Act Intended To Transpose Various Guidelines For The Supervision Of The Financial Sector And Laying Down Various Provisions (1)

Original Language Title: Loi visant à transposer diverses directives relatives au contrôle du secteur financier et portant dispositions diverses (1)

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belgiquelex.be - Carrefour Bank of Legislation

28 JULY 2011. - Act to transpose various financial sector control directives and other provisions (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1. - Introductory provisions
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act provides, inter alia, for the transposition of Directive 2009/111/EC of the European Parliament and of the Council of 16 September 2009 amending Directives 2006/48/EC, 2006/49/EC and 2007/64/EC with regard to banks affiliated with central institutions, certain elements of equity, major risks, arrangements for surveillance and crisis management, as well as the partial transfer of Directive 2010/76/EU of the European Parliament and the Council amending Directives 2006/48/EC It also finalizes the transfer of articles 3 and 4 of Directive 2006/46/EC of the European Parliament and of the Council of 14 June 2006 amending Council directives 78/660/EEC on the annual accounts of certain forms of companies, 83/349/EEC on consolidated accounts, 86/635/EEC on the annual accounts and consolidated accounts of banks and other financial institutions, and 91/674/EEC on the annual accounts and consolidated accounts of insurance companies.
CHAPTER 2. - Amendments to the Act of 9 July 1975 on the control of insurance companies
Art. 3. Article 96, § 1er, of the Act of 9 July 1975 on the Control of Insurance Companies, replaced by the Act of 27 October 2006, is supplemented by three paragraphs as follows:
"The directors or managers shall be jointly and severally liable, either to the corporation or to the third parties, for any damages resulting from breaches of the provisions made pursuant to paragraph 1er1°.
Paragraph 4 is also applicable to members of the steering committee.
With respect to the offences to which they have not taken part, directors, managers and members of the steering committee shall be discharged from the liability referred to in paragraphs 4 and 5 only if no fault is attributable to them and if they have denounced these offences as the case may be, at the first general meeting or at the first session of the board of directors following the time they were aware of them. »
CHAPTER 3. - Amendments to the Act of 22 March 1993 on the Status and Control of Credit Institutions
Art. 4. Article 3, § 1er, of the Act of 22 March 1993 on the Status and Control of Credit Institutions, last amended by the Royal Decree of 3 March 2011, is supplemented by a 19th written as follows:
"19° by consolidated supervisor: the competent authority responsible for the consolidated monitoring of parent credit institutions in the European Union and credit institutions controlled by parent financial companies in the European Union. »
Art. 5. In section 20 of the Act, replaced by the Act of 15 May 2007 and last amended by the Royal Decree of 3 March 2011, the following amendments are made:
Paragraph 2, paragraph 1er, the words "and procedures" are replaced by the words "of procedures", and the words "or intends to exercise" are replaced by the words "or intends to exercise; compensation policies and practices that enable and promote sound and effective risk management";
2° in paragraph 2, paragraphs 2 to 7 form a new paragraph 2bis;
3° a paragraph 2ter is inserted as follows:
§ 2ter. Credit institutions are a compensation committee within their legal body of administration. The compensation committee is composed of non-executive members of the legal body of administration. At least one member of the compensation committee is an independent member of the legal body of administration within the meaning of section 526ter of the Corporate Code. The compensation committee is composed in such a way that it can exercise a competent and independent judgment on compensation policies and practices and on incentives created for risk management, equity and liquidity.
The annual report of the legal body of administration justifies the individual and collective competence required of the members of the compensation committee.
In credit institutions that are not of significant importance because of their internal organization or because of the nature, scope and complexity of their activities and that meet at least two of the following three criteria:
(a) average number of employees less than 250 people over the entire year concerned;
(b) total balance sheet less than or equal to 43.000.000 euros;
(c) annual net turnover less than or equal to 50.000.000 euros,
the establishment of a compensation committee within the legal body of administration is not mandatory, but the functions assigned to the compensation committee must then be exercised by the legal body of administration as a whole, provided that, when the chair of that body is an executive member, it does not preside over the legal body of administration when the body acts as a compensation committee. Is presumed to be an executive member of the legal body of administration, among other things, any director who is a member of the steering committee referred to in section 26, any administrator who has been delegated daily management within the meaning of section 525 of the Corporate Code and any member of a management college of a LPD.
