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12 MARCH 2012. - An Act to amend the Act of July 22, 1953 to create an Institute of Business Reviewers and to organize public supervision of the business review profession, coordinated on April 30, 2007 (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It partially transposes Directive 2006/43/EC of the European Parliament and the Council of 17 May 2006 on the legal controls of the annual and consolidated accounts and amends Council Directives 78/660/EEC and 83/349/EEC and repeals Council Directive 84/253/EEC.
Art. 2. Article 2 of the Act of 22 July 1953 creating an Institute of Business Reviewers and organizing public supervision of the profession of enterprise reviewer, coordinated on 30 April 2007, as amended by the Royal Decree of 3 March 2011, is supplemented by the 23°, 24°, 25° and 26°, as follows:
"23° 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;
24° public supervision bodies: the bodies listed in Article 43, § 1^er;
25° Competent authorities: the authorities or bodies designated by a law with the task of regulating and/or supervising the legal controllers of the audit accounts and offices or of certain aspects of them;
26° Directive 2006/43: Directive 2006/43/EC of the European Parliament and the Council of 17 May 2006 on the legal controls of the annual and consolidated accounts and amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC. "
Art. 3. Article 5, paragraph 1^er, 1°, of the same law, is replaced by the following:
"1° to be a national of a Member State of the European Union or another State that is a party to the European Economic Area Agreement and to have an institution in a Member State of the European Union or another State Party to the European Economic Area Agreement, or to have an institution in Belgium; "
Art. 4. to section 35 of the Act, as amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° in the Dutch text of § 1^erthe word "Onvermiderd" is replaced by the word "Onverminderd";
2° in § 1^erthe words "in Article 77 of this Law" are replaced by the words "in § 2 and § 4/1";
3° § 2 is replaced by the following:
Ҥ2. The Institute shall communicate to public oversight bodies, including confidential information requested by these bodies in their missions as provided for by or under this Act.
Public supervision bodies may only use the information received for the purpose of carrying out the missions entrusted to them by or under this Act. »;
4° in § 4, the words "and paragraph 4/1" are inserted between the words "in the second paragraph" and the words ", information";
5° 1 § 4/1 is inserted, as follows:
§ 4/1. The Institute communicates to the Autorité des services et marchés financiers or to the Bank any useful information for the exercise of their skills. "
Art. 5. Article 43 of the Act is supplemented by §§ 3 and 4 as follows:
Ҥ3. The Attorney General, the Referral and Correctional Chamber and disciplinary bodies are the bodies responsible for individual decisions on public supervision. They are subject to section 458 of the Criminal Code as well as the persons they employ or have employed for the exercise of the duties entrusted to them by or under this Act.
The Superior Council of Economic Professions with respect to its mission of cooperation as referred to in Chapter IX, as well as in Article 135, § 2, of the Code of Societies, is also subject to Article 458 of the Criminal Code. This also applies to persons employed or employed to the extent that they carry out activities within the aforementioned missions.
§ 4. Information covered by professional secrecy may not be disclosed by public oversight bodies to any other person or authority unless such disclosure is provided by law.
The public supervision bodies shall, in derogation from § 3 and Article 458 of the Criminal Code, exchange confidential information between themselves and with the competent authorities of other EU Member States or third countries in accordance with the conditions set out in Chapter IX and the measures taken in accordance with it.
Public supervision bodies may, in derogation from § 3 and Article 458 of the Criminal Code, disclose confidential information received in the context of the missions entrusted to them by or under this Act to the Institute, provided that such information is necessary for the execution of the Institute's missions. "
Art. 6. In chapter IX of the Act, a section 1 is inserted.^re entitled:
“Section 1^re. General provisions".
Art. 7. In section 1^re inserted by section 6, section 77 is replaced by the following:
"Art. 77. § 1^er. The Higher Council of Economic Professions is designated as a body responsible for national cooperation between public oversight bodies and, on the other hand, cooperation between the public supervision systems of the Member States of the European Union and with third countries.
§ 2. The cooperation referred to in this chapter and the measures taken pursuant to this chapter does not concern repressive cases of information or instruction. "
Art. 8. In chapter IX of the Act, a section 2 entitled:
“Section 2. National cooperation".
Art. 9. In section 2 inserted by section 8, an article 77bis is inserted as follows:
"Art. 77bis. § 1^er. Public oversight bodies shall cooperate as much as is necessary to carry out their respective tasks as established by or under this Act. They provide mutual assistance.
In particular and where appropriate, subject to the provisions of the Code of Criminal Investigation, they exchange information and cooperate with the instructions on the conduct of the legal controls of the accounts.
§ 2. The King may determine additional modalities of national cooperation. "
Art. 10. In chapter IX of the Act, a section 3 is inserted:
“Section 3. Cooperation with other EU member states."
Art. 11. In section 3 inserted by article 10, an article 77ter is inserted as follows:
"Art. 77ter. The public supervision bodies cooperate with the competent authorities of the other EU Member States as much as necessary to carry out their respective public supervision missions. These authorities provide mutual assistance. In particular, they exchange information and cooperate with the instructions on the conduct of the legal controls of the accounts.
