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26 SEPTEMBER 2011. - An Act to transpose Directive 2009/44/EC of the European Parliament and of the Council of 6 May 2009 amending Directive 98/26/EC on the final character of the regulation in the payment and settlement systems of securities transactions and Directive 2002/47/EC on financial guarantee contracts, with respect to related systems and private receivables

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 provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act transposes Directive 2009/44/EC of the European Parliament and the Council of 6 May 2009 amending Directive 98/26/EC on the final nature of the regulation in securities payment and settlement systems and Directive 2002/47/EC on financial guarantee contracts, with respect to related systems and private receivables.
CHAPTER 2. - Amendments to the Act of 28 April 1999 to transpose Directive 98/26/EC of 19 May 1998 on the final nature of the regulation into the payment and settlement systems of securities transactions
Art. 3. In the Act of 28 April 1999 to transpose Directive 98/26/EC of 19 May 1998 concerning the final character of the regulation in the payment and settlement systems of securities transactions, last amended by the Royal Decree of 27 January 2011, it is inserted in Chapter I^er article 1^er/1 to read:
"Art. 1^er/1. For the purposes of this Act, it shall be understood by:
1° "system": a formal agreement
- agreed between three or more participants, not counting neither the operator of this system, nor, where appropriate, a possible regulatory body, a possible central counterparty, a possible compensation chamber or a possible indirect participant, and comprising common rules and standard procedures for compensation, whether carried out through a central counterparty or not, or the execution of transfer orders between participants;
- governed by the legislation of a Member State chosen by the participants; However, participants can only choose the legislation of a Member State in which at least one of them has its head office; and
- designated as a system and notified to the European Commission by the Member State whose legislation is applicable, after the Member State has ascertained the adequacy of the rules of operation of the system;
2° "institution" :
- a credit institution within the meaning of the Act of 22 March 1993 relating to the status and control of credit institutions, or
- an investment company within the meaning of the Act of 6 April 1995 relating to the status and control of investment enterprises or;
- a public authority or a controlled company operating under State warranty, or
where a company with its head office outside the territory of the European Union and whose activities correspond to those of credit institutions or community investment companies targeted to the first and second drawers,
who participates in a system and is responsible for implementing the financial obligations resulting from transfer orders issued within this system.
Legal persons who participate in a system of regulation-titles referred to in Article 2, § 1^er, (b), are considered to be institutions provided that at least three other participants of this system enter the categories referred to in the first paragraph, provided that such assimilation is justified for systemic risk reasons. The existence of such justification is recognized by the National Bank of Belgium. To this end, the National Bank of Belgium establishes and publishes the criteria it uses. It can see the existence of such justification by category of participants or on an individual basis.
Legal persons who actually participate in a system of regulation-titles referred to in Article 2, § 1^er, (b), of this Act on the date of publication of this Act are considered to be institutions provided that at least three other members of this system enter the categories referred to in the first paragraph, provided that a justification for systemic risks is found by the National Bank of Belgium within one year of the coming into force of this Act;
3° "central part": an entity that is the intermediary between the institutions of a system and which acts as an exclusive counterpart to these institutions with respect to their orders of transfer;
4° "regulatory body": an entity that makes available to institutions and/or a central counterparty participating in the systems, settlement accounts by which the transfer orders in these systems are liquidated and which, if applicable, grants to these central institutions and/or counterparties for settlement purposes;
5° " compensation unit": an organization responsible for calculating the net position of the institutions, a possible central counterpart or a possible regulatory body;
6° "participant": an institution, a central counterpart, a regulatory body, a compensation board or a system operator. In accordance with the operating rules of the system, the same participant may act as a central counterpart, compensation board or settlement body or perform all or part of these tasks.