As long as a compensation committee whose powers extend to the whole group and meeting the requirements of this Act has been established, the Bank may, in respect of credit institutions that are subsidiary or sub-partners of a joint financial company, an insurance company, a financial company, another credit institution, an insurance company, a reinsurance company
The above provisions do not prejudice the provisions of the Corporations Code relating to the compensation committee of companies whose shares are admitted to trading in a market referred to in Article 4 of the Code. »;
4° in paragraph 4, the words “§§ 1er, 2 and 3 are replaced by the words “§§ 1er 3";
5° paragraph 4 is supplemented by the words ", and develop more precise rules in accordance with European legislation. »;
6° in paragraph 5, paragraph 1erthe words “§ 1er, 2 and 3 are replaced by the words “§§ 1er 3";
7° in paragraph 5, a paragraph is inserted between paragraphs 4 and 5:
"The Compensation Committee is responsible for preparing compensation decisions, including those that have an impact on risk and risk management in the credit establishment concerned and that the management body is required to stop in the exercise of its oversight function. In preparing these decisions, the compensation committee shall take into account the long-term interests of the shareholders, investors and other stakeholders of the credit institution. »;
8° in paragraph 5, former paragraph 5, becoming paragraph 6, the words "§§ 1er, 2 and 3 are replaced by the words “§§ 1er to 3".
Art. 6. In the same Act, an article 20ter is inserted as follows:
"Art. 20ter. § 1er. The Bank determines the minimum information that credit institutions are required to publish in respect of creditworthiness, liquidity, risk concentration and other risk positions, their own fund requirements policy by reference to the requirements of section 43, and their compensation policy referred to in section 20, § 2, paragraph 1erFine. It also defines the minimum frequency and modalities for the publication of this information.
§ 2. Credit institutions provide the necessary rules and procedures to comply with the publication requirements set out in § 1er. They assess the adequacy of their publication measures, including the control of published data and the frequency of publication.
§ 3. Credit institutions provide the necessary rules and procedures to assess whether the information they publish on their organization, their financial situation and the state of their risks provide market actors with complete information on their risk profile.
§ 4. The regulations referred to in this Article shall be taken in accordance with Article 12bis, § 2, of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium.
§ 5. In special cases, the Bank may authorize, within the limits of European legislation, exemptions from the provisions of the regulations made under this article. "
Art. 7. In section 43 of the Act, replaced by the Act of 15 May 2007, subsection 4 is repealed.
Art. 8. In section 44 of the Act, amended by the Act of 15 May 2007 and by the Royal Decree of 3 March 2011, three sub-items are inserted between paragraphs 4 and 5:
"The directors or managers shall be jointly and severally liable, either to the corporation or to the third parties, for any damages arising from breaches of the provisions made pursuant to paragraph 4.
Paragraph 5 is also applicable to members of the steering committee.
With respect to the offences to which they have not taken part, directors, managers and members of the steering committee are not discharged from the responsibility referred to in paragraphs 5 and 6 only if they are not responsible for any misconduct and if they have denounced these offences as the case may be, at the first general meeting or at the first session of the board of directors following the time they were aware of them. "
Art. 9. In section 46, paragraph 2, of the same law, inserted by the law of 15 May 2007 and last amended by the Royal Decree of 3 March 2011, the words "in section 20" are replaced by the words "in sections 20 and 20 bis".
Art. 10. In section 49 of the Act, amended by the Acts of 2 August 2002, 19 November 2004, 20 June 2005 and 15 May 2007 and by the Royal Decree of 3 March 2011, the following amendments are made:
1° in paragraph 2, paragraph 3, the words "The standards and obligations provided for in Article 43, §§ 1er to 4" are replaced by the words "The standards and obligations set out in articles 20ter and 43, §§ 1er 3, ";
2° a paragraph 5bis is inserted as follows:
Ҥ 5bis. The competent authorities of the host Member State may request the Bank, in its capacity as a consolidated supervisor or in its capacity as the competent authority of the Member State of origin, that a branch of a credit institution be considered to be of significant importance.
