Posted the: 2012-04-18 Numac: 2012011110 SERVICE PUBLIC FEDERAL finance and SERVICE PUBLIC FEDERAL economy, P.M.E., CLASSES average and energy March 4, 2012. -Act on the central credit register business (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: Chapter 1. -General provision and definitions Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
2. for the purposes of this Act, shall mean: 1 ° "the Bank": the National Bank of Belgium, referred to in the law of 22 February 1998 establishing the Organic Statute of the National Bank of Belgium;
2 ° "station": the central credit to companies referred to in article 3;
3 ° "established in Belgium": Belgian or acting law on Belgian territory through a branch.
4 ° 'institutions held in declaration': has) 'credit institutions': settlements established in Belgium referred to in articles 13, 65 and 79 of the law of 22 March 1993 on status and control of credit institutions;
(b) "leasing companies": companies established in Belgium approved in accordance with article 2 § 1 of the royal decree No. 55 of 10 November 1967 organizing the legal status of companies engaged in leasing;
((c) ' factoring enterprises": financial institutions established in Belgium such as referred to in article 3, § 1, 5 °, of the above-mentioned Act of 22 March 1993, which grant loans in the form of factoring as referred to in article 3, § 2, 2) of the said Act;
(d) ' business of suretyship insurance': insurance companies established in Belgium who, under the law of 9 July 1975 on the supervision of insurance companies, have been approved to enter into contracts of insurance in the branch of insurance «Bail» (branch 15), as referred to in annex Ire of the royal decree of 22 February 1991 on the general regulation on the control of insurance undertakings;
(e) ' business credit insurance': Belgium-based insurance companies which, under the law of 9 July 1975 on the supervision of insurance companies, have been approved to enter into contracts of insurance in the branch of insurance 'Credit' (branch 14), referred to the Ire of the royal decree of 22 February 1991 above annex;
5 ° 'resident': any natural person who has his principal residence in Belgium or any legal person established in Belgium;
6 ° 'contracts': a) "credit agreement": any agreement by which a credit institution makes funds available, including unauthorized account, overdraft facilities or undertakes to make funds available on condition that they be reimbursed term or by which a credit institution vouch;
(b) "leasing contract": any agreement between a leasing company and a resident that has a business number, if this agreement complies with the criteria established in article 95, § 1 of the royal decree of 30 January 2001 implementing the Code of corporations for heading III. D "finance leases and similar entitlements", provided, however, that the words 'company' should be read as 'resident' for this definition.
(c) ' contract of factoring': any agreement made between a resident and a factoring company whereby the resident gives to the factoring company outstanding debts arising from conventions of delivery of goods and/or provision of services concluded between the resident and its debtors, in Exchange for the pre-financing of outstanding debts;
(d) "suretyship insurance": any insurance within branch 15 (deposit), agreement between an insurance company and a resident, by which the insurance undertaking is guarantor for that resident;
(e) ' credit': any agreement pertaining to class 14 (Credit), between a credit insurance company and a resident, and covering insurance the risk of non-repayment of debts by a debtor resident resident;
7 ° "default": the situation of a contract where a) a sum due has not been repaid or was incompletely by the beneficiary within a period of ninety days calendar after the date of maturity, or b) institution held in declaration considers unlikely that the due amount will be fully reimbursed under the terms of the contract without the adoption of appropriate measures , as the fulfillment of any guarantees;
8 ° 'beneficiary': a) the person who has concluded a contract with an institution held in declaration as referred to in 4,) d) or b) debtor for which a resident found a credit with a company for credit insurance as referred to in the 4 ° th);
9 ° "securitization": process by which credits, receivables and other assets are grouped together to serve as guarantee to a new title to be issued, which is guaranteed by cash flows or the economic value of these assets, and involving the economic transfer of exposures securitised to a securitisation entity which issues securities;
10 ° "securitization entity": an entity as referred to in article I.2, (71) of the Decree of October 17, 2006 of the Committee on banking, finance and insurance regarding the regulations on own funds of credit institutions and investment firms, approved by ministerial order of 27 December 2006.
CHAPTER 2. -The Central of Credits to businesses arts.
3. the Bank is responsible to register in the central data relating to contracts and defaults arising therefrom as well as data on the beneficiaries of these contracts.
Institutions held in declaration must communicate these data to the Central, in accordance with the provisions of this Act and its implementing orders.
In the case where the contract is assigned to an institution not held in declaration after registration in the Central, the disclosure obligation is no longer applicable, except in case of transfer of credit agreements to securitization established in Belgium in the context of a securitisation entity.