When an indirect participant is considered a participant for systemic risk reasons, this does not limit the participant's liability through which the indirect participant introduces transfer orders into the system. The existence of a systemic risk is recognized by the National Bank of Belgium. To this end, the National Bank of Belgium establishes and publishes the criteria it uses. It can see the existence of such justification by category of indirect participants or on an individual basis;
7° "indirect participant": an institution, a central counterparty, a settlement body, a compensation board or a system operator having a contractual relationship with a system participant, who executes orders of transfer allowing the indirect participant to pass orders of transfer in the system, provided that the indirect participant is known to the system operator;
8° "titles": the financial instruments referred to in section 2, 1°, of the Act of 2 August 2002 on the supervision of the financial sector and financial services and the rights on or relating to such securities, including the rights of co-ownership, of an intangible nature, conferred on the universality of securities of the same species;
9° "transfer order" :
- any instruction given by a participant to make available to a consignee of the species through registration in the books of a credit institution, a central bank, a central counterparty or a regulatory body, or any instruction that results in the taking or enforcement of a payment obligation as defined by the operating rules of the system, or
- an instruction given by a participant to transfer the ownership of one or more securities or the right to one or more titles through registration in a register, account, or other form;
10° "insolvency procedure": any collective measure provided for in the legislation of a Member State, or a third country, for the purpose of either liquidating the participant, or reorganizing it as long as that measure involves the suspension or limitation of transfers or payments. The acts of disposition referred to in Article 57bis, § 1^erof the Act of 22 March 1993 on the Status and Control of Credit Institutions and those referred to in Article 36/27, § 1^erthe Act of 22 February 1998 establishing the organic status of the National Bank of Belgium constitutes an insolvency procedure;
11° "opening of insolvency proceedings": when the competent judicial or administrative authority of a Member State or a third country makes its decision;
12° "compensation": the conversion of receivables and obligations resulting from transfer orders that one or more participants issue in favour of one or more other participants or receive from them in a single debt or net obligation, so that only a net debt may be required or a net obligation may be due;
13° "regulation account": an account with a central bank, a settlement body or a central counterparty used for the deposit of cash or securities and for the settlement of transactions between plan members;
14° "workable day": period covering day and night regulations and encompassing all events occurring during the activity cycle of a system;
15° "interoperable systems" : two or more systems whose operators of the system have concluded between them an agreement that involves the execution of transfer orders between systems. Such an agreement may not constitute a system of law;
16° "system operator": the entity or entities legally responsible for operating a system. It may also act as a regulatory body, central counterparty or compensation chamber;
17° "Member State": a Member State of the European Union or another State Party to the Agreement on the European Economic Area within the limits defined by this Agreement and the related acts.".
Art. 4. In section 2 of the Act, as amended by Royal Decrees of 20 December 2000, 22 December 2003, 23 May 2007, 3 June 2007 and 3 March 2008, the following amendments are made:
1° § 1^er is replaced by the following:
"§ 1^er. This Act applies to any system as defined in section 1^er/1, 1°, governed by Belgian law, the following designation:
(a) Payment systems
1° the system called "TARGET2-BE", operated by the National Bank of Belgium;
2° the system called "CEC" ("CEC"), operated by the National Bank of Belgium.
(b) Control systems
1° the Scriptural circulation system of financial instruments operated by the anonymous company of Belgian law "Interprofessional repository and securities transfer" ("CIK") whose trade name is Euroclear Belgium;
2° the securities liquidation system of the National Bank of Belgium ("Clearing BNB"), operated by the National Bank of Belgium;
3° the Euroclear system operated by the anonymous company of Belgian law Euroclear Bank.
2° § 2 is replaced by the following:
"§2. This Act applies to any member of the systems referred to in paragraph 1^er"
3° § 3 is repealed;
4° § 4 is replaced by the following:
"§ 4. This Act is also applicable, if it acquires, with respect to the determination, under Belgian law, of the rights and obligations arising from the participation of a legal person of Belgian law recognized as a participant by the law of the Member State or of the third State applicable to the system, of a system of a Member State as notified by the competent authorities of that State to the European Commission or of a third State";
5° in § 5, 2°, the words "at § 2 and § 3" are replaced by the words "at § 2".
