 1993, a branch of a credit institution under the law of another Member State of the European Economic Area registered in accordance with Article 65 of the Act of 22 March 1993 or a Belgian stock exchange corporation registered on the list referred to in Article 53 of the Law of 6 April 1995, or a branch
The King, by order made on the advice of the MSDS, determines the obligations and prohibitions to which the undertakings referred to in paragraph 1 are subject.^er of this paragraph in the course of the activities described therein.
§ 3. The shares of a group investment agency with a variable number of shares may be admitted to negotiations on a MTF or a regulated market provided that the collective investment organization has put in place a mechanism to ensure that the share price does not significantly deviate from the inventory value of the shares.
The King, by order taken by the FSMA, sets the maximum amount of this deviation.
Without prejudice to paragraph 2, the MSDS appreciates the acceptable nature of the maximum difference between the course and the inventory value under the organization's investment policy, the characteristics of the authorized investment category for which it has chosen and the characteristics of the market on which the shares are negotiated.
Art. 86. The King, by order taken on the advice of the FSMA, determines the obligations and prohibitions to which collective investment bodies and third parties referred to in Article 42, § 1^er, who have been entrusted with the performance of the management function referred to in section 3, 22°, (c), in respect of the issuance and public offer of securities of collective investment organizations and, at least:
1° the method of calculating the inventory value of the shares of the collective investment organization;
(2) the cases in which the right of free entry and exit may be suspended;
3° the nature of the fees as well as the method of charging fees and commissions.
Art. 87. The shares of fixed-number collective investment agencies are allowed to negotiate on a regulated market.
The securities of the collective investment organizations that have been publicly offered are admitted to negotiations on a regulated market.
Section 5. - Periodic information and accounting rules
Art. 88. § 1^er. Every collective investment organization publishes an annual report per fiscal year and a semi-annual report covering the first six months of the fiscal year. These reports contain a detailed inventory of assets, an assessment of results and information on how social, environmental and ethical criteria were taken into account in the management of financial resources and in the exercise of portfolio securities rights. This obligation applies, if applicable, by compartment.
Without prejudice to paragraph 1^er, any collective investment agency in receivables publishes a quarterly financial statement, in accordance with the terms determined by the King by decree taken on the advice of the FSMA. This obligation applies, if applicable, by compartment.
§ 2. Annual and semi-annual reports and quarterly financial statements referred to in § 1^er are communicated to FSMA.
The persons responsible for the effective management of the collective investment agency declare to the MSDS that the periodic reports and financial statements referred to in § 1^er are in accordance with accounting and inventories.
These reports and financial statements (a) must be complete and include all data in accounting and inventories on the basis of which periodic financial reports and statements are prepared, and (b) must be accurate and consistent with accounting and inventories on the basis of which periodic financial reports and statements are prepared. Effective management confirms that they have made the necessary steps to ensure that the above-mentioned reports and statements are prepared in accordance with the existing instructions of the FSMA, as well as by applying the accounting and evaluation rules for the preparation of the annual accounts, with respect to the periodic financial reports and statements prepared at the end of the year, or by applying the accounting and evaluation rules that presided over the preparation of the related annual accounts.
§ 3. Annual and semi-annual reports and quarterly financial statements referred to in § 1^er are paid to the holders of securities of the collective investment organization who request it. The last annual or semi-annual report must always be annexed to the prospectus referred to in section 57, paragraph 1^er.
They must be made available to the public at the locations indicated in the prospectus and in the key information document for the investor referred to in section 57, paragraph 1^er.
Annual and semi-annual reports, as referred to in § 1^er, of a collective investment organization that has designated a collective investment organization management company under the right of another Member State in accordance with Article 44, must be communicated, upon request, to the competent authorities of the Member State of origin of that collective investment organization management company.
The King, by order made on the advice of the MSDS, determines the content, form, mode and time of publication of annual and semi-annual reports as well as quarterly financial statements as well as the conditions under which the annual reports, semi-annual reports and the quarterly financial statements may be made public by posting on the website of the collective investment organization, of the management company of the designated collective investment bodies, of the third party article, of the^er, which was entrusted with the exercise of the management function referred to in section 3, 22°, c).
Art. 89. The King, by order taken on the advice of the FSMA, sets out the rules that collective investment organizations maintain their accounting, if any, by compartment, carry out inventory assessments and establish and publish their annual accounts. With respect to investment companies, it may derogate from section 105 of the Corporate Code, adapt, amend and supplement the rules made pursuant to the Act of 17 July 1975 on business accounting and, under the conditions of section 122, paragraph 1^er the Corporations Code, the rules made pursuant to section 92 of the Corporate Code.
Art. 90. The group investment agency with a variable number of shares must publish the inventory value of the shares according to the rules fixed by the King, each day the issue or redemption of these shares is possible.
Art. 91. FSMA may, if it considers that there is a danger of confusion, require the addition of an explanatory statement to the name of the collective placement organization.
CHAPTER 4. - Commercialization in another Member State of the shares of collective investment organizations
Art. 92. § 1^er. The collective investment agency that plans to market its securities in another Member State of the European Economic Area must notify FSMA in advance.
§ 2. If a collective investment organization that has opted for the authorized investment category referred to in section 7, paragraph 1^er, 1°, proposes to market its shares or the shares of one of its compartments in another Member State, said "Reception Member State", it forwards a notification file to FSMA. This notification file includes a notification letter and an annex.
The notification letter referred to in paragraph 1^er is, in accordance with the applicable Belgian law, provided in:
1° a standard language in the international financial sphere, or
2° one of the national languages, provided that this language is also an official language of the host State and that the host State has signed its agreement on the use of this language in the notification letter.
Documents that constitute the schedule referred to in paragraph 1^er are translated into:
1° the official language or one of the official languages of the host Member State of the collective placement agency;
2° a language accepted by the competent authorities of the host State, or
3° a usual language in the international financial sphere.
The possibility referred to in paragraph 3, 3°, however, is not applicable to the key information document for the investor, to the extent that the investor is part of the schedule referred to in paragraph 1^er.
Art. 93. FSMA ensures that the documentation submitted by the collective investment agency in accordance with Article 92, § 2 is complete.
FSMA transmits all of the documentation referred to in Article 92, § 2 to the competent authorities of the Member State in which the collective investment agency proposes to market its shares, no later than ten working days after the date of receipt of the complete notification file. It encloses a certificate certifying that the collective investment organization meets the requirements imposed by Directive 2009/65/EC. This certificate is provided in the language referred to in Article 92, § 2, paragraph 2.
After the transmission of the documentation, FSMA promptly notify the group placement organization.
Art. 94. The King defines, by order taken on the advice of the MSDS, the details of the rules regarding the content and mode of communication and the provision of the notification file referred to in Article 92, § 2 and its updates, as well as the attestation referred to in Article 93.
Art. 95. FSMA may enter into cooperation agreements with the competent authorities of the other member states of the European Economic Area who exercise the powers referred to in Article 45, § 1^er, 2° of the Act of 2 August 2002 to coordinate the establishment of electronic processing and centralized storage systems of data common to all Member States, in order to ensure access by the various authorities to the information or documents referred to in Article 93, §§ 1^er, 2 and 3 of Directive 2009/65/EC.
CHAPTER 5. - Control of collective investment bodies
Section 1^re. - Control exercised by FSMA
Art. 96. § 1^er. Collective investment organizations are subject to FSMA control.
§ 2. Without prejudice to section 67, FSMA may be provided with all information and documents relating to the organization, operation, situation and operations of the collective investment organizations under its control, as well as to the valuation and profitability of the assets.
§ 3. It may carry out on-site inspections with the collective investment organization, the management company of designated collective investment organizations and any other entity that exercises, directly or indirectly, management functions on behalf of the collective investment organization, as well as with the depositary, and shall, without displacement, be aware of and copy of any information held by them, with a view to:
1° to verify compliance with the provisions of this Act and the orders and regulations made for its implementation, and the provisions of the regulations or regulations, as well as the accuracy and sincerity of the annual accounts and accounts, as well as annual and semi-annual reports, quarterly financial statements, periodic reports and other information transmitted to it by the collective investment organization;
2° to verify the adequacy of management structures, the administrative, accounting, financial and technical organization, and the internal control of the collective investment organization;
3° to ensure that the management of the collective investment organization is sound and prudent and is not likely to compromise the rights attached to the securities;
4° to verify the complete and adequate nature of the information in the prospectus, the key information for the investor and their updates, relating to an offer referred to in section 57, paragraph 1^er, as well as in the notices, advertisements and other documents that relate to a public offer of securities of a collective investment agency, which announce or recommend such offer. In this case, FSMA may conduct on-site inspections also with the Offeror, where the Offeror is not one of the persons referred to in this paragraph, as well as with the financial intermediaries that intervene or have intervened in a public offer of securities of the collective investment organization.
§ 4. The provisions of sections 79, 80, 82, 1 and 3°, 83 and 85 of the Act of 2 August 2002 are applicable for the purpose of exercising the powers assigned to the MSDS by and under this book.
§ 5. The King determines the remuneration to be paid to the FSMA by collective investment organizations in respect of the control costs.
Art. 97. Collective investment agencies regularly communicate to FSMA a detailed financial situation. It is established in accordance with the rules set out by regulation of the MSDS, taken in accordance with section 64 of the Act of 2 August 2002, which determines its content, frequency and mode of communication. In addition, FSMA may prescribe the regular communication of other encrypted or descriptive information necessary to verify compliance with the provisions of this title and the orders and regulations made for their execution.
The persons responsible for the effective management of the collective investment organization shall declare to the ADMF the periodic financial statements referred to in paragraph 1^er are in accordance with accounting and inventories. These periodic statements (a) must be complete and include all data in accounting and inventories on the basis of which the periodic financial statements are prepared, and (b) must be accurate and consistent with accounting and inventories on the basis of which the periodic financial statements are prepared.
They confirm that they have made the necessary steps to ensure that the above-mentioned statements are prepared in accordance with the existing ADMSP instructions, as well as through the application of the accounting and evaluation rules for the preparation of the annual accounts.
FSMA may, in special cases, authorize exemptions from the regulation referred to in paragraph 1^er.
The regulations under paragraph 1^er is taken after consultation with relevant professional associations.
Art. 98. Without prejudice to section 83, the ADMF is aware of the relationship between the collective investment organization and a specified participant only to the extent required for the control of the collective investment organization.
Art. 99. FSMA shall forthwith notify the competent authorities of the member State of origin of the management society of collective investment organizations of any problems identified at the level of the collective investment agency and likely to substantially affect the capacity of the management society of collective investment bodies to carry out its duties or to comply with the obligations provided for in Directive 2009/65/EC that fall under the responsibility of the FSMA, in both the Member State and
Section 2. - Cooperation between authorities
Art. 100. § 1^er. Where FSMA has good reason to suspect that acts violating the provisions of Directive 2009/65/EC are or have been committed in the territory of another Member State by entities that are not subject to its supervision, it shall notify the competent authorities of that other Member State in such a circumstantial manner as possible.
When FSMA receives a notification referred to in Article 101, § 3 of Directive 2009/65/EC, it shall take appropriate measures and communicate the results of these measures to the competent authorities who have made the notification and, to the extent possible, communicate to them important developments that have occurred in the interim.
§ 2. FSMA may require the cooperation of the competent authorities of another Member State in the course of a surveillance activity or for the purpose of an on-site verification or in the course of an investigation into the territory of that other Member State within the framework of the powers conferred on it under this Act.
Article 77bis, § 1^er, 2°, 3°, §§ 2 and 3, 1° and 3° of the law of 2 August 2002 is applicable.
Section 3. - Revisional control
Art. 101. § 1^er. Collective investment organizations are required to designate a Commissioner who acts as Commissioner under the Corporate Code.
Section 141, 2°, of the Corporate Code is not applicable to collective investment organizations.
The provisions of the Code of Societies applicable to the appointment, remuneration, resignation, revocation and competence of the Commissioner of Corporations governed by the Code of Societies are applicable to the Commissioner designated in a mutual fund.
By derogation from Article 79, § 1^er of the Act of July 22, 1953, section 458 of the Criminal Code is not applicable in the event of the transmission of information between (a) the Commissioner of a collective investment agency and the Commissioner of the entity to which the entity entrusted the execution of management functions under section 42, § 1^er and (b) the Commissioner of a collective investment organization and the Commissioner of the collective investment organization management corporation designated by the Board pursuant to section 35 or section 44.
§ 2. The functions of Commissioner may only be entrusted to a registered revisor or revisors or to one or more revisor companies approved by the FSMA in accordance with section 103.
Collective placement organizations may designate alternate commissioners who perform the duties of Commissioner in the event of their licensee's lasting incapacity. The provisions of this Article and Article 102 shall apply to such substitutes.
§ 3. A collective investment organization may not have the same Commissioner as that of the collective investment organization management corporation that it has designated under section 35 or section 44.
In the event that the duties of the Commissioner are performed by a registered review company, the preceding paragraph is not applicable, provided that:
1° the approved reviewer company concerned shall be represented by two separate approved reviewers; and
2° adequate functional independence exists between these two approved revisers.
Art. 102. Authorized reviewers perform the duties of Commissioner under section 101 through a registered reviewer designated by them and in accordance with section 6 of the Act of July 22, 1953. The provisions of this Act and the decrees and regulations made for its enforcement, which are related to the designation, functions, obligations and prohibitions of commissioners, as well as to sanctions, other than criminal, that are applicable to the commissioners, shall apply both to revisors and to approved reviewers representing them.
A registered reviser corporation may designate an alternate representative from among its eligible members to be designated.
Art. 103. The ADMSP, with the approval of the Minister of Finance and the Minister of Economic Affairs, shall determine the regulations for the approval of revisers and revisers.
Accreditation regulations are made after consultation with approved reviewers represented by their professional organization.
The Institut des Réviseurs d'Entrentreprise informs the FSMA of the opening of any disciplinary proceedings against an approved reviewer or a registered reviewer company for failure to perform its duties with a collective placement agency.
Art. 104. The designation of commissioners and alternate commissioners to collective placement agencies is subject to the prior agreement of the MSDS. This agreement must be collected by the social body that makes the nomination proposal. In the event of the designation of an approved reviser company, the agreement shall jointly deal with the company and its representative and, where appropriate, its alternate representative.
The same agreement is required for the renewal of the mandate.
When, by virtue of the Act, the Commissioner's appointment is made by the President of the Commercial Court or the Court of Appeal, they make their choice on a list of certified reviewers with the consent of the MSDS.
Art. 105. ADMSP may, at any time, revoke, by a decision based on reasons for their status or the performance of their duties as a registered reviewer or a registered reviewer corporation, as provided by or under this Act, the agreement given, pursuant to section 104, to a Commissioner, an alternate commissioner, a registered reviewer corporation or a representative or alternate representative of such a corporation. This revocation puts an end to the duties of Commissioner.
In the event of a commissioner's resignation, the FSMA and the collective investment agency are previously informed, as well as the reasons for the resignation.
The regulation of registration referred to in section 103 shall rule the procedure.
In the absence of an alternate commissioner or an alternate representative of an approved reviser corporation, the collective investment organization or the registered reviewer corporation shall, in accordance with section 104, be replaced within two months.
In collective investment organizations, the proposal to revoke the commissioner's terms of reference, as set out in sections 135 and 136 of the Corporate Code, is submitted to FSMA. This notice is communicated to the General Assembly.
Art. 106. § 1^er. The Commissioners shall cooperate in the control exercised by the MSDS under their exclusive personal responsibility and in accordance with this paragraph, in the rules of the profession and in the instructions of the MSDS. To this end:
1° they assess the internal control measures adopted by the collective investment agency in accordance with Article 41, § 3 and the orders and regulations made pursuant to this provision, and communicate their findings in this matter to the MSDS;
2° they report to FSMA on:
(a) the results of the limited review of the semi-annual reports, as well as of the quarterly financial statements provided by the collective investment agencies to the MSDS pursuant to section 88, § 2, confirming that they are not aware of the facts of which it appears that the semi-annual reports and the aforementioned financial statements issued at the end of the semester and at the end of the fiscal year have not, in all significant respects, been established They further confirm that the semi-annual reports and the above-mentioned financial statements issued at the end of the semester and at the end of the fiscal year are, in all significant respects, in accordance with accounting and inventories, in that sense (a) that they are complete and that they mention all the data in the accounts and in the inventories on which they are prepared, and (b) they also confirm that they are not aware of the facts that would appear to be that the semi-annual reports and the above-mentioned financial statements issued at the end of the semester and at the end of the fiscal year were not prepared by application of the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year;
(b) Monitoring results
(i) annual reports submitted by collective investment agencies to the FSMA at the end of the social year under section 88, § 2,
(ii) periodic financial statements that are forwarded to the ADMF under section 97
- arrested at the end of the calendar year, for collective investment organizations closing their fiscal year on 31 December,
- arrested at the end of the quarter that coincides with the closing of the fiscal year, for collective investment organizations whose fiscal year is closed on the last calendar day of a quarter that does not end on December 31, or
- arrested at the end of the quarter prior to the end of the fiscal year, for collective investment organizations whose fiscal year is not closed at a date that coincides with the last calendar day of a quarter, confirming that the above-mentioned reports and statements have, in all significant respects, been prepared in accordance with the existing instructions of the MSDS. They further confirm that the annual reports and financial statements are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that sense (a) that they are complete and that they mention all the data in the accounting and in the inventories on which they are prepared, and (b) that they are correct and that they correspond exactly with the inventories established with the accounting and they also confirm that annual reports and financial statements have been prepared by application of the accounting and evaluation rules that preside over the preparation of annual accounts;
(c) the results of their review of the amounts of the net assets and subscriptions as mentioned in the periodic financial statements transmitted to the MSDS, pursuant to section 97, at the end of the calendar year for collective investment organizations that do not close their fiscal year on 31 December, confirming that they are not aware of any facts that appear to have not, in all significant respects, established the above-mentioned data;
3° they make special reports to FSMA, at its request, on the organization, activities and financial structure of the collective investment organization, reports whose settlement fees are borne by the organization in question;
4° in the context of their missions to the collective investment agency, or a revisoral mission to the management company of designated collective investment bodies or any other entity that exercises, directly or indirectly, management functions on behalf of the collective investment organization, with the depositary, as well as a related undertaking, within the meaning of Article 11 of the Corporate Code, with the investment corporation
(a) decisions, facts or developments that have a significant impact on or may have a significant impact on the situation of the collective investment organization in the financial or administrative, accounting, financial or technical context of the organization or its internal control;
(b) decisions or facts that may constitute violations of the Corporations Code, the statutes, this title and the orders and regulations made for its execution;
(c) other decisions or facts that are likely to result in a refusal to certify or issue reservations.
No civil, criminal or disciplinary action may be brought or any professional sanction imposed against the commissioners who have proceeded in good faith to any information referred to in the 4th of this paragraph.
The Commissioners shall, as the case may be, communicate to the directors, the investment corporation or the designated collective investment organization management corporation, the reports to the ADMSP pursuant to paragraph 1^erThree. These communications fall under the secret organized by section 76 of the Act of 2 August 2002. They transmit to FSMA copies of the communications they address to these leaders, which deal with issues of interest to the control exercised by them.
§ 2. The MSDS may require that the accuracy of the information transmitted to it under section 96 be confirmed by the Commissioner of the collective investment agency.
The commissioners may be charged by FSMA, at the request of the National Bank of Belgium or the European Central Bank, to confirm that the information that collective investment agencies are required to communicate to these authorities is complete, correct and established in accordance with the rules applicable thereto.
Art. 107. § 1^er. If a feeder does not have the same commissioner as its master, the two commissioners enter into an exchange of information agreement to ensure the successful completion of their respective obligations, including with respect to the steps taken to comply with the requirements of § 2.
The King, by order made on the advice of the MSDS, determines the content and terms of the agreement referred to in paragraph 1^er.
§ 2. In his report, the feeder Commissioner takes into account the report of the master's commissioner. If the feeder and master have different accounting exercises, the master's commissioner prepares an ad hoc report on the closing date of the feeder.
In particular, the Commissioner of feeder reports on any irregularity reported in the Master's report and its impact on feeder.
§ 3. Where they comply with the requirements set out in this section and in the provisions made for its execution, neither the master's or feeder's commissioner shall be deemed to infringe any rule restricting the disclosure of information or in relation to the protection of data, such as section 458 of the Criminal Code, section 79 of the Act of July 22, 1953 or the Act of December 8, 1992 relating to the protection of privacy in respect of Complying with these requirements does not lead to any responsibility of any kind for the Commissioner or anyone acting on his behalf.
Art. 108. The King may, by order made on the advice of the MSDS, determine additional missions to be performed by the Commissioner and determine the conditions for the exercise of these missions.
CHAPTER 6. - Denunciation, deletion and revocation of registration and accreditation, exceptional measures and administrative sanctions
Art. 109. FSMA eliminates the registration of collective placement organizations and, where applicable, the registration of compartments, which
1° did not commence their activities in the twelve months of registration, renounce the accreditation or have ceased to carry out their activities for more than six months; or
2° were declared bankrupt.
In the case of investment companies, it also revokes the approval of these companies.
Art. 110. If FSMA considers:
1° that an offer referred to in section 57, paragraph 1^er risk to be made or made under conditions that may induce the public in error, including the risks associated with the proposed investment or the rights attached to the securities that are the subject of the offer; or,
2° that notices, advertisements and other documents that relate to a public offer of securities of collective investment bodies, which announce or recommend such offer, are likely to induce the public in error, including the risks inherent in the proposed investment or the rights attached to the securities that are the subject of the offer, it advises, as the case may be, the Offeror
If this notice is not taken into account, FSMA may decide to suspend or prohibit the transaction for the duration it determines. It may also decide to suspend or prohibit the publication or to remove notices, advertisements or other documents relating to the offer, which announce or recommend it referred to in paragraph 1^er. Finally, it may order persons referred to in paragraph 1^er to publish a correction.
Decisions referred to in paragraph 2 shall be notified to persons referred to in paragraph 1^erand, if this is an offer within the meaning of Article 3, 13°, (a), (ii), to the relevant market companies.
ADMSP may make public the decision to suspend or prohibit the operation or to suspend, prohibit or withdraw notices, advertisements or other documents relating to the offer, which announce or recommend it, unless the publication may seriously disrupt the financial markets, adversely affect the interests of investors or cause disproportionate harm to the parties involved. If the correction referred to in paragraph 2 was not made at the expiry of the time limit, the ADMSP may also make the order of rectification public, unless this publication may seriously disrupt the financial markets or cause disproportionate harm to the parties involved, and, where appropriate, make the publication of the requested correction. The measures of the FSMA referred to in this paragraph shall, as the case may be, be taken at the expense of the Offeror and/or the Collective Investment Corporation and/or the Management Corporation of Designated Collective Investment Organizations and/or individuals, on the initiative of which notices, advertisements and other documents relating to the Offer, which announce or recommend it are made public, and/or intermediaries designated by them.
A person who, at the expiry of the time limit set by the MSDS, fails to comply with a suspension, prohibition or withdrawal order issued under paragraph 2, may, that person heard or duly summoned, inflict an infringement that may not, per calendar day, exceed 50 000 euros, or, for the failure to know a suspension of the same Euro injunction
Art. 111. § 1^er. Without prejudice to section 110, where the FSMA finds that a collective investment organization does not work in accordance with the provisions of this Act and the regulations made for its execution or with the provisions of the management regulations or statutes, that its management or financial situation is likely to jeopardize the effective termination of its commitments, that its management structures, administrative, accounting, technical or financial organization, or its internal control
If at the end of this period, the situation has not been resolved, the MSDS may:
1° publicize its position on the findings made under paragraph 1^er; the costs of this publication are borne by the investment company and/or the management company of designated collective investment organizations;
2° appoint a special commissioner;
3° suspend or prohibit for the duration that it determines any issue or purchase of securities;
4° suspend or prohibit, for the duration it determines, the trading in the securities market of the collective investment organization;
5° enjoin the replacement of directors of the investment corporation or of the collective investment organization management corporation designated within a time frame that it determines and, in the absence of such a replacement within that time limit, substitute for all bodies of the administration and management of the investment corporation and/or the management society of collective investment organizations designated one or more provisional directors that have, on the sole or collegiate basis of FSMA publishes its decision to the Belgian Monitor;
6° radiates the registration of the collective investment organization or of a compartment of the collective investment organization, and, where applicable, revoke the approval of the investment company. FSMA publishes its decision to the Belgian Monitor.
§ 2. In the case referred to in § 1^er, paragraph 2, 2°, the written, general or special authorization of the Special Commissioner is required for all acts and decisions of all organs of the investment corporation and/or the management society of designated collective investment bodies, which relate directly or indirectly to the managed collective investment organization, including the general meeting of the participants, and to those of persons responsible for management; FSMA may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all organs of the investment corporation or the designated collective investment organization management corporation, including the general meeting of participants, and to those responsible for management, any proposals that he considers appropriate. The remuneration of the Special Commissioner is fixed by the FSMA and supported, as the case may be, by the investment corporation or by the designated collective investment organization management corporation.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions without having obtained the required authorization from the Special Commissioner are responsible in solidarity with the resulting harm to the collective bargaining agency or third parties.
