belgiquelex.be - Carrefour Bank of Legislation

4 MARCH 2012. - Central Business Credits Act (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - General provision and definitions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. For the purposes of this Act, it shall be understood by:
1° "the 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;
2° "La Centrale" :
the Business Credit Centre referred to in section 3;
3° "established in Belgium":
under Belgian law or acting on Belgian territory through a branch;
4° "institutions held to report":
(a) “credit institutions”:
establishments established in Belgium referred to in articles 13, 65 and 79 of the Act of 22 March 1993 relating to the status and control of credit institutions;
(b) “Leasing companies”:
companies established in Belgium approved in accordance with Article 2, § 1^er of Royal Decree No. 55 of 10 November 1967 organising the legal status of companies practicing financial lease;
(c) "filtering companies":
financial institutions established in Belgium as referred to in Article 3, § 1^er, 5°, of the above-mentioned Act of 22 March 1993 which grant loans in the form of consolidation as referred to in Article 3, § 2, of the said Law;
(d) "caution insurance companies":
the insurance companies established in Belgium, which, pursuant to the Act of 9 July 1975 on the control of insurance companies, were approved to enter into insurance contracts in the "Council" insurance industry (branche 15), as set out in Appendix I^re of the Royal Decree of 22 February 1991 on the General Regulation respecting the control of insurance companies;
e) "credit insurance companies":
the insurance companies established in Belgium that, pursuant to the Act of 9 July 1975 on the control of insurance companies, were approved to enter into insurance contracts in the "credit" insurance industry (branche 14), as set out in Appendix I^re the Royal Decree of 22 February 1991 referred to above;
5° "resident":
any natural person who has his principal residence in Belgium or any legal person established in Belgium;
6° "contracts" :
(a) "credit contract":
any agreement by which a credit institution makes funds available, including unlicensed unlicensed facilities on an account, or undertakes to make funds available provided that the funds are repaid for the purpose or by which a credit institution is responsible;
(b) "Leasing Contract":
any agreement between a leasing company and a resident with a business number, provided that this agreement meets the criteria set out in Article 95, § 1^er the Royal Decree of 30 January 2001 implementing the Corporate Code for section III.D "Financial and Similar Rights Rentals", provided that the words "Company" must be read as "resident" for this definition;
(c) "filing contract":
any agreement between a resident and a business of consolidation by which the resident assigns to the business of consolidation the receivables to be recovered from agreements for the delivery of goods and/or the provision of services between the resident and its debtors, in exchange for the pre-financing of receivables to be recovered;
(d) "caution assurance":
any insurance agreement under branch 15 (Caution), concluded between a credit insurance company and a resident, by which the insurance company is responsible for that resident;
(e) "credit insurance":
any insurance agreement under branch 14 (Credits), concluded between a credit insurance company and a resident, and covering the risks of non-refunding of receivables by a resident debtor of that resident;
7° « default payment » :
the situation of a contract where
(a) an amount due has not been refunded or has been incomplete by the recipient within a non-ante calendar days after the date of maturity, or
(b) the reporting institution considers it unlikely that the amount due will be fully reimbursed under the terms of the contract without the adoption of appropriate measures, such as the realization of possible guarantees;
8° "beneficiary":
(a) a person who has entered into a contract with a reporting institution as referred to in 4°, (a) to (d) or
(b) the debtor in respect of which a resident has entered into credit insurance with a credit insurance undertaking as referred to in 4° (e);
9° « titrisation » :
a process by which credits, receivables and other assets are consolidated to serve as a guarantee for a new title to be issued, which is guaranteed by the cash flow or the economic value of these assets, and involving the economic transfer of the titrated exhibitions to a securitization entity that emits securities;
10° "Shipping entity":
an entity as referred to in Article I.2, (71) of the Order of October 17, 2006 of the Banking, Financial and Insurance Commission concerning the regulation of the equity of credit institutions and investment companies, approved by the Ministerial Order of December 27, 2006.
CHAPTER 2. - La Centrale des Crédits aux Entreprises
Art. 3. The Bank is responsible for registering in the Central Office the data relating to the resulting contracts and defaults and the data relating to the beneficiaries of these contracts.
Reporting institutions must disclose this data to the Central, in accordance with the provisions of this Act and its enforcement orders.
In the case that the contract is assigned to a non-reporting institution after registration in the Central, the communication requirement is no longer applicable, except in the case of the assignment of credit contracts to a securitization entity established in Belgium as part of a securitization.