This application sets out the grounds for considering that the branch is of significant importance, including the following:
(a) the fact that the market share of that branch in terms of deposits is greater than 2% in the host Member State;
(b) the likely impact of a suspension or termination of the operations of the credit facility on the liquidity of the market and the systems of payment, settlement and compensation in the host Member State; and
(c) the size and importance of the branch from the point of view of the number of customers, in the context of the banking or financial system of the host Member State.
The competent authorities of the Member State of origin and of the Member State of host, as well as, where appropriate, the Supervisor on a consolidated basis, do everything in their power to arrive at a joint decision on the designation of a branch as a branch of significant importance.
If no joint decision is issued within two months of receipt of the application, the Bank must accept the decisions made, within a further two months, by the competent authorities of the host Member State, as to whether the branch has a significant significance.
The above-mentioned decisions taken by the Bank in its capacity as a consolidated supervisor or in its capacity as the competent authority of the Member State of origin are presented in a document in a duly motivated manner and are transmitted to the relevant authorities; They are recognized as determinants and are applied by the competent authorities in the Member States concerned. »;
3° a paragraph 5ter is inserted as follows:
§ 5ter. If the Bank is the consolidated base supervisor, it establishes colleges of supervisory authorities to facilitate the control of subsidiaries and branches of significant importance, and ensures appropriate coordination and cooperation with the competent authorities of the third countries concerned. »;
4°, a paragraph 5quater is inserted as follows:
§ 5quater. If the Bank is the authority responsible for the control of a subsidiary of a parent credit institution in the European Union or a parent financial company in the European Union, or for the control, as a result of an application as referred to in Article 73, § 3, of a branch of significant importance of a credit institution under the right of another member State of the competent European Economic Area, it may participate in a college of the competent authority »
Art. 11. Article 57, § 1er, paragraph 2, of the Act, amended by the Act of 15 May 2007 and by the Royal Decree of 3 March 2011, a 1°ter is inserted as follows:
"1°ter require credit institutions that they limit variable remuneration to a percentage of the total net operating results when this pay is not compatible with the maintenance of solid equity, or that they affect their net profits to the strengthening of their own funds; "
Art. 12. In the same law, an article 70bis is inserted as follows:
"Art. 70bis. The executives of the branch report at least once a year to the Bank and the approved reviewer or the approved reviewer company on compliance with the provisions of sections 68, 69 and 70 and on the appropriate measures taken. "
Art. 13. Section 73 of the Act, as amended by the Royal Decree of 3 March 2011, is supplemented by a paragraph 4, which reads as follows:
“§4. The Bank may request the competent consolidated supervisor or the competent authority of the original Member State that a branch of a credit institution be considered to be of significant importance within the meaning of Article 49, § 5bis. »
Art. 14. Article 74, § 2, paragraph 1er, in the same Act, last amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° to 1°, the words "articles 68, 69, 71 and 72" are replaced by the words "articles 68, 69 and 70";
2° at, 3°, the words "regular reports or" are deleted.
Art. 15. In section 79 of the Act, amended by the Act of 16 June 2006 and by the Royal Decree of 3 March 2011, the following amendments are made:
1° in paragraph 1erParagraph 1er5°, the word "20" is replaced by the word "20bis";
2° in paragraph 1er, paragraph 2, the words "and 5°" are deleted;
3° paragraph 1er is supplemented by a paragraph that reads as follows:
"With respect to paragraph 1er, 5°, the reference to section 17 applies to the credit institution of which the branch reports. The reference to articles 18 to 20bis applies to the branch established in Belgium. »
CHAPTER 4. - Amendments to the Act of 6 April 1995 on the Status and Control of Investment Businesses
Art. 16. Section 46 of the Act of 6 April 1995 on the Status and Control of Investment Companies, last amended by the Royal Decree of 3 March 2011, is supplemented by a 45° written as follows:
"45° by consolidated supervisor: the competent authority responsible for the consolidated monitoring of parent investment companies in the European Union and investment companies controlled by parent financial companies in the European Union. »
Art. 17. Section 53 of the Act, last amended by the Royal Decree of 3 March 2011, is supplemented by a paragraph 5, which reads as follows:
"To the list is annexed the mention of the Belgian financial companies defined in Article 95, § 1erTwo. »
Art. 18. In section 62 of the Act, last amended by the Royal Decree of 3 March 2011, the following amendments are made:
1° in paragraph 2, paragraph 1er, the words "and procedures" are replaced by the words "of procedures", and the words "or intends to exercise" are replaced by the words "or intends to exercise; compensation policies and practices that enable and promote sound and effective risk management";
2° in paragraph 2, paragraphs 2 to 7 form a new paragraph 2bis;
3° a paragraph 2ter is inserted as follows:
§ 2ter. Investment companies are a compensation committee within their legal body of administration. The compensation committee is composed of non-executive members of the legal body of administration. At least one member of the compensation committee is an independent member of the legal body of administration within the meaning of section 526ter of the Corporate Code. The compensation committee is composed in such a way that it can exercise a competent and independent judgment on compensation policies and practices and on incentives created for risk management, equity and liquidity.