Without prejudice to specific institutions held to reporting obligations, the Bank is responsible for the processing of the personal data recorded in the Central with regard to receiving these data on the part of the institutions held in declaration, classification and conservation of these data, the use of these data within the limits set by law the communication of these data in cases where it is empowered by the law, as well as protection, erasure or destruction of personal data under the conditions laid down by law.
S. 4. the King determines: data relating to contracts, defaults and beneficiaries to be communicated by the institutions held in declaration;
the time limits;
the terms and conditions for updating data;
data retention periods.
The King may provide that certain contracts, according to the criteria set by it, should not be disclosed. The Bank is empowered, where appropriate within the limits set by the King, to determine, by means of regulations, for each of the categories of contracts listed in article 2, 6 °, what types of conventions should not be disclosed. These regulations are subject to the approval of the Minister of finance and published in the Moniteur belge.
The King may provide that certain defaults, according to the criteria set by it, should not be disclosed.
The King may extend the provisions of this Act and its orders of execution to other institutions than those listed in article 2, 4 ° and which enter into obligations similar to those described in article 2, 6 °.
S. 5. for the purposes of this Act and its orders of execution and identifying a beneficiary of a contract as referred to in article 2, 6 ° a) to (d)), who is a natural person and does not have a business number, institutions held statement use during the first recording in the central identification number of the national register of natural persons that these individuals are required to communicate prior to the conclusion of a contract.
For the purposes of this Act and its orders of execution and to identify the beneficiary of a contract as referred to in article 2, 6 ° e), who is a natural person and who do not have a business number, credit insurance companies use when the first record in the Central the identification number of the national register of natural persons if they or the Subscriber's contract are aware of this issue.
The Bank and the institutions required to return are entitled to record the identification number of the national register of natural persons and to use it in their relations under this Act. The Bank is also entitled to use the identification number of the national register of natural persons to the internal management of the plant as well as in its relations with the national registry of natural persons and the Crossroads Bank for enterprises.
S. 6. for the sole purpose of the performance of the tasks covered by this Act and its implementing orders, the Bank, acting
the intervention of the members of its staff, designated for this purpose namely and written by its Executive Committee due to their functions and within their specific powers, is authorized to access the information referred to in article 3, paragraph 1, 1 ° to 5 °, and paragraph 2 of the law of 8 August 1983 organising a national register of natural persons , and save this information.
S. 7. the information obtained pursuant to article 6 shall not be disclosed within the execution of the tasks referred to in this law, that the only institutions held statement and persons who, pursuant to the legal provisions and the provisions of applicable performance, are authorized to receive from the bank information relating to contracts and recorded on behalf of the individual concerned.
S. 8. in order to supplement the information stored in the Central and for as much as institutions held in declaration represented by their trade associations agree, the Bank shall be entitled to query for account of the institutions required to statement, the file of the notice of seizure, delegation, transfer and collective debt settlement, referred to article 1389bis/1 of the Judicial Code , and other files that can contribute to a better appreciation of credit risk, the conditions laid down by the King. The King determines the data that can be accessed.
S. 9. the Bank is developing administrative and technical instructions to be followed by the institutions held statement and persons authorised to consult the data of the Central.
CHAPTER 3. -Duty to provide information with respect to natural persons art. 10. If the beneficiary of a contract is a natural person, he shall be informed by the institution held statement before the first record in the Central: 1 ° the name of the plant;
2 ° the purposes of the processing in the Central;
3 ° the fact that data to the recipient, its contracts and defaults arising therefrom are stored in the Central;
4 ° the name and address of the institution held in statement that communicates the data to the Central;
5 ° the existence of a right of access and rectification of data and retention of these periods.
The Bank is exempt from this obligation.
CHAPTER 4. -Consultation of the central art. 11 § 1.
According to the rules established by the King, the Bank may disclose the data recorded in the Central that: 1 ° the institutions required declaration or prior to the conclusion of a contract within the framework of a risk assessment concerning a potential recipient, either in the context of the management of a contract;
2 ° to the Commission on the protection of privacy, for the performance of tasks that have been entrusted to it by or under the Act;
3 ° to the power plants of credit abroad, provided that their purposes, the stored data and the legal protection they provide privacy and privilege are equivalent to those of the Central and they provide reciprocal, their data to the Central, pursuant to a data exchange agreement with the Bank;
4 ° during testimony in court in criminal matters.