Without prejudice to the obligations of the reporting institutions, the Bank is responsible for the processing of personal data registered in the Central Station with respect to the receipt of such data from the reporting institutions, the classification and retention of such data, the use of such data within the limits set by law, the provision of such data in cases where it is authorized by law, as well as the protection, suppression or destruction of personal data.
Art. 4. The King determines:
• data on contracts, defaults and beneficiaries to be provided by the reporting institutions;
• deadlines for communication;
• the conditions and modalities for updating the data;
• data retention times.
The King may foresee that certain contracts, according to the criteria it sets, must not be communicated. The Bank is empowered, if applicable within the limits set by the King, to determine, by regulation, for each of the categories of contracts listed in Article 2, 6°, which types of agreements shall not be communicated. These regulations are subject to approval by the Minister of Finance and published by the Belgian Monitor.
The King may foresee that certain payment defaults, according to the criteria he sets, must not be communicated.
The King may extend the provisions of this Act and its Implementing Orders to other institutions than those listed in section 2, 4° and which enter into obligations similar to those described in section 2, 6°.
Art. 5. For the purposes of this Act and its enforcement orders and in order to identify a beneficiary of a contract as referred to in section 2, 6, (a) to (d), who is a natural person and who does not have a business number, the reporting institutions use at the time of the first registration in the Central Station the identification number of the National Register of Physical Persons that these natural persons are required to communicate before the conclusion of a contract.
For the purposes of this Act and its enforcement orders and in order to identify a beneficiary of a contract as referred to in section 2, 6°, e), who is a natural person and who does not have a business number, the credit insurance companies use the identification number of the National Register of Physical Persons at the time of the first registration in Central if they or the contract subscriber know that number.
The Bank and reporting institutions are empowered to register the identification number of the National Register of Physical Persons and to use it in their relations under this Act. The Bank is also authorized to use the identification number of the National Register of Physical Persons for the internal management of the Central Station as well as its relations with the National Register of Physical Persons and the Bank-Carrefour des Entreprises.
Art. 6. For the exclusive purpose of carrying out the tasks referred to in this Act and its enforcement orders, the Bank, acting on the intervention of its staff members, appointed for that purpose, appointed by its management committee, in writing, by virtue of their duties and within the limits of their specific responsibilities, is authorized to access the information referred to in Article 3, paragraph 1^er, 1° to 5°, and paragraph 2 of the Act of 8 August 1983 organizing a National Register of Physical Persons, and registering this information.
Art. 7. The information obtained pursuant to Article 6 shall not be communicated, within the limits of the performance of the tasks covered by this Act, only to the institutions held to report and to the persons who, under the applicable legal provisions and enforcement provisions, are authorized to receive from the Bank information relating to contracts and registered on behalf of the natural person concerned.
Art. 8. In order to complete the information recorded in the Central and to the extent that the institutions held on declaration represented by their professional associations consent to it, the Bank is empowered to interrogate, on account of the institutions held on declaration, the file of notices of seizure, delegation, assignment and collective settlement of debts, referred to in article 1389bis/1 of the Judicial Code, as well as other files that may contribute to a better appreciation of the King's credit risk, subject to the conditions set out by the King. The King determines the data that can be accessed.
Art. 9. The Bank develops the administrative and technical instructions to be followed by the reporting institutions and the persons authorized to consult the data of the Central African Republic.
CHAPTER 3. - Provision of information regarding physical persons
Art. 10. If the beneficiary of a contract is a natural person, he must, before the first registration in the Central, be informed by the reporting institution:
1° of the name of the Central;
2° of the finalities of treatment in the Central;
3° the fact that data relating to the beneficiary, its contracts and the resulting defaults are recorded in the Central;
4° the name and address of the reporting institution that communicates the data to the Central;
5° the existence of a right of access and rectification of the data and the retention times of the data.
The Bank is exempt from this obligation.
CHAPTER 4. - Central Consultation
Art. 11. § 1^er. According to the rules established by the King, the Bank can only communicate the data recorded in the Central:
1° to the reporting institutions, either prior to the conclusion of a contract as part of a risk assessment for a potential beneficiary or as part of the management of a contract;
2° to the Privacy Commission for the execution of the missions entrusted to it by or under the law;
3° to foreign credit stations, provided that their purposes, recorded data and legal protection in respect of privacy and professional secrecy are equivalent to those of the Central Station and that they provide, as a reciprocity, their data to the Central, in accordance with a data exchange agreement with the Bank;
4° during a criminal testimony.
The King may, if applicable by category of institutions held to be reported, limit the data recorded in the Central to be communicated to them.
§ 2. La Centrale cannot be consulted for commercial exploration.