The annual report of the legal body of administration justifies the individual and collective competence required of the members of the compensation committee.
Exempt from the requirement to have a compensation committee investment companies that are not of significant importance because of their internal organization or because of the nature, scope and complexity of their activities and that meet at least two of the following three criteria:
(a) average number of employees less than 250 people over the entire year concerned;
(b) total balance sheet less than or equal to 43.000.000 euros;
(c) annual net turnover less than or equal to 50.000.000 euros.
As long as a compensation committee whose powers extend to the whole group and meeting the requirements of this Act has been established, the supervisory authority may, in respect of the investment undertakings that are subsidiary or sub-sidiary of a mixed financial company, an insurance company, a financial company, a credit institution, a re-insurance company, an insurance company
The above provisions do not prejudice the provisions of the Code of Societies relating to the compensation committee of companies whose shares are admitted to trading in a market referred to in Article 4 of the Code. »;
4° in paragraph 4, the words “§§ 1er, 2 and 3 are replaced by the words “§§ 1er 3";
5° paragraph 4 is supplemented by the words ", and develop more precise rules in accordance with European legislation. »;
6° in paragraph 5, paragraph 1erthe words “§ 1er, 2 and 3 are replaced by the words “§§ 1er 3";
7° in paragraph 5, a paragraph is inserted between paragraphs 4 and 5:
"The compensation committee is responsible for preparing compensation decisions, including those that have an impact on risk and risk management in the relevant investment company and that the executive body is called upon to stop in the exercise of its oversight function. In preparing these decisions, the compensation committee takes into account the long-term interests of the shareholders, investors and other stakeholders of the investment company. »;
8° in paragraph 5, former paragraph 5, becoming paragraph 6, the words "§§ 1er, 2 and 3 are replaced by the words “§§ 1er to 3".
Art. 19. In the same Act, an article 62ter is inserted as follows:
"Art. 62ter. § 1er. The supervisory authority shall determine the minimum information that investment companies must publish in respect of creditworthiness, liquidity, concentration of risks and other risk positions, their policy of equity needs by reference to the requirements set out in Article 90 and their compensation policy referred to in Article 62, § 2, paragraph 1erFine. It also defines the minimum frequency and modalities for the publication of this information.
§ 2. Investment companies provide the necessary rules and procedures to comply with the publication requirements set out in § 1er. They assess the adequacy of their publication measures, including the control of published data and the frequency of publication.
§ 3. Investment companies provide the necessary rules and procedures to assess whether the information they publish on their organization, their financial situation and the state of their risks provide market players with complete information on their risk profile.
§ 4. The regulations referred to in this section shall be taken, as the case may be, in accordance with Article 64 of the Act of 2 August 2002 or in accordance with Article 12bis, § 2, of the Act of 22 February 1998.
§ 5. The supervisory authority may, in special cases, authorize, within the limits of European legislation, derogations from the provisions of the regulations made under this article. »
Art. 20. In section 90 of the Act, replaced by the Act of 15 May 2007 and amended by the Royal Decree of 3 March 2011, subsection 4 is repealed.
Art. 21. In section 91 of the Act, as amended by the Act of 15 May 2007 and the Royal Decree of 3 March 2011, three paragraphs written as follows are inserted between paragraphs 3 and 4:
"The directors or managers shall be jointly and severally liable, either to the corporation or to the third parties, for any damages arising from breaches of the provisions made pursuant to paragraph 3.