If the FSMA has published to the Belgian Monitor the designation of the Special Commissioner and specifies the acts and decisions subject to its authorization, the acts and decisions taken without that authorization while it was required are null unless the Special Commissioner ratifies them. Under the same conditions, any decision of a general assembly made without obtaining the required authorization from the Special Commissioner is null unless the Special Commissioner ratifies it.
FSMA may designate an alternate commissioner.
In the event of a serious threat to the holders of securities of the collective investment agency, the FSMA may designate a special commissioner without prior fixing of a period as provided in § 1^erParagraph 1^er.
§ 3. In the case referred to in § 1^er, paragraph 2, 3°, the members of the boards of directors and management of the investment corporation and/or the management company of the designated collective investment bodies, and the persons responsible for the management who perform acts or make decisions in violation of the suspension or prohibition are jointly liable for the damage caused by it for the collective investment agency or third parties.
If FSMA published the suspension or prohibition to the Belgian Monitor, the actions and decisions against it are null and void.
§ 4. In the case referred to in § 1^er, paragraph 2, 5°, the remuneration of the provisional director(s) is fixed by the ADMSP and supported by the investment company or by the management company of designated collective investment organizations.
ADMSP may, at any time, replace the interim directors or directors, either ex officio or at the request of a majority of the members of the collective investment organization or shareholders of the designated collective investment organization management corporation when they justify that the management of the persons concerned no longer presents the necessary guarantees.
§ 5. The decisions of the FSMA referred to in § 1^er derive their effects in respect of the investment corporation and/or the collective investment organization management corporation designated as of the date of their notification to the investment corporation and, in respect of third parties, on the date of publication in accordance with the provisions of § 1^er and 2.
§ 6. § 1^erParagraph 1^er and § 5 are not applicable in the event of the revocation of the registration of a collective investment organization declared bankrupt.
§ 7. The court of commerce shall pronounce at the request of any interested person, the nullities provided for in §§ 2 and 3.
The nullity action is directed against the investment company and/or the management company of designated collective investment organizations. If there are serious grounds to justify it, the plaintiff may apply to refer the provisional suspension of the acts or decisions under attack. The order of suspension and the judgment pronouncing nullity produce their effects on all. In the event that the suspended or annulled act or decision has been published, the suspension order and the judgment pronouncing nullity are published by extract in the same forms.
Where nullity is likely to affect the rights acquired in good faith by a third party in respect of the collective investment organization, the court may declare nullity in respect of such rights without effect, subject to the applicant's right to damages if applicable.
The action in nullity may no longer be brought after the expiration of a period of six months from the date on which the acts or decisions taken are enforceable against the person who invokes nullity or are known to him.
§ 8. Without prejudice to the measures defined by other laws and regulations, §§ 1^er to 7 are applicable where the FSMA finds that a collective investment organization, or a compartment of a collective investment organization, which falls within the scope of the Act of 16 June 2006, does not operate in accordance with the Act of 16 June 2006.
Art. 112. Without prejudice to Article 327, § 5 of the Income Tax Code 1992, FSMA does not know any tax matters.
However, § 1^erParagraph 1^er and paragraph 2, 2°, and § 2 of Article 111 are applicable in case the MSDS is aware of the fact that an investment corporation and/or a designated collective investment management company has established a particular mechanism for the purpose or effect of promoting tax evasion by third parties.
Art. 113. FSMA promptly informs the authorities of the control of the bodies of the collective placement of the other Member States of the European Economic Area in which a collective investment body of Belgian law publicly offers its titles, of the decisions it has taken in accordance with articles 109 to 111. In the event that the management company of the collective investment bodies concerned is established in another Member State of the European Economic Area, FSMA also promptly informs the competent authorities of this Member State. It keeps these authorities informed of the action taken against these decisions.
Art. 114. Collective placement agencies, or compartments of collective investment organizations whose registration has been terminated or revoked under sections 109 and 111, remain subject to this title and to the orders and regulations made for its execution until the holders of the securities of the collective investment organization, or the compartment, have been subject to a public offer, unless the MSDS does not exempt them for certain provisions.
This section is not applicable in the event of a revocation of the registration of a registered investment organization in bankruptcy.
Art. 115. § 1^er. Without prejudice to the other measures provided for in this Act, the ADMSP may set a designated collective investment corporation and/or a designated collective investment corporation within which:
(a) it shall comply with specified provisions of this Title or any orders or regulations made for its execution, or
(b) it must make the necessary adjustments to its management structure, administrative, accounting, technical or financial organization or internal control.
If the collective investment organization remains in default on the expiry of the period, the ADMF may, the collective investment organization heard or at least duly summoned, charge the organization with a maximum amount of Euro2,500 000 per offence or Euro50,000 per day of delay.
§ 2. Without prejudice to the other measures provided for in this Act and without prejudice to the measures defined by other Acts or other regulations, FSMA may, when it finds an offence to the provisions of this Act or to the measures taken pursuant to these Acts, impose an administrative fine to a collective investment body under Belgian law, which may not be less than 5,000 euros or greater, for the same fact or for the same set of facts, at 2,500 000 euros.
§ 3. Penalties and fines imposed under §§ 1^er or 2 and section 110 are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
PART 3. - Institutional collective investment organizations
CHAPTER 1^er. - Introductory provision
Art. 116. This title applies in accordance with Article 4, § 2.
CHAPTER 2. - General provisions
Section 1^re. - Group institutions with varying number of institutional units
Art. 117. § 1^er. Collective investment organizations with varying number of institutional units are the sole purpose of placing in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 2°, 3°, 4° and 9°, for which there is a market, in accordance with the provisions of this title, of the decrees and regulations made for its execution and their rules of management or their statutes.
§ 2. The shares of the collective institutions with varying number of institutional units are nominal.
§ 3. Without prejudice to Article 3, 3°, in the event of admission to the negotiation of the shares of a collective investment agency with varying number of institutional units on a MTF or on a regulated market that is accessible to the public or when the shares of such a collective investment agency are held, as a result of third parties, by investors other than institutional or professional investors, it is not affected by the institutional character of the investment organization
The King, by order taken on the advice of the MSDS, may determine, if any, taking into account the authorized class of investments for which the collective investment agency has opted, the conditions under which the collective investment agency with varying number of institutional units is presumed to take appropriate measures, within the meaning of the preceding paragraph, to guarantee the quality of institutional or professional investors of its participants.
Art. 118. § 1^er. Articles 11, §§ 1^er2, 4 and 5, 12, §§ 1^er2, 3, paragraphs 2 and 4, 13, paragraphs 1^er and 3, 14 and 19, § 2 apply to mutual funds of institutional investments with varying number of shares.
§ 2. The management of a common institutional investment fund may be amended by a decision of the general meeting of participants.
§ 3. Any mutual fund with a variable number of institutional units shall be designated by a particular name; the latter should include the words "common investment funds with varying number of institutional units of Belgian law" or "open institutional funds of Belgian law", or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er, does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. In the event of the dissolution, liquidation or restructuring of a joint investment fund with a variable number of institutional units, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy.
Art. 119. § 1^er. An investment company with varying number of institutional units is constituted in the form of an anonymous company or a share-sponsored company.
Articles 15, paragraph 2, 16, § 1^er3 to 5, and 17, §§ 1^er, 2 and 4, are applicable to the investment company with varying number of institutional units.
Articles 78, 79, paragraph 1^er, 96, 4°, 5° and 6°, 141, 439 to 442, 445 to 448, 453, paragraph 1^er, 1°, 458, 460, paragraph 1^er, 463, paragraph 3, 465, paragraph 3, 466, paragraph 4, 476, 477, 479, 483, 484, 506, 508, 509, 542, 557, 560, 581, 582 to 590, 592 to 600, 603 to 607, 612 to 617, 619 to 628, 633 and 634 of the Code of Companies are not applicable.
Without prejudice to Article 117, § 1^er, section 559 of the Corporate Code is applicable.
By derogation from paragraph 3, Article 560 of the Corporate Code is applicable in the case referred to in Article 8, § 2, 2°.
§ 2. An institutional investment company may not carry out any activities other than that provided for in Article 3, 1 and 3, or hold other assets other than those necessary for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Code of Societies, the social name of an investment company with a variable number of institutional units and all the documents emanating from it, must contain the words "institutional variable capital investment company of Belgian law" or "institutional Sicav of Belgian law" or its name is immediately followed by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. By derogation from Article 1^er the Corporate Code, an investment company with a variable number of institutional units may be constituted by an institutional or professional investor.
Article 646, § 1^er, paragraph 2, of the Corporate Code is not applicable.
§ 5. In the event of the dissolution, liquidation or restructuring of compartments of an investment company with varying number of institutional units, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy to compartments.
Each compartment of an investment company with a variable number of institutional units is liquidated separately, without giving rise to the liquidation of another compartment. Only the liquidation of the last compartment leads to the liquidation of the investment company.
Section 2. - Fixed-number collective investment organizations
Art. 120. § 1^er. Fixed-numbered collective investment organizations are the sole purpose of placing in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 2° to 6°, 8° and 9°, in accordance with the provisions of this Law, of the decrees and regulations made for its execution and their rules of management or their statutes.
§ 2. The shares of fixed-number collective investment organizations are nominal.
§ 3. Without prejudice to Article 3, 3°, in the event of admission to the negotiation of shares of a collective investment agency with fixed number of institutional units on a MTF or on a regulated market that is accessible to the public or where the shares of such a collective investment agency are found to be held, as a result of third parties, by investors other than institutional or professional investors, it is not affected by the institutional character of the investment organization
The King may, by order taken on the advice of the MSDS, determine, if any, taking into account the class of authorized investments for which the collective investment agency has opted, the conditions under which the fixed-number collective investment agency is presumed to take the appropriate measures, within the meaning of the preceding paragraph, to guarantee the quality of institutional or professional investors of its participants.
Art. 121. § 1^er. Articles 11, §§ 1^er, 2 and 4, 13, paragraphs 1^er and 3, 14 and 19, §§ 2 and 4 apply to mutual funds of fixed number of institutional units.
§ 2. The management of a common institutional investment fund may be amended by a decision of the general meeting of participants.
§ 3. A common fixed-number investment fund shall be designated by a particular name; the latter must include the words "joint investment fund with fixed numbers of institutional units of Belgian law" or "enclosed institutional funds of Belgian law" or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. In the event of the dissolution, liquidation or restructuring of a joint investment fund with a fixed number of institutional units, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy.
Art. 122. § 1^er. Articles 20, paragraph 1^er 21 §§ 1^er, 3 and 4 are applicable to the fixed number investment company of institutional units.
§ 2. An institutional investment company may not carry out any activities other than that provided for in Article 3, 1 and 3, or hold other assets other than those necessary for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Code of Companies, the corporate name of a fixed-number investment company and all documents emanating from it must contain the words "institutional fixed-capital investment company of Belgian law" or "institutional sicaf of Belgian law" or its name is followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. By derogation from Article 1^er the Corporate Code, a fixed-number investment company may be made up of an institutional or professional investor.
Article 646, § 1^er, paragraph 2, of the Corporate Code is not applicable.
Section 3. - Organizations of collective investment in institutional receivables
Art. 123. § 1^er. The sole purpose of collective investment in institutional receivables is the placement in the authorized investment category referred to in Article 7, paragraph 1^er, 7°, in accordance with the provisions of this Act, of the decrees and regulations made for its execution and of their rules of management or their statutes.
§ 2. The shares of the collective investment bodies in institutional receivables are nominal.
§ 3. Notwithstanding section 3, 3°, the assignor of receivables, which does not have the status of institutional or professional investor, may acquire the organization's securities or provide it with financial means in another way, since these financial means are primarily intended to provide the other investors with guarantees to manage the risks of default of payment of receivables.
Without prejudice to Article 3, 3°, in the event of admission to the negotiation of the securities of a collective investment agency in institutional receivables on a MTF or on a regulated market that is accessible to the public or when the securities of such a collective investment agency are held, following third parties, by investors other than institutional or professional investors, it is not impaired to the institutional character of the collective investment agency for
The King may, by order taken on the advice of the FSMA, determine the conditions under which the collective investment agency in institutional receivables is presumed to take the appropriate measures, within the meaning of the preceding paragraph, to guarantee the quality of institutional or professional investors of the holders of its securities.
By derogation from Article 3, 1 and 3, the collective investment agency in institutional receivables may collect its financial resources exclusively from a single institutional or professional investor, provided that it is an institutional or professional investor referred to in Article 5, § 3, 5°.
Art. 124. The provisions of Article 23, paragraphs 3 and 4, shall apply to collective investment organizations referred to in this Section.
Art. 125. Article 11, § 1^er2 and 4, Article 12, §§ 1^er, 2, 3, paragraph 2 and 4, article 13, paragraph 1^er and 3, 14, and Article 19, §§ 2 and 4, apply to mutual funds for institutional debts.
The management of a common fund for institutional receivables may be amended by a decision of the general meeting of participants.
Any mutual fund for institutional receivables must be designated by a particular name; the latter should include the words "joint fund for the placement of Belgian institutional receivables" or be followed immediately by these words.
In the event of the dissolution, liquidation or restructuring of a common fund for institutional receivables, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy.
Art. 126. § 1^er. Article 26, paragraph 1^erArticle 27, § 3, paragraph 1^er2 and 3, first sentence, § 4, article 28, § 1^erParagraphs 1^er and 3, and §§ 2 to 4, and Article 29 § 1^erParagraphs 1^er at 7, and § 2, apply to the investment company in institutional receivables.
§ 2. An investment company in institutional receivables may not carry out any activities other than that provided for in Article 3, 1 and 3°, nor hold any assets other than those necessary for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Code of Societies, the name of an investment company in institutional receivables and all the documents emanating from it must contain the words "investment society in institutional debts of Belgian law" or "Institutional SIC of Belgian Law" or its name is followed immediately by these words.
§ 4. By derogation from Article 1^er the Corporate Code, an institutional debt investment company may be made up of an institutional or professional investor.
Article 646, § 1^er, paragraph 2, of the Corporate Code is not applicable.
CHAPTER 3. - Access to activity and exercise of activity
Section 1^re. - Registration
Art. 127. The King shall determine, by order taken on the advice of the FSMA and after open consultation, the obligations and conditions for registration to which the institutional collective investment bodies, referred to in Articles 117 and 120, shall be held before their activities begin, taking into account the class of authorized investments for which they have chosen.
Art. 128. Collective institutional debt institutions are required, before starting their activities, to register with the Federal Public Service Finance on the list of institutional debt collective institutions. The same obligation is applicable, if applicable, for the compartments of the collective investment organization.
Art. 129. A collective investment organization in institutional receivables is listed on this list on a copy of its statutes or its management regulations.
The King determines the registration conditions.
Each document issued by the Federal Public Service Finance to confirm this registration and each document that refers to this registration in order to carry out the operations of the collective investment organization must mention that the registration does not include any appreciation of the opportunity and quality of the transactions, nor of the situation of the collective investment organization.
Section 2. - Exercise of activity
Art. 130. The King determines the obligations and prohibitions to which collective investment bodies are subject to varying numbers and sets institutional units.
It determines the obligations and prohibitions to which collective investment bodies are subject in institutional receivables.
These orders are taken by the King on the advice of FSMA and after open consultation.
Art. 131. Article 81, § 1^erParagraph 1^er§§ 2 and 4 and Article 101, § 1^erParagraphs 1^er and 3 are applicable to collective investment organizations in institutional receivables.
Collective investment organizations in institutional receivables may always have access to or temporarily hold term investments, cash and securities.
The King may set out the rules that collective investment organizations in institutional receivables must maintain their accounting, if any, by compartment, make inventory estimates and prepare and publish their annual accounts.
CHAPTER 4. - Organization control
institutional collective investment
Art. 132. The King, by order taken on the advice of the FSMA, may extend the application of sections 96 to 115 of this Act to collective institutions with varying numbers and fixed institutional units, in view of the class of authorized investments for which they have chosen.
PART 4. - Private collective investment organizations
CHAPTER 1^er. - Introductory provision
Art. 133. This title applies in accordance with Article 4, § 2.
CHAPTER 2. - General provisions
Section 1^re. - Group investment bodies with varying number of private units
Art. 134. § 1^er. Collective placements with a variable number of private shares are the exclusive purpose of placing in one of the authorized classes of investments referred to in Article 7, paragraph 1^er, 2°, 3°, 4° and 9°, for which there is a market, in accordance with the provisions of this Law, of the decrees and regulations made for its execution and of their rules of management or their statutes of the investment agency.
§ 2. Without prejudice to Article 3, 4°, in the event of the admission of the shares of a collective investment agency to a variable number of private shares to the negotiation on a MTF or on a regulated market that is accessible to the public or when the shares of such a collective investment agency are held, following the use of third parties, by investors other than private investors, it is not impaired to the private character of the collective investment agency for
The King may, by order taken on the advice of the MSDS, determine, if any, taking into account the class of authorized investments for which the collective investment agency has opted, the conditions under which the group investment agency with a variable number of private shares is presumed to take the appropriate measures, within the meaning of the preceding paragraph, to guarantee the quality of private investors of its participants.
Art. 135. § 1^er. Article 11, § 1^er2, 4 and 5, Article 12, §§ 1^er, 2, 3, paragraph 2 and 4, article 13, paragraph 1^er and 3, Article 14 and Article 19, § 2 shall apply to mutual funds of investments of varying number of private shares.
§ 2. The rules governing a private mutual fund may be amended by a decision of the general meeting of participants.
§ 3. Any mutual funds with a variable number of private shares shall be designated by a particular name; the latter must include the words "common investment funds with variable numbers of private shares of Belgian law" or "open private funds of Belgian law", or its name is immediately followed by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er, does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. In the event of the dissolution, liquidation or restructuring of a common privately owned investment fund, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy.
Art. 136. § 1^er. A privately owned investment company is incorporated as an anonymous corporation or a share-sponsored company.
Article 15, paragraph 2, Article 16, § 1^er3 to 5, and Article 17, §§ 1^er, 2 and 4, are applicable to the investment company with a variable number of private shares.
Articles 78, 79, paragraph 1^er, 96, 4°, 5° and 6°, 141, 439, 440 to 443, 445 to 448, 453, paragraph 1^er, 1°, 458, 460, paragraph 1^er, 463, paragraph 3, 465, paragraph 3, 466, paragraph 4, 476, 477, 479, 483, 484, 505, 506, 508, 509, 542, 557, 560, 581, 582 to 590, 592 to 607, 612 to 617, 619 to 628, 633 and 634 of the Code of Companies are not applicable.
Without prejudice to Article 134, § 1^er, section 559 of the Corporate Code is applicable.
By derogation from paragraph 3, Article 560 of the Corporate Code is applicable in the case referred to in Article 8, § 2, 2°.
§ 2. A private investment company may not carry out any activities other than that provided for in Article 3, 1 and 4°, or hold other assets other than those necessary for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Code of Companies, the name of a company with a variable number of private shares and all the documents that emanate from it must contain the words "private variable capital investment company of Belgian law" or "private Sicav of Belgian law" or its name is immediately followed by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. In the event of the dissolution, liquidation or restructuring of compartments of a privately owned investment company, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy to the compartments.
Each compartment of an investment company with a variable number of private shares is liquidated separately, without giving rise to the liquidation of another compartment. Only the liquidation of the last compartment leads to the liquidation of the investment company.
Section 2. - Fixed-number collective investment organizations
Art. 137. § 1^er. The purpose of the privately-owned collective investment organizations is exclusive to the placement in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 2° to 6°, 8° and 9°, in accordance with the provisions of this Law, of the decrees and regulations made for its execution and their rules of management or their statutes.
§ 2. Without prejudice to Article 3, 4°, in the event of the admission of the shares of a collective investment agency to a fixed number of private parties to the negotiation on a MTF or on a regulated market that is accessible to the public or where the shares of such a collective investment agency are held, following the use of third parties, by investors other than private investors, it is not impaired to the private character of the collective investment agency for
The King may, by order taken on the advice of the MSDS, determine, if any, taking into account the class of authorized investments for which the collective investment agency has opted, the conditions under which the privately-owned collective investment agency is presumed to take appropriate measures, within the meaning of paragraph 2, to ensure the quality of private investors of its participants.
Art. 138. § 1^er. Article 11, § 1^er2 and 4, Article 13, paragraphs 1^er and 3, Article 14 and Article 19, §§ 2 and 4 apply to privately owned joint investment funds.
§ 2. The rules governing a private mutual fund may be amended by a decision of the general meeting of participants.
§ 3. Any common fixed-number investment funds shall be designated by a particular name; the latter must include the words "joint fixed-number investment fund of private shares of Belgian law" or "private funds of Belgian law" or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. In the event of the dissolution, liquidation or restructuring of a common privately owned investment fund, the provisions of Book IV, Title IX or Book XI of the Corporations Code are applicable by analogy.
Art. 139. § 1^er. Article 20, paragraph 1^er and Article 21, §§ 1^er, 3 and 4 are applicable to the fixed number investment company of private shares.
§ 2. A fixed-number privately owned investment company may not carry out any activities other than that provided for in Article 3, 1 and 4°, nor hold any assets other than those required for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Code of Companies, the name of a fixed-number investment company and all the documents emanating from it must contain the words "Belgian fixed-capital corporation" or "Belgian private sicav" or its name is followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
Section 3. - Private pricafs
Art. 140. By private pricaf, the private collective investment agency must be understood to have a fixed number of shares in the statutory form of which the exclusive object is the collective placement in the class of authorized investments referred to in Article 7, paragraph 1^er, 8°, in accordance with the provisions of this Act, of decrees and regulations made for its execution or its statutes.
Without prejudice to Article 3, 4°, in the event of the admission of the shares of a private pricaf to the negotiation on a MTF or on a regulated market that is accessible to the public or when the shares of a private pricaf are held, following through third parties, by investors other than private investors, it is not infringed on the private character of the pricaf as long as the private investor takes adequate measures
The King may, by order made on the advice of the MSDS, determine the conditions under which the private pricaf is presumed to take appropriate measures, within the meaning of paragraph 2, to ensure the quality of private investors of its participants.
Art. 141. The private pricaf is constituted in the form of a single limited partnership, a share-sponsored company or an anonymous company, for a maximum of 12 years.
A private pricaf may not carry out any activities other than that provided for in Article 3, 1 and 4, and may not possess any assets other than those necessary for the realization of its statutory object.
Art. 142. § 1^er. The private pricaf is subject to the Code of Societies insofar as it is not derogated by this title and the decrees taken for its execution.
§ 2. By derogation from Article 78 of the Code of Societies, the social name of the private pricaf and all documents emanating from it, must contain the words "private pricaf of Belgian law" or these words must immediately follow the name of the society.
§ 3. By derogation from Article 93, paragraph 2, of the Code of Companies, the private pricaf shall establish annual accounts according to the rules established by the King under Article 92, § 1^er, this code.
§ 4. By derogation from section 97 of the Corporate Code, the private pricaf must file its annual accounts with the National Bank of Belgium, in accordance with the terms of sections 98 et seq. of the Code.
§ 5. By derogation from section 141, 1 and 2 of the Corporations Code, the private pricaf shall entrust control of its annual accounts to one or more commissioners, as it arises from the application of section 142 of the Code. By derogation from article 144, paragraph 1^er, 6° of this Code, the Commissioner(s) who has been aware of violations of the statutory provisions relating to the status as a collective investment agency, may not (may) fail to make the report mention of these offences, which must also be circumstantial and indicate the breaches. In cases determined by the King, the Commissioner(s) shall send a certified copy of the report to the MSDS.
§ 6. Derogation from articles 184, paragraph 1^er, 187 and 193 of the Code of Companies, the method of liquidation and designation of the liquidator(s) is fixed by statute, the investment company shall no longer make new investments in companies not listed after the liquidation report and annual accounts shall be established during liquidation according to the rules established by the King in accordance with Article 92, § 1^er of this Code.
CHAPTER 3. - Access to activity and exercise of activity
Section 1^re. - Registration
Art. 143. The King shall determine, by order taken on the advice of the MSDS and after open consultation, the obligations and conditions for registration to which private collective investment organizations are held, as referred to in Articles 134 and 137, before commencing their activities, in the light of the authorized investment category for which they have opted.
Art. 144. § 1^er. Private pricafs are required, before commencing their activities, to register with the Federal Public Service Finance on the list of private pricafs.
The list can include entries and sub-rubbers.
Each document issued by the Federal Public Service Finance to confirm this registration and each document that refers to this registration in order to carry out the operations of the collective investment organization must mention that the registration does not include any appreciation of the opportunity and quality of the transactions, or of the situation of the investment organization.
§ 2. The Federal Public Service Finance makes available to the public, on the basis of the data it received during the registration, information on the identity of companies that are registered or removed from the list of private pricafs.
Section 2. - Exercise of activity
Art. 145. The King determines, by order taken on the advice of FSMA and after open consultation, the obligations and prohibitions to which private collective investment bodies are subject to varying numbers and fixed shares and private pricafs.
Art. 146. § 1^er. The King determines the rules to be followed by the private pricaf and by persons performing private pricaf management functions, to prevent them from being in conflict of interest with holders of private pricaf titles.
