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Law Ensuring The Transposition Of Directive 2007/44/ec On Procedures And Evaluation Criteria For The Prudential Assessment Of Acquisitions And Increase Of Shareholdings In The Financial Sector (1)

Original Language Title: Loi assurant la transposition de la Directive 2007/44/CE relative aux procédures et critères d'évaluation applicables à l'évaluation prudentielle des acquisitions et des augmentations de participation dans des entités du secteur financier (1)

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belgiquelex.be - Carrefour Bank of Legislation

31 JULY 2009. - Act to ensure the transposition of Directive 2007/44/EC relating to assessment procedures and criteria for the prudential evaluation of acquisitions and increases in participation in financial sector entities (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1er. - General provisions
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act provides for the transposition of the European Directive 2007/44/EC of the European Parliament and the Council of 5 September 2007 amending Council Directive 92/49/EC and Directives 2002/83/EC, 2004/39/EC, 2005/68/EC and 2006/48/EC with respect to the procedural rules and evaluation criteria applicable to the prudential evaluation of acquisitions and increases in participation in financial sector entities.
CHAPTER 2. - Credit institutions
Art. 3. Article 3, § 1er, 3°, of the Act of 22 March 1993 on the Status and Control of Credit Institutions, as amended by the Act of 2 May 2007, is supplemented as follows:
"It is not taken into account the voting rights or shares held as a result of the firm taking of financial instruments and/or the placement of financial instruments with firm commitment, provided that, on the one hand, these rights are not exercised or otherwise used to intervene in the management of the issuer and that, on the other hand, they are transferred within one year of their acquisition; "
Art. 4. Article 17, paragraph 1erin the same Act, as amended by the Act of 2 May 2007, the following amendments are made:
1° the first sentence "Accreditation is subordinate to the communication to the Banking, Financial and Identity Insurance Commission of natural or legal persons who, directly or indirectly, hold in the capital of the credit institution an interest, conferring or not the right to vote, at least 5 p.c. » is replaced by the following sentence:
"Accreditation is subordinate to communication to the Banking, Financial and Identity Insurance Commission of natural or legal persons who, directly or indirectly, acting alone or in concert with others, hold in the capital of the credit institution a qualified participation, conferring or not the right to vote. »;
2° the last sentence "The calculation of voting rights is established in accordance with the provisions of the Act of 2 May 2007 on the advertising of important participations, as well as those of its enforcement orders. is repealed.
Art. 5. Section 24 of the Act, last amended by the Act of 16 February 2009, is replaced by the following:
“Art. 24. § 1er. Without prejudice to Article 17 and to the Act of 2 May 2007 relating to the advertisement of significant participations, any natural or legal person acting alone or in concert with others, who has taken the decision either to acquire, directly or indirectly, qualified participation in a Belgian credit institution, or to make, directly or indirectly, an increase of such qualified participation in a Belgian credit institution, in such a manner that the proportion of voting rights or
§ 2. Severely, and in any event within two working days after receipt of the notification and complete information referred to in paragraph 1er, and after the eventual subsequent receipt of the information referred to in paragraph 3, the Banking, Financial and Insurance Commission shall acknowledge in writing the receipt of the information to the applicant. The acknowledgement of receipt indicates the expiry date of the assessment period.
The assessment period available to the Banking, Financial and Insurance Board for the purposes of the assessment referred to in paragraph 3 shall be not more than sixty working days from the date of receipt of the notification and all required documents with the notification on the basis of the list referred to in paragraph 3, paragraph 3.
The Banking, Financial and Insurance Commission may, during the assessment period, request additional information to complete the assessment period by the fiftieth working day of the evaluation period. This request is made in writing and specifies the necessary additional information.
During the period between the date of the request for information by the Banking, Financial and Insurance Commission and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. The Banking, Financial and Insurance Commission may make further requests to collect additional information or clarifications beyond the specified deadline in accordance with the preceding paragraph, but these requests do not, however, result in a suspension of the assessment period.