Paragraph 4 is also applicable to members of the steering committee.
With respect to the offences to which they have not taken part, directors, managers and members of the steering committee shall be discharged from the liability referred to in paragraphs 4 and 5 only if no fault is attributable to them and if they have denounced these offences as the case may be, at the first general meeting or at the first session of the board of directors following the time they were aware of them. »
Art. 22. In section 92, § 3, of the same law, as amended by the Royal Decree of 3 March 2011, the words "in section 62" are replaced by the words "in sections 62 and 62 bis".
Art. 23. In section 95 of the Act, amended by the Acts of 20 June 2005 and 15 May 2007 and the Royal Decree of 3 March 2011, the following amendments are made:
1° in paragraph 2, paragraph 3, the words "The standards and obligations provided for in Article 90, §§ 1er to 4" are replaced by the words "The standards and obligations set out in articles 62ter and 90, §§ 1er 3, ";
2° a paragraph 5bis is inserted as follows:
Ҥ 5bis. The competent authorities of the host Member State may request the supervisory authority, in its capacity as a consolidated supervisor or in its capacity as the competent authority of the Member State of origin, that a branch of an investment company be considered to be of significant importance.
This application sets out the grounds for considering that the branch is of significant importance, including the following:
(a) the likely impact of a suspension or termination of the investment company's operations on market liquidity and systems of payment, settlement and compensation in the host Member State; and
(b) the size and importance of the branch from the point of view of the number of clients, in the context of the financial system of the host Member State.
The competent authorities of the Member State of origin and of the Member State of host, as well as, where appropriate, the Supervisor on a consolidated basis, do everything in their power to arrive at a joint decision on the designation of a branch as a branch of significant importance.
If no joint decision is reached within two months of receipt of the application, the supervisory authority must accept the decisions made, within a further two months, by the competent authorities of the host Member State, as to whether the branch has a significant significance.
The above-mentioned decisions taken by the supervisory authority in its capacity as a consolidated-based supervisor or as a competent authority of the member State of origin, are presented in a document in a duly substantiated manner and are transmitted to the competent authorities concerned; They are recognized as determinants and are applied by the competent authorities in the Member States concerned. »;
3° a paragraph 5ter is inserted as follows:
§ 5ter. If the supervisory authority is the consolidated base supervisor, it shall establish colleges of the supervisory authorities to facilitate the control of subsidiaries and branches of significant importance and ensure adequate coordination and collaboration with the relevant authorities of third countries. »;
4°, a paragraph 5quater is inserted as follows:
§ 5quater. If the supervisory authority is the authority responsible for the control of a subsidiary of a parent investment company in the European Union or a parent financial company in the European Union, or for the control, as a result of a request as referred to in Article 9, § 3, of the royal decree of 20 December 1995 relating to foreign investment companies, of a branch of significant importance of an investment company of another member state »
Art. 24. In Article 104, § 1erParagraph 1er, of the same law, last amended by the Royal Decree of 3 March 2011, it is inserted a 1°ter written as follows:
"1°ter require investment companies to limit variable remuneration to a percentage of the total net operating results when this remuneration is not compatible with the maintenance of solid equity, or that they affect their net profits to the strengthening of their own funds. »
CHAPTER 5. - Amendments to the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium
Art. 25. Article 36/2 of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium, inserted by the Royal Decree of 3 March 2011, is supplemented by three paragraphs as follows:
"In carrying out its functions, the Bank, in its capacity as a competent prudential authority, takes into account the convergence of monitoring tools and monitoring practices in the application of the legislative, regulatory and administrative obligations imposed in accordance with applicable European directives.
For this purpose:
(a) participate in the activities of the European Banking Authority;
(b) comply with the guidelines, recommendations, standards and other measures agreed upon by the European Banking Authority and, if not, give reasons.
In carrying out its general missions, the Bank, in its capacity as a competent prudential authority, takes due account of the potential impact of its decisions on the stability of the financial system in all other Member States concerned and, in particular, in emergency situations, based on the information available at the time. »
Art. 26. Article 36/14, § 1er, 1°, of the same law, inserted by the Royal Decree of 3 March 2011, is replaced by the following:
"1° to the European Central Bank and other central banks and similar bodies in their capacity as monetary authorities when this information is relevant to the exercise of their respective legal missions, including the conduct of monetary policy and the provision of related liquidity, the monitoring of payment, compensation and settlement systems, as well as the safeguarding of the stability of the financial system, as well as other public authorities responsible for the monitoring of payment systems.