§ 2. It is prohibited for a private pricaf to acquire a quantity of securities of the same corporation, such that, given the structure and dispersion of the shareholding of the corporation, such securities would enable it to influence the management of the corporation or the designation of its leaders.
The King sets the limits to detention by a private pricaf, titles of the same category of a same issuer.
It is prohibited for a private pricaf to commit to voting in a certain way with the titles it manages or to vote according to the instructions of other people that the participants gathered in the general assembly. It is prohibited for a private pricaf to commit to not selling securities, granting a right of pre-emption, or to conclude any other convention that would hinder its management autonomy.
Any convention to the contrary is null.
The King may provide for exceptions to paragraphs 1^er 4.
Paragraphs 1^er to 4 does not apply in cases where a private pricaf has constituted subsidiaries that are themselves collective investment organizations within the meaning of section 3, 1°.
§ 3. Private pricafs can always, incidentally or temporarily:
1° hold term investments of up to 6 months or cash;
2° hold listed titles, however:
(a) that they already hold these securities at the time of the application for listing on a stock exchange or other organized and public securities market;
(b) that these securities have been acquired by exchange of non-listed securities with the exception of its own securities;
3° in the context of coverage transactions, negotiating derivative financial instruments, whether listed or not, on underlying material or financial assets, whether listed or not.
The King defines what is necessary to hear by " incidentally or temporarily".
CHAPTER 4. - Control of private collective investment bodies
Art. 147. The King, by order taken on the advice of the FSMA, may extend the application of sections 96 to 115 of this Act to collective institutions with varying numbers and fixed private shares, taking into account the class of authorized investments for which they have chosen.
LIVRE 3. - Organizations of collective placement of foreign law
Art. 148. This book is applicable:
1° to collective investment bodies that fall under the right of another Member State of the European Economic Area and which meet the requirements of Directive 2009/65/EC and which publicly offer their titles in Belgium.
2° (a) to collective investment bodies that fall under the right of another Member State of the European Economic Area and which do not meet the requirements of Directive 2009/65/EC and (b) to collective investment bodies under the right of states that are not members of the European Economic Area, to the extent that they publicly offer their securities in Belgium.
The foreign collective investment bodies referred to in paragraph 1 shall commence their operations in Belgium only with respect to the conditions set out in securities I^er and II of this book.
Art. 149. FSMA shall annually establish a list of foreign collective investment organizations and, where appropriate, compartments registered under this book. This list is published annually on its website. The changes to the list between two annual publications are made public at regular intervals on the FSMA website.
The list can include entries and sub-rubbers.
Art. 150. § 1^er. A foreign collective investment organization that is listed in Article 149, shall broadcast in Belgium, at least in one of the national languages or in a language accepted by FSMA, the key information document for the investor, provided that this document is available, as well as all notices and communications to the shareholders.
A collective investment organization referred to in paragraph 1^er also broadcasts in Belgium, at least in one of the national languages, in a language accepted by FSMA or in a common language in the international financial sphere:
1° the prospectus;
2° the management regulations or the statutes;
3° annual and semi-annual reports.
A collective investment organization that does not meet the requirements of Directive 2009/65/EC and is included in the list referred to in Article 149, distributes the prospectus in Belgium at least in one of the national languages.
If notices, advertisements and other documents relating to a public offer of shares of a foreign collective investment organization that is listed in Article 149 are published in Belgium in one or more national languages, the organization shall, without prejudice to the preceding paragraphs, distribute in Belgium the following documents in the national language(s) in which the above-mentioned notices, advertisements and other documents are broadcast in Belgium:
1° the key information document for the investor, provided that this document is available;
2° the prospectus, if it is a collective investment agency that does not meet the requirements of Directive 2009/65/EC and is listed in section 149.
A feeder of foreign law that is included in the list referred to in Article 149 must provide the information referred to in Article 64, paragraph 1, of Directive 2009/65/EC in one of the national languages or in a language accepted by the MSDS. The feeder is responsible for the translation. This translation is the faithful reflection of the original.
The rules set out in the preceding paragraphs, to the extent that they relate to the language in which the prospectus is to be broadcast in Belgium, are not applicable if the Act of 16 June 2006 on public tenders of investment instruments and admissions of instruments to be negotiated in regulated markets finds to apply.
§ 2. The King may determine additional rules with respect to the documents and their updates that must be submitted to the FSMA, as well as with regard to the mode of publication in Belgium of the information that must be disseminated in the Member State where the collective placement agency is located.
Art. 151. § 1^er. Without prejudice to the other measures provided for in this book, FSMA may set a time limit for a collective investment agency to comply with the provisions of this book or the orders or regulations made for its execution.
If the collective investment organization remains in default on the expiry of the period, the ADMF may, the collective investment organization heard or at least duly summoned, charge the organization with a maximum amount of Euro2,500 000 per offence or Euro50,000 per day of delay.
§ 2. Without prejudice to the other measures provided for in this book and without prejudice to the measures defined by other laws or other regulations, FSMA may, when it finds an offence to the provisions of this book or to the measures taken pursuant to them, impose an administrative fine to a collective investment body that may not be less than 5,000 euros or greater, for the same fact or for the same set of facts, at 2,500 000 euros.
§ 3. The trespasses and fines imposed under §§ 1 and 2 and articles 155, § 3 and 166, § 3 shall be recovered for the benefit of the treasury by the administration of the Cadaster, the Recording and the Domains.
Art. 152. Any communication made in Belgian territory, to the attention of more than 100 natural or legal persons, other than institutional or professional investors, that is, to provide information or advice or to induce requests for information or advice relating to shares of collective institutions with a variable number of shares created or not yet created that are or will be the subject of an offer for sale or subscription, where such communication emanates from an organization of measure
1° the offer falls into one of the categories referred to in Article 5, § 1^erParagraph 1^er, 4° or 6°, or
2° in respect of shares of collective investment bodies referred to in Part I of this book, or a compartment thereof, FSMA has received notification by the competent authorities of their Member State of origin, as referred to in Article 93, paragraph 3 of Directive 2009/65/EC, or
3° with respect to the shares of collective investment organizations referred to in Part II of this book, or a compartment of such an organization, FSMA has registered it in accordance with section 162 and a public tender and, where applicable, a key information document for the investor has been duly approved by FSMA.
Is presumed to act on behalf of the collective investment organization or the person who is in a position to assign the securities, any person who directly or indirectly receives remuneration or benefit from the collective investment organization or the person who is in a position to assign the securities.
PART 1^er. - Collective investment bodies that fall under the right of another Member State of the European Economic Area and meet the requirements of Directive 2009/65/EC
Art. 153. This title is applicable to collective investment organizations that fall under the right of another Member State of the European Economic Area and that meet the requirements of Directive 2009/65/EC and which publicly offer their securities in Belgium.
Art. 154. § 1^er. The FSMA shall include the collective investment bodies under the right of another Member State of the European Economic Area and complying with the requirements of Directive 2009/65/EC to the list referred to in Article 149 as soon as it has received the notification by the competent authorities of their Member State of origin, as referred to in Article 93, paragraph 3, paragraph 2 of Directive 2009/65/EC.
Upon receipt of this notification by FSMA, the collective investment organizations referred to in paragraph 1^er can publicly offer their shares in Belgium.
§ 2. Collective investment organizations referred to in § 1^er shall take the necessary measures, in accordance with the legal provisions in force, to ensure that distributions to participants, the sale or redemption of shares, and the dissemination of information that is the responsibility of the collective investment agency.
In particular, the collective investment bodies referred to in § 1^er shall designate a credit institution registered in the list referred to in Article 13 of the Law of 22 March 1993, a branch of a credit institution under the law of another Member State of the European Economic Area registered in accordance with Article 65 of the Law of 22 March 1993, a corporation of stock exchange of law registered in the list referred to in Article 53 of the Law of 6 April 1995 or a branch of a member corporation
§ 3. In the event of an amendment to the information relating to the terms and conditions provided for the marketing referred to in the notification letter sent to the competent authorities of its Member State of origin in accordance with Article 93, paragraph 1 of Directive 2009/65/EC or the modification of the classes of shares intended to be marketed, the collective investment agency shall notify the FSMA in writing before implementing the change.
§ 4. FSMA eliminates the registration of the collective investment organizations referred to in § 1^er and, where applicable, compartments, whose registration is deleted, for any reason, in the Member State of origin, which have not made a public offer of their securities in Belgium within three months of registration, which renounce registration or decide to put an end to the public offer of their securities in Belgium.
Derogation from paragraph 1^er, for collective investment organizations with varying number of shares that have decided to put an end to the public offer, in Belgium, of their parts or parts of their compartments, FSMA eliminates the registration of these collective investment bodies or their compartments when less than 100 natural or legal persons in Belgium, other than institutional or professional investors, hold the shares of these collective investment bodies or compartments.
Art. 155. § 1^er. Notices, advertisements and other documents that relate to a public offer of securities of a collective investment organization that advertise or recommend such an offer may only be made public after being approved by the MSDS.
No mention of FSMA intervention may be made in notices, advertisements or other documents that relate to an offer or that announce or recommend it.
Articles 63, § 4, 65, § 3, and 66 to 70 are applicable.
§ 2. Without prejudice to paragraph 2 of this paragraph, the King may, by order made on the advice of the MSDS:
1° to determine, depending on the nature of the offer, the minimum content of the notices, advertisements or other documents that relate to the offer or that announce or recommend it;
2° Determine the timelines and modes of publication of notices, advertisements or other documents that relate to the offer or that announce or recommend it.
Notices, advertisements and other documents that relate to the offer, which announce or recommend it, must meet the following conditions:
1° they indicate that a prospectus and a key information document for the investor have been, are or will be published and indicate where investors can obtain them;
2° the information contained therein may not be misleading or inaccurate;
3° the information they contain is compatible with the information contained in the prospectus and the key information for the investor and their updates if these documents have already been published or are to be included if they are published later.
Promotional communications must be clearly recognizable as such.
§ 3. Section 110 is applicable to notices, advertisements or other documents that relate to the offer or recommend it to the public which the MSDS considers to be likely to mislead the public, including the risks inherent in the proposed investment or the rights attached to the securities that are the subject of the offer.
Art. 156. Collective investment organizations referred to in section 153 are subject to sections 71, 90, 91 and 98.
Art. 157. Without prejudice to Article 155, § 3, FSMA may, by reason of decision, take measures of suspension or prohibition in respect of a collective investment organization referred to in Article 153 which publicly offers its shares in Belgium, in violation of the provisions prescribed by or under Articles 150, 154, 155 and 156.
Article 111, § 1^erParagraph 1^er and paragraphs 2, 1°, 3° and 4°, §§ 3 and 5 to 7 is applicable.
Art. 158. § 1^er. If FSMA has clear and demonstrable reasons to estimate that a collective investment organization whose shares are marketed in Belgian territory violates its obligations under the provisions of Directive 2009/65/EC, which do not confer powers on FSMA, it discloses to the competent authorities of the Member State of origin of the collective investment organization, which take the appropriate measures.
§ 2. If, despite the measures taken by the competent authorities of the member State of origin of the collective investment agency or because these measures are inadequate or because that member State does not act within a reasonable period of time, the collective investment agency continues to act in a manner harmful to the interests of investors, FSMA may therefore take one of the following measures:
1° after having informed the competent authorities of the member State of origin of the collective investment agency, take the measures referred to in Article 157; or
2° if necessary, attract the attention of the European Financial Markets Authority to the situation.
FSMA shall promptly inform the European Commission and the European Financial Markets Authority of any action taken pursuant to item 1 of the preceding paragraph.
Art. 159. § 1^er. FSMA places on its website complete information on the legislative, regulatory and administrative provisions that do not fall within the scope of Directive 2009/65/EC and are particularly relevant to the provisions made for the marketing in Belgium of shares of collective investment bodies under the law of another Member State of the European Economic Area and meeting the requirements of Directive 2009/65/EC. This information is available in a standard language in the international financial sphere, provided in a clear and unambiguous manner, and maintained.
§ 2. In accordance with § 1^er, the following categories of information are available:
1° the definition of "marketing shares of collective investment organizations meeting the requirements of Directive 2009/65/EC";
2° the requirements for the content, form and presentation of commercial communications, including all mandatory warnings and restrictions on the use of certain words or expressions;
3° the detailed description of any additional information required to be communicated to investors, without prejudice to the provisions prescribed by or under section 150;
4° a detailed description of any exemption from the rules or requirements relating to the terms and conditions of marketing that would apply in Belgium to certain collective investment organizations meeting the requirements of Directive 2009/65/EC, certain categories of shares of collective investment organizations meeting the requirements of Directive 2009/65/EC or certain categories of investors;
5° the reporting or reporting requirements to FSMA or other authorities, and the procedure for transmitting updated versions of the required documents;
6° the requirements for fees or other amounts to be paid to the MSDS or other authorities, either at the time of commercialization, or subsequently periodically;
7° the requirements for the means to which the participants must be provided in accordance with Article 154, § 2;
8° the conditions for the cessation of the commercialization of shares of collective investment bodies by a collective investment agency that meets the requirements of Directive 2009/65/EC located in another Member State;
9° the detailed content of the information to be included in Part B of the notification letter referred to in Article 1 of Regulation 584/2010;
10° the electronic address chosen for the purposes of Article 32 of Directive 2010/44/EU.
§ 3. The information listed in this article is issued in the form of a textual description, possibly supplemented with references or links to legal provisions.
PART 2. - Collective investment bodies that fall under the right of another Member State of the European Economic Area and which do not meet the requirements of Directive 2009/65/EC and collective investment bodies under the right of states that are not members of the European Economic Area
Art. 160. This title is applicable:
(a) to collective investment bodies that fall under the right of another Member State of the European Economic Area and do not meet the requirements of Directive 2009/65/EC; and
(b) to collective investment bodies under the right of states that are not members of the European Economic Area,
which publicly offer their titles in Belgium.
Art. 161. § 1^er. This title determines the conditions to which collective investment organizations referred to in the preceding article must meet with a view to their inclusion in the list referred to in section 149 as well as the maintenance of the list.
§ 2. If the public offer concerns financial instruments issued by the collective investment agency, other than shares, the provisions of this title shall be applied by analogy.
CHAPTER 1^er. - General provisions
Art. 162. § 1^er. Foreign collective investment organizations whose activity is subject to the provisions of this title shall, before commencing their operations, be required to register with the FSMA. The same obligation is applicable, if applicable, for the compartments of the collective investment organization.
§ 2. FSMA shall include collective investment agencies and compartments that meet the conditions set out in this title and the orders and regulations made for its execution.
A refusal to register by FSMA is notified to applicants.
Art. 163. FSMA eliminates the registration of collective investment organizations and, where applicable, the registration of compartments, which have not made a public offer of their securities in Belgium within twelve months of the registration, which renounce registration or decide to end the public offer of their securities in Belgium.
Derogation from paragraph 1^er, for collective investment organizations with varying number of shares covered in this title that have decided to put an end to the public offer, in Belgium, of their shares or parts of their compartments, FSMA eliminates the registration of these collective investment bodies or their compartments when less than 100 natural or legal persons in Belgium, other than institutional or professional investors, hold the shares of these collective investment bodies or compartments.
Section 114 is applicable to this section.
Art. 164. Without prejudice to section 166, § 3, of this Act and section 65 of the Act of 16 June 2006, FSMA may, by reason of its decision, take measures of suspension or prohibition in respect of a collective cement body in the event of non-compliance with the provisions of this title and the orders and regulations made for its enforcement. Article 111, § 1^erParagraph 1^er and paragraphs 2, 1°, 3°, 4° and 6°, §§ 3 and 5 to 7 is applicable.
Art. 165. § 1^er. Collective placement organizations with a variable number of shares covered by this title are subject to articles 56 to 63, §§ 1^er, 2 and 3, 64, 65, §§ 1^er and 2, 71, 88, 89, 90, 91, 96, § 2, 98 and 110.
Derogation from paragraph 1^er, the FSMA may, subject to the conditions it determines, authorize a group investment agency with a variable number of shares to publish only a prospectus and not to publish a key information document for the investor, provided that this collective investment agency is not required to publish a key information document for the investor under the law of the State of which it reports.
§ 2. The fixed-number collective investment bodies referred to in this title shall be subject to articles 87, 88, 89, 91, 96, § 2, 98 and 110.
Art. 166. § 1^er. Notices, advertisements and other documents that relate to a public offer of securities of a collective investment organization that advertise or recommend such an offer may only be made public after being approved by the MSDS.
No mention of FSMA intervention may be made in notices, advertisements or other documents that relate to an offer or that announce or recommend it.
Articles 63, § 4, 65, § 3, and 66 to 70 are applicable.
§ 2. Without prejudice to paragraph 2 of this paragraph, the King may, by order made on the advice of the MSDS:
1° to determine, depending on the nature of the offer, the minimum content of the notices, advertisements or other documents that relate to the offer or that announce or recommend it;
2° Determine the timelines and modes of publication of notices, advertisements or other documents that relate to the offer or that announce or recommend it.
Notices, advertisements and other documents that relate to the offer, which announce or recommend it, must meet the following conditions:
1° they indicate that a prospectus and, where appropriate, a key information document for the investor have been, are or will be published and indicate where investors can obtain them;
2° the information contained therein may not be misleading or inaccurate;
3° the information contained therein is compatible with the information contained in the prospectus and, where appropriate, the key information for the investor and their updates and supplements if these documents have already been published or should be included if they are subsequently published.
Promotional communications must be clearly recognizable as such.
§ 3. Section 110 is applicable to notices, advertisements or other documents that relate to the offer or recommend it to the public which the MSDS considers to be likely to mislead the public, including the risks inherent in the proposed investment or the rights attached to the securities that are the subject of the offer.
Art. 167. The FSMA may, with the approval of the Minister of Finance, agree, on the basis of reciprocity, with the authorities of control of the State of origin of the institutions of collective investment or companies that contribute to their activity under the law of States that are not members of the European Economic Area and with those also involved in their control in other States than Belgium, of rules relating to the exercise and prohibitions concerning Belgium
Conventions may deviate from the provisions of this title and from the decrees and regulations made for its execution in order to establish rules and procedures more appropriate to the nature and distribution of the activities of the collective investment organization and companies that contribute to its activity and control.
Through the existence of a comprehensive control that meets the criteria set out in this title, these conventions may exempt from the application of certain provisions of this title and from the orders and regulations made for its implementation.
The conventions provided for in this article shall not include for the benefit of collective investment bodies or companies that contribute to their activity under the right of non-member states of the European Economic Area that they relate to, rules more favourable than those that apply to collective investment bodies or companies that contribute to their activity under the right of another Member State of the European Economic Area carrying on business in Belgium.
Conventions must include a termination clause on a notice that cannot exceed six months.
FSMA publishes in its annual report the list and substance of the conventions concluded under this article.
CHAPTER 2. - Provisions applicable to foreign collective investment bodies with varying number of shares
Section 1^re. - Registration conditions
Art. 168. A collective investment organization referred to in this chapter and, where applicable, its compartments are not listed under section 149, and the shares of that collective investment organization and, where applicable, its compartments may only be publicly available in Belgium if the following conditions are met:
1° the collective investment organization has the exclusive purpose of pooling financial means and is managed or administered according to the principle of risk distribution, in the exclusive interest of participants;
2° the collective investment agency shall be approved in its State of origin, in accordance with legislation providing that it is subject to supervision that FSMA considers equivalent to that provided for in Community legislation, and cooperation between the authorities concerned is sufficiently guaranteed;
3° with respect to the performance of the management functions of collective investment organizations, referred to in Article 3, 22°, (a) and (b):
(a) the investment company, in the event that it has a management structure that is specific to it and is appropriate to its activity, and the material, human and technical means that it provides an administrative, accounting, financial and technical organization that is specific to it and is appropriate to its activity, shall comply in its State of origin with provisions that aim to achieve the objectives referred to in sections 39, 41, 42 and 43 or objectives deemed to be equivalent by the MSDS;
(b) or, in other cases, persons who perform the functions of management of collective investment bodies, as referred to in Article 3, 22°, (a) and (b), and, where appropriate, the adviser shall comply in their State of origin with provisions aimed at achieving the objectives referred to in Articles 197 to 199, 201 to 203, 206 and 218 or objectives deemed to be equivalent by the MSDS;
4° the management regulations or the statutes of the collective investment agency contain information equivalent to those provided by the King under section 46; if this is not the case, the collective investment agency must attach the missing information, which shall be an integral part of the management regulations or statutes for the purposes of the provisions of this Act and the orders and regulations made for its execution;
5° the collective investment agency entrusts the custody of its assets to a depositary:
(a) that is a credit institution with its registered office in a Member State of the European Economic Area or, if its registered office is not located in a Member State of the European Economic Area, which is subject to prudential rules considered by the MSDS as equivalent to those provided by Community law; and,
(b) that, in view of the class of authorized investments for which the collective investment agency has opted, has the administrative, financial and technical organization necessary to carry out the activities covered by the King, pursuant to Article 50, § 1^er, and,
(c) that is represented, for the effective exercise of its activities, by persons who have the necessary professional honesty and adequate experience in relation to the authorized investment category for which the collective investment agency has opted; and,
(d) which, in its State of origin, is subject to provisions which, as the case may be, aim at achieving the objectives referred to in articles 52, §§ 1^er and 2, and 55 or to achieve objectives deemed equivalent by the MSDS;
6° the collective investment agency has designated a person who, in accordance with Directive 2006/43/EC, or in accordance with a regulation deemed to be equivalent by the FSMA, is empowered, under the law, to control the annual accounts and to which the accounting data contained in the periodic reports of the collective investment organization are subject to control;
7° the collective investment agency has designated a company, referred to in Article 85, § 2, paragraph 1^erfor:
(a) ensure distribution to participants in Belgium, as well as the sale or redemption of shares;
(b) ensure the dissemination in Belgium of information that the collective investment agency is required to provide;
(c) provide the FSMA with all necessary information regarding the public offer of shares in Belgium.
Art. 169. In the cases referred to in Article 168, 3° and 5°, d), the persons concerned may, in the absence of provisions in their State of origin, demonstrate that they effectively meet the objectives referred to in the aforementioned provisions.
Art. 170. If a management company under the right of a Member State of the European Economic Area has been designated by a joint investment fund or investment company, and that this management company, under its approval as referred to in Article 6, § 1^er, of Directive 2009/65/EC, provides to the collective investment agency concerned, in the State of origin of the collective management of portfolios of collective investment bodies, the condition referred to in Article 168, 3°, (b) is deemed to be met.
Art. 171. A credit institution whose registered office is located in a Member State of the European Economic Area shall be deemed to meet the provisions referred to in Article 168, 5°, (a), (b) and (c).
By derogation from section 168, 5°, a collective investment organization may be listed even if it has not designated a depositary or if the depositary does not meet all the requirements set out in this Act, provided that FSMA considers that the members of the collective investment organization are afforded protection equivalent to that afforded to the participants of the collective investment organizations that have designated a depositary.
Art. 172. § 1^er. The application for listing is addressed to FSMA.
§ 2. The application for registration is accompanied by a record that meets the conditions set by the MSDS and establishes that it is satisfied with the conditions set out in this chapter and that includes the elements specified by the MSDS.
This file includes:
1° a certificate from the control authority of the State of origin concerning the conditions referred to in article 168, 1° and 2°;
2° a selection, accompanied by a commentary, of the provisions of the State of origin which, as the case may be, tend to achieve the objectives referred to in articles 39, 41, 42 and 43 or articles 197 to 199, 201 to 203, 206 and 218, or to achieve objectives deemed to be equivalent by the MSDS, or, in the case referred to in article 169, a description of the manner in which the persons concerned actually meet the objectives set forth above;
3° except in the case referred to in section 169, an assessment by an independent expert in the subject matter, as to whether the selection referred to in 2° and the commentary to the provisions concerned is fair, adequate and complete and whether the provisions concerned are intended to achieve the objectives set or equivalent objectives;
4° a copy of the management regulations or statutes of the collective investment organization and, if not included, the rules for the valuation of the assets of the collective investment organization, the rules for calculating the net inventory value of the shares and the rules for calculating the price in the event of the issuance and redemption of the shares or of change of the compartment;
5° a description of the administrative, accounting, financial and technical organization of the collective investment organization;
6° a description of the set of undertakings in which the collective investment agency integrates with other companies or organizations that are linked to it within the framework of a management or control community or by a significant direct or indirect participation;
7° the identification of the person(s) who perform the management functions referred to in Article 3, 22°, (a) and (b) and its (their) statutes, the identity of the persons responsible for its (their) effective direction, a description of its (their) administrative, accounting, financial and technical organization and the identity of its (their) shareholders;
8° where applicable, the identification of the advisor and his statutes, the identity of the persons responsible for his effective management, a description of his administrative, accounting, financial and technical organization and the identity of his shareholders;
9° the identification of the depositary as well as the evidence demonstrating that it complies with the provisions referred to in Article 168, 5°;
10° the identification and status of the person referred to in section 168, 6°, as well as a copy of the last report it has prepared on the body;
11° identification of the undertaking referred to in section 168, 7°.
§ 3. FSMA may request any additional information necessary to appraise the application for registration.
§ 4. The collective placement agency shall promptly provide the MSDS with all information necessary for the permanent maintenance of the registration file. Where applicable, the relevant collective placement agency shall, within this framework, promptly communicate the changes to the list of existing compartments and existing share classes.