The King may, where appropriate by class of institutions held in statement, data recorded in the Central which they are communicated.
§ 2. The plant cannot be accessed for commercial prospecting purposes.
§ 3. Persons who have obtained data from Central must take the necessary measures to ensure the confidentiality of these data and their use for the only purpose to the § 1.
Central data can be made public. Required statement institutions who have obtained data from Central must ensure that only persons acting under their authority and in need of central data in the performance of their duties have access to these data.
S. 12 § 1. Under the terms laid down by the King, every natural person has free access to the data registered in her name in Central and may freely and without charge request the rectification of incorrect data.
By derogation from article 10 of the law of 8 December 1992 relative to the protection of privacy with regard to the processing of personal data, some data recorded in the Central, which are based on an estimate of risk or the institution held in declaration, recovery are not communicated to the individual concerned who exercises his right of access and rectification. The King determines what data should thus not be communicated.
§ 2. Under the terms laid down by the King, every Corporation has access to the data registered in her name in Central and can request correction of erroneous data. King lays down the procedures for the consultation of the Central by legal persons, as well as any costs the Central can claim for the consultation.
Limitation and the authorization for the King y related such as provided in the second subparagraph of the first paragraph apply equally to legal persons exercising their right of access and rectification.
§ 3. In case of request for correction, the Bank must communicate it to the institution in statement, which is solely responsible for the accuracy of the data communicated to the Central and which should, if necessary, correct the data recorded in the Central.
CHAPTER 5. -Sanctions, search and finding of offences art.
13 § 1. Without prejudice to the duties of judicial police officers, agents commissioned by the Minister in charge of the economy are responsible for search and found the offences mentioned in article 16. A copy of the minutes drawn up by these agents is addressed to the offender, by registered letter with acknowledgement of receipt, within 30 days of the date of the findings.
§ 2. In the exercise of their duties, officials referred to the § 1 may: 1 ° enter during normal hours of opening or work, the premises and parts whose access is necessary for the accomplishment of their mission;
2 ° make all useful findings, do produce or access, on first request and on site, any information, any document, any database or any computer system necessary for their research and findings and take copies;
3 ° enter, against receipt, documents, parts, books, databases or computer systems that are required to provide evidence of an offence or to find sponsors or accomplices of offenders;
the seizure is lifted ipso jure without confirmation by the public prosecutor within ten working days;
4 ° if they have reasons to believe in the existence of an offence, penetrate into living quarters, with the consent of the judge of the tribunal de police.
The visits to living quarters should be between eight and eighteen hours and must be made jointly by two agents at least.
§ 3. In the exercise of their duties, officials referred to the § 1 may require the assistance of the federal police.
§ 4. Commissioned officers exercise the powers accorded to them by 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 that ensure the confidentiality of the data which they obtained knowledge, as well as the use of such data for the purposes required for the exercise of their supervisory functions.
§ 5. In case of application of article 14, the minutes referred to the § 1 is transmitted to the Prosecutor of the King where he has not been given following the warning and when article 15 is not applied.
In case of application of article 15, the minutes is transmitted to the Prosecutor of the King only when the offender has not accepted the proposal for a transaction.
S. 14. where it is found an offence referred to in article 16, the Minister having the economy in his or her attributions, or agent commissioned by him in accordance with article 13, § 1 can send the offender a warning setting it is to put an end to this offence.
The warning is attached to the copy of the minutes, which shall be sent to the offender in accordance with article 13, § 1.
The warning mentions: 1 ° the facts charged and the legal provisions violated;
2 ° the period within which it must there be terminated;
3 ° if it is not given due warning, officials commissioned pursuant to article 13, § 1 may notify the Crown Procurator or propose a transaction regulation as provided for in article 15.
S. 15. officers commissioned to this end by the Minister in charge of the economy can, in the light of the minutes finding an infringement to the provisions referred to in article 16 and trained by officers referred to in article 13 § 1 and if it is not given following such warning that described in article 14, offer offenders the payment of a sum which extinguished public action.
This amount cannot be greater than the maximum amount of the fine set in article 16 plus additional decimated. Tariffs as well as the terms of payment and collection are set by the King.
S. 16 § 1.
Shall be punished by a fine of 50 to 10,000 euros:
1 ° those who do not conform to the obligations referred to in article 3 and the taken orders in pursuance of article 4;
2 ° those who fail to comply with the obligation referred to in article 10;
3 ° those who do not conform to the provisions of article 11, §§ 2 and 3;
4 ° those who wilfully prevent or hinder the execution of the mission of the persons mentioned in article 13 § 1, responsible for search and find infringements of provisions of this Act;
5 ° those who have illegally taken knowledge of individual data recorded in the Central.