Art. 5. The title of Chapter II of the Act is replaced by the following: "Compensation and Transfer Orders".
Art. 6. Section 3 of the Act, as amended by the Royal Decree of 19 December 2010, is replaced by the following:
"§ 1^er. Orders of transfer and compensation within a system are valid and enforceable to third parties, including insolvency proceedings against a participant in that system or an interoperable system or operator of an interoperable system that is not a participant, provided that orders of transfer have been introduced into the system, in accordance with the rules of operation of the interoperable system, prior to the commencement of the insolvency proceedings.
When orders of transfer are introduced into a system after the commencement of the insolvency proceedings and are executed on the working day, as defined by the operating rules of the system, during which the insolvency proceedings are opened, they are valid and enforceable to third parties only provided that the system operator can establish that, at the time these orders of transfer have become irrevocable, he had no knowledge
§ 2. The compensation referred to in paragraph 1 shall not be questioned by the effect of the Act of 31 January 2009 on business continuity or the Act of 8 August 1997 on bankruptcy or by any law, regulation, provision or practice of Belgian or foreign law providing for the nullity of contracts and transactions entered into before the commencement of insolvency proceedings.
§ 3. In the case of interoperable systems, each system determines in its own rules the time of introduction into its system to ensure, to the extent possible, coordination between the rules of all interoperable systems concerned. Unless otherwise expressly provided by the operating rules of all systems that are part of the interoperable systems, the rules relating to the time of introduction specific to a system are not affected by any rule of the other systems with which it is interoperable.
§ 4. Notwithstanding the commencement of insolvency proceedings against a participant in a system or operator of an interoperable system that is not a participant, the operator of the system or the regulatory body may, if the applicable contractual provisions permit:
- debit the payment account of the participant or operator of an interoperable system in default of performing its obligations, in particular for the purpose of clearing the debt balance of the interoperable system after compensation and thus allowing the final settlement of the system;
- to take the cash or securities required for the performance of the obligations of the participant or operator of an interoperable system, in particular with respect to the performance of the debt balance of the participant or operator of an interoperable system in default of use of the opening of credit (including a loan of financial instruments) eventually consented to the participant or operator of an interoperable system
§ 5. If the rules of a system provide for the irrevocability of transfer orders, this irrevocability is required in any case to the policy-holder or to a third party. In the case of interoperable systems, each system determines in its own rules the moment of irrevocability, in order to ensure, to the extent possible, coordination between the rules of all interoperable systems concerned. Unless otherwise expressly provided in the rules of all systems that are parties to interoperable systems, the rules relating to the time of irrevocability specific to a system are not affected by any rule of other systems with which it is interoperable. "
Art. 7. Section 4 of the Act, as amended by the Royal Decree of 19 December 2010, is repealed.
Art. 8. In section 5 of the Act, as amended by the Royal Decree of 19 December 2010, the following amendments are made:
1° to § 1^er, the words "and § 3" are repealed and the words "or by citation of the King's Prosecutor" are replaced by the words "or, when it is a procedure of judicial reorganization by transfer under the authority of justice, by one of the persons listed under section 59 of the Act of 31 January 2009 on business continuity";
2° to § 2, the words "Article 2, § 3" are replaced by the words "Article 1^er/1, 7°";
3° in § 3, the words "financial referred to in Article 2, § 2 of this Law" are repealed.
Art. 9. Section 6 of the Act is replaced by the following:
"Art. 6. Insolvency proceedings may not have, on the rights and obligations of a participant arising from the participation of a participant in a system or related to that participation, retroactive effect over the commencement of insolvency proceedings. This provision is also applicable to an interoperable system participant and an interoperable system operator who is not a participant."
Art. 10. In section 7 of the Act, the following amendments are made:
1° at the beginning of § 2, the words "Without prejudice to Article 8, § 2" are added;
2° § 3 is repealed.