Art. 173. The management regulations or statutes and the last published annual report are annexed to the prospectus referred to in section 57.
The collective investment organization shall ensure that the management regulations or statutes annexed to the prospectus referred to in section 57 are at any time up to date and in accordance with the text filed with the MSDS.
The prospectus and periodic reports contain a statement that the management regulations or statutes are filed with the undertaking referred to in section 168, 7°.
Any interested person may obtain a copy of the management regulations or statutes from that company.
Section 2. - Exercise of activity
Art. 174. The collective investment organization carries out its investments in assets belonging to the categories of placements open to collective investment bodies of Belgian law.
The rules governing the organization's investment policy may not be such that they deviate from those applicable to the corresponding investment category open to Belgian law collective investment agencies.
Art. 175. The rules relating to the establishment and collection of the commissions and fees charged to the collective investment organization or participants must be clear and accurate.
Financial intermediaries that ensure the commercialization of the shares of the collective investment agency in Belgium cannot collect fees or charges other than those provided by the King, by order taken on the advice of the FSMA.
Art. 176. § 1^er. The King may make applicable to collective investment organizations referred to in this chapter all or part of the provisions made under articles 60, § 1^erparagraphs 2 and 64, § 1^er. FSMA may grant exemptions to the application of these provisions with respect to the collective investment organizations referred to in this chapter.
A collective investment body of foreign law shall not avail itself of the term "guaranteed capital" or of an equivalent term, nor of the term "protection of capital" or "protected capital" or of an equivalent term, unless the conditions prescribed by the King in that regard under section 74 are met.
§ 2. The King may make applicable to collective investment organizations referred to in this chapter all or part of the provisions made under section 84.
§ 3. The King may apply to the collective investment bodies referred to in this chapter all or part of the provisions made under articles 85, § 2, § 2, § 3, paragraph 2 and 86. Article 85, § 3, paragraph 3 is applicable.
§ 4. The King may make applicable to collective investment organizations referred to in this chapter all or part of the provisions made under section 89.
Art. 177. The rules for the valuation of the assets of the collective investment organization and the rules for calculating the net value of inventory and the price of issuance and redemption of shares, must ensure correct information from the public and may not prejudice the interests of the public.
CHAPTER 3. - Provisions applicable to foreign collective investment bodies with fixed number of shares
Section 1^re. - Registration conditions
Art. 178. A collective investment organization referred to in this chapter and, where applicable, its compartments are not listed under section 149, and the shares of that collective investment organization and, where applicable, its compartments may only be publicly available in Belgium if the following conditions are met:
1° the collective investment organization has the exclusive purpose of pooling financial means and is managed or administered according to the principle of risk distribution, in the exclusive interest of participants;
2° the collective investment agency is approved, in its State of origin, in accordance with legislation providing that it is subject to a particular status for the purpose of protecting public savings, and cooperation between the authorities concerned is sufficiently guaranteed;
3° with respect to the performance of the management functions of collective investment organizations, referred to in Article 3, 22°, (a) and (b):
(a) the investment company, in the event that it has a management structure that is specific to it and is appropriate to its activity, and the material, human and technical means that it provides an administrative, accounting, financial and technical organization that is specific to it and is appropriate to its activity, shall comply in its State of origin with provisions that aim to achieve the objectives referred to in sections 39, 41, 42 and 43 or objectives deemed to be equivalent by the MSDS;
(b) or, in any other case, persons who perform the management functions of collective investment bodies, referred to in Article 3, 22°, (a) and (b) and, where appropriate, the advisor shall comply in their State of origin with provisions aimed at achieving the objectives referred to in Articles 197 to 199, 201 to 203, 206 and 218 or objectives deemed to be equivalent by the MSDS;
4° the management regulations or the statutes of the collective investment agency contain information equivalent to those to be included in the management regulations or the statutes of the collective investment bodies of Belgian law that invest in the corresponding asset class; if this is not the case, the collective investment agency must attach the missing information, which shall be an integral part of the management regulations or statutes for the purposes of the provisions of this Act and the orders and regulations made for its execution;
5° except in the event that this is not required for the class of collective investment bodies of corresponding Belgian law, the collective investment agency shall entrust the custody of its assets to a depositary:
(a) that is a credit institution with its registered office in a Member State of the European Economic Area or, if its registered office is not located in a Member State of the European Economic Area, which is subject to prudential rules considered by the MSDS as equivalent to those provided by Community law; and,
(b) that, in view of the class of authorized investments for which the collective investment agency has opted, has the administrative, financial and technical organization necessary to carry out the activities covered by the King, pursuant to Article 50, § 1^er; and,
(c) that is represented, for the effective exercise of its activities, by persons who have the necessary professional honesty and adequate experience in relation to the authorized investment category for which the collective investment agency has opted; and,
(d) which, in its State of origin, is subject to provisions which, as the case may be, aim at achieving the objectives referred to in articles 52, §§ 1^er and 2, and 55 or to achieve objectives deemed equivalent by the MSDS;
6° the collective investment agency has designated a person who, in accordance with Directive 2006/43/EC, or in accordance with a regulation deemed to be equivalent by the FSMA, is empowered, under the law, to control the annual accounts and to which the accounting data contained in the periodic reports of the collective investment organization are subject to control;
7° the collective investment agency has designated a company, referred to in Article 85, § 2, paragraph 1^erfor:
(a) ensure distribution to participants in Belgium, as well as the sale or redemption of shares;
(b) ensure the dissemination in Belgium of information that the collective investment agency is required to provide;
(c) transmit to FSMA all necessary information regarding the public offer of shares in Belgium;
8° the shares of the collective investment agency are, in accordance with Article 87, paragraph 1^er, admitted to negotiations on a regulated EU market.
Art. 179. In the cases referred to in Article 178, 3° and 5°, d), the persons concerned may, in the absence of provisions in their State of origin, demonstrate that they effectively meet the objectives set out in the aforementioned provisions.
Art. 180. If a management corporation under the law of a Member State of the European Economic Area has been designated by a joint investment fund or an investment corporation, and that this management company, under its approval as referred to in Article 6, paragraph 1, of the Directive 2009/65/EC, shall provide to the collective investment agency concerned, in the State of origin of the latter, services of collective management of portfolios of affected bodies
Art. 181. A credit institution whose registered office is located in a Member State of the European Economic Area shall be deemed to meet the provisions referred to in Article 178, 5°, (a), (b) and (c).
By derogation from section 178, 5°, a collective investment organization may be listed even if it has not designated a depositary or if the depositary does not meet all the requirements set out in this Act, provided that the FSMA considers that the participants of the collective investment organization are entitled to protection equivalent to that offered to participants of the collective investment organizations that have designated a depositary, or that the participating institutions of collective investment in Belgian law
Art. 182. § 1^er. The application for listing is addressed to FSMA.
§ 2. The application for registration is accompanied by a record that meets the conditions set by the MSDS and establishes that it is satisfied with the conditions set out in this chapter and that includes the elements specified by the MSDS.
This file includes:
1° a certificate from the control authority of the State of origin concerning the conditions referred to in Article 178, 1° and 2°, or, if such certificate cannot be provided, a description of the status to which the collective investment agency is subject in its State of origin;
2° a selection, accompanied by a commentary, of the provisions of the State of origin which, as the case may be, tend to achieve the objectives referred to in articles 39, 41, 42 and 43 or articles 197 to 199, 201 to 203, 206 and 218, or to achieve objectives deemed to be equivalent by the MSDS, or, in the case referred to in article 179, a description of the manner in which the persons concerned actually meet the objectives referred to
3° except in the case referred to in Article 179, an assessment by an independent expert in the subject matter, as to whether the selection referred to in 2° and the commentary to the provisions concerned is fair, adequate and complete and whether the provisions concerned are intended to achieve the objectives set or equivalent objectives;
4° a copy of the management regulations or statutes of the collective investment agency;
5° a description of the administrative, accounting, financial and technical organization of the collective investment organization;
6° a description of the set of undertakings in which the collective investment agency integrates with other companies or organizations that are linked to it within the framework of a management or control community or by a significant direct or indirect participation;
7° the identification of the person(s) who perform the management functions referred to in Article 3, 22°, (a) and (b) and its (their) statutes, the identity of the persons responsible for its (their) effective direction, a description of its (their) administrative, accounting, financial and technical organization and the identity of its (their) shareholders;
8° where applicable, the identification of the advisor and his statutes, the identity of the persons responsible for his effective management, a description of his administrative, accounting, financial and technical organization and the identity of his shareholders;
9° the identification of the depositary as well as the evidence demonstrating that it complies with the provisions referred to in Article 178, 5°;
10° the identification and status of the person referred to in section 178, 6°, as well as a copy of the last report it has prepared on the body;
11° identification of the undertaking referred to in section 178, 7°.
§ 3. FSMA may request any additional information necessary to appraise the application for registration.
§ 4. The collective placement agency shall promptly provide the MSDS with all information necessary for the permanent maintenance of the registration file.
Art. 183. Periodic reports indicate that the management regulations or statutes are filed with the undertaking referred to in section 178, 7°.
Any interested person may obtain a copy of the management regulations or statutes from that company.
Section 2. - Exercise of activity
Art. 184. The collective investment organization carries out its investments in assets belonging to the categories of placements open to collective investment bodies of Belgian law.
The rules governing the organization's investment policy may not be such that they deviate from those applicable to the corresponding investment category open to Belgian law collective investment agencies.
Art. 185. The rules relating to the establishment and collection of the commissions and fees charged to the collective investment organization or participants must be clear and accurate.
PART 3. - Group investment management companies
LIVRE I. - Scope of application
Art. 186. The provisions of this Part shall apply to the management companies of collective investment bodies of Belgian law as well as to companies of foreign law, to the extent that they exercise the activity referred to in Article 3, 12° in Belgium.
Art. 187. The provisions of this Part shall not apply:
1° to investment companies, referred to in Book II, Parts II to IV, of the Act of 6 April 1995, which are authorized to provide the investment services referred to in Article 46, 1°, 4 of the Act of 6 April 1995, when they provide this service to collective investment bodies of Belgian law; are nevertheless applicable to these enterprises articles 195, 201, § 3, paragraph 2, 201, § 6, paragraphs 3, 4, 5 and 6, 201, § 7, paragraph 2, 202, § 3, 218, 220 and 224;
2° to credit institutions referred to in Parts II to IV of the Act of 22 March 1993, when they provide the investment services referred to in Article 46, 1°, 4 of the Act of 6 April 1995 to collective investment bodies of Belgian law; are nevertheless applicable articles 195, 201, § 3, paragraph 2, 201, § 6, paragraphs 3, 4, 5 and 6, 201, § 7, paragraph 2, 202, § 3, 218, 220 and 224.
LIVING 2. - Belgian law collective investment management companies
PART 1^er. - Access to activity
CHAPTER 1^er. - Accreditation
Art. 188. Any Belgian law collective investment organization management company that intends to operate in Belgium is required, before starting its activity, to be accredited to FSMA.
The collective investment management company may perform one or more management functions referred to in Article 3, 22°, (a), (b) or (c), as well as provide, incidentally, one or more investment services referred to in Article 3, 23°.
However, 1° the performance of the management function referred to in section 3, 22°, (c), is authorized only to the collective investment organization management company whose accreditation also covers the management functions referred to in section 3, 22°, (a) and/or (b);
2° the provision as an accessory of the investment service referred to in Article 3, 23°, (b), is authorized only to the collective investment organization management company whose approval also covers the provision as an accessory of the investment service referred to in Article 3, 23°, (a).
Art. 189. § 1^er. The applicant shall indicate the management functions referred to in Article 3, 22°, (a), (b) or (c), that the applicant intends to perform as well as the investment services referred to in Article 3, 23°, (a) or (b), that the applicant intends to provide, and for which the applicant wishes to obtain approval.
The application for approval is accompanied by a program of activities that meet the conditions set out by the FSMA in which, in particular, the method of carrying out the management functions referred to in Article 3, 22°, which it intends to exercise, the volume of activities envisaged and the structure of the organization of the company, its close links with other persons and the category of authorized investments of the collective investment organizations it intends to manage. The applicant must provide any information necessary to assess the application.
§ 2. § 1^er is also applicable to applications filed by already approved collective investment management companies that wish to perform additional management functions, as referred to in Article 3, 22°, or to provide additional investment services, as referred to in Article 3, 23°, and that are not covered by their approval or intend to manage collective investment organizations that have opted for a class of authorized investments other than that specified in Program 1^er. Sections 190 to 194 are applicable.
The applicant shall promptly disclose to the MSDS the information necessary for the permanent maintenance of the accreditation file.
Art. 190. When the credit is sought by a company that manages collective investment organizations that is either the subsidiary of a stock exchange company, a credit institution, an insurance company or a reinsurance company of Belgian law, or the subsidiary of the parent company of a stock exchange company, a credit institution, an insurance company or a reinsurance company of Belgian natural law,
When the credit is sought by a collective investment company that is, either the subsidiary of another corporate investment company, an investment company, a credit institution or a reinsurance company
Similarly, FSMA consults with the supervisory authorities referred to in paragraph 2 for the purpose of assessing the required qualities of shareholders and directors in accordance with sections 198 and 199, where the shareholder is a business referred to in paragraph 2 and that the person participating in the management of the collective investment organization corporation also participates in the direction of one of the companies referred to in paragraph 2. These authorities shall provide each other with any information relevant to the assessment of the qualifications required of the shareholders and persons participating in the management referred to in this paragraph.
Art. 191. FSMA grants solicited approval to collective investment management companies that meet the conditions set out in Chapter 2. She decides on the application within six months of the introduction of a complete file and, at the latest, within nine months of receipt of the application.
Accreditation decisions refer to the management functions and investment services that the company is authorized to provide.
Art. 192. With a view to sound and prudent management of the collective investment organization management company, the ADMSP may limit its accreditation to the performance of certain management functions and to the provision of certain investment services or conditions for the performance of certain management functions or the provision of certain investment services.
Art. 193. FSMA sets out a list of collective investment management companies authorized under this book. This list and all modifications made to it are published on its website.
The list of collective investment management companies mentions the management functions referred to in Article 3, 22°, (a), (b) or (c), and the investment services referred to in Article 3, 23°, (a) or (b), that the collective investment management company is authorized to provide. It also specifies whether the collective investment management company operates, through the establishment of a branch or in the free provision of services, in the territory of other member states of the European Economic Area, in accordance with Chapters VI and VII.
The list can include entries and sub-rubbers.
Art. 194. FSMA notifies any approval granted to the European Financial Markets Authority.
FSMA shall notify the European Commission of any approval granted to a Belgian law collective investment company that is a subsidiary of one or more parent companies that fall under the right of one or more non-member states of the European Economic Area. FSMA also informs the supervisory authorities of other Member States of the granting of such approval. The notification to the European Commission mentions the identity of this or these parent companies and, where appropriate, indicates the financial structure of the group that controls the management company of approved collective investment organizations.
FSMA shall provide the same information to the European Commission, at the request of the European Commission, when it has before it an application for the approval of a Belgian law collective investment organization management company that meets the conditions set out in paragraph 1^erin the cases referred to in Article 15, §§ 2 and 3, paragraph 1^erof Directive 2004/39/EC.
In the cases referred to in Article 15, § 3, paragraphs 2 and 3, of Directive 2004/39/EC, FSMA limits or suspends its decisions for the approval of companies for the management of collective investment bodies of Belgian law referred to in paragraph 1^er and this in the manner and for the duration fixed by the Council of the European Union or the European Commission pursuant to these provisions.
For the purposes of this provision, the terms "investment company/business" and "investment companies" contained in section 15 of the above-mentioned Directive are read respectively "collective investment organization management company" and "collective investment organization management companies".
Art. 195. The management companies of collective investment bodies of Belgian law and the management companies of collective investment bodies of foreign law operating in Belgium under Book III are only allowed to make public use in Belgium of the term "societies for the management of collective investment bodies", in particular in their name, in the designation of their social object, in their titles, effects or documents or in their advertising.
In cases where there would be a risk of confusion, the ADMF may impose on the management companies of foreign collective investment bodies authorized to use in Belgium the terms provided for in paragraph 1^erthe addition to their name of an explanatory mention.
CHAPTER 2. - Conditions of licence
Section 1^re. - Form
Art. 196. Management companies of collective investment bodies of Belgian law must be incorporated as an anonymous company.
Section 2. - Minimum capital
Art. 197. Accreditation as a collective investment management company is subject to the existence of a minimum capital entirely freed up to 125,000 euros at least.
In the event of a company's pre-existence as a collective investment organization's management company, the emission premiums, the reserves and the deferred result are, for the purposes of paragraph 1^er, assimilated to the minimum capital. Section 206 is also applicable.
Section 3. - Actionnariat
Art. 198. Accreditation is subordinate to the communication to the MSDS of the identity of natural or legal persons who, directly or indirectly, acting alone or in conjunction with others, hold in the capital of the management company of collective investment organizations a qualified participation, conferring or not the right to vote. The communication must include the indication of the quotities of capital and voting rights held by those persons.
Accreditation is denied if the MSDS has reasons to consider that the natural or legal persons referred to in paragraph 1^er do not present the qualities necessary to ensure a healthy and prudent management of the collective investment management society.
Section 4. - Leaders
Art. 199. Effective management of collective investment organizations must be entrusted to at least two physical persons; They must have the necessary professional honesty and the appropriate experience to perform these functions, particularly in the context of the program of activities referred to in section 189.
Individuals who take part in the administration or management of a collective investment organization management company, without participating in its effective management, must have the necessary professional honesty and expertise, as well as the appropriate experience to perform their tasks.
Art. 200. Individuals who take part in the administration, management and effective management of the collective investment management corporation may not be in one of the cases referred to in section 19 of the Act of 22 March 1993.
Section 5. - Organization
Art. 201. § 1^er. The collective investment management company must have a management structure that is unique to it and is appropriate to the management functions it performs or intends to perform and to the investment services it undertakes or intends to presume as well as a good administrative and accounting organization.
The King specifies, by order taken on the advice of the FSMA, what should be heard by appropriate management structure and good administrative and accounting organization.
§ 2. The collective investment management company must also have the material, human and technical means to provide it with an administrative, accounting, financial and technical organization that is unique to it and that is appropriate to the management functions it intends to perform and the investment services it intends to take. It should have, inter alia, monitoring and security mechanisms in the field of information technology. It takes into account the nature, volume and complexity of these activities and the risks associated with them.
The King, by order taken on the advice of the FSMA, specifies what should be heard by material, human and technical means ensuring an organization specific to the management society of collective investment organizations and appropriate to its activities.
§ 3. The collective investment management company must organize adequate internal control.
Internal control procedures include rules:
(a) concerning the personal operations of employees or the detention or management of investments in financial instruments with a view to investing for their own account;
(b) ensuring, at a minimum, that each transaction concerning the collective investment organization may be reconstituted with respect to its origin, the parties concerned, its nature, as well as at the time and place of operation;
(c) ensuring that the assets of collective investment organizations managed by the collective investment management company are placed in accordance with the management regulations or the regulations and the legal provisions in force;
The internal control system provides a reasonable degree of certainty as to the reliability of the financial reporting process, so that annual accounts, in particular, comply with existing accounting regulations.
The King, by order taken on the advice of the FSMA, specifies what should be heard by adequate internal control.
§ 4. The collective investment management company takes the necessary measures to be able to have an adequate internal audit function on an ongoing basis.
The King, by order taken on the advice of the FSMA, specifies what should be heard by appropriate independent audit function.
The ADMSP may grant exemptions to the provisions of paragraph 1 where the management company of the relevant collective investment organizations determines that this requirement is not proportionate and appropriate given the nature, scale and complexity of its activity, as well as the nature and scope of the collective portfolio management activities it operates. FSMA may set specific conditions for the granting of these exemptions.
§ 5. The collective investment management company takes the necessary measures to be able to have an adequate independent compliance function on an ongoing basis, to ensure that the corporation, its directors, effective officers, employees and agents adhere to the rules of law relating to the integrity of the activity of a collective investment management corporation.
The King, by order taken on the advice of the FSMA, specifies what should be heard by appropriate independent compliance function. It may determine cases in which MSDS may grant exemptions from the provisions made under this paragraph.
§ 6. The collective investment management company must have an adequate risk management function and an appropriate risk management policy.
The King, by order taken on the advice of the MSDS, specifies what should be heard by appropriate risk management function and appropriate risk management policy. It may determine cases in which MSDS may grant exemptions from the provisions made under this paragraph.
The collective investment management company must use a risk management method, adapted to the authorized investment category of managed collective investment organizations, which allows it to monitor and measure at any time the risk associated with the positions and their contribution to the overall risk profile of the portfolio of managed collective investment organizations, or, where appropriate, to the overall risk profile of the various compartments of these collective investment organizations.
The collective investment organization management company must use a method that allows for an accurate and independent assessment of the value of the voluntary derivative instruments in the portfolio or, where applicable, in the portfolio of the different compartments of each managed collective investment organization.
The King, by order taken on the advice of the FSMA, specifies the procedures for the evaluation of voluntary derivatives.
The collective investment organization management company must communicate to the FSMA, once a year and whenever requested, a report giving a fair picture of the types of derivative instruments, the underlying risks, quantitative limits and the methods chosen to estimate the risks associated with derivative transactions for each managed collective investment organization or, where appropriate, for the different compartments of each collective investment organization. FSMA may, by regulation made in accordance with section 64 of the Act of 2 August 2002, specify the rules applicable to this matter.
§ 7. The collective investment management company develops an adequate integrity policy, which is regularly updated.
The collective investment management company takes appropriate organizational and administrative measures to prevent conflicts of interest arising from:
- between itself, including its administrators, its executives, its employees and its agents, or any company that is linked to it, on the one hand, and its clients, on the other;
- between itself, including its administrators, its executives, its employees and its agents, or any company that is linked to it, on the one hand, and the managed collective investment organizations, on the other;
- between its customers themselves;
- between collective investment organizations managed themselves;
- between clients and managed collective investment organizations;
- does not affect the interests of managed collective investment organizations or its clients.
The King, by order taken on the advice of FSMA, specifies the rules and obligations in this matter. These rules and obligations include, in particular, organizational rules to be followed in order to prevent conflicts of interest, as well as when the collective investment management company produces and disseminates investment research.
§ 8. The collective investment management company is an audit committee within its legal body of administration.
The King, by order taken by the FSMA, determines the rules and obligations in this matter. It may determine the conditions under which FSMA may derogate from the provisions made under this paragraph.
§ 9. The organization of the collective investment management company must provide, at the request of any holder of securities, additional information to those made public in the prospectus and annual and semi-annual reports of managed collective investment organizations, covering the quantitative limits that apply to the risk management of managed collective investment organizations, the methods chosen to meet these limits, and the recent evolution of the risks
§ 10. Without prejudice to the powers vested in the legal body of administration with regard to the determination of general policy, as provided for in the Code of Companies, persons responsible for the effective management of the management society of collective investment bodies, if any the steering committee, shall take, under the supervision of the legal body of administration, the necessary measures to ensure compliance with the provisions of § 1^er to 9 and the provisions of Article 202, § 5.
Without prejudice to the provisions of the Code of Companies, the legal body of administration of the collective investment management corporation must control at least once a year, if any through the audit committee, if the corporation complies with the provisions of § 1^er to 8 and paragraph 1^er and takes note of the appropriate measures taken.
Effective management, where appropriate, the steering committee, shall report at least once a year to the legal body of administration, the FSMA and the authorized Commissioner on compliance with paragraph 1^er and the appropriate measures taken.
This information is transmitted to the FSMA and to the authorized commissioner on the terms and conditions that the FSMA determines.
Art. 202. § 1^er. The collective investment management company may entrust to a third party, by contract of mandate or contract of business, the exercise, for its own account, of one or more of its functions of managing collective investment bodies, referred to in Article 3, 22°, (a), (b) or (c), for, inter alia, compliance with the conditions set out below.
1° The decision to assign certain management functions to a third party must be notified before the MSDS. This notification shall establish that it is satisfied with the conditions of this Article. Where applicable, FSMA shall forthwith transmit this information to the competent authorities of the Member State of origin of the collective investment bodies established in another Member State of the European Economic Area managed by the management company of the collective investment bodies concerned.
2° The exercise of adequate control of the collective investment management company and managed collective investment organizations cannot be hampered.
3° It may not be prejudiced to the obligation of the collective investment organization management corporation to perform its management functions of collective investment organizations in accordance with Article 9.
4° The exercise of the management function referred to in section 3, 22°, (a) may be entrusted to a third party only with respect to the conditions set out below.
(a) The exercise of this function can only be entrusted to a company subject to a prudential control regime. It must have an administrative, accounting, financial and technical organization appropriate to the nature of the management functions entrusted to it and to the authorized investment category for which the managed collective investment organization has chosen. Directors and persons who in fact provide effective management must have the necessary professional honesty and the appropriate experience to perform these functions.
(b) Without prejudice to (a), with respect specifically to collective investment organizations that have opted for the class of authorized investments referred to in Article 7, paragraph 1^er, 1° or 2°,
i. the exercise of the management function referred to in section 3, 22°, (a) may be entrusted only to a company authorized to provide investment services referred to in section 46, 1°, 4 of the Act of 6 April 1995 or to a collective investment management company;
ii. the investment distribution criteria set periodically by the investment company must be met.