The Banking, Financial and Insurance Commission may extend the suspension referred to in paragraph 4 to thirty business days:
(a) if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
(b) if the prospective purchaser is a natural or legal person who is not subject to supervision under the Directives 2006/48/EC of the European Parliament and the Council of 14 June 2006 concerning access to the activity of the credit institutions and its exercise (reflective), 85/611/EEC of the Council of 20 December 1985 on the coordination of the legislative, regulatory and administrative provisions concerning certain institutions of collective investment in securities (OPCVM), 92/49/EEC
§ 3. The Financial Banking Commission and Insurance may, within the course of the assessment period referred to in paragraph 2, object to the completion of the acquisition if it has reasonable grounds to consider, on the basis of the criteria set out in paragraph 2, that the acquirer candidate does not have the qualities necessary to ensure a sound and prudent management of the credit establishment or if the information provided by the acquirer candidate is incomplete.
By assessing the notification and information referred to in paragraph 1er, and additional information referred to in paragraph 2, the Banking, Financial and Insurance Commission appreciates, in order to ensure sound and prudent management of the credit establishment referred to in the proposed acquisition and taking into account the likely influence of the recipient candidate on the credit establishment, the appropriateness of the acquirer candidate and the financial strength of the proposed acquisition by applying the following criteria:
(a) the reputation of the acquirer candidate;
(b) the reputation and experience of any person referred to in section 18 who will manage the activities of the credit institution following the intended acquisition;
(c) the financial strength of the acquirer candidate, in particular in view of the type of activities carried out and envisaged in the credit establishment referred to in the proposed acquisition;
(d) the ability of the credit institution to meet and continue to comply with the prudential obligations arising out of this Act and the orders made pursuant to this Act, in particular whether the group to which it belongs has a structure that allows for effective monitoring, to effectively exchange information between the competent authorities and to determine the sharing of responsibilities between the competent authorities;
(e) the existence of reasonable grounds to suspect that an operation or attempt to laundering capital or financing terrorism within the meaning of section 1er the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for money laundering and the financing of terrorism is in progress or has taken place in relation to the intended acquisition, or that the proposed acquisition could increase the risk.
The Banking, Financial and Insurance Commission publishes on its website a list specifying the relevant information, proportionate and appropriate to the nature of the prospective purchaser and acquisition, which are necessary to conduct the evaluation and which must be communicated to it at the time of notification referred to in paragraph 1er.
If the Banking, Financial and Insurance Commission decides, at the end of the assessment, to oppose the proposed acquisition, it shall notify the applicant in writing, within two business days and without exceeding the assessment period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the assessment period, the Banking, Financial and Insurance Commission did not object to the proposed acquisition, it is deemed to be approved.
The Banking, Financial and Insurance Commission may set a maximum period for the conclusion of the proposed acquisition and, where appropriate, extend it.
§ 4. The Banking, Financial and Insurance Commission shall conduct the assessment referred to in paragraph 3 in full consultation with any other competent authority concerned if the applicant acquires:
(a) a credit institution, an insurance company, a reinsurance company, an investment company or a collective investment organization management company approved in another Member State; or
(b) the parent company of a company having one of the qualities referred to in (a); or
(c) a natural or legal person controlling a company having one of the qualities referred to in (a).
In the cases referred to in the preceding paragraph, any decision of the Banking, Financial and Insurance Commission shall mention any notices or reservations made by the competent authority responsible for the applicant acquiring.
When the prudential evaluation of a planned acquisition is within the competence of the control authority of credit institutions, insurance companies, reinsurance companies, investment companies or management companies of collective investment organizations of another Member State, the Banking, Financial and Insurance Commission shall, as soon as possible, exchange, with that authority any essential or relevant information for the evaluation. In this context, the Commission shall provide, upon request, any relevant information and, on its own initiative, any essential information.
§ 5. Any natural or legal person who has made the decision to cease holding, directly or indirectly, qualified participation in a credit institution shall notify the credit union in writing before the Banking, Financial and Insurance Commission and shall communicate the amount envisaged for its participation. Such a person shall also notify the Banking, Financial and Insurance Commission of its decision to reduce its qualified participation in such a way that the proportion of voting rights or shares of held capital falls below the thresholds of 20%, 30% or 50%, or that the credit institution ceases to be its subsidiary.
§ 6. In the event of forbearance to make the prior notifications prescribed by paragraph 1er or paragraph 5, or in the event of an acquisition or increase of an interest despite the opposition of the Banking, Financial and Insurance Commission referred to in paragraph 3, the President of the Commercial Court in whose jurisdiction the credit institution has its seat, ruling as a reference, may take the measures referred to in Article 516, § 1er, the Corporate Code, as well as the cancellation of all or part of the general assembly proceedings held in the above cases.