When an emergency occurs, including an unfavourable evolution of the financial markets, which may threaten the liquidity of the market and the stability of the financial system in a Member State in which entities of a group including credit institutions or investment companies have been approved or in which branches of significant importance are established within the meaning of Article 49, §§ 5bis and 5ter, of the law of 22 March 1993 relating to the status and
In the event of an emergency situation as described above, the Bank may disclose, in all Member States concerned, information that is of interest to the central departments responsible for the legislation relating to the monitoring of credit institutions, financial institutions, investment services and insurance companies; "
CHAPTER 6. - Amendments to the Financial Sector Supervision and Financial Services Act of 2 August 2002
Art. 27. Section 45 of the Financial Sector Supervision and Financial Services Act of August 2, 2002, last amended by the Royal Decree of March 3, 2011, is supplemented by a paragraph 5, which reads as follows:
Ҥ 5. In carrying out its functions, the ADM, as a competent prudential authority, takes into account the convergence of monitoring tools and monitoring practices in the application of the legislative, regulatory and administrative obligations imposed in accordance with applicable European directives.
For this purpose:
(a) participate in the activities of the European Banking Authority;
(b) comply with the guidelines, recommendations, standards and other measures agreed upon by the European Banking Authority and, if not, give reasons.
In the course of its general missions, FSMA, as a competent prudential authority, takes due account of the potential impact of its decisions on the stability of the financial system in all other Member States concerned and, in particular, in emergency situations, based on the information available at the time. »
Art. 28. Article 75, § 1er, 1°, of the same law is replaced by the following:
"1° to the European Central Bank, the Bank and other central banks and similar bodies in their capacity as monetary authorities when this information is relevant to the exercise of their respective legal missions, including the conduct of monetary policy and the provision of related liquidity, the monitoring of payment, compensation and settlement systems, as well as the safeguarding of the stability of the financial system, as well as other public authorities responsible for the monitoring of payment systems.
When an emergency occurs, including an unfavourable evolution of the financial markets, likely to threaten the liquidity of the market and the stability of the financial system in one of the Member States in which entities of a group including investment companies have been approved or in which branches of significant importance are established within the meaning of Article 95, §§ 5bis and 5ter, of the law of 6 April 1995 relating to the status and control of the enterprises of the
In the event of an emergency situation as described above, FSMA may disclose, in all Member States concerned, information that is of interest to the central departments responsible for the legislation relating to the monitoring of credit institutions, financial institutions, investment services and insurance companies; "
CHAPTER 7. - Amendment of the Act of 20 July 2004 on certain forms of collective investment portfolio management
Art. 29. Article 189, § 1erParagraph 1erof the Act of 20 July 2004 on certain forms of collective investment portfolio management, as amended by the Acts of 20 June 2005, 15 May 2007 and 16 February 2009, is supplemented by a 3° written as follows:
"3° is to be heard by "consolidated-based supervisor" the competent authority responsible for the consolidated-based monitoring of collective investment companies in the European Union that are parent companies, as well as management companies of collective investment organizations controlled by parent financial companies in the European Union. »
CHAPTER 8. - Amendment of the Reinsurance Act of 16 February 2009
Art. 30. Article 29, § 2, of the Reinsurance Act of 16 February 2009 is supplemented by three paragraphs written as follows:
"The directors or managers shall be jointly and severally liable, either to the corporation or to the third parties, for any damages resulting from breaches of the provisions made pursuant to paragraph 1er.
Paragraph 2 is also applicable to members of the steering committee.