(c) The performance of the management functions referred to in Article 3, 22°, (a) may not be entrusted or insured by the depositary of the managed collective investment organization, or by any other enterprise whose interests may be in conflict with those of the managed collective investment organization or with those of the holders of securities.
(d) Without prejudice to point (c) above, with respect to managed collective investment organizations that have opted for a class of authorized investment bodies other than those referred to in Article 7, paragraph 1^er, 1° or 2°, the King determines, by order taken on the advice of the MSDS, the conditions under which the exercise of the management function referred to in Article 3, 22°, a) may be entrusted to a third party.
5° The performance of the management function referred to in section 3, 22°, (b) may be entrusted to a third party only with respect to the conditions set out below.
(a) The exercise of this function can only be entrusted to a company subject to a prudential control regime. It must have an administrative, accounting, financial and technical organization appropriate to the nature of the management functions entrusted to it and to the authorized investment category for which the managed collective investment organization has chosen. Directors and persons who in fact provide effective management must have the necessary professional honesty and the appropriate experience to perform these functions.
(b) With respect to collective investment organizations meeting the requirements of Directive 2009/65/EC, the exercise of this function may be entrusted to a company established in Belgium, or, under the conditions established by this Act, to a company established in another Member State of the European Economic Area.
With respect to collective investment organizations that do not meet the requirements of Directive 2009/65/EC, the exercise of this function can only be entrusted to a company established in Belgium.
This item is not applicable to the missions and tasks referred to in Article 23, paragraph 1^erprovided that this delegation of management functions has been approved prior to FSMA.
(c) By derogation from point (a) above and without prejudice to the application of point (b) above, with respect to fixed-number collective investment organizations, the performance of the management function referred to in section 3, 22°, (b), (i) may be entrusted to an authorized reviewer, an authorized accountant or an accountant. The corporation must operate within a corporation and have an administrative, accounting, financial and technical organization appropriate to the nature of the management functions entrusted to it and to the authorized investment category for which the collective investment organization has chosen. Directors and persons who in fact provide effective management must have the necessary professional honesty and the appropriate experience to perform these functions.
A third party to whom the management function referred to in section 3, 22°, (b), (i) is entrusted must present sufficient independence with respect to the Commissioner. The provisions of articles 183bis to 183sexies of the Royal Decree of 30 January 2001 implementing the Code of Companies are mutatis mutandis applicable to him.
(d) The performance of the management functions referred to in Article 3, 22°, (b), (i), (iii), (iv) and (ix) may not be entrusted or insured by the depositary of the managed collective investment organization, or by any other enterprise whose interests may be in conflict with those of the managed collective investment organization or those of the holders of securities.
6° When the exercise of management functions is entrusted to a company under the law of a non-member State of the European Economic Area, this undertaking must be subject in its State of origin to a monitoring equivalent to that referred to in paragraph 4(a) and which is exercised permanently by a public authority. Cooperation between the supervisory authorities concerned must be ensured through collaborative agreements.
7° Measures are put in place that allow the managers of the collective investment management company to effectively control the activity of the undertaking with which the mandate contract or the business contract is concluded at any time.
8° Managers of the collective investment management company must be able to give at any time additional instructions to the company to which management functions are entrusted and to terminate the terms of reference or business contract with immediate effect when it comes to the interest of the managed collective investment organizations or the holders of their securities.
9° Measures are put in place to ensure continuity of the management functions under this contract when the contract is terminated for any purpose.
10° The prospectus referred to in section 57, paragraph 1^er, the collective investment organization must indicate the management functions that the management company of the collective investment organization has been authorized by the managed collective investment organizations to entrust to a third party.
§ 2. The management society of collective investment bodies cannot resort to § 1^er to such a extent that the presence of the material, human and technical means required by section 201 is insufficient to ensure compliance with section 201.
§ 3. When a third party has been assigned to perform certain management functions in accordance with § 1^er uses itself to a third party entity to perform the management functions entrusted to it, §§ 1^er and 4 are applicable.
For collective investment organizations that opted for the authorized investment category referred to in section 7, paragraph 1^er, 5° or 7°, the King determines, by order taken on the advice of the MSDS, the conditions under which the delegation by the third party referred to in the paragraph of material tasks related to management functions referred to in Article 3, 22°, (b), may waive paragraph 1^er.
§ 4. The fact that the collective investment management company has entrusted a third party with the performance of certain management functions referred to in Article 3, 22°, may not affect its responsibility or that of the depositary.
§ 5. When a collective investment management company entrusts a third party with the delivery of essential operational tasks to ensure the provision of its investment services in a continuous and satisfactory manner to its customers, it takes appropriate measures to limit the operational risk associated with it.
Externalization referred to in paragraph 1^er cannot be performed in a manner that significantly affects the adequacy of the company's internal control procedures and prevents MSDS from controlling whether the company complies with its legal obligations.
FSMA may specify the provisions of this article by regulation made pursuant to articles 49, § 3, and 64 of the Act of 2 August 2002.
Art. 203. If there are close ties between the management society of collective investment organizations and other natural or legal persons, these links cannot hinder the exercise of prudential, individual or on a consolidated basis, adequate for the management society of collective investment organizations.
If the collective investment management company has close ties with a natural or legal person under the law of a non-member State of the European Economic Area, the legislative, regulatory and administrative provisions applicable to that person or their implementation cannot hinder the exercise of a prudential, individual or on a consolidated basis, adequate by the collective investment management company.
Section 6. - Central Administration
Art. 204. Without prejudice to Article 202, the statutory seat and central administration of the collective investment management company must be located in Belgium.
Section 7. - Client protection
Art. 205. The collective investment management company authorized to provide the individual portfolio management investment service must adhere to the investor protection system set out in Part V of the Act of 6 April 1995.
PART 2. - Conditions of activity
CHAPTER 1^er. - Minimum equity funds
Art. 206. The equity of the collective investment organization management corporation may not be less than the minimum capital amount set out in section 197.
Pursuant to section 64 of the Act of 2 August 2002, FSMA defines by regulation:
1° the concept of equity;
2° the additional amount of equity required on the basis of the total value of the portfolios of the collective investment management company and the conditions under which this management company is authorized not to provide these additional equity funds;
3° the concept of portfolios of a collective investment management company.
CHAPTER 2. - Change in capital structure
Art. 207. § 1^er. Without prejudice to Article 198 and to the Law of 2 May 2007, any natural or legal person acting alone or in conjunction with others, who has made the decision either to acquire, directly or indirectly, qualified participation in a company of management of collective investment bodies of Belgian law, or to carry out, directly or indirectly, an increase of such qualified participation in a company of management of collective investment bodies of Belgian law,
§ 2. Slightly, and in any case within two working days after receipt of the notification and complete information referred to in § 1^erand after the subsequent receipt of the information referred to in paragraph 3 of this paragraph, the MSDS shall acknowledge receipt in writing to the applicant acquirer. The acknowledgement of receipt indicates the expiry date of the assessment period.
The assessment period available to the MSDS to carry out the assessment referred to in § 3 shall be not more than sixty working days from the date of receipt of the notification and all required documents with the notification on the basis of the list referred to in § 3, paragraph 3.
FSMA may, during the evaluation period, no later than the fiftieth working day of the evaluation period, request additional information to complete its evaluation. This request is made in writing and specifies the necessary additional information.
During the period between the date of the request for information by the MSDS and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. ADMF may make, beyond the specified deadline date in accordance with the preceding paragraph, other requests to collect additional information or clarifications, but these requests do not, however, result in a suspension of the assessment period.
The MSDS may extend the suspension referred to in paragraph 4 to thirty business days:
(a) if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
(b) if the prospective purchaser is a natural or legal person who is not subject to oversight under the Directives 2006/48/EC of the European Parliament and the Council of 14 June 2006 on access to the activity of credit institutions and its exercise (reflective), Directive 2009/65/EC, Directives 92/49/EEC of the Council of 18 June 1992 on the coordination of legislative, regulatory and administrative provisions concerning direct insurance other than life insurance (EC)
§ 3. The MSDS may, within the course of the assessment period referred to in § 2, oppose the completion of the acquisition if it has reasonable grounds to consider, on the basis of the criteria set out in paragraph 2, that the applicant acquires not the qualities necessary to ensure the sound and prudent management of the management society of collective investment organizations or if the information provided by the applicant acquires is ineffective.
By evaluating the notification and information referred to in § 1^er, and additional information referred to in § 2, the MSDS shall, in order to ensure a sound and prudent management of the collective investment organization management company subject to the intended acquisition and taking into account the likely influence of the acquirer candidate on the collective investment organization management company, the appropriate character of the acquirer candidate and the financial strength of the proposed acquisition by applying the following criteria:
(a) the reputation of the acquirer candidate;
(b) the reputation and experience of any person referred to in section 199 who will manage the activities of the collective investment organization management corporation following the proposed acquisition;
(c) the financial strength of the prospective purchaser, in particular in view of the type of activities carried out and envisaged in the collective investment organization management corporation under the proposed acquisition;
(d) the ability of the collective investment management company to meet and continue to meet the prudential obligations arising out of this Act and the decisions taken pursuant to this Act, in particular whether the group to which it belongs has a structure that allows for effective monitoring, to effectively exchange information between the competent authorities and to determine the sharing of responsibilities between the competent authorities;
(e) the existence of reasonable grounds to suspect that an operation or attempt to laundering capital or financing terrorism within the meaning of section 1^er the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for money laundering and the financing of terrorism is in progress or has taken place in relation to the intended acquisition, or that the proposed acquisition could increase the risk.
The MSDS publishes on its website a list specifying the relevant information, proportionate and appropriate to the nature of the acquirer candidate and the intended acquisition, which are necessary to carry out the evaluation and which must be communicated to it at the time of notification referred to in § 1^er.
If the MSDS decides, at the end of the evaluation, to oppose the proposed acquisition, it shall notify the applicant in writing, within two working days and without exceeding the assessment period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the evaluation period, the ADMDS did not object to the proposed acquisition, it is deemed to be approved.
The MSDS may set a maximum time limit for the conclusion of the proposed acquisition and, if necessary, extend it.
§ 4. FSMA conducts the assessment referred to in § 3 in full consultation with any other competent authority concerned if the applicant acquires:
(a) a credit institution, an insurance company, a reinsurance company, an investment company or a collective investment organization management company approved in another Member State; or
(b) the parent company of a company with one of the qualities referred to in (a); or
(c) a natural or legal person controlling a company having one of the qualities referred to in (a).
In the cases referred to in the preceding paragraph, any decision of the MSDS shall mention any notices or reservations made by the competent authority responsible for the applicant acquirer.
When the prudential evaluation of a planned acquisition is within the competence of the control authority of credit institutions, insurance companies, reinsurance companies, investment companies or collective investment management companies of another Member State, FSMA shall, as soon as possible, exchange with that authority any essential or relevant information for the evaluation. In this context, the Commission shall provide, upon request, any relevant information and, on its own initiative, any essential information.
§ 5. Any natural or legal person who has made the decision to stop holding, directly or indirectly, qualified participation in a collective investment management company shall notify the corporation in writing before the ADMSP and shall communicate the amount of the interest envisaged. Such a person shall also notify FSMA of its decision to reduce its qualified participation in such a way that the proportion of voting rights or shares of held capital falls below the thresholds of 20%, 30% or 50%, or that the collective investment organization management company ceases to be its subsidiary.
§ 6. In case of forbearance to make the prior notifications prescribed by § 1^er or 5 or in the event of an acquisition or increase of an interest in spite of the opposition of the MSDS referred to in § 3, the president of the trade tribunal in whose jurisdiction the management society of collective investment bodies has its seat, ruling as a reference, may take the measures referred to in Article 516, § 1^er, the Corporate Code, as well as the cancellation of all or part of the general assembly proceedings held in the above cases.
The procedure is initiated by a quotation from FSMA.
Article 516, § 3, of the Corporate Code is applicable.
§ 7. Without prejudice to Article 198 and to the Law of 2 May 2007, any natural or legal person acting alone or in conjunction with others, who has acquired, directly or indirectly, a stake in a corporation of management of collective investment bodies of Belgian law, or who has carried out, directly or indirectly, an increase of its participation in a corporation of management of collective investment bodies of Belgian law, in such a way that the share of voting rights or
The same notification is required within ten working days of any natural or legal person who has ceased to hold, directly or indirectly, alone or in concert with other persons, an interest of more than 5% of the capital or voting rights of a collective investment management company, which did not constitute qualified participation.
Notifications referred to in subparagraphs 1^er and 2 indicate the specific identity of the acquirer(s), the number of titles acquired or disposed of, and the percentage of the voting rights and capital of the collective investment organization management corporation held after the acquisition or assignment, as well as the necessary information whose list is published by the MSDS on its website in accordance with § 3, paragraph 3.
§ 8. Collective investment management companies shall, as soon as they are aware, communicate to FSMA the acquisitions or disposition of their securities or shares that make one or more of the thresholds referred to in § 1 above or below.^erParagraph 1^er.
Under the same conditions, they communicate to the FSMA, at least once a year, the identity of the shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and voting rights so held. They also communicate to FSMA the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Code of Companies in cases where the Articles of Association do not prescrib their declaration to FSMA.
Art. 208. Where FSMA has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in a collective investment management corporation is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided for in this Act, FSMA may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholder or partner in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholder or partner in question; its decision is enforceable as soon as it has been notified; FSMA may make its decision public;
2° give injunction to the shareholder or partner in question to assign, within the time limit fixed, the rights of associate he holds.
In the absence of a transfer within the specified time limit, the MSDS may order the sequestration of the rights of associates with any institution or person it determines. The sequester informs the management company of collective investment organizations, which accordingly amends the register of shares or shares of nominative partners and which only accepts the exercise of the rights attached to it by the sole receiver. It acts in the interest of sound and prudent management of the collective investment organization management company and in the interest of the holder of the rights of partners who have been the subject of the receiver. He exercises all rights attached to the shares or shares of partners. The amount paid by the holder for a dividend or other title shall be paid by the holder of the dividend only if the holder has satisfied the injunction referred to in paragraph 1^erTwo. The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder. The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above. The sequester shall be paid by FSMA and shall be paid by the holder mentioned above. The receiver may charge such remuneration on the amounts paid to it as a receiver or the holder referred to above for the purposes or as a consequence of the above transactions.
When voting rights have been exercised by the original holder or by a person other than the receiver, acting on behalf of the holder after the expiry of the time limit set in accordance with paragraph 1^er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1^er, 1°, the court of commerce in which the company has its seat may, upon request of the FSMA, declare the nullity of all or part of the proceedings of the general assembly if, without the illegally exercised voting rights, the quorums of presence or majority required by the said deliberations would not have been gathered.
Art. 209. FSMA shall notify the European Commission of any direct or indirect acquisition of participation in a Belgian law collective investment management company by one or more natural or legal persons under the law of one or more States not members of the European Economic Area and whose company thus becomes the subsidiary. FSMA also informs the supervisory authorities of the other Member States of the acquisition of such participation in a management company of collective investment bodies of Belgian law.
The notification to the European Commission is accompanied by the identity of these natural or legal persons, the amount of participation and the indication of the financial structure of the group that acquires participation.
The same notifications and information are given to the European Commission, at the request of the European Commission, by the FSMA when the latter is seized, in accordance with Article 207, of a proposed acquisition of participation, as described in paragraph 1^er in the cases referred to in Article 15, §§ 2 and 3, paragraph 1^erof Directive 2004/39/EC.
The FSMA limits or prohibits the realization of the acquisition in the cases referred to in Article 15, § 3, paragraphs 2 and 3, of the above-mentioned Directive and that in the manner and for the duration fixed by the Council of the European Union or the European Commission pursuant to these provisions.
For the purposes of this provision, the terms "investment company/business" and "investment companies" contained in section 15 of the above-mentioned Directive are read respectively "collective investment organization management company" and "collective investment organization management companies".
In the event of the acquisition or increase of an interest despite the measures taken by the MSDS pursuant to paragraph 4, Article 207, § 6, is applicable.
CHAPTER 3. - Management and leadership
Art. 210. The statutes of the collective investment management corporation may authorize the board of directors to delegate all or part of the powers referred to in section 522, § 1^erParagraph 1^er from the Code of Societies to a steering committee established within it, whose members are appointed and revoked and whose remuneration it determines.
However, this delegation may not focus on the determination of general policy or on acts reserved for the board of directors by the other provisions of the same Code of Companies.
Art. 211. Corporations for the management of collective investment organizations inform the FSMA of the proposal for the appointment or renewal of the appointment, as well as the non-renewal of the appointment or revocation of persons participating in the administration, management or effective management of the corporation.
In the event of a proposal to appoint a person to participate in the administration, management or effective management of the collective investment organization management company, the collective investment organization management companies shall communicate to the MSDS the information and documents that will enable it to determine whether the person has the necessary professional honourability and expertise and the appropriate experience, as referred to in section 199.
ADMSP shall, within a reasonable time, issue notice of any proposed appointment or renewal of an appointment. Where a proposal for the appointment or renewal of an appointment relates to a person who participates in the effective management, the appointment or renewal of the appointment may only be made if the ADMSP has made a notice in accordance.
When it comes to the proposal to appoint a person who first participates in the administration, management or effective management of a company controlled by the MSDS in accordance with Article 45, § 1^er, 2°, from the law of 2 August 2002, FSMA consults the Bank beforehand. The Bank shall notify FSMA within one week of receipt of the notice request.
Collective placement management companies also inform FSMA of the possible division of labour between persons involved in the administration, management or effective management of the company, where appropriate, of the possible division of labour between the members of the steering committee, as well as of the significant changes in this division of labour.
Art. 212. § 1^er. Without prejudice to section 195, directors or directors of a collective investment organization management corporation and any person who, under any name and in any capacity, participate in the administration or management of the corporation may, in the representation or non-representation of the management company of collective investment bodies, exercise terms of office of administrator or manager or take part in the administration or management of any other business
§ 2. The external functions referred to in § 1^er are governed by internal rules that the collective investment organization management corporation must adopt and enforce in order to pursue the following objectives:
1° to prevent the exercise of these functions by persons participating in the effective management of the collective investment management company from impairing the availability required for the performance of that direction;
2° to prevent the occurrence of conflicts of interest and the risks associated with the performance of these functions, including in the case of initiation operations, in the head of the collective investment management company;
3° ensure adequate advertising of these functions.
FSMA sets out the terms and conditions of these obligations by regulation submitted to the King for approval pursuant to section 64 of the Act of 2 August 2002.
The King may, by order taken on the advice of the FSMA, amend the regulations so adopted, or take this regulation himself in case the FSMA remains in default.
§ 3. The social agents appointed upon presentation of the collective investment organization management company must be persons who participate in the effective management of the collective investment organization management company or the persons it designates.
Directors who do not participate in the effective management of the collective investment organization management corporation may not be a director of a corporation in which the collective investment organization management corporation holds an interest only if they do not participate in current management.
Individuals who participate in the effective management of the management society of collective investment organizations may exercise a mandate that includes participation in current management only if it is a corporation referred to in section 32, § 4, of the Act of March 22, 1993 with which the management society of collective investment organizations has close links, of a collective investment organization in a statutory form, of a heritage corporation in which
§ 4. The collective investment management company shall promptly notify the FSMA of the functions performed outside the collective investment management company by the persons referred to in § 1^er for the purpose of monitoring compliance with the provisions of this article.
Art. 213. In the event of a bankruptcy of a collective investment management company, there is no and no effect on the mass, the payments made by that corporation, either in cash or otherwise, to its directors or managers, as an ash or other profit-sharing, in the two years preceding the time determined by the court as that of the termination of its payments.
Paragraph 1^er does not apply if the court recognizes that no serious and characterized fault of these persons has contributed to bankruptcy.
CHAPTER 4. - Mergers and transfers between collective investment management companies
Art. 214. Are subject to FSMA authorization:
1° mergers between collective investment management companies or between such companies and other financial institutions;
2° the assignment between collective investment management companies or between such companies and other financial institutions of the whole or part of their business.
FSMA may only refuse authorization within three months of the prior notification made to it of the project and for reasons that are consistent with the sound and prudent management of the management company(s) of the collective investment organizations concerned. If it does not intervene within the time limit set out above, the authorization is deemed to be acquired.
Art. 215. Any total or partial assignment of rights and obligations arising from the operations of the companies or institutions concerned, and authorized in accordance with Article 214, shall be subject to third parties' authorization from the Belgian Monitor.
CHAPTER 5. - Obligations and prohibitions
Art. 216. The collective investment organization management corporation may not, unless authorized by the MSDS, carry out activities other than the activities authorized by its approval.
Art. 217. The collective investment organization management corporation may not, unless authorized by the MSDS, hold any interest in commercial companies or borrowed the form of a commercial corporation.
This prohibition does not apply to participations in companies exercising in whole or in part the activities referred to in Article 3, 22° and 23°, or to participations in companies whose activity consists exclusively in the possession of participations in such companies.
Art. 218. The collective investment management company ensures a partition between its various activities.
It cannot account for managed investment agencies or its clients for transactions in which it has a personal interest. Individuals who are leaders or employees of the collective investment management company are subject to the same prohibition.
The collective investment management company strives to deviate conflicts of interest and, when these cannot be avoided, it ensures that the collective investment organizations it manages are treated fairly.
The King determines, by order taken on the advice of the MSDS, the rules to be followed by the management company of designated collective investment organizations and by third parties referred to in section 202 to avoid conflict of interest with holders of securities of managed collective investment organizations. The King establishes:
(a) minimum criteria for the detection of conflicts of interest;
(b) independence requirements for conflict of interest management;
(c) conflict of interest policy rules;
(d) rules on the management of activities leading to conflict of interest; and
(e) rules requiring the development of appropriate and effective strategies for the exercise of voting rights related to instruments held in managed portfolios.
Art. 219. § 1^er. The collective investment organization management company and the depositary, in the performance of their respective functions, act independently and exclusively in the interest of participants.
§ 2. The collective investment organization management company complies with the following principles:
- in the exercise of its activity, faithfully and fairly and with the skill, care and diligence required, in the best interests of the collective investment organizations it manages and the integrity of the market;
- it has the resources and procedures necessary to complete and effectively utilize its activities;
- it complies with all regulations applicable to the exercise of its activities in order to promote the best interests of its investors and the integrity of the market.
The King shall, by order taken on the advice of the MSDS, decide on the rules of conduct that collective investment management companies are required to respect in the performance of the management functions referred to in Article 3, 22°, taking into account, where appropriate, the nature of the management function concerned. These rules shall at least include:
- the setting of appropriate criteria to act faithfully and fairly, with the skill, care and diligence that are necessary, to the best of the interests of the collective investment bodies, in the exclusive interest of the participants and in accordance with the principle of equality between them;
- the formulation of principles to ensure that collective investment management companies effectively use the resources and procedures required to complete their activities; and
- the obligations of collective investment management companies in the enforcement and processing of orders, taking into account the principle of better enforcement.
§ 3. Sections 27 and 28bis of the Act of 2 August 2002 and the orders made for its execution apply to collective investment management companies with respect to the exercise of the investment services referred to in Article 3, 23°.
§ 4. The collective investment management companies set up appropriate policies and procedures to ensure compliance by the management company of collective investment organizations, its directors, effective officers, employees and agents, with the provisions of paragraphs 2 and 3, as well as with the orders made in accordance with these provisions.
They shall develop appropriate rules for personal, direct and indirect transactions made on financial instruments by persons referred to in paragraph 1^er.
The King, by order taken on the advice of FSMA, specifies the rules and obligations in this matter. These rules and obligations relate at least to:
- the persons concerned to whom these rules and obligations are applicable;
- personal transactions that are deemed to be contrary to the law;
- the terms under which the persons concerned are required to notify their personal transactions to the collective investment management company;
- how collective investment management companies must maintain a registration of personal transactions.
§ 5. Collective investment management companies conduct and maintain a record of portfolio transactions and orders of subscription and redemption.
The King, by order taken on the advice of FSMA, specifies the rules and obligations in this matter.
Art. 220. The collective investment management company that provides individual portfolio management investment services cannot place all or part of the client's portfolio in shares of collective investment organizations that it manages unless it has received the client's general prior agreement.
Art. 221. The collective investment organization management corporation may not receive funds deposits or funds or financial instruments owned by its clients or managed collective investment organizations.
Custody of assets belonging to collective investment organizations is provided in accordance with section 50 of this Act.
The custody of managed assets owned by clients must be entrusted to a separate depositary of the collective investment management company; With respect to financial instruments and species, this depositary must be an investment company whose approval covers the custody of funds or financial instruments or a credit institution under the law of a Member State of the European Economic Area, or having established a branch in Belgium.
Art. 222. Collective investment management companies establish procedures to deal with investor complaints.
The King, by order taken on the advice of FSMA, specifies the obligations of collective investment management companies in this regard.
Art. 223. § 1^er. The collective investment management companies shall take the necessary measures, in accordance with the legislative, regulatory and administrative provisions in force in the Member State where the shares of the collective investment bodies it manages are marketed, so that the payments to the participants, the redemption or reimbursement of the shares and the provision of information that is the responsibility of the collective investment management company shall be made in that Member State.