Art. 11. Section 8 of the Act, as amended by the Act of 14 December 2005, is replaced by the following:
Article 8. § 1^er. The rights of a system operator or participant on the guarantees constituted in his or her favour in the context of an interoperable system or system and the rights of the central banks of the Member States or the European Central Bank on the guarantees constituted in their favour are not affected by a measure of seizure or sequester against them or by a procedure of insolvency against the participant in the central system concerned or by an interoperable system
Such guarantees may be made to fulfil these rights.
§ 2. Where securities, including rights relating to the issue or restitution of securities otherwise held, are guaranteed in favour of participants, system operators or central banks of the Member States or of the European Central Bank, and that their right, or that of any agent, agent or third party acting on their behalf, in respect of securities is legally registered in a register, account or in a centralized deposit system of any matter listed in §
§ 3. The elements referred to in § 2 are: (1) the legal nature and the heritage effects of the guarantee; (2) any requirements relating to the formalities necessary to make such a guarantee enforceable to third parties; (3) the competition between competing rights and whether a good-faith acquisition has taken place; (4) any conditions required for the performance of the guarantee.
§ 4. A guarantee within the meaning of this Article is any guarantee, any transaction of transfer-retrocession or transfer of ownership as a guarantee, or any other form of similar guarantee or any special privilege relating to achievable assets (including cash and receivables), organized by Belgian law or by a foreign law, with the aim of guaranteeing rights and obligations that may arise within the framework of a system, or provided to the central banks of the Member States of the European Union. "
Art. 12. Section 9 of the Act, as amended by the Act of 14 December 2005, is replaced by the following:
"Art. 9. Any settlement account with the operator or regulatory body of the system used for the deposit of funds, as well as any transfer of funds, to the intervention of a Belgian or foreign credit institution, to be carried to such a settlement account, may not be seized, sequestered or otherwise blocked by a participant, counterparty or a third party other than the operator or the system's regulatory body. "
Art. 13. In the same Act, an article 10 is inserted as follows:
"Art. 10. A system designated prior to the entry into force of national provisions implementing Directive 2009/44/EC of the European Parliament and the Council of 6 May 2009 amending Directive 98/26/EC on the finality of the regulation in securities payment and settlement systems and Directive 2002/47/EC on financial guarantee contracts, with respect to related systems and private receivables, continues to be designated for the purposes of this Act."
CHAPTER 3. - Amendments to the Financial Security Act of 15 December 2004 with various final provisions in respect of security agreements and loans relating to financial instruments
Art. 14. In section 3 of the Act of 15 December 2004 on financial security rights with various final provisions relating to conventions constitutive of security rights and loans relating to financial instruments, as amended by the Royal Decree of 19 December 2010, the following amendments are made:
1° to 1°, the words "a financial instrument within the meaning of Article 2, 1°, of the Act of 2 August 2002 on the supervision of the financial sector and financial services" are replaced by the words "the categories of instruments referred to in Article 2, 1°, of the Act of 2 August 2002 on the supervision of the financial sector and financial services, whether or not they are negotiable in the capital market";
2° to 9°, the words "bank accounts" are inserted between the words "financial instruments" and the word "or";
3° it is added a 10° written as follows:
"10° "bank accounts": monetary claims arising from an agreement under which:
- a credit institution as defined by the Act of 22 March 1993 relating to the status and control of credit institutions or an entity referred to in Article 2, § 1^er1°, the same law;
- a mortgage credit company within the meaning of the Mortgage Credit Act of 4 August 1992;
- a person or company that consents credits referred to in section 1^er4° of the Act of 12 June 1991 on consumer credit;