This cooperation is carried out without prejudice to the measures adopted by the European Commission concerning procedures for the exchange of information and the modalities of cross-border instructions. "
Art. 12. In the same section 3, an article 77quater is inserted as follows:
"Art. 77quater. The public supervision bodies shall promptly, subject to Article 77Sexia, at the request of a competent authority of another Member State of the European Union, communicate to the competent authority of that other Member State any information they hold or collect in the course of the missions entrusted to them by or under this Act. Where appropriate, the public oversight body that receives such a request shall without delay take the necessary steps to gather the requested information.
Unless such disclosure is provided by the legislative, regulatory or administrative procedures of another Member State, such information may not be disclosed to any other authority or person without the express consent of the public oversight body that has provided such information. "
Art. 13. In the same section 3, an article 77quinquies read as follows:
"Art. 77quinquies. The public supervision bodies shall, at the request of a competent authority of another Member State of the European Union subject to Article 77Sexies, carry out instructions in Belgium or authorize the staff of that authority to participate in an instruction.
The instruction is entirely subject to the general control of the competent Belgian authorities. "
Art. 14. In the same section 3, an article 77sexies is inserted as follows:
"Art. 77sexies. Public supervision bodies may refuse to respond to a request for information or cooperation in the course of an instruction, from a competent authority of another Member State of the European Union when:
1° this request may affect Belgian sovereignty, national security or public order, or
2° a judicial procedure, including criminal proceedings, relating to the same facts and against the same persons as those referred to in the application, has already been initiated in Belgium, or
3° a decision of the competent Belgian authorities against the same persons for the same facts as those referred to in the request is cast in force of tried thing, or
4° the authority and persons employed or employed are not subject to equivalent professional secrecy guarantees to those applicable to the public supervision body, or
5° the information is not required for the exercise of a public supervision mission. "
Art. 15. In the same section 3, an article 77septies is inserted as follows:
"Art. 77septies. Any public oversight body may request the competent authority of another Member State of the European Union to provide information or to participate in an instruction in the territory of another Member State.
Without prejudice to its obligations under judicial proceedings, a public oversight body cannot:
1° use the information received from a competent authority of another Member State only in the exercise of its duties and in the course of an administrative or judicial procedure relating to the exercise of such missions as provided for by or under this Act;
2° communicate this information to another authority only by agreement of the competent authority of the other Member State. "
Art. 16. In the same section 3, an article 77octies is inserted as follows:
"Art. 77octies. § 1^er. When a public oversight body finds that acts contrary to this Act have been committed in the territory of another Member State of the European Union, it shall notify the competent authority of that other Member State.
§ 2. When a public oversight body is informed by another Member State that acts contrary to the statute governing the legal controllers to the accounts or the rules governing the exercise of legal control in the accounts have been committed, it adopts the necessary measures. The organ informs the State notifying the final result as well as, to the extent possible, significant intermediate results. "
Art. 17. In the same section 3, an article 77 was inserted as follows:
"Art. 77novies. The King may determine the special modalities of cooperation with other EU Member States in accordance with Directive 2006/43. "
Art. 18. In chapter IX of the Act, a section 4 entitled:
“Section 4. Cooperation with third countries."
Art. 19. In section 4 inserted by section 18, an article 77decies is inserted as follows:
"Art. 77decies. § 1^er. Any competent public oversight body designated by the King shall, upon request of a competent authority of a third country, communicate audit documents or other documents held by company reviewers if all the following conditions are met and subject to § 2:
1° these audit documents or other documents are related to the legal controls of companies that have issued effects in the third country concerned or that are part of a group subject to the control of the consolidated accounts in that third country;
2° This communication is necessary for the performance of the mission of public supervision, instruction or quality control, declared equivalent in accordance with Article 46, § 2, of Directive 2006/43, of the competent authority of the third State;
3° this authority complies with the conditions declared appropriate by the European Commission in accordance with Article 47, § 3, of Directive 2006/43;
4° the transmission of personal data is carried out in accordance with the Act of 8 December 1992 on the protection of privacy with respect to personal data processing;
5° the authority or persons receiving information in third countries shall be subject to equivalent guarantees in the protection of professional secrecy to those applicable to the competent public supervision body;
6° an agreement on the basis of reciprocity resuming the working arrangements is concluded between the bodies designated by the King and that authority.
§ 2. Public supervision bodies may refuse the application by a competent authority of a third country where:
1° the provision of the documents referred to in § 1^er is likely to affect the sovereignty, national security or public order of Belgium or other member States of the European Union;
2° a judicial procedure, including criminal proceedings, relating to the same facts and against the same persons as those referred to in the application, has already been initiated in Belgium;
3° a decision of the competent Belgian authorities against the same persons for the same facts as those referred to in the request is carried out in force of the judged thing;
4° the preconditions referred to in § 1^er are not respected.
§ 3. The King determines the special modalities of cooperation with third countries. "
Art. 20. Article 79, § 1^erParagraph 1^er, the same law is supplemented by (f) as follows:
"(f) the communication of information, including confidential, requested by a public oversight body in the context of its missions and national and international cooperation, in accordance with the conditions set out in Chapter IX and the measures taken pursuant to Chapter IX. "
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 12 March 2012.
ALBERT
By the King:
Minister of Economy,
J. VANDE LANOTTE
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2011/2012
Documents of the House of Representatives:
Bill, 53-1889, No. 1 - Report, 53-1889, No. 2 - Text corrected by commission, 53-1889, No. 3 - Text adopted in plenary and transmitted to the Senate, 53-1889, No. 4.
Full report: 2 February 2012
Documents of the Senate:
Project not referred to by the Senate, 5-1469, No. 1.