§ 2. Collective investment management companies establish appropriate procedures and procedures:
1° in order to ensure that investor complaints are properly processed and that investors are not limited in the exercise of their rights when the collective investment organization management company is approved in a Member State other than the member State of origin of the collective investment organization. These measures allow investors to submit a complaint in the official language or in one of the official languages of their Member State;
2° to provide information, at the request of the public or competent authorities of the member State of origin of the collective investment agency.
Art. 224. The King determines, by order taken by the FSMA:
1° the obligations and prohibitions applicable to the provision of the investment services referred to in Article 3, 23°, and, in particular, without prejudice to Article 216, the incompatibility between that activity and other activities, the rules relating to the remuneration of that activity, the rules relating to the individual portfolio management agreement, the information of customers and the accountability of the accounts;
2° the obligations to the depositary referred to in article 221, paragraph 3;
3° the obligations and prohibitions applicable in the case of marketing of shares of collective investment organizations.
CHAPTER 6. - Opening branches and exercising the free provision of services abroad
Art. 225. Collective investment management companies may operate collective portfolio management activities on a cross-border basis under the conditions set out in this chapter.
Art. 226. If a collective investment management company proposes only to market, without creating a branch, the shares of a collective investment organization under Belgian law that it manages and that meets the requirements of Directive 2009/65/EC in another Member State of the European Economic Area, without proposing to carry out other activities or to provide other services, this marketing is subject to the only requirements of sections 92 to 94.
Section 1^re. - Opening foreign branches
Art. 227. § 1^er. The collective investment management company that plans to open a branch abroad for the purpose of exercising all or part of the management functions referred to in Article 3, 22°, or to provide all or part of the investment services referred to in Article 3, 23°, which are authorized in Belgium, shall notify the FSMA of its intention.
This notification shall be accompanied by the following information and documents:
1° the State in whose territory the management society of collective investment bodies envisages establishing a branch;
2° a programme of activities (a) indicating the name of the Belgian collective investment organizations managed by the collective investment management company, (b) specifying the management functions referred to in Article 3, 22° whose exercise is envisaged and the investment services referred to in Article 3, 23° whose supply is envisaged abroad, (c) specifying the structure of the organization of the branch, (d) In the event that the collective investment management company plans to establish a branch in another Member State of the European Economic Area, the activity programme also includes a description of the procedures and modalities agreed in accordance with Article 223;
3° in the event that the collective investment management company plans to establish a branch in another Member State of the European Economic Area, the address, in the host Member State of the collective investment management company, to which documents can be obtained; and
4° the name of the branch executives.
FSMA may object to the completion of the project by decision based on the adverse impact of the opening of the branch on the organization, financial situation or control of the collective investment management company.
ADM's decision must be notified to the collective investment organization management corporation no later than two months after the receipt of the complete file including the information provided in paragraph 2. If FSMA has not notified a decision within this timeframe, it is deemed not to oppose the project of the collective investment organization management company.
This section applies to the opening by a collective investment management company of a representation office in a foreign state.
FSMA shall communicate to the European Financial Markets Authority the cases in which a decision has been made under paragraph 3 of this Article.
§ 2. In the case referred to in § 1^erthe FSMA, if it did not object to the realization of the project in accordance with § 1^er, paragraph 3, shall communicate to the supervisory authority of the management companies of the collective investment bodies of the host Member State, within two months of receiving all the information required by § 1^er, paragraph 2, the information received under these provisions, as well as the possible terms and conditions of intervention, with respect to customers of the branch, of the investor protection system applicable to the collective investment management company. FSMA warns the investment management company concerned.
In the case referred to in § 1^erwhere a collective investment management company wishes to exercise the collective investment management activity, as referred to in Article 3, 21°, the MSDS attached to the documentation sent to the control authority of the collective investment management companies of the host Member State, a certificate confirming that the said corporation has been approved, in accordance with Articles 188 to 205, as well as a description of the scope of
§ 3. FSMA shall communicate to the European Commission, according to its periodicity, the number and reasons for the final opposition decisions set out in § 1^er, paragraph 3 concerning projects for the creation of branches in the other Member States of the European Economic Area by collective investment management companies referred to in § 1^er.
Art. 228. In the case referred to in section 227, the MSDS may agree with the foreign control authority of the collective investment management companies on the terms and conditions for the opening and control of the branch and exchange of information desirable in accordance with sections 74 to 77 of the Act of 2 August 2002, in the event of:
1st opening of a branch in a Member State of the European Economic Area by a collective investment management company that manages collective investment organizations other than those that have opted for the authorized investment category referred to in Article 7, paragraph 1^er(1) of this Act;
2° opening of a branch in a non-member State of the European Economic Area.
Art. 229. The collective investment management company that has opened a branch abroad shall notify FSMA in writing, at least one month in advance, of the changes affecting the information provided under section 227, § 1^erParagraph 2.
Article 227, § 1^erParagraphs 3 and 4 shall apply if applicable, as well as Article 227, § 2, depending on the changes in the information referred to in Article 227, § 2 or the applicable investor protection system.
FSMA updates the information contained in the attestation referred to in paragraph 1^er, and informs the competent authorities of the host Member State of the management society of collective placement organizations of any change with respect to the approval granted to it or the types of collective placement bodies that it is authorized to manage.
Art. 230. Corporations for the management of collective investment organizations that plan to acquire or create a foreign affiliate carrying on the activity of a credit institution, an investment company or a collective investment management company notify the FSMA of their intention. This notification includes information on the activities, organization, shareholding and management of the company concerned.
Section 2. - Exercise of the free provision of services in another Member State of the European Economic Area
Art. 231. § 1^er. The collective investment management company that plans to exercise for the first time in another Member State of the European Economic Area, without establishing a branch, any or part of the management functions referred to in Article 3, 22°, or to provide all or part of the investment services referred to in Article 3, 23°, which are authorized in Belgium, notifies its intention to the FSMA.
This notification shall be accompanied by the following information and documents:
1° the Member State of the European Economic Area in whose territory it envisages to operate; and
2° a program of activities (a) indicating the management functions referred to in Article 3, 22° envisaged for the fiscal year and the investment services referred to in Article 3, 23° envisaged for the supply abroad, (b) having a description of the risk management process established by the management company of collective investment organizations and (c) having a description of the procedures and terms established in accordance with Article 223.
§ 2. In case of application of § 1^er, the FSMA shall, within the month of its receipt, notify the supervisory authority of the management companies of the collective investment organizations of the host Member State and the possible modalities of intervention, with respect to the clients of the management company of collective investment organizations, of the investor protection system applicable to the management society of collective investment organizations.
§ 3. In the case referred to in § 1^erwhere a collective investment management company wishes to exercise the collective investment management activity, as referred to in Article 3, 21°, the MSDS attached to the documentation sent to the control authority of the collective investment management companies of the host Member State, a certificate confirming that the said corporation has been approved, in accordance with Articles 188 to 205, as well as a description of the scope of
Art. 232. In case of modification of the contents of the information notified in accordance with Article 231, § 1^er, paragraph 2, 2°, the collective investment management company shall notify in writing of this amendment to the FSMA and the authorities of the host Member State. In this case, Article 231, § 2 is applicable as well as in case of modification of information relating to the investor protection system.
Section 3. - Cooperation between authorities
Art. 233. In the event that the FSMA is informed, in accordance with Article 21, § 4 of Directive 2009/65/EC, that a company of management of collective investment bodies carrying out its activities in another Member State of the European Economic Area refuses to provide the competent authorities of that Member State with information relevant to the responsibility of the member State or does not take the necessary steps to put an end to the non-compliance with any of the rules relevant to the liability of the member State
CHAPTER 7. - Regulatory coefficients
Art. 234. § 1^er. FSMA determines, by regulation, solvency, liquidity and risk concentration standards, and other limitation standards to be met by collective investment management companies. The standards referred to in this paragraph may be both quantitative and qualitative in nature.
§ 2. Without prejudice to the provisions of § 1^er, collective investment management companies must have a policy regarding their own fund needs that is appropriate to the activities they operate or intend to exercise. The persons responsible for the effective management of the collective investment management company, if any the steering committee, shall develop, under the supervision of the legal body of administration, a policy that identifies and determines the current and future equity needs of the corporation, taking into account the nature, volume and complexity of these activities, the associated risks and the company's risk management policy. The collective investment management company regularly assesses its policy regarding its own fund needs and adjusts if necessary this policy.
FSMA may, by regulation, specify the frequency of this evaluation.
§ 3. Where the FSMA considers that the policy of a collective investment organization management corporation with respect to its own fund needs does not meet the company's risk profile, it may, without prejudice to the provisions of section 250, impose, with respect to the purposes of this Act, requirements for credit, liquidity, risk concentration and risk positions in addition to those set out in § 1^er. It may, by regulation, set the criteria and procedures that it applies to this effect.
§ 4. The FSMA determines by-law information that collective investment management companies are required to publish on their credit, liquidity, risk concentration and other risk positions, as well as on their own fund needs policy.
It also defines the modalities and frequency of publication of this information.
§ 5. The regulations referred to in this section are made in accordance with section 64 of the Financial Sector Supervision and Financial Services Act of August 2, 2002.
§ 6. FSMA may, in special cases, authorize, within the limits of European legislation, exemptions from the provisions of the regulations made under this article.
CHAPTER 8. - Periodic information and accounting rules
Art. 235. Collective investment management companies regularly communicate to the FSMA a detailed financial situation. It is established in accordance with the rules set out by regulation of the MSDS, taken in accordance with section 64 of the Act of 2 August 2002, which determines its frequency and mode of communication. In addition, FSMA may prescribe the regular communication of other encrypted or descriptive information necessary to verify compliance with the provisions of this Part or the orders and regulations made for their implementation.
The effective management of the collective investment management company, if any the steering committee, declares to FSMA that the above-mentioned periodical statements transmitted by the corporation at the end of the first social semester and at the end of the social year are in accordance with accounting and inventories.
The periodic reports (a) must be complete and include all data in the accounts and inventories on the basis of which they are prepared, and (b) must be accurate and consistent with the accounting and inventories on the basis of which they are prepared. Effective management confirms that it has made the necessary steps to ensure that the above-mentioned statements are prepared in accordance with the existing instructions of the MSDS, as well as through the application of the accounting and evaluation rules for the preparation of annual accounts, or, in respect of the periodic reports that do not relate to the end of the fiscal year, by applying the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year.
The King determines, by order taken on the advice of the FSMA, for all collective investment management companies:
1° the rules according to which they maintain their accounting, conduct inventory assessments and establish and publish their annual accounts;
2° the rules to be followed by collective investment management companies for the establishment, control and publication of their consolidated accounts, as well as for the preparation and publication of management and control reports relating to these consolidated accounts.
To this end, it may adapt, amend and supplement the rules adopted pursuant to the Act of 17 July 1975 on business accounting and, under the conditions of articles 122, paragraph 1^er and 123 of the Corporations Code, the rules made pursuant to articles 92 and 117 of the Corporations Code.
FSMA may, in special cases, authorize derogations from orders and regulations provided for in paragraphs 1^er and 3.
The regulations provided for in this article shall be taken after consultation with the professional associations concerned.
PART 3. - Control of collective investment management companies
CHAPTER 1^er. - Control exercised by FSMA
Section 1^re. - General provisions
Art. 236. § 1^er. Collective investment management companies are subject to the control of the MSDS.
FSMA ensures that each collective investment management corporation operates in accordance with the provisions of this Act and the orders and regulations made pursuant to these Acts.
FSMA assesses, inter alia, the adequacy of the management structure, the administrative and accounting organization and the internal control of the collective investment management company, as referred to in section 201, as well as the adequacy of the policy of the collective investment management company regarding its own fund needs, as referred to in Article 234, § 2. It determines the frequency and extent of this evaluation, taking into account the importance of the activities of the collective investment management company for the financial system, the nature, volume and complexity of these activities, as well as the principle of proportionality.
§ 2. The FSMA may be provided with all information and documents relating to the organization, operation, situation and operations of the collective investment management companies it controls.
§ 3. It may conduct on-site inspections with the collective investment organization management company and with any entity that carries out, directly or indirectly, activities on behalf of the collective investment organization management company and shall, without displacement, be aware of and copy of any information held by the collective investment organization management company, with a view to:
1° to verify compliance with the legal and regulatory provisions relating to the status of collective investment management companies as well as the accuracy and sincerity of annual accounts and accounts, as well as the statements and other information transmitted to it by the collective investment management company;
2° to verify the adequacy of the management structures, the administrative, accounting, financial and technical organization, the internal control and the equity policy of the collective investment management company;
3° to ensure that the management of the collective investment management company is sound and prudent and that its situation or operations are not likely to jeopardize its liquidity, profitability or solvency.
§ 4. The provisions of sections 79, 80, 82, 1 and 3°, 83 and 85 of the Act of 2 August 2002 are applicable for the purpose of exercising the powers assigned to the MSDS by and under this book.
§ 5. The King determines the remuneration to be paid to the FSMA by the management companies of collective investment organizations in charge of control fees.
Art. 237. Without prejudice to sections 219, 222 and 223, the FSMA is not aware of the relationship between the collective investment management company and a specified client or a managed collective investment organization only to the extent required for the control of the collective investment management company.
Art. 238. FSMA may proceed to the branches of the management companies of Belgian collective law institutions established in another Member State of the European Economic Area, with the prior information of the authorities of that State responsible for the control of the management companies of collective investment organizations, the inspections referred to in Article 236, § 3, as well as any inspection to collect or verify on-site information relating to the management and management of the branch
It may, for the same purposes, and after having notified the supervisory authorities referred to in paragraph 1^er, load an expert, whom she designates, to carry out useful audits and expertise. The remuneration and expenses of the expert are borne by the management company of collective investment organizations.
Art. 239. When a collective investment management company carries out collective portfolio management activities in another Member State of the European Economic Area, FSMA shall promptly notify the competent authorities of this Member State of any problems identified at the level of the collective investment management company and which may substantially affect the ability of the collective investment management company to properly discharge its duties with respect to the collective investment organization.
Art. 240. Section 100 is applicable.
Section 2. - Consolidated base monitoring
Art. 241. § 1^er. For the purposes of this section:
1° the notions of "exclusive or joint control" and "consortia" agree in the meaning of their definition in the regulations relating to the annual accounts and consolidated accounts of the management companies of collective investment organizations under section 235, paragraph 4;
2° it is necessary to hear by "financial company" a financial institution whose subsidiary companies are exclusively or principally one or more credit institutions, investment companies, management companies of collective investment bodies or financial institutions, at least one of these subsidiaries being a credit institution, an investment company or a management company of collective investment organizations, and which is not a mixed financial company within the meaning of section 49bis, 1975.
3° It is necessary to hear by "consolidated-based controller" the competent authority responsible for the consolidated-based monitoring of collective investment companies in the European Union that are parent companies, as well as collective investment companies controlled by parent financial companies in the European Union.
Groups of companies that include a credit institution, an investment company, an insurance company or a reinsurance company are subject to the provisions of section 49 of the Act of 22 March 1993, section 95 of the Act of 6 April 1995, chapter VIIbis of the Act of 9 July 1975 or Title VIII of the Act of 16 February 2009.
Groups of companies that include a collective investment organization management corporation and do not include a credit, investment or insurance or reinsurance establishment, are subject to the provisions of this section.
§ 2. When a collective investment management company is a parent company, it is subject to the control of the FSMA on the consolidated basis of the whole it constitutes with its Belgian and foreign affiliates.
Consolidated-based control concerns the financial situation, management, organization and internal control procedures referred to in section 201 of the consolidated package, and the influence of companies included in consolidation on other companies. The King may extend consolidated control to other areas provided by the European Community Directives.
The proportions and limits provided for in § 1^er to 3 of section 234 may be imposed on the basis of the consolidated situation of the collective investment management company and its subsidiaries.
For the purpose of consolidated control, the management companies of the relevant collective investment organizations periodically communicate to the FSMA a consolidated financial situation. FSMA determines, after consultation with the relevant professional associations, the rules for establishing this situation, including the rules for consolidation scope, the modes of inclusion in the consolidation and frequency of communications in these situations.
Where it deems it necessary for prudential control, FSMA may require that companies that are not affiliates be included in consolidation, but in which the collective investment organization management company holds an interest or with which it has another capital bond.
FSMA may require or require that the management companies of the relevant collective investment organizations, their subsidiaries and other companies that have been reclaimed in the consolidation, provide it with any useful information for the exercise of consolidated control. For the purposes of this control, FSMA may, for the purposes of this control, carry out or, where appropriate, conduct, at the expense of the management companies of the collective investment bodies concerned, by approved reviewers or, where appropriate, by foreign experts authorized by it to do so, on-site verification of information received in the context of consolidated control in all enterprises included in consolidation. FSMA does or does not conduct an audit with a company established in another Member State of the European Economic Area only after having notified the supervisory authority of that State and unless that authority itself conducts such an audit or permits a reviewer or expert to do so. If FSMA does not proceed to the audit itself, it may nevertheless be associated with it, if it deems it desirable.
These modalities are determined in accordance with the specific competencies of each of these institutions.
Consolidated-based control does not result in individual control by the FSMA of the companies included in consolidation. Consolidated-based control does not prejudice the individual control of collective investment management companies included in consolidation. However, it may be taken into account the implications of consolidated-based control to determine the content and modalities of control on an individual basis of the management companies of collective investment organizations or the under-consolved-based control of a collective investment management company that is a subsidiary of another collective investment management company.
The King may determine the conditions under which Belgian companies included in the consolidation of a foreign collective investment management company may be required to provide information to the competent foreign authority for the consolidated control of this collective investment management company and may be subject to the on-site verification by that authority or by reviewers or experts mandated by it, of the information it has transmitted.
§ 3. When a collective investment management company forms a consortium with one or more other companies, it is subject to consolidated control covering the companies forming the consortium and their subsidiaries.
The provisions of § 2 shall apply.
§ 4. Any collective investment management company whose parent company is a financial, Belgian or foreign company, under a Member State of the European Economic Area, is subject to monitoring on the basis of the consolidated financial situation of the financial company. This monitoring covers the substances referred to in the second and third paragraphs of § 2. The King may define, adapt and supplement the terms and conditions of this monitoring by specifying which other provisions of this Act are applicable to the financial companies.
Any collective investment management company whose parent company is a financial company that does not belong to a Member State of the European Economic Area, is subject to monitoring on the basis of the consolidated financial situation of the financial company, according to the rules defined by the King.
§ 5. The companies that control, exclusively or jointly with others, a corporation of management of collective investment bodies, as well as the subsidiaries of these enterprises are held, if these companies and affiliates do not fall within the scope of application of §§ 2, 3 and 4 concerning the control on a consolidated basis or in the scope of Article 49 of the Act of 22 March 1993, of Article 95a of the Act of 6 April 2009
Such a reporting obligation is also applicable to companies that, although subsidiaries of a collective investment organization management company or a financial company, are not included in consolidated monitoring. Where the subsidiary in question is a collective investment management company, the ADMSP or the competent foreign control authority for the control of the said subsidiary may require that the parent investment company or the financial company disclose the information and information required for the exercise of the supervision of that subsidiary.
The King determines:
(a) the terms and conditions of the obligations arising from subparagraphs 1^er and 2 as well as on-site audits of the information and information they provide;
(b) the sanctions provided for in articles 254 and 255 which are applicable in the event of breaches of their obligations by the enterprises referred to in paragraphs 1^er and 2 of this paragraph.
§ 6. The King regulates, for the surplus, consolidated monitoring in accordance with the provisions of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 concerning access to the activity of credit institutions and its exercise (reference).
§ 7. FSMA may, in special cases, authorize derogations from orders and regulations made under this section.
CHAPTER 2. - Revisional control
Art. 242. § 1^er. The functions of commissioner under the Code of Societies may not be entrusted to a registered revisors or to one or more revisors accredited by the FSMA pursuant to section 244.
Section 141, 2° of the Corporate Code is not applicable to collective investment management companies.
Corporations for the management of collective investment organizations may designate alternate commissioners who perform the duties of Commissioner in the event of their licensee's lasting incapacity. The provisions of this Article and Article 243 shall apply to such substitutes.
Commissioners designated in accordance with this section shall certify, where appropriate, the consolidated accounts of the collective investment organization management corporation.
§ 2. By derogation from Article 79, § 1^er, of the Act of July 22, 1953, section 458 of the Criminal Code is not applicable in the event of the transmission of information between the Commissioner of the Management Society of Collective Investment Organizations and the Commissioner of the entity to which the Management Society of Collective Investment Organizations has entrusted the execution of management functions pursuant to section 202.
Art. 243. Authorized reviewers perform the duties of Commissioner under section 242 through an authorized reviewer appointed by them and in accordance with section 33, § 2, of the Act of July 22, 1953. The provisions of this Act and the decrees and regulations made for its enforcement, which are related to the designation, functions, obligations and prohibitions of commissioners, as well as to sanctions, other than criminal, that are applicable to the commissioners, shall apply both to revisors and to approved reviewers representing them.
A registered reviser corporation may designate an alternate representative from among its eligible members to be designated.
Art. 244. The ADMSP, with the approval of the Minister of Finance and the Minister of Economic Affairs, shall determine the regulations for the approval of revisers and revisers.
Accreditation regulations are made after consultation with approved reviewers represented by their professional organization.
The Institute of Business Reviewers informs the FSMA of the initiation of any disciplinary proceedings against a registered reviewer or a registered reviewer company for failure to perform its duties with a collective investment management company.
Art. 245. The designation of commissioners and alternate commissioners to management companies of collective investment organizations is subject to the prior agreement of the MSDS. This agreement must be collected by the social body that makes the nomination proposal. In the event of the designation of an approved reviser company, the agreement shall jointly deal with the company and its representative and, where appropriate, its alternate representative.
The same agreement is required for the renewal of the mandate.
When, by virtue of the Act, the Commissioner's appointment is made by the President of the Commercial Court or the Court of Appeal, they make their choice on a list of certified reviewers with the consent of the MSDS.
Art. 246. ADMSP may, at any time, revoke, by a decision based on reasons for their status or the performance of their duties as an approved reviser or a registered reviser corporation, as provided by or under this Act, the agreement given, in accordance with section 245, to a Commissioner, an alternate commissioner, a registered reviser corporation or a representative or alternate representative of such a corporation. This revocation puts an end to the duties of Commissioner.
In the event of a commissioner's resignation, the FSMA and the management company of collective investment organizations are previously informed of this, as well as the reasons for the resignation.
The regulation of registration referred to in section 244 shall rule the procedure.
In the absence of an alternate commissioner or an alternate representative of an approved reviser company, the collective investment organization management company or the approved reviser company shall, in accordance with section 236, be replaced within two months.
The proposal to revoke the commissioner's terms of reference in collective investment management companies, as set out in sections 135 and 136 of the Corporations Code, is submitted to the ADMSP. This notice is communicated to the General Assembly.
Art. 247. § 1^er. The Commissioners shall cooperate in the control exercised by the MSDS under their personal and exclusive responsibility and in accordance with this article, the rules of the profession and the instructions of the MSDS. To this end:
1° they assess the internal control measures adopted by collective investment management companies in accordance with Article 201, § 3, and communicate their findings in this matter to the FSMA;
2° they report to FSMA on:
(a) the results of the limited review of the periodic reports transmitted by the management companies of collective investment organizations to the FSMA at the end of the first social semester, confirming that they are not aware of any facts that would appear to have, in all significant respects, not been prepared in accordance with the existing instructions of the FSMA. They further confirm that the periodic reports issued at the end of the semester are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that sense (a) that they are complete, and that they mention all the data contained in the accounting and in the inventories on which they are prepared, and (b) that they are correct and that they correspond with exactly the inventories with the accounting they also confirm that they are not aware of any facts that would appear to be that the periodical statements issued at the end of the semester were not prepared by application of the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year; FSMA may specify which periodic reports are in this case;
(b) the results of the review of the periodic reports transmitted by the management companies of collective investment organizations to the FSMA at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the existing instructions of the FSMA. They further confirm that the periodical statements issued at the end of the year are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that sense (a) that they are complete and that they mention all the data contained in the accounting and in the inventories on which they are established, and (b) that they are correct and that they are consistent with the inventories exactly they also confirm that the periodic reports issued at the end of the fiscal year have been established by application of the accounting and evaluation rules for the preparation of annual accounts; FSMA may specify which periodic reports are in this case;
3° they make special reports to FSMA, at its request, on the organization, activities and financial structure of the collective investment organization management company, reports whose settlement fees are borne by the corporation in question;
4° as part of their mission to the management company of collective investment organizations or a revisoral mission to a company related to the management company of collective investment organizations or a collective investment organization managed by the company, they make an initiative related to the MSDS as soon as they find:
(a) decisions, facts or developments that have a significant impact on or may have a significant impact on the situation of the collective investment management corporation or managed collective investment organizations, whether financially or in the context of their administrative, accounting, technical or financial organization or internal control;
(b) decisions or facts that may constitute violations of the Corporations Code, the statutes, this Act and the orders and regulations made for its execution.
(c) other decisions or facts that are likely to result in refusal or reservation to certify annual accounts.