- any other foreign legal entity that belongs in its country of origin to one of the above categories;
consents to a loan or credit. ";
4° it is inserted an 11° written as follows:
"11° public or financial entity" :
(a) a credit institution within the meaning of the Act of 22 March 1993 relating to the status and control of credit institutions;
(b) an investment company within the meaning of the Act of 6 April 1995 relating to the status and control of investment enterprises;
(c) an insurance company within the meaning of the Act of 9 July 1975 on the control of insurance companies;
(d) a collective investment organization management corporation within the meaning of Part III of the Act of 20 July 2004 on certain forms of collective investment portfolio management;
(e) a collective investment organization within the meaning of Part II of the Act of 20 July 2004 on certain forms of collective investment portfolio management;
(f) a central counterparty, regulatory body and compensation board within the meaning of Act 28 April 1999 to transpose Directive 98/26/EC of 19 May 1998 on the final character of the settlement in the payment and settlement systems of securities transactions;
(g) a financial institution within the meaning of this Act;
(h) a Belgian or foreign legal entity referred to in Article 5 acting on its own behalf but on behalf of the beneficiaries of security rights;
(i) a public authority (with the exception of enterprises with a state guarantee), including public sector organizations responsible for the management of public debt or involved in public debt and public sector organizations authorized to hold accounts for their clients;
(j) the National Bank of Belgium, the European Central Bank, the Bank of International Settlements, a multilateral development bank as defined in Annex VI, Part 1^re, section 4, of the Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 on access to the activity of credit institutions and its exercise, the International Monetary Fund and the European Investment Bank;
(k) any other foreign legal entity that belongs in its country of origin to any of the categories referred to in Article 1.2 (a) to (d) included in the Directive 2002/47/EC of the European Parliament and the Council of 2 June 2002 concerning financial guarantee contracts; ";
5° it is added a 12° written as follows:
"12° "financial establishment": a business that is not a credit institution and whose main activity consists in the acquisition of participations or the exercise of one or more of the activities mentioned in items 2 to 12 included in section 3, paragraph 2, of the Act of March 22, 1993 relating to the status and control of credit institutions, including:
(a) a mortgage credit company within the meaning of the Mortgage Credit Act of 4 August 1992;
(b) a consumer credit company within the meaning of the Consumer Credit Act of 12 June 1991;
(c) a leasing or leasing company within the meaning of Royal Decree No. 55 of 10 November 1967 organizing the legal status of the leasing-financing enterprises;
(d) a payment institution or an electronic currency institution within the meaning of the Act of 21 December 2009 relating to the status of payment institutions and electronic currency institutions, access to the activity of payment service provider, electronic currency issuance activity and access to payment systems
Art. 15. Article 4, § 1^erthe following amendments are made to the Act:
1st paragraph 1^er is completed by a 3° written as follows:
"3° or on bank receivables pledged or transferred by contract for the benefit of the beneficiary of the guarantee or the person acting on his behalf";
2° in paragraph 2, the words "and 2°" are repealed;
3° § 1^er is supplemented by a paragraph written as follows: "For the purposes of paragraph 1^er, 2° and 3°, it is sufficient that the species or bank debt are sufficiently determined or determinable under the constitutive security agreement. ";
4° a § 3 is inserted as follows:
"§3. Sections 9, 9/1, 14 and 15 of this Act may not be invoked in the following cases unless the creditor is entitled to a default:
(a) whatever the nature of the creditors, at the time of application or commencement of a procedure for judicial reorganization of a person other than those referred to in Article 3, 11° of this Act, during the period of such proceedings;
(b) by a creditor who is a person other than those referred to in Article 3, 11° of this Act, upon request or commencement of a judicial reorganization procedure of a public or financial legal person, during the period of such proceedings.