2. The provisions of the 1st book the penal Code, including Chapter VII and article 85, shall apply to the offences referred to the § 1.
S. 17. the Bank may apply to the agents referred to in article 13 § 1, check for an institution held in declaration: 1 ° if the data communicated to the Bank under this Act are accurate and sincere;
2 ° If the requirements of this Act are met.
The officers referred to in article 13 § 1 shall inform the Bank of the outcome of the survey referred to in paragraph 1.
CHAPTER 6. -Provisions various arts.
18. the Bank is entitled to use information stored in the Central Statistics and scientific purposes after encoding data or in the context of its activities in accordance with the law of 22 February 1998 establishing the Organic Statute of the National Bank of Belgium.
S. 19. the Bank is entitled to ask the institutions required to return the reimbursement that it exposes for the collection, recording, management, control and dissemination of data from Central. The terms and the rates of compensation are arrested by the Bank in consultation with the institutions held in declaration represented by their professional associations.
20. the orders provided for in this Act will be taken after receiving the opinion of the Bank, the Commission of the protection of privacy and institutions held in declaration represented by their professional associations.
S. 21. in the law of 22 March 1993 on the legal status and control of credit institutions, the following provisions are repealed: 1 ° Title VI, which contains section 91, amended by the laws of 21 December 1994 and 9 March 1999 and by the Royal Decrees of July 20, 2000 and March 3, 2011, article 92, as amended by the Act of 21 December 1994 and the royal decree of March 3, 2011 article 93 and 94, the two mofidies by the royal decree of 3 March 2011;
2 ° article 104, § 1, 13 °, amended by the decrees of July 13, 2001 and March 3, 2011.
S. 22. article 1 of the Decree royal No. 55 of 10 November 1967 organizing the legal status of companies engaged in leasing is replaced as follows: «art.» 1. is meant by "leasing" or "leasing": 1 ° movable leasing or «furniture leasing», characterized as follows: a) should wear on capital goods that the tenant assigns exclusively for business purposes.
(b) the goods must be specially purchased by the lessor to the rental according to the specifications of the future tenant.
(c) the duration of the rental under the contract must match the duration of economic use of the property.
(d) the price of the lease must be fixed so as to write off the value of the leased asset over the period of use determined in the contract.
(e) the contract must book the tenant the right to acquire ownership of the leased property, at the end of lease for a price specified in this contract, which must correspond to the residual assumed value of this property.
2 ° the leasing of buildings or the "real estate leasing", characterized as follows: has) it should be built buildings.
(b) the contract must be concluded for fixed duration.
(c) the rent must be fixed so that the investment in the built building is fully restored by the sum of the rent.
(d) the enjoyment of buildings and the background on which they are erected must be granted by the lessor to the lessee under a contract which cannot be automatically conveyance of rights in rem that the lessor has.
(e) the contract must book the tenant the right to acquire at the end of lease rights in rem relating to the leased property, for a price specified in this contract. » Art. 23. for contracts concluded before the date of entry into force of this Act, the notification referred to in article 10 takes the form of a non-nominal notice in the Moniteur belge, from the Minister having finance in his/her attributions.
With regard to unauthorized account overdraft facilities, this non-nominal opinion applies to all accounts before the date of entry into force of this Act.
S. 24. persons who, at the entry into force of this Act, perform the operations referred to in article 1, 2 ° of the royal decree No. 55 supra November 10, 1967, as inserted by section 22 of this Act, have a period of six months to request their approval and to comply with the conditions of this approval. ÷ failure to do so, they shall, at the expiry of this period, cease to conclude new abovementioned operations under penalty of sanctions provided for in article 3 of the order royal supra No. 55 of 10 November 1967.
S. 25 this Act comes into force on the date fixed by the King, no later than May 1, 2012.
Promulgate this Act, order that it be under the seal of the State and published by le Moniteur.
Given to Brussels, March 4, 2012.
ALBERT by the King: the Minister of finance, S. VANACKERE. the Minister of economy, J. VANDE LANOTTE the Minister of the Interior, Ms. J. MILQUET. the Minister of Justice, Ms. A. TURTELBOOM sealed with the seal of the State: 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 meeting and transmitted to the Senate, 53-1850, no. 4.
Compte rendu intégral. -15 December 2011.
-Project not mentioned by the Senate, 5-1404, no. 1.