No civil, criminal or disciplinary action may be brought or any professional sanction imposed against the commissioners who have done in good faith an information referred to in paragraph 1^erFour.
Commissioners shall communicate to the directors of the collective investment organization management corporation the reports they submit to the ADMSP pursuant to paragraph 1^erThree. These communications fall under the secret organized by section 76 of the Act of 2 August 2002. They transmit to FSMA copies of the communications they address to these leaders, which deal with issues of interest to the control exercised by them.
Commissioners and certified reviewers can perform audits and expertise related to their duties with branches abroad of the collective investment management company they control.
§ 2. The MSDS may require that the accuracy of the information transmitted to it pursuant to section 236, be confirmed by the Commissioner of the collective investment organization management company.
Commissioners and certified reviewers may be charged by FSMA at the request of the National Bank of Belgium or the European Central Bank to confirm that the information that collective investment management companies are required to communicate to these authorities is complete, correct and established in accordance with the rules applicable to them.
Art. 248. The King may, by order made on the advice of the MSDS, determine additional missions to be performed by the Commissioner and determine the conditions for the exercise of these missions.
PART 4. - Revocation of accreditation, exceptional measures and administrative sanctions
Art. 249. FSMA revokes the approval of collective investment management companies that:
1° did not commence their activities in the twelve months of the accreditation, renounce the accreditation or have ceased to operate for more than six months; or
2° were declared bankrupt.
FSMA amends the approval of collective investment management companies that partially renounce it.
Art. 250. § 1^er. When FSMA finds that a collective investment management company does not operate in accordance with the provisions of this book and the orders and regulations made for its execution, that its management or financial situation are likely to jeopardize the successful termination of its commitments or do not provide sufficient guarantees in respect of its creditworthiness, liquidity or profitability, or that its management structures, its administrative or accounting organization or
If at the end of this period, the situation has not been resolved, the MSDS may:
1st appoint a special commissioner;
2° imposing additional requirements, other than those provided for in section 234, in terms of solvency, liquidity, concentration of risks and other limitations;
3° suspend or prohibit for the duration that it determines the direct or indirect exercise of all or part of the activity of the collective investment management company; the suspension may, to the extent determined by the MSDS, involve the total or partial suspension of the performance of the contracts in progress;
4° enjoin the replacement of directors or managers of the collective investment organization management corporation within a time frame that it determines and, if no such replacement within that time limit, substitute for all administrative and management bodies of the collective investment management company one or more provisional directors or managers who have, alone or collegially, the powers of the persons replaced. FSMA publishes its decision to the Belgian Monitor;
5° revoke the approval in whole or in part.
§ 2. In the case referred to in § 1^er, paragraph 2, 1°, the written, general or special authorization of the Special Commissioner is required for all acts and decisions of all organs of the collective investment management society, including the General Assembly, and for those of persons responsible for management; FSMA may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all bodies of the collective investment management corporation, including the general assembly, and to those responsible for management, any proposals that he considers appropriate. The remuneration of the Special Commissioner is fixed by the FSMA and supported by the collective investment organization management company.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions without having obtained the required authorization from the Special Commissioner are responsible in solidarity with the resulting harm to the collective investment management company or third parties.
If the FSMA has published to the Belgian Monitor the designation of the Special Commissioner and specifies the acts and decisions subject to its authorization, the acts and decisions taken without that authorization while it was required are null unless the Special Commissioner ratifies them. Under the same conditions, any decision of a general assembly made without obtaining the required authorization from the Special Commissioner is null unless the Special Commissioner ratifies it.
FSMA may designate an alternate commissioner.
In the event of an extreme emergency and, in particular, in the event of a serious risk to investors, the ADMWS may adopt the measures referred to in this paragraph without prior adjustment.
§ 3. In the case referred to in § 1^er, paragraph 2, 3°, the members of the administrative and management bodies and the persons responsible for the management who carry out acts or make decisions in violation of the suspension are responsible in solidarity with the resulting harm to the management of collective investment organizations or third parties.
If FSMA issued the suspension to the Belgian Monitor, the actions and decisions against it are null and void.
The MSDS may, as well, enjoin a collective investment organization management company to cede its holdings in accordance with section 217. Section 208, paragraph 2 is applicable.
§ 4. In the case referred to in § 1^er, paragraph 2, 4°, the remuneration of the director(s) or provisional manager(s) is fixed by the FSMA and supported by the management company of collective investment organizations.
The MSDS may, at any time, replace the provisional directors or managers, either on its own or at the request of a majority of shareholders or associates when they justify that the management of the persons concerned no longer presents the necessary guarantees.
§ 5. The decisions of the FSMA referred to in § 1^er effect in respect of the collective investment organization management corporation on the date of notification to the collective investment organization and, in respect of third parties, on the date of publication in accordance with the provisions of §§ 1^er and 2 or section 193.
§ 6. Without prejudice to Article 327, § 5, of the Income Tax Code 1992, FSMA does not know any tax matters.
However, § 1^erParagraph 1^er and 2, 3°, and § 2 are applicable in the case where FSMA is aware of the fact that a collective investment management company has established a particular mechanism with the aim or effect of promoting tax evasion by third parties.
§ 7. § 1^erParagraph 1^er and § 5 are not applicable in the event of the cancellation of the approval of a collective investment management company declared bankrupt.
§ 8. The court of commerce shall pronounce at the request of any interested person, the nullities provided for in §§ 2 and 3.
The action in nullity is directed against the management company of collective investment organizations. If there are serious grounds to justify it, the plaintiff may apply to refer the provisional suspension of the acts or decisions under attack. The order of suspension and the judgment pronouncing nullity produce their effects on all. In the event that the suspended or annulled act or decision has been published, the suspension order and the judgment pronouncing nullity are published by extract in the same forms.
Where nullity is likely to infringe on the rights acquired in good faith by a third party in respect of the collective investment organization management company, the court may declare nullity in respect of such rights without effect, subject to the applicant's right to damages if applicable.
The action in nullity may no longer be brought after the expiration of a period of six months from the date on which the acts or decisions taken are enforceable against the person who invokes nullity or are known to him.
§ 9. §§ 1^er to 5 apply to collective investment management companies that, in the exercise of investment services referred to in section 3, 23°, systematically and severely violate the rules of conduct provided for in sections 27 and 28 bis of the Act of 2 August 2002 and the orders made for its execution.
§§ 1^er to 5 apply to collective investment management companies that in the performance of management functions referred to in Article 3, 22°, systematically and severely violate the rules of conduct established by and under Articles 218 and 219, §§ 2 and 4, paragraphs 2 and 3.
Art. 251. When the supervisory authorities of the management companies of collective investment bodies of another Member State of the European Economic Area in which a company of management of collective investment bodies of Belgian law has established a branch or carries out management functions or provides investment services referred to in Article 3, 22° and 23°, under the free provision of services, take the MSDS of violations of the legal, regulatory or administrative provisions applicable to these^erthat these violations impose. She advises the supervisory authorities mentioned above. Article 250, § 1^er, of this Act is applicable.
Art. 252. The FSMA shall promptly inform the supervisory authorities of the management companies of collective investment organizations of the other member states of the European Economic Area in which a management company of collective investment bodies of Belgian law has established branches or carries out management functions or provides investment services under the free provision of services, of the decisions it has taken in accordance with Articles 249 and 250. It keeps these authorities informed of the action taken against these decisions.
Art. 253. Corporations for the management of collective investment organizations whose accreditation has been terminated or revoked under sections 249 and 250, remain subject to this book and to the orders and regulations made for its implementation until the collective investment organizations that they manage have provided for their replacement and until the liquidation of the company's commitments resulting from funds and financial instruments due to the customers, unless the ADMSP provides for certain provisions.
This section is not applicable in the event of the revocation of the approval of a partnership for the management of registered collective investment organizations in bankruptcy.
Art. 254. Without prejudice to the other measures provided for in this Act, FSMA may publish that a collective investment organization management company, a financial company, a joint company within the meaning of section 4, point 20, of Directive 2006/48/EC of 14 June 2006 or a joint financial company has not complied with the injunctions it has made to comply within the time limit it determines the provisions of this book or the regulations made. The costs of this publication are borne by the company concerned.
Art. 255. § 1^er. Without prejudice to the other measures provided for in this Act, the ADMSP may set a time limit for a collective investment organization management company, a financial company, a joint company, as referred to in section 254 or a joint financial company, to:
(a) it shall comply with any specified provisions of this book or any order made for its execution, or
(b) it must make the necessary adjustments to its management structure, administrative, accounting, financial or technical organization, or internal control.
If the company in question remains in default on the expiry of the period, the MSDS may, the corporation heard or at least duly summoned, charge the company with a maximum amount of Euro2,500 000 per offence or Euro50,000 per day of delay.
§ 2. Without prejudice to the other measures provided for in this Act and without prejudice to the measures defined by other laws or other regulations, FSMA may, when it finds an offence to the provisions of this Act or to the measures taken pursuant to these Acts, inflict on a corporation of management of collective investment bodies, a financial company, a joint company referred to in section 254 or a joint financial company, of Belgian law or of fine
§ 3. Penalties and fines imposed under §§ 1^er or 2 are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
LIVRE 3. - branches and service delivery activities in belgium of foreign collective investment management companies
Art. 256. This book rules:
1° the status and control of branches and service delivery activities in Belgium of collective investment management companies under the law of another Member State of the European Economic Area and which are subject to Directive 2009/65/EC;
2° the status and control of branches and service delivery activities in Belgium of the management companies of collective investment bodies under the law of States that are not members of the European Economic Area or are not subject to Directive 2009/65/EC.
PART 1^er. - Branches and service delivery activities in Belgium of the management companies of collective investment bodies under the law of another Member State of the European Economic Area and which are subject to Directive 2009/65/EC
CHAPTER 1^er. - Scope of application
Art. 257. § 1^er. The provisions of this title apply to branches and service delivery activities in Belgium of collective investment management companies under the law of another Member State of the European Economic Area, which fall within the scope of the national arrangements made in that State to ensure the transposition of Directive 2009/65/EC.
§ 2. If a collective investment organization management corporation referred to in paragraph 1^er only proposes to market in Belgium, without creating a branch, the shares of a collective investment agency that it manages and that meets the requirements of Directive 2009/65/EC, without proposing to carry out other activities or to provide other services, this marketing is subject to the only requirements of sections 148 to 159.
CHAPTER 2. - Branches in Belgium of collective investment management companies under the law of another Member State of the European Economic Area, which are subject to Directive 2009/65/EC
Section 1^re. - Access to activity
Art. 258. § 1^er. Corporations for the management of collective investment bodies under the law of another Member State of the European Economic Area, which are subject to Directive 2009/65/EC, which are empowered, under their national law, to exercise, in their Member State of origin, an activity for the collective management of portfolios of collective investment bodies and, where appropriate, to provide investment services, may begin to exercise this activity or to presume these services
1° as soon as FSMA has notified them of their registration as branches of collective investment organizations of the European Economic Area, or
2° no later than two months from the receipt by FSMA of the information referred to in Article 17, paragraph 2 of Directive 2009/65/EC.
§ 2. In the event of an amendment to any information provided in accordance with Article 17, paragraph 2 of Directive 2009/65/EC, the collective investment management company shall notify, in writing, that amendment to the ADMSP at least one month before making it.
Art. 259. The MSDS annually sets out the list of branches registered and publishes it on its website, as well as any changes made during the year.
The list of registered branches mentions the management functions referred to in Article 3, 22°, and the services referred to in Article 3, 23°, or Article 6, paragraph 3, (b) of Directive 2009/65/EC, which the branch is authorized to provide in Belgium.
Art. 260. § 1^er. The collective investment management companies referred to in this chapter that request management of a collective investment organization established in Belgium provide the following documents to the MSDS:
1 the written agreement with the depositary in accordance with Article 54;
2° of the information relating to the modalities of delegation used, with regard to the functions of management of collective placement bodies referred to in Article 3, 22°.
If the collective investment management company already manages a collective investment organization of the same type in Belgium, a reference to the documents already provided is sufficient.
§ 2. To the extent that this is necessary to ensure compliance with the rules that fall under its responsibility, FSMA may request the competent authorities of the member State of origin of the management society of the collective investment bodies concerned to provide clarifications and information regarding the documents mentioned in § 1^erand to verify, on the basis of the attestation referred to in sections 17 and 18 of Directive 2009/65/EC, whether the type of collective investment organizations for which the authorization is requested falls within the scope of the approval granted to the collective investment management company. Where applicable, the competent authorities of the Member State of origin of the management society of collective placement organizations shall express their opinion within ten working days from the initial request.
§ 3. FSMA can only reject the company's request to manage collective investment organizations if it:
1° does not comply with the provisions of Article 262, § 3;
2° is not authorized by the competent authorities of its Member State of origin to manage the type of collective investment organization for which an authorization is requested; or
3° did not provide the documents referred to in § 1^er.
Before rejecting such a request, FSMA consults with the competent authorities of the original member state of the management company of the collective investment bodies concerned.
FSMA shall communicate to the European Financial Markets Authority the cases in which a decision has been made under paragraph 2 of this Article.
§ 4. Any substantial modification to the documents provided under § 1^er must be notified by the collective investment organization management company to the MSDS.
Section 2. - Obligations and prohibitions
Art. 261. The name of the collective investment management companies referred to in this chapter shall be preceded or followed by the mention of their State of origin.
Art. 262. § 1^er. The provisions of the Act and the orders made for its execution shall apply to collective investment management companies referred to in this chapter only to the extent specified in this section.
§ 2. Articles 218, paragraph 2, 219, §§ 1^er and 3, 220, 222, 223, § 2, and 224 are applicable to collective investment management companies covered by this chapter. Article 223, § 1^er, is applicable to the extent that the shares of the collective investment agency concerned are marketed in Belgium.
The provisions of the decrees taken by the King pursuant to articles 201, §§ 1^er, 2 and 6, 218, paragraphs 3 and 4 and 219, §§ 2 and 4 are, to the extent provided by the King, applicable to the management societies of collective investment organizations referred to in this chapter.
§ 3. The collective investment management companies referred to in this chapter shall comply with the provisions of the Corporations Code, the law and the decrees made pursuant to it with respect to the constitution and operation of the collective investment bodies they manage, including the applicable rules:
1° to the formation and accreditation of collective investment organizations;
2° on the issue and the redemption of shares;
3° to policy and investment limits, including the calculation of overall risk and leverage;
4° to the conclusion of loans and loans by collective investment agencies and uncovered sales;
5° to the valuation of assets and the accounting of collective investment organizations;
6° to the calculation of the emission and redemption price, as well as to errors in the calculation of the net inventory value and the related compensation of investors;
7° to the distribution or capitalization of net products;
8° the obligations of collective investment agencies in the provision and publication of information, including with respect to prospectus, key information for the investor and periodic reports;
9° to the terms for the marketing of the shares;
10° to relations with participants, including rules of conduct and rules relating to conflicts of interest;
11° to the merger and restructuring of collective investment organizations;
12° to the dissolution and liquidation of collective investment bodies;
13°, if applicable, in the register of participants;
14° to cover the operating costs of FSMA; and
15° to exercise the voting rights of the participants and other rights of the participants in relation to points 1° to 13° above.
§ 4. The collective investment management companies referred to in this chapter that provide in Belgium the investment service referred to in Article 3, 23°, (a) shall be held in compliance with Article 205 when their commitments are not covered, in their original Member State, by an investor protection system referred to in Directive 97/9/EC of the European Parliament and the Council of 3 March 1997 on investor compensation systems.
Section 3. - Periodic information and accounting rules
Art. 263. The collective investment companies referred to in this chapter shall transmit to FSMA periodic reports relating to their operations in Belgium for statistical purposes. These shall be established in accordance with the rules set out by regulation of the MSDS, taken in accordance with section 64 of the Act of 2 August 2002, which determines the frequency and mode of communication.
CHAPTER 3. - Services delivery activities in Belgium of collective investment management companies under the law of another Member State of the European Economic Area and subject to Directive 2009/65/EC
Section 1^re. - Access to activity
Art. 264. The management societies of collective investment bodies under the law of another Member State of the European Economic Area, which are subject to the Directive 2009/65/EC, which are empowered, under their national law, to exercise, in their Member State of origin, an activity of collective management of collective investment bodies and, where applicable, to provide investment services, may begin to exercise this activity or to presume these services
Art. 265. FSMA publishes annually on its website a list of collective investment management companies whose competent authorities of the Member State of origin have communicated the notification referred to in Article 264 as well as any changes made to it during the year.
The list mentions the management functions referred to in Article 3, 22°, and the investment services referred to in Article 3, 23°, or Article 6, § 3, point (b) of Directive 2009/65/EC, which the collective investment management company is authorized to provide, in Belgium.
Art. 266. Article 260, §§ 1^er to 3, is applicable.
Any change that a collective investment organization management company intends to make to the information contained in the notification referred to in section 264, is previously notified in writing to the MSDS.
Section 2. - Obligations and prohibitions
Art. 267. The name of the collective investment management companies referred to in this chapter shall be preceded or followed by the mention of their State of origin.
Art. 268. Article 262, §§ 1^er and 3, is applied to collective investment management companies covered by this chapter.
CHAPTER 4. - Control
Art. 269. The collective investment management companies referred to in this title shall be subject to the control of the MSDS for the purposes provided by the latter and to the extent that the substances covered by these provisions fall within the competence of the MSDS.
Art. 270. FSMA may require collective investment management companies referred to in this title to provide the information necessary to monitor compliance with the provisions applicable to them.
The collective investment management companies referred to in this title shall ensure that the procedures and modalities referred to in Article 223, § 2, 2° allow the MSDS to obtain directly from the collective investment management company the information necessary for the purpose of controlling compliance with the rules under the responsibility of the host Member State.
CHAPTER 5. - Exceptional measures and administrative sanctions
Art. 271. § 1^er. When FSMA finds that a collective investment organization management company referred to in this title does not comply with the legal and regulatory provisions applicable in Belgium in the area of competence of FSMA, it places the collective investment organization management company in its position to remedy, within the time it determines, the situation noted. FSMA informs the competent authorities of the Member State of origin of the management society of the collective investment bodies concerned.
§ 2. If the management company of the relevant collective investment organizations refuses to provide the MSDS with information relevant to its responsibility or does not take the necessary steps to end the non-compliance referred to in § 1^er, FSMA shall inform the competent authorities of its Member State of origin accordingly.
If, in spite of the measures taken by the competent authorities of the member State of origin of the management society of collective investment bodies or because these measures prove inadequate or fail in that member State, the management society of collective investment bodies continues to refuse to provide the information requested by the FSMA in accordance with § 1^er or continues to contravene the legislative or regulatory provisions referred to in the same paragraph, FSMA may, after informing the competent authorities of the Member State of origin of the management society, take the following steps:
1° the measures referred to in Article 250, § 1^erparagraphs 2, 1°, 3° and 4°, paragraphs 2 to 6, 8 and 9.
When the service provided in Belgium by the collective investment organization management company is the management of a collective investment organization, FSMA may, among other things, oppose the company's continued management of this collective investment organization.
2° the measures referred to in Article 255.
FSMA communicates the measures taken to the European Financial Markets Authority.
In the event that FSMA considers that the original member state of the collective investment management company has not acted adequately, it may refer to the European Financial Markets Authority.
§ 3. If an emergency does not suffer the time limits of the procedure set out in §§ 1^er and 2 and before applying this, the ADMSP may take any precautionary measures to protect the interests of investors and other clients of the collective investment management companies referred to in this chapter. FSMA shall forthwith communicate the measures taken to the European Commission, the European Financial Markets Authority and the competent authorities of the Member State of origin of the management society of collective investment bodies, as well as the authorities of the other Member States concerned.
PART 2. - Branches and service delivery activities in Belgium of collective investment management companies under the right of states that are not members of the European Economic Area or are not subject to Directive 2009/65/EC
CHAPTER 1^er. - Scope of application
Art. 272. The provisions of this title apply to branches and service delivery activities in Belgium of collective investment management companies under the right of states that are not members of the European Economic Area or are not subject to Directive 2009/65/EC.
CHAPTER 2. - branches in Belgium of collective investment management companies under the law of states that are not members of the European Economic Area or are not subject to Directive 2009/65/EC
Art. 273. The provisions of this chapter apply to branches of collective investment management companies that fall under the right of states that are not members of the European Economic Area or are not subject to Directive 2009/65/EC.
Section 1^re. - Access to activity
Art. 274. § 1^er. The following provisions are applicable to the branches of the management companies of collective investment organizations under the law of states that are not members of the European Economic Area or that are not subject to Directive 2009/65/EC:
1° Articles 188, 189 and 191: On the understanding that before deciding on the application for approval of the branch, FSMA consults the competent authorities of the State of origin of the management society of collective investment bodies;
2° section 193: on the understanding that the branches referred to in this chapter are referred to in a special section of the list referred to in that section;
3° Article 195;
4° Article 196: However, may be approved from the branches of collective investment management companies with legal personality but not in the form of a commercial corporation;
5° Article 197, paragraph 1^er : the initial capital being replaced by an endowment, the MSDS has jurisdiction to assess the constituent elements of the endowment;
6° Article 198: with regard to the identity of the holders of the capital of the collective investment management company;
7° articles 199, 200, 201, 202 and 203;
8° Article 205: if the commitments of the branches referred to in this chapter are not covered by an investor protection system to a minimum equal to that resulting from the corresponding Belgian investor protection system.
§ 2. FSMA may refuse to accept the branch of a collective investment management company under the law of a State that does not provide the same opportunities for access to its market to the management companies of Belgian law collective investment organizations.
This paragraph is not applicable to the management societies of collective investment bodies under the law of a Member State of the European Economic Area and which are not subject to Directive 2009/65/EC.
§ 3. FSMA may refuse the approval of a branch referred to in this chapter if it considers that the protection of investors or the sound and prudent management of the collective investment organization management company requires the establishment of a Belgian law firm.
Section 2. - Exercise of activity
Art. 275. The following articles are applicable to the branches of the collective investment management companies under the law of states that are not members of the European Economic Area or are not subject to Directive 2009/65/EC:
Article 206;
2° section 208: where the ADM has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in a collective investment organization management corporation referred to in this chapter is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided for in this Act, the ADMSP may suspend or revoke, for the time it determines, the branch approval Article 250, §§ 1^er3° and 5°, 3, 5 and 8 is applicable to these decisions;
3° section 212, with respect to branch executives;
Articles 214 and 215;
5° articles 216, 218 to 221, 223 and 224;
6° articles 234 and 235.
Section 3. - Control
Art. 276. Sections 236 and 237 are applicable to the branches of the collective investment management companies under the right of states that are not members of the European Economic Area or are not subject to Directive 2009/65/EC.
Art. 277. The officers of the branches referred to in this chapter are required to designate one or more registered reviewers or one or more registered reviewers in accordance with section 242. They may designate, according to the same procedure, an alternate.
In the event of the designation of a review company, section 243 is applicable.
The revocation of the functions of approved revisers and approved revisers is subject to the ADMSP's prior notice.
Articles 244, 245, 246, paragraphs 1 to 4, 247, § 1^erParagraphs 1^er, 2 and 4 are applicable.
Authorized reviewers and certified reviewers may, with the prior information of the MSDS, agree to carry out, at the request and at the expense of the competent authorities for prudential control in the Member State of origin of the branch, audits of the subject matter referred to in Article 238, paragraph 1 of this section with a view to assisting these authorities.^erand section 269.
Authorized reviewers or registered reviewers certify annual accounting information published under section 275, 6° of this Act.
Section 4. - Radiation of accreditation, exceptional measures and administrative sanctions
Art. 278. Sections 249, 250 and 253 to 255 apply to branches of collective investment management companies that fall under the right of states that are not members of the European Economic Area or are not subject to Directive 2009/65/EC.
CHAPTER 3. - Services delivery activities in Belgium of collective investment management companies under the right of states that are not members of the European Economic Area or are not subject to Directive 2009/65/EC
Art. 279. § 1^er. Corporations for the management of collective investment bodies under State law that are not members of the European Economic Area or are not subject to Directive 2009/65/EC, and which are empowered, under their national law, to exercise, in their state of origin, an activity for the collective management of portfolios of collective investment organizations and to provide investment services can exercise these activities and presume these services in Belgium,
The investment services referred to in Article 3, 23°, (a) and (b) may, however, be offered or provided in Belgium only to the following investors:
(a) the State, the Regions and the Communities;
(b) the European Central Bank, the National Bank of Belgium, the Rent Fund, the Fund for the Protection of Deposits and Financial Instruments and the Caisse des Dépôts et Consignations;
(c) Belgian and foreign credit institutions referred to in Article 1^er2 of the Act of 22 March 1993;
(d) Belgian and foreign investment companies whose usual activity is to provide or offer to third parties one or more professional investment services and/or to carry out one or more investment activities within the meaning of Article 46, 1°, of the Act of 6 April 1995;
(e) the collective investment organizations referred to in Book II;
(f) (i) companies and insurance organizations referred to in Article 2, §§ 1^er and 3 of the Act of 9 July 1975;
(ii) foreign insurance companies and foreign pension funds that do not operate in Belgium; and
(iii) Belgian and foreign reinsurance companies;
(g) the coordination centres referred to in Royal Decree No. 187 of 30 December 1982 relating to the establishment of coordination centres;
(h) companies whose financial instruments are admitted to a regulated market within the meaning of Article 46, 32° of the Act of 6 April 1995 referred to above, or to another foreign market, of regular operation, recognized and accessible to the public, and whose consolidated equity amounts to at least 25,000 euros;
(i) persons established in Belgium who have the nationality of the state of origin of the management company of the collective investment bodies concerned or of a state in which that management company has established a branch, provided that in respect of the investment services offered or provided in Belgium, the management company is subject, in its state of origin or in the state of implantation concerned, to a control equivalent to that to which the management bodies are subject
§ 2. Group investment management companies referred to in § 1^er are required to be known beforehand to the MSDS, indicating the management functions referred to in Article 3, 22°, (a), (b), or (c) that they intend to exercise, as well as the investment services referred to in Article 3, 23°, (a) or (b) that they intend to provide and the categories of investors to which they intend to provide these services.