The first paragraph does not apply:
(a) where the creditor presuming compensation or innovation on the basis of a netting agreement does not also preclude a resolute clause, a resolute condition, or terms and conditions of termination of the term specified to allow for the innovation or compensation;
(b) in the event of a real-life security agreement referred to in sections 8, 12 and 13 of this Act and in respect of any recourse in this context to a netting agreement or to the resolute or deferred terms and conditions of the term specified in order to permit innovation or compensation;
(c) to security rights, netting conventions and resolute clauses and conditions or termination of the term stipulated in order to allow innovation or compensation, when concluded with respect to derivatives or other financial transactions as described by the King in an order in concert with the National Bank of Belgium. In drafting this list of types of operations, the King takes into account the interest of the mechanisms referred to in the first paragraph for the normal operation of the transactions concerned and for the markets in which they are used and more generally, Belgian and international market practices. ";
5° a § 4 is inserted as follows:
§ 4. When the King stops an act of disposition within the meaning of Article 26bis, § 1^er, the Act of 9 July 1975 on the Control of Insurance Companies, Article 57bis, § 1^erthe Act of 22 March 1993 relating to the Status and Control of Credit Institutions or Article 23 bis, § 1^er, of the Financial Sector Supervision and Financial Services Act of 2 August 2002, sections 9, 9/1, 14 and 15 of this Act may not be invoked by contracting parties other than those referred to in section 3, 11 of this Act, unless the contracting parties may avail themselves of a default of payment.
The first paragraph does not apply:
(a) where the creditor presuming compensation or innovation on the basis of a netting agreement does not also preclude a resolute clause, a resolute condition, or terms and conditions of termination of the term specified to allow for the innovation or compensation;
(b) in the event of a real-life security agreement referred to in sections 8, 12 and 13 of this Act and in respect of any recourse in this context to a netting agreement or to the resolute or deferred terms and conditions of the term specified in order to permit innovation or compensation;
(c) to security rights, netting conventions and resolute clauses and conditions or termination of the term stipulated in order to allow innovation or compensation, when concluded with respect to derivatives or other financial transactions as described by the King in an order in concert with the National Bank of Belgium. In drafting this list of types of operations, the King takes into account the interest of the mechanisms referred to in the first paragraph for the normal operation of the transactions concerned and for the markets in which they are used and more generally, Belgian and international market practices. "
Art. 16. In the same Act, an article 4/1 is inserted as follows:
"Art. 4/1. § 1^er. Where a bank debt secured by a mortgage or by a lien on a building is pledged or transferred by contract pursuant to this Act, sections 5 and 92, paragraph 3, of the Mortgage Act of 16 December 1851 do not apply to the lease or assignment. The secured debtor of the receivable or the assignor is required to provide, at the request of third parties, the necessary information regarding the identity of the holder of the lease or the assignee.
§ 2. Subject to section 27 of the Consumer Credit Act of 12 June 1991 and section 74 of the Act of 6 April 2010 relating to market practices and consumer protection, debtors of a bank receivable subject to a pledge or assignment may, in writing or by any legally equivalent means, waive:
- their rights of compensation in respect of the holders of bank accounts and in respect of the persons in favour of whom the holder has made a pledge, assignment or any other mobilization of the secured bank receivable;
- their rights arising out of possible banking secrecy rules which, if not, would prevent or restrict the ability of the holder of the bank debt to provide information on the bank debt or on the debtor for the purpose of using the bank debt as a guarantee. "
Art. 17. In Article 7 of the Act, § 2 is replaced by the following:
"§2. Marginal appeals and equivalent financial instruments, cash or bank receivables substituted in the course of a contract to the assets initially constituting the plate follow the same regime as those assets initially issued as pledges. In the case of bank accounts, the grantor's right to collect the product does not affect the guarantee made to the benefit of the beneficiary. "
Art. 18. In the same Act, an article 9/1 is inserted as follows:
"Art. 9/1. § 1^er. Unless otherwise stipulated by the parties, in the event of failure to perform, notwithstanding insolvency proceedings, the seizure or any situation of competition between creditors of the debtor or of the third party constituting the pledge, the creditor shall be entitled to make, without notice or prior judicial decision, any bank claims subject to the pledge, as soon as possible. The proceeds of realization of these bank receivables are charged, in accordance with Article 1254 of the Civil Code, with respect to the principal, interest and expenses of the secured creditor. The potential balance shall be paid to the secured debtor or, as the case may be, to the third party of the pledge.