§ 3. Persons who have obtained data from the Central Station must take the necessary measures to guarantee the confidentiality of these data and their use for the purposes provided for in § 1^er. Central data cannot be made public. Reporting institutions that have obtained data from the Central Station must ensure that only persons acting under their authority and in need of data from the Central Station in the performance of their functions have access to these data.
Art. 12. § 1^er. According to the terms fixed by the King, each natural person has access, without charge, to the data recorded in his name in the Central and may freely and without charge request the rectification of the erroneous data.
In derogation from section 10 of the Act of 8 December 1992 on the protection of privacy with respect to personal data processing, certain data recorded in the Central Station, which is based on an estimate of the risk or recovery of the reporting institution, are not communicated to the individual concerned who exercises his right of access or rectification. The King determines which data should not be provided.
§ 2. According to the terms fixed by the King, each legal person has access to the data recorded in his or her name in the Central and may request correction of the erroneous data. The King sets out the modalities of the Central consultation by recipient legal persons, as well as any costs that the Central may claim for consultation.
Limitation and authorization for the King as provided in the second paragraph of the first paragraph shall also apply to legal persons exercising their right of access or rectification.
§ 3. In the event of a request for rectification, the Bank must communicate the information to the reporting institution, which is solely responsible for the accuracy of the data submitted to the Central Station and, where appropriate, must correct the data recorded in the Central Station.
CHAPTER 5. - Penalties, research and recognition of offences
Art. 13. § 1^er. Without prejudice to the duties of judicial police officers, the agents commissioned by the Minister with the economy in his or her powers are competent to seek and determine the offences referred to in Article 16. A copy of the minutes issued by these officers is addressed to the offender, by registered letter with acknowledgement of receipt, within 30 days of the date of the findings.
§ 2. In the performance of their duties, the agents referred to in § 1^er may:
1° enter, during the usual hours of opening or working, in the premises and rooms whose access is necessary for the fulfilment of their mission;
2° make all useful findings, produce or access, on first requisition and on site, any information, document, database or any computer system necessary for their research and findings and take a copy thereof;
3° seize, against receipt, documents, documents, books, databases or computer systems that are necessary to prove an offence or to search for co-authors or accomplices of offenders;
the seizure is waived in full right without confirmation by the Public Prosecution Service within 10 business days;
4° if they have reason to believe that an offence exists, enter the inhabited premises, with the prior authorization of the judge of the police court. Visits to manned premises must be conducted between eight and eighteen hours and be made jointly by at least two officers.
§ 3. In the performance of their duties, the agents referred to in § 1^er may require assistance from the federal police.
§ 4. The commissioned officers exercise their powers under this section under the supervision of the Attorney General, without prejudice to their subordination to their superiors in the administration.
They must take the necessary measures to ensure the confidential nature of the data they have received, as well as the use of this data for the purposes only required for the exercise of their monitoring mission.
§ 5. In the case of application of Article 14, the minutes referred to in § 1^er is transmitted to the Crown Prosecutor only when it has not been given following the warning and when section 15 is not applied.
In the event of the application of section 15, the minutes shall be transmitted to the Crown Prosecutor only when the offender has not accepted the proposed transaction.
Art. 14. Where an offence referred to in Article 16 is found, the Minister having the Economy in his or her powers, or the officer commissioned by him pursuant to Article 13, § 1^er may send a warning to the offender to terminate the offence.
The warning is attached to the copy of the minutes which is addressed to the offender in accordance with Article 13, § 1^er.
The warning mentions:
1° the facts charged and the legal provisions infringed;
2° the period in which it must be terminated;
3° that if it is not followed by the warning, the agents commissioned under Article 13, § 1^er may notify the Crown Prosecutor or propose a transactional settlement as provided for in section 15.
Art. 15. The agents commissioned for this purpose by the Minister with the Economy in his or her powers may, in the light of the minutes which find an offence to the provisions referred to in Article 16 and drawn up by the agents referred to in Article 13, § 1^er and if it is not followed by the warning as described in section 14, propose to the offenders the payment of an amount that extinguishes the public action.
This sum may not exceed the maximum fine set out in section 16 plus additional decimals. The rates as well as the payment and collection modalities are fixed by the King.
Art. 16. § 1^er. Are punished with a fine of 50 to 10,000 euros:
(1) those who do not comply with the obligations referred to in Article 3 and the orders made pursuant to Article 4;
(2) those who do not comply with the obligation referred to in Article 10;
3° those who do not comply with the requirements of Article 11, §§ 2 and 3;
4° those who voluntarily prevent or hinder the execution of the mission of the persons referred to in Article 13, § 1^erwhich is responsible for investigating and detecting offences under this Act;
5° those who have illegally learned of individual data recorded in the Central.