FSMA can prohibit the exercise of its activities and the provision of services in Belgium to a company under the law of a State that does not provide the same opportunities for access to its market to the management companies of collective investment organizations of Belgian law.
The previous paragraph is not applicable to the management societies of collective investment bodies under the law of another Member State of the European Economic Area and are not subject to Directive 2009/65/EC.
FSMA publishes annually on its website the list of collective investment management companies referred to in this section, which have been made known in accordance with paragraph 1^er, and which operate in Belgium a collective investment agency portfolio management activity, and which provide investment services, as well as any changes made during the year.
The list mentions the management functions referred to in Article 3, 22°, (a), (b) or (c), and the investment services referred to in Article 3, 23°, (a) or (b), that the collective investment management company is authorized to provide, in Belgium.
Art. 280. The collective investment management companies referred to in Article 279 shall, in the course of their activity in Belgium, accompany their names of the mention of their State of origin and their headquarters.
Art. 281. Corporations for the management of collective investment organizations referred to in section 279 are subject to sections 218 to 224.
Art. 282. The provisions of this chapter shall not prejudice, in the exercise of the collective management activity of collective investment institutions and in the provision of investment services, the legal and regulatory provisions, including the rules of conduct applicable in Belgium, to collective investment management companies and their operations for reasons of general interest.
The FSMA shall communicate on its website to the collective investment management companies referred to in section 279 the provisions, including the rules of conduct, which, to its knowledge, are of this nature.
Art. 283. FSMA may impose on the management companies referred to in Article 279 to transmit to it all information relating to the services they undertake in Belgium, in order to verify whether they comply with the provisions referred to in Articles 281 and 282 which fall within its jurisdiction. FSMA may impose the certification or remediation of this information by the foreign competent authorities of the management company concerned, by its external reviewer or by the approved auditor who is responsible for the certification of its accounts.
Art. 284. When FSMA finds that a management company referred to in Article 279 does not act, in Belgium, in accordance with the provisions applicable to it, or that it endangers the interests of investors, it places the management company concerned in its position to remedy, within the time it determines, the situation.
If, at the end of this period, it is not remedyed to the situation, FSMA takes its observations to the competent authorities of the State of origin of the management society.
In the event of persistent breaches, FSMA may, after having notified the foreign competent authorities, suspend or prohibit the continuation of all or part of the activities of the management company in Belgium.
Where the management company concerned is not subject to the supervision of any control authority, the ADMSP may, if it has not been remedied to the situation at the end of the period established under paragraph 1^erimmediately suspend or prohibit all or part of the activities of the management company in Belgium.
The FSMA's decisions come out of their effect with respect to the management company of collective placement organizations, as of their notification to the company by registered letter to the position or with acknowledgement of receipt and with respect to third parties, upon publication to the Belgian Monitor.
Art. 285. Section 254 is applicable to management companies referred to in this chapter.
PART 4. - Criminal provisions
Art. 286. A penalty shall be imposed from one month to one year imprisonment and a fine of 75 euros to 15,000 euros, or from one of these penalties only, those who obstruct the verifications to which they are required under this Act, in Belgium or abroad, or knowingly giving false, inaccurate or incomplete information, documents or documents.
Art. 287. Are punished by imprisonment from one month to one year and a fine of 75 euros to 15,000 euros, or only one of these penalties:
1° those who contravene articles 57, paragraph 1^er, 60, §§ 1^er and 3, 65, §§ 1^er and 3, 66, 71, 155 and 166;
2° those who pass in addition to a suspension, prohibition or withdrawal made under sections 110, paragraph 2, 155, § 3, or 166, § 3, or who fail to recognize a refusal of approval of the prospectus, the key information document for the investor or an update of the prospectus or the key information document for the investor, or who fail to know a refusal of approval of other notices,
3° those who knowingly publish, or publish, a prospectus, a key information document for the investor or an update of the prospectus or key information document for the investor or of notices, advertisements or other documents relating to a public offer of securities of a collective investment agency or announcing or recommending it, which contain false, inaccurate or incomplete information
4° those who make public a prospectus, a key information document for the investor or an update of the prospectus or key information document for the investor, or notices, advertisements or other documents relating to a public offer of securities of a collective investment organization or announcing or recommending it, indicating the approval of the MSDS while the latter was not given;
5° those who make public a prospectus, a key information document for the investor or an update of the prospectus or key information document for the investor, or notices, advertisements or other documents relating to a public offer of securities of a collective investment organization or announcing or recommending it, different from those approved by the MSDS;
6° those who knowingly offered or disposed of titles as securities of a collective investment agency while they knew that the entity to which they offered or sold the securities was not a collective investment agency within the meaning of Part II of this Act, or were aware that such securities did not meet the characteristics of the securities of a collective investment organization within the meaning of Part II of this Act;
7° those who knowingly offered publicly or ceded titles as titles of a public collective investment organization, while they knew that the collective investment organization of which they offered or ceded the securities was not a public collective investment agency within the meaning of Book II II of Part II of this Act, or when they knew that these securities did not meet the characteristics of the public titles of a sense
8° those who knowingly ignore the prohibition under articles 61 and 152.
Art. 288. Are punished by imprisonment from eight days to three months and a fine of 50 euros to 10,000 euros or only one of these penalties:
1° those who publicly offer titles of a Belgian public collective investment agency, whereas it is not registered in accordance with Article 30 or while registration as a Belgian public collective investment agency or registration as a public investment company has been removed or revoked, or in breach of a measure of suspension or prohibition referred to in Articles 110, paragraph 2, first sentence, or 111 §,^erParagraph 2, 3 or 4;
2° those who publicly offer titles of a foreign collective investment agency, whereas, as the case may be, the foreign collective investment agency is not registered in accordance with section 162 or the FSMA has not received the notification referred to in section 93, paragraph 3 of Directive 2009/65/EC or while the registration as a collective investment body of foreign law has been revoked or in breach of a suspension of a measure of suspension referred to in section 164
3° those who have used the name "collective investment organization", "joint investment fund" or "investment corporation" to qualify an entity that is not included in the list of collective investment organizations referred to in sections 33, 127, 128, 143, 144 or 149, except where that use in Belgium is the fact of a collective investment organization of foreign law that is authorized to use such a designation in its country of origin;
4° the investment company, the management company of designated collective investment organizations, the enterprises referred to in section 42, § 1^eras well as the directors, managers and directors of the above-mentioned companies and undertakings who knowingly violated the provisions of Part II of this Act or the orders and regulations made for its execution or knowingly carried out transactions relating to the portfolio of the collective investment agency that are contrary to the provisions of this Act or the orders and regulations made for its execution;
5° those who knowingly neglected to make the publications imposed pursuant to Part II of this Act;
6° those who have knowingly made transfers of securities issued by collective investment organizations in unawareness of the provisions of Part II of this Act and of the decrees and regulations made for its execution;
7° those who, as an independent commissioner or expert, have certified, approved or confirmed accounts, annual accounts, or semi-annual reports, of the quarterly financial statements referred to in section 88, § 1^er, or any periodic information referred to in section 97, or any other information referred to in section 96, while the provisions of Part II of this Act or of the orders and regulations made for its execution, were not complied with, knowing that they had not been complied with, or having failed to perform the normal diligence to ensure that they had been complied with;
8° those who knowingly publish, or publish, annual, semi-annual or quarterly financial statements that contain false, inaccurate or incomplete information that may mislead the public, or have used these documents to attract investors;
9° the investment companies, the management companies of designated collective investment organizations, and their directors, managers and directors, which contravene section 97, paragraph 1^er;
10° the investment companies, the management companies of designated collective investment organizations, and their directors, managers and directors, which contravene the orders or regulations referred to in sections 89 and 97, paragraph 1^er;
11° those who perform acts or operations without obtaining the authorization of the Special Commissioner provided for in Article 111, § 2, or against a decision of suspension or prohibition made in accordance with Article 111, § 1^erParagraph 2, 3 or 4;
12° the investment companies, the management companies of designated collective investment organizations, and their directors, managers and directors, who do not comply with the provisions of Article 101, § 1^erParagraph 3 and paragraphs 2 and 3.
Art. 289. § 1^er. Are punished by imprisonment from one month to one year and a fine of 50 euros to 10,000 euros or only one of these penalties:
1° those who exercise the activity of a collective investment organization management corporation referred to in section 186, without being approved in accordance with sections 188 or 274 or 279, or while the approval as a collective investment organization management company has been terminated or revoked;
2° those who have used the name "corporation management corporation" in violation of section 195 of this Act;
3° those who knowingly refrain from making the notifications provided for in Article 207, §§ 1^er and 5, those who pass over to the opposition referred to in Article 207, § 3, or those who pass over to the suspension referred to in Article 208, paragraph 1^er, 1° ;
4° collective investment management companies, their directors and directors that contravene sections 212, 220, 221, 235, paragraph 1^er, 1^re and third sentences, 241, § 2, paragraph 4, 1^re sentence, and § 5, paragraph 1^er and 2;
5° the collective investment management companies that, abroad, open a branch, subsidiary or perform management functions of collective investment organizations or investment services without having made the notifications provided for in sections 227, 230 or 231 or that do not comply with sections 229 and 232;
6° the collective investment management companies, their directors and directors that contravene the orders or regulations referred to in sections 235, paragraph 1^er, second sentence, and 4, 241, § 2, paragraphs 4 and 9, § 4, § 5, paragraph 3, and § 6;
7° those who perform acts or operations without obtaining the authorization of the Special Commissioner provided for in section 250, § 1^er, paragraph 2, 1°, or against a decision of suspension made in accordance with Article 250, § 1^erParagraph 2, 3;
8° collective investment management companies, their directors and directors who do not comply with the provisions of Article 242, § 1^erParagraphs 1^er to 3;
9° those who, as an independent commissioner or expert, have certified, approved or confirmed accounts, annual accounts, consolidated accounts of collective investment management companies or periodic reports or any other information, while the provisions of Part III of this Act or the orders and regulations made for its execution have not been complied with, or knowing that they have not been satisfied, or having not been satisfied with, or having not been satisfied
10° collective investment management companies, their directors and directors who, in the provision of the investment service referred to in Article 3, 23°, (b), and for fraudulent purposes, disseminate information that they know inaccurate or incomplete.
§ 2. Are punished by imprisonment from eight days to three months and a fine of 50 euros to 10,000 euros or one of these penalties only, the management companies of collective investment organizations that do not comply with the provisions of the regulations made under sections 206 and 234.
Art. 290. The offences under sections 40 and 200 are punishable by imprisonment from three months to two years and a fine of 1,000 euros to 10,000 euros.
Art. 291. Any information of the head of offence under this Act or any of the legal provisions referred to in sections 40 and 200 against collective investment bodies, management companies of collective investment bodies, directors, directors or agents of collective investment bodies or management companies of collective investment bodies, or commissioners of a collective investment organization or a corporation of management of an organization
Any criminal action by the head of the offences referred to in paragraph 1^er must be brought to the attention of the FSMA at the diligence of the Public Prosecution Service.
Art. 292. The provisions of Book 1^er the Criminal Code, without exception of Chapter VII and Article 85, shall apply to offences punishable by this Act.
PART 5. - Amendments to the Act of 2 August 2002
Art. 293. In Article 76, paragraph 2 of the Act of 2 August 2002, as amended by Article 103, § 4 of the Royal Decree of 21 April 2007, the words "Article 78 of the Law of 22 July 1953" are replaced by the words "Article 79 of the Law of 22 July 1953".
Art. 294. In section 87bis of the Act, inserted by the Royal Decree of 3 March 2011, the following amendments are made:
1° to § 1^erParagraph 1^er, the words "collective investment organizations that have not designated a collective investment management corporation as defined in section 44 of the [...] Act" are inserted between the words "collective investment management companies", and the words "credit institutions";
2° to § 1^erParagraph 1^er, the words "and sections 82, 83, 218, 219, 220 and 224, 1° and 3° of the law of [...] relating to certain forms of collective portfolio management as well as, in the context of respect for the rules intended to ensure the honest, fair and professional treatment of interested parties, articles 41 and 201 of the same law" are inserted between the words "of the rules referred to in Article 45, § 1^erParagraph 1^er, 3°, and § 2, and the words ", one or more";
3° § 1^er, paragraph 2, (a), is supplemented by the words "and sections 82, 83, 218, 219, 220 and 224, 1° and 3° of the law of [...] relating to certain forms of collective portfolio management as well as, from the perspective of respect for the rules intended to ensure the honest, fair and professional treatment of interested parties, sections 41 and 201 of the same law. "
PART 6. - Miscellaneous provisions
Art. 295. Before a decision is taken on the opening of a bankruptcy proceeding or on a provisional divestiture within the meaning of section 8 of the Bankruptcy Act of 8 August 1997 in respect of a collective investment organization or a collective investment organization management company, the President of the Commercial Court shall file an application for notice with the FSMA. The clerk shall forward this request without delay. He informs the King's attorney. The MSDS referral is written. It is accompanied by the necessary documents for its information.
FSMA renders its notice within fifteen days of receipt of the notice request. FSMA may, in the case of a collective investment organization or a collective investment management company that requires, in advance, coordination with foreign authorities, render its notice within a longer period of time without, however, the total period may exceed 30 days. When the court considers it necessary to make use of this exceptional period, the MSDS shall notify the judicial authority to decide. The time limit available to the FSMA to render its notice suspends the period in which the judicial authority must decide. In the absence of an ADM response within the time limit, the court may decide.
ADM's notice is written. It is transmitted by any means to the Clerk, who gives it to the President of the Commercial Court and to the King's Prosecutor. The notice is placed on file.
Art. 296. § 1^er. The King may amend the terminology of the legal provisions in force as well as references to the provisions of the Act of 20 July 2004 or to Book III of the Act of 4 December 1990 which would be contained in those provisions to ensure their consistency with this Act.
§ 2. The King may, by order deliberately in the Council of Ministers, take on the advice of the FSMA the necessary measures to transpose the mandatory provisions resulting from international treaties or international acts taken under them in the matters regulated by this Act. The King may, according to the same procedure, determine that the offences of these provisions are subject to administrative measures and sanctions under articles 115, 151, 255, 271, 278 and 284.
Royal orders under paragraph 1^er may amend, supplement, replace or repeal existing legal provisions.
Royal orders under paragraph 1^er are repealed in full law when they have not been confirmed by law within twenty-four months after publication to the Belgian Monitor.
Art. 297. Without prejudice to the application of Article 159, the King may, by order taken on the advice of the FSMA, provide that the FSMA provides on its website the following information:
1° the legislation relating to the status and control of collective investment management companies, as well as the decrees, regulations and circulars implemented or pursuant to that legislation;
2° a table for the transposition of the provisions of the European Guidelines on the prudential supervision of collective investment management companies, indicating the options selected;
3° the verification criteria and methods it uses to conduct the assessment referred to in Article 236, § 1^erParagraph 3;
4° of aggregate statistical data on key aspects of the application of the legislation referred to in 1°;
5° any other information prescribed by the decrees and regulations made pursuant to this Act.
The information referred to in paragraph 1^er are, if any, published on the FSMA website in accordance with the terms agreed between the Member States of the European Economic Area. FSMA ensures that, where appropriate, regularly update the information provided on its website.
Art. 298. The Royal Decree of 3 March 2011 implementing the evolution of financial sector control structures is confirmed with effect on the date of its entry into force.
PART 7. - Transitional and final provisions
Art. 299. By derogation from section 558 of the Corporate Code, the board of directors of investment companies with a variable number of public shares may, until March 31, 2013, amend the statutes so as to delete in them the individual mention of the compartments of the investment company and the investment policy followed by each of them.
Art. 300. § 1^er. Until March 31, 2013, the board of directors of the collective investment organization management company of a mutual fund may transfer, as a result of its dissolution without liquidation, the entire assets of the said mutual fund, actively and passively, to a new compartment created within another mutual fund managed by this collective investment organization, with the allocation to members of the mutual fund
The decision of the board of directors referred to in paragraph 1^er must be recognized by authentic act.
The operation referred to in paragraph 1^er is carried out with the following conditions:
1° the operation concerns exclusively Belgian law collective investment organizations that do not meet the requirements of Directive 2009/65/EC or that meet the requirements of Directive 2009/65/EC but whose shares cannot be marketed in another Member State of the European Economic Area;
2° the newly created compartment within the mutual fund of beneficiary investment cannot at any time count other assets and liabilities than the assets of the mutual fund to be absorbed;
3° each participant of the mutual fund to be absorbed, for each part, is entitled, following the operation, to a share of the same type and falling within a class of similar shares of the beneficiary compartment;
4° the mutual fund and the mutual fund to be absorbed have the same depositary and commissioner;
5° the transaction may not result in changes to the rights and obligations of the participants, the investment policy of the mutual fund to be absorbed or beneficiary, and the fees and charges charged to the participants or the mutual fund;
6° the operation may only have a participant of a collective investment organization meeting the requirements of Directive 2009/65/EC become a participant in a collective investment organization that does not meet the requirements of Directive 2009/65/EC;
7° the legal costs, advice or administrative services associated with the preparation and implementation of the restructuring are not charged to the mutual funds involved in the restructuring or their participants.
§ 2. The provisions listed below are not applicable to the operations referred to in this Article:
1° the provisions of Book XI of the Corporate Code, with the exception of sections 682 to 684 and 687, paragraph 1^er; and
2° the arrangements made by the King pursuant to Article 84.
§ 3. The effect of the transaction results in the removal of the pooled investment fund to be absorbed.
§ 4. When the board of directors of a collective investment management company proposes to carry out an operation referred to in § 1^er, it must notify FSMA in order to obtain its prior authorization.
This notification is accompanied by a record containing the following:
1° a description of the proposed restructuring, stating that it is satisfied with the conditions of this article;
2° the draft press release referred to in § 5;
3° the draft decision of the board of directors of the collective investment management company concerned; and
4° a suitable version of the management regulations, prospectus and essential information for the investor.
§ 5. As soon as the board of directors of the collective investment management company has made the decision referred to in § 1^er, the management company publishes a press release that includes at least the following information:
1° mention of the restructuring decision taken by the management company and the effective date of the restructuring;
2° the context and motivation of the restructuring;
3° the impact of restructuring on participants;
4° the companies charged, if any, of the exchange of shares.
This press release is published either in two nationally broadcasted or sufficiently printed newspapers, or by any other equivalent means of publication accepted by FSMA.
Art. 301. Articles 23, paragraph 1^er, 35 to 37, 39, 41, 42 and 44 apply to debt-investment organizations that are registered in the list referred to in section 33 of this Act on the date of the coming into force of this Act only as of the time when they, or one of their compartments, conduct a new public securities issue after that period.
Corporations, whose usual activity was, as of March 9, 2005, collective management, as a professional basis, of portfolios of public collective investment organizations in receivables referred to in paragraph 1^er, fall under the application of Part III of this Act as soon as one of the public collective investment bodies in receivables that they manage or one of their compartments no longer fall within the scope of the plan under paragraph 1^er.
Art. 302. The fixed-term compartments created up to the registration on the list referred to in section 31 of the Act of 20 July 2004 of the collective investment organizations that had opted for the authorized investment category referred to in section 122, § 1^erParagraph 1^er, 2° of the law of 4 December 1990 and which were listed in section 120, § 1^er of the Act of 4 December 1990 to the date of entry into force of the Act of 20 July 2004, shall remain subject to the limits and conditions laid down in the Act of 4 December 1990 and to the decrees and regulations made for its execution which apply to the class of authorized investments referred to in Article 122, § 1^erParagraph 1^er2° of the law of 4 December 1990.
Notwithstanding paragraph 1^erArticles 8, § 2, 2°, 13, paragraph 1^er, 14, § 1^er§ 2, paragraph 2, paragraph 4, § 3, 16, § 4, 17, 30, second sentence, 56 to 70, 84, 88, 89 and 96 to 115, of this Act shall apply to the collective investment bodies referred to in § 1^er and, where appropriate, in their compartments.
The prospectus for fixed-term compartments that were registered, on the date of entry into force of the Act of 20 July 2004, to the list referred to in Article 120, § 1^erParagraph 1^er, 2°, of the Act of 4 December 1990, shall not be adapted to the provisions of sections 56 to 70 of this Act when the collective investment agency has suspended the right of free entry to these compartments under this provision. The provisions for the investor's key information document are not applicable to the compartments referred to in this paragraph.
Art. 303. In the case of a change in the status of a member of the European Economic Area, and in accordance with the terms of Directive 2009/65/EC, which, on the date of 20 July 2004, were registered on the list referred to in Article 137 of the Act of 4 December 1990, are authorized to maintain, even after the entry into force of this Act, Any amendments that collective investment organizations, which make use of this option, wish to make to the rules relating to their investment policy or to the investment policy of the above-mentioned compartments, shall aim to ensure greater compliance with the provisions of Part II of this Act and the orders and regulations made for their implementation. Collective placement organizations that make use of this option may, however, only create new compartments in accordance with the provisions of this Act. They are registered on the list referred to in section 149 of this Act as soon as they meet, with the exception of the investment policy rules, the provisions of this Act.
Art. 304. The King sets out the date of entry into force of articles 134 to 139, 143 in 147, by order deliberately in the Council of Ministers.
Art. 305. § 1^er. The provisions of sections 52 to 61 of the Act of 20 July 2004 concerning the simplified prospectus shall be applied by 31 December 2012 at the latest to a group investment agency with a variable number of public shares that have opted for the class of authorized investments referred to in section 7, paragraph 1^er, 2° and their compartments, listed under section 31 of the Act of 20 July 2004 at the date of entry into force of this Act.
Paragraph 1^er is without prejudice to the possibility for these collective investment organizations and their compartments to comply with sections 56 to 70 before the date referred to in paragraph 1^er.
The provisions of sections 56 to 70 concerning key information for the investor apply to collective investment organizations referred to in paragraph 1^er1° from 1^er January 2013.
§ 2. The provisions of sections 52 to 61 of the July 20, 2004 Prospectus Act remain applicable until December 31, 2012.
Paragraph 1^er is without prejudice to the ability of collective investment organizations to comply with the provisions of sections 56 to 70 concerning prospectus before the date referred to in paragraph 1^er.
The provisions of sections 56 to 70 concerning prospectus shall apply effective 1^er January 2013.
§ 3. Articles 40, 68, 69, 71, 153, 168, paragraphs 3 and 169, §§ 1^er and 3 of the Act of 20 July 2004 are repealed sixty days after this Act comes into force.
With the exception of the authorizations to the King they contain, articles 41, 82, 83, 201, 218, paragraphs 3 and 4, 219, §§ 2, 4 and 5 and 222 come into force sixty days after the publication of this Act to the Belgian Monitor.
§ 4. The fixed-term compartments of the group placement bodies with a variable number of public shares that do not meet the requirements of Directive 2009/65/EC and which were listed under section 31 of the Act of 20 July 2004 at the date of entry into force of this Act, shall remain subject to the provisions of sections 52 to 61 of the Act of 20 July 2004 until their expiry, when the collective placement agency has suspended the right of free entry to these compartments.
§ 5. FSMA is responsible for monitoring compliance with the provisions of the Act of 4 December 1990 and the Act of 20 July 2004 as long as they remain in force. For the performance of this mission, it has the skills assigned to it by articles 96 to 115 and 236 to 255.
Art. 306. With the exception of sections 212 to 228, the Act of 20 July 2004 is repealed.
Art. 307. This Act comes into force on the day of its publication in the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given at Châteauneuf-de-Grasse, August 3, 2012.
ALBERT
By the King:
Deputy Prime Minister and Minister of Finance and Sustainable Development, Public Service,
S. VANACKERE
Deputy Prime Minister and Minister of Economy, Consumers and the North Sea,
J. VANDE LANOTTE
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Notes
(1) House of Representatives documents: 53-2218 - 2011/2012:
No. 1. Bill.
No. 2. Amendments.
No. 3. Erratum.
No. 4. Report.
No. 5. Text adopted by the Commission.
No. 6. Text adopted in plenary and transmitted to the Senate.
Full report: 5 July 2012.
Senate documents: 5-1702 - 2011/2012:
No. 1. Project referred to by the Senate.
No. 2. Amendments.
No. 3. Report.
No. 4. Decision not to amend.
No. 5. Annales of the Senate: July 12, 2012.