With respect to the offences to which they have not taken part, directors, managers and members of the steering committee are not discharged from the responsibility referred to in paragraphs 2 and 3 only if they are not responsible for any mistakes and if they have denounced these infracti-ons as the case may be, at the first general meeting or at the first session of the board of directors following the time they were aware of them. »
CHAPTER 9. - Amendments to the Act of 21 December 2009 relating to the status of payment institutions, access to the activity of payment service provider and access to payment systems
Art. 31. In Article 5, paragraph 1er, of the Act of 21 December 2009 on the Status of Payment Institutions, Access to the Activity of Payment Services Provider and Access to Payment Systems, as amended by the Royal Decree of 3 March 2011, the 1st is replaced by the following:
"1° Belgian credit institutions, credit institutions under the law of another EEA Member State, authorized to provide payment services in their State of origin, operating in Belgium under sections 65 and 66 of the Banking Law, as well as branches of credit institutions under the right of a non-EEA State, established in Belgium in accordance with Article 79 of the Banking Law; "
Art. 32. Section 33 of the Act, as amended by the Royal Decree of 3 March 2011, is replaced by the following:
“Art. 33. Authorized Commissioners shall cooperate with the Bank ' s control under their personal and exclusive responsibility and in accordance with this article, the rules of the profession and the Bank ' s instructions. To this end:
1° they assess the internal control measures adopted by payment institutions in accordance with Article 14, § 3, paragraph 1erand communicate their findings in this matter to the Bank;
2° they report to the Bank on:
(a) the results of the limited review of the periodic reports transmitted by the payment institutions to the Bank at the end of the first social semester, confirming that they are not aware of any facts that would appear to be that these periodic reports, which were issued at the end of the semester, have not, in all significant respects, been prepared in accordance with the Bank's current instructions. They further confirm that the periodic reports issued at the end of the semester are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that they are complete, that is, they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is, they agree with the basis of which they are prepared, they also confirm that they are not aware of any facts that would appear to be that the periodical statements issued at the end of the semester were not prepared by application of the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year; the Bank may specify which periodic reports are in this case;
(b) the results of the review of the periodic reports transmitted by payment institutions to the Bank at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the Bank's current instructions. They further confirm that the periodic reports issued at the end of the fiscal year are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that they are complete, that is, they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is, they agree with the exact basis of which they are prepared. they also confirm that the periodic reports issued at the end of the fiscal year have been established by application of the accounting and evaluation rules for the preparation of annual accounts; the Bank may specify which periodic reports are in this case;
3° they make special reports to the Bank, at its request, on the organization, activities and financial structure of the payment establishment, reports whose settlement fees are borne by the institution in question;
4° as part of their mission to the payment institution or a revisoral mission to a company related to the payment establishment, they make an initiative to the Bank as soon as they find:
(a) decisions, facts or developments that have a significant impact on or may have a significant impact on the situation of the payment establishment in the financial or accounting context of its administrative and accounting organization or internal control;
(b) decisions or facts that may constitute violations of the Corporations Code, the statutes, this Act and the orders and regulations made for its execution;
(c) other decisions or facts that are likely to result in refusal or reservation to certify accounts;
5° they report at least every year to the Bank on the adequacy of the arrangements made by the payment institutions to preserve the funds they receive from users of payment services, pursuant to Article 22, § 1er and 2.
No civil, criminal or disciplinary action may be brought or any professional sanction imposed against registered commissioners who have proceeded in good faith to an information referred to in paragraph 1erFour.
Authorized commissioners shall communicate to the directors of the payment establishment the reports they send to the Bank in accordance with paragraph 1erThree. These communications fall under the secret organized by section 35 of the Act of 22 February 1998. They transmit to the Bank copies of the communications they address to these leaders, which deal with issues of interest to the Bank's control.
Authorized auditors and certified auditors can perform audits and expertise related to their duties at the foreign branches of the establishment they control.
They may be charged by the Bank, at the request of the European Central Bank, to confirm that the information that payment institutions are required to communicate to these authorities is complete, correct and established according to the rules applicable thereto. »
Art. 33. Section 43 of the Act amended by the Royal Decree of 3 March 2011 is replaced by the following:
“Art. 43. § 1er. The executives of the branches referred to in section 39 shall, for a renewable period of three years, designate one or more registered revisors or one or more revisors accredited by the Bank.
Articles 31 and 32 (1)er to 4, are applicable to such reviewers and companies. The revocation of the functions of approved reviewers and approved reviewers is subject to the Bank's prior notice.