§ 2. The provisions of Book 1^er the Criminal Code, including Chapter VII and Article 85, shall apply to offences referred to in § 1^er.
Art. 17. The Bank may request the agents referred to in Article 13, § 1^er, to verify in respect of an institution held on declaration:
1° if the data provided to the Bank under this Act are accurate and sincere;
2° if the requirements of this Law are met.
The agents referred to in Article 13, § 1^er inform the Bank of the outcome of the investigation referred to in paragraph 1^er.
CHAPTER 6. - Miscellaneous provisions
Art. 18. The Bank is empowered to use the information recorded in the Central Station for scientific or statistical purposes after data coding or as part of its activities under the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium.
Art. 19. The Bank is empowered to apply to reporting institutions for reimbursement of the costs it exposes for the collection, registration, management, control and dissemination of data from the Central Bank. The terms and conditions and the rate of compensation are decided by the Bank in consultation with the reporting institutions represented by their professional associations.
Art. 20. The decrees provided for in this Act shall be taken after notice by the Bank, the Commission on the Protection of Privacy and the reporting institutions represented by their professional associations.
Art. 21. In the Act of 22 March 1993 on the Status and Control of Credit Institutions, the following provisions are repealed:
1° title VI, which contains section 91, as amended by the Acts of 21 December 1994 and 9 March 1999 and by the Royal Decrees of 20 July 2000 and 3 March 2011, section 92, as amended by the Act of 21 December 1994 and the Royal Decree of 3 March 2011, section 93 and 94, both mofidiés by the Royal Decree of 3 March 2011;
2° Article 104, § 1^er, 13°, amended by Royal Decrees of 13 July 2001 and 3 March 2011.
Art. 22. Article 1^er of Royal Decree No. 55 of 10 November 1967 organising the legal status of companies practicing financial lease is replaced as follows:
“Art. 1^er. You must hear by "financing rental" or "leasing":
1° Rental-financing or the "household leasing", characterized as follows:
(a) It must relate to equipment that the tenant exclusively affects for professional purposes.
(b) The goods must be specially purchased by the lessor, for rental, according to the specifications of the future tenant.
(c) The duration of the lease fixed to the contract shall be the presumed period of economic use of the property.
(d) The rental price must be set to amortize the value of the leased property over the period of use determined by the contract.
(e) The contract must reserve to the tenant the right to acquire at the end of the lease the property of the leased property, at a price fixed in this contract, which must correspond to the alleged residual value of that property.
2° The rental-financing of buildings or the "real lease", characterized as follows:
(a) He's supposed to be on built buildings.
(b) The contract must be fixed-term.
(c) The rent must be fixed so that the investment in the building is fully reconstituted by the sum of the rents.
(d) The enjoyment of the buildings and the substance on which they are erected must be granted by the lessor to the lessee under a contract that cannot be automatically translative of the real rights of which the lessee has.
(e) The contract must reserve to the tenant the right to acquire, at the end of the lease, real rights relating to the leased property, at a price fixed in this contract. »
Art. 23. For contracts entered into before the date of entry into force of this Act, the notification referred to in section 10 shall be in the form of a non-nominative notice to the Belgian Monitor, from the Minister with Finance in his or her powers. With respect to unauthorised uncovered facilities on an account, this non-named notice applies to all accounts opened before the effective date of this Act.
Art. 24. Persons who, at the time of the coming into force of this Act, perform the operations referred to in section 1^er, 2° of the aforementioned Royal Decree No. 55 of 10 November 1967, as set out in section 22 of this Act, shall have a period of six months to request their approval and to comply with the conditions of such approval. failing to do so, they shall, at the expiry of this period, cease to enter into new operations referred to above, subject to the penalties provided for in article 3 of the aforementioned Royal Decree No. 55 of 10 November 1967.
Art. 25. This Act comes into force on the date fixed by the King, no later than 1^er May 2012.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 4 March 2012.
ALBERT
By the King:
Minister of Finance,
S. VANACKERE
Minister of Economy,
J. VANDE LANOTTE
The Minister of the Interior,
Ms. J. MILQUET
The Minister of Justice,
Ms. A. TURTELBOOM
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2011/2012
House of Representatives.
Documents. - Bill, 53-1850, No. 1. - Report, 53-1850, No. 2. - Text corrected by the commission, 53-1850, No. 3. - Text adopted in plenary and transmitted to the Senate, 53-1850, No. 4.
Full report. - 15 December 2011.
Senate.
Documents. - Project not referred to by the Senate, 5-1404, No. 1.