§ 2. Without prejudice to § 1^er, to the extent that the parties have agreed to this agreement and that this agreement specifies the terms and conditions, in particular with regard to the valuation of bank receivables given in pledges, the creditor shall, in the event of default of execution, be authorized to appropriate, without formal notice or prior judicial decision, the bank receivables given in pledges notwithstanding insolvency proceedings, the seizure or any situation of competition between the creditors of the debtor or any other creditors of the debtor. The amount resulting from the valuation of bank claims in pledge is charged, in accordance with Article 1254 of the Civil Code, on the principal receivable, interest and expenses of the creditor. The potential balance shall be paid to the secured debtor or, as the case may be, to the third party of the pledge.
§ 3. §§ 1^er and 2 shall not prejudice the possibility for courts and tribunals to subsequently monitor the conditions for the realization of bank claims in pledge or the valuation of such bank accounts or the amount of the secured debt. "
Art. 19. In section 12 of the Act, the following amendments are made:
1° § 1^er is replaced by the following:
§ 1^er. Section 1328 and the provisions of Book III, Title XVII of the Civil Code, together with the provisions of Book I, Title VI of the Commercial Code, are not applicable to transfers of ownership of financial instruments, cash or bank receivables with a view to guaranteeing commitments, which include a commitment of the assignee to surrender the financial instruments, cash or bank receivables assigned, or instruments or securities guaranteed in part, unless
The same is true of the margin appeals as well as the substitution in the course of contract of new financial instruments, other cash or bank receivables to the assets initially assigned."
2° in § 3, the words "or bank accounts" are inserted between the words "the amount of the species" and the words "or value".
Art. 20. In the same Act, section 14, whose current text will form paragraph 1^er, is supplemented by paragraph 2, as follows:
"§2. § 1^er This section does not apply to netting conventions as well as to resolute or deferred terms and conditions of the term specified to allow for innovation or compensation, concluded between or with non-marketing natural persons.
§ 1^er of this article, however, remains an application with respect to netting conventions as well as resolute or deferred terms and conditions of the term stipulated to allow the innovation or compensation that was concluded at a time when the natural person had the quality of a merchant provided that the innovation or compensation carries on at least a debt born at a time when the natural person was a merchant.
Paragraph 1^er of this paragraph shall not prejudice the right of imputation on the secured receivable as part of the realization of a security agreement. "
Art. 21. In Article 15 of the same Law, a § 3 is inserted as follows:
"§3. §§ 1^er and 2 of this Article shall not apply to the netting conventions as well as to the resolute or deferred terms and conditions of the term stipulated to allow for innovation or compensation, concluded between or with non-marketing natural persons.
§ 1^er of this article, however, remains an application with respect to netting conventions as well as resolute or deferred terms and conditions of the term stipulated to allow the innovation or compensation that was concluded at a time when the natural person had the quality of a merchant provided that the innovation or compensation carries on at least a debt born at a time when the natural person was a merchant.
Paragraph 1^er of this paragraph shall not prejudice the right of imputation on the secured receivable as part of the realization of a security agreement. "
CHAPTER 4. - Amendments to the Act of 31 January 2009 on business continuity
Art. 22. Section 34 of the Business Continuity Act of January 31, 2009 is replaced by the following:
"Art. 34. Compensation is permitted during the stay between overstitlings and receivables arising during the stay only if these claims are related. "
Art. 23. In section 49, paragraph 3, of the Act, the words "no claims that may be compensated under a convention prior to the commencement of reorganization proceedings" are repealed.
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 in Brussels on 26 September 2011.
ALBERT
By the King:
Deputy Prime Minister and Minister of Finance and Institutional Reforms,
D. REYNDERS
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
References to parliamentary work to be resumed during the publication of the law in the Belgian Monitor
Room: Doc K. 53 1714/(2010/2011):
001: Bill
002: Amendments
003: Report.
004: Text adopted by the commission.
See also:
Full record:
13 September 2011.
Senate: S. 5-1218/2.