§ 2. Authorized reviewers or certified reviewers, designated in accordance with § 1ercooperate in the Bank ' s control under their personal and exclusive responsibility and in accordance with this paragraph, the rules of the profession and the Bank ' s instructions. To this end:
1° they assess the internal control measures adopted by branches for compliance with the laws, orders and regulations applicable to branches under section 41, and communicate their findings to the Bank;
2° they report to the Bank on:
(a) the results of the limited review of the periodic reports transmitted by the branches referred to in section 39 to the Bank at the end of the first social semester, confirming that they are not aware of any facts that would appear to be that these periodic reports, which were issued at the end of the semester, have not, in all significant respects, been prepared in accordance with the Bank's current instructions. They further confirm that the periodic reports issued at the end of the semester are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that they are complete, that is, they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is, they agree with the basis of which they are prepared, they also confirm that they are not aware of any facts that would appear to be that the periodical statements issued at the end of the semester were not prepared by application of the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year; the Bank may specify which periodic reports are in this case;
(b) the results of the review of the periodic reports transmitted by the branches referred to in section 39 to the Bank at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the Bank's current instructions. They further confirm that the periodic reports issued at the end of the fiscal year are, with respect to accounting data, in all significant respects, compliant with accounting and inventories, in that they are complete, that is, they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, that is, they agree with the exact basis of which they are prepared. they also confirm that the periodic reports issued at the end of the fiscal year have been established by application of the accounting and evaluation rules for the preparation of annual accounts; the Bank may specify which periodic reports are concerned.
They may be charged by the Bank, at the request of the European Central Bank, to confirm, as well, the information that the successors are required to communicate to these authorities by application of Article 41, paragraph 1er;
3° they make periodic reports to the Bank or, at its request, special reports on the organization, activities and financial structure of branches in the areas of competence of the Bank in respect of them;
4° they make an initiative to report to the Bank in the areas of its jurisdiction as well as in collaboration with the central headquarters control authority, as soon as they find:
(a) decisions, facts or developments that significantly influence or influence the position of the branch from the financial angle or from the angle of its administrative and accounting organization or internal control;
(b) decisions or facts that may constitute violations of the provisions of this Act and the decrees and regulations made for its execution or other laws and regulations applicable to their activity in Belgium to the extent that the substances referred to in these provisions fall within the jurisdiction of the Bank;
5° they report to the Bank, at the request of the Bank, when it is seized by a Belgian authority of violations of general law applicable to the branch.
No civil, criminal or disciplinary action may be instituted or any professional sanction imposed against registered reviewers who have made in good faith an information referred to in paragraph 1erFour.
They communicate to branch managers the reports they send to the Bank pursuant to paragraph 1erThree. These communications fall under the secrecy provided for in section 35 of the Act of 22 February 1998. They transmit to the Bank copies of the communications they send to these leaders on issues arising in the Bank's control area.
In branches where a board of business is established pursuant to the Act of 20 September 1948 on the organization of the economy, the registered reviewers or registered reviewers perform the functions provided by section 15bis of this Act.
Authorized reviewers or certified reviewers may, with the prior information of the Bank, at the request and costs of the control authorities of the State of origin of the branch, carry out audits with that branch, for the purpose of assisting these authorities, concerning the matters referred to in Articles 27, paragraph 1er42 § 1er.
§ 3. Authorized reviewers or registered reviewers certify annual accounting information published under section 41, paragraph 2. »
CHAPTER 10. - Miscellaneous provisions
Art. 34. By order deliberately in the Council of Ministers, the King may, on the advice of the National Bank of Belgium and the Authority of Financial Services and Markets, take the necessary measures to ensure the transfer of the provisions resulting from European directives and that relate to the definition of competences of the European Banking Authority, the European Insurance and Professional Pension Authority and the European Financial Markets Authority.
Orders made under this article may amend, supplement, replace or repeal existing legal provisions.
The royal decrees referred to in this section cease to produce their effects if they have not been confirmed by law within eighteen months of their effective date. Confirmation is retroactive to the date of entry into force of royal decrees. The powers granted to the King by this paragraph expire 31 December 2011.
CHAPTER 11. - Final provisions
Art. 35. 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 28 July 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:
Chamber: Doc K. 53 1619/ (2010/2011):
001: Bill
002: Amendments
003: Report.
004: Text corrected by commission.
See also:
Full report: 7 July 2011.
Senate: S. 5-1159.