The procedure is filed by a quote from the Banking, Financial and Insurance Commission.
Article 516, § 3, of the Corporate Code is applicable.
§ 7. Without prejudice to Article 17 and to the law of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in conjunction with others, who has acquired, directly or indirectly, an interest in a Belgian credit institution, or who has carried out, directly or indirectly, an increase in his or her participation in a Belgian credit institution, in such a way that the proportion of voting rights or shares held shall exceed
The same notification is required within ten working days of any natural or legal person who has ceased to hold, directly or indirectly, alone or in concert with other persons, an interest of more than 5% of the capital or voting rights of a credit institution, which did not constitute qualified participation.
Notifications referred to in subparagraphs 1er and 2 indicate the specific identity of the acquirer(s), the number of titles acquired or disposed of, and the percentage of the voting rights and capital of the credit institution held after the acquisition or assignment, as well as the necessary information which is published by the Banking, Financial and Insurance Commission on its website in accordance with paragraph 3, paragraph 3.
§ 8. Credit institutions shall communicate to the Banking, Financial and Insurance Commission, as soon as they are aware, the acquisitions or disposition of their securities or shares that make one or more of the thresholds referred to in paragraph 1 above or below cross.erParagraph 1er.
Under the same conditions, they communicate to the Banking, Financial and Insurance Commission, at least once a year, the identity of shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and voting rights so held. They also communicate to the Banking, Financial and Insurance Commission the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Corporate Code in cases where the Articles of Association do not prescrib their declaration to the Banking, Financial and Insurance Commission. "
Art. 6. Section 25 of the Act, repealed by the Act of 15 May 2007, is reinstated in the following wording:
“Art. 25. Where the Banking, Financial and Insurance Commission has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in a credit facility is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided for in this Act, it may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholder or partner in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholder or partner in question; its decision is enforceable as soon as it has been notified; the Banking, Financial and Insurance Commission may make its decision public;
2° give injunction to the shareholder or partner in question to assign, within the time limit fixed, the rights of associate he holds.
In the absence of an assignment within the specified time limit, the Banking, Financial and Insurance Commission may order the sequestering of the rights of partners to any institution or person it determines. The receiver informs the credit institution that accordingly amends the register of shares or shares of nominative partners and which only accepts the exercise of the rights attached to it by the sole receiver. It acts in the interest of sound and prudent management of the credit institution and in the interest of the holder of the rights of partners who have been the subject of the receiver. He exercises all rights attached to the shares or shares of partners. The amount paid by the holder for the dividend or any other title shall only be paid by him if the holder has satisfied the injunction referred to in paragraph 1erTwo. The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder. The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above. The remuneration of the receiver is fixed by the Banking, Financial and Insurance Commission and is borne by the aforementioned holder. The receiver may charge such remuneration on the amounts paid to it as a receiver or the holder referred to above for the purposes or as a consequence of the above transactions.
When voting rights have been exercised by the original holder or by a person other than the receiver, acting on behalf of the holder after the expiry of the time limit set in accordance with paragraph 1er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1er, 1°, the commercial court in whose jurisdiction the company has its seat may, upon request of the Banking, Financial and Insurance Commission, pronounce the nullity of all or part of the proceedings of the general assembly if, without the illegally exercised voting rights, the quorums of presence or majority required by the said deliberations would not have been gathered. "
Art. 7. In section 42, paragraph 2, of the Act, as amended by the Act of 15 May 2007, the words "Sections 20, 24" are replaced by the words "Sections 20, 24, 25".
Art. 8. In Article 57, § 1er, paragraph 2, 2°, fourth sentence of the same law, the words "Article 24, § 7, 2° is applicable" are replaced by the words "Article 25, paragraph 2 is applicable".
Art. 9. In Article 104, § 1er, of the same law, the 3° is replaced by the following:
"3° those who knowingly refrain from making the notifications provided for in Article 24, §§ 1er and 5, those who pass over to the opposition referred to in Article 24, § 3, or those who pass over to the suspension referred to in Article 25, paragraph 1er1°; "
CHAPTER 3. - Insurance companies
Art. 10. In Article 2, § 6, of the Act of 9 July 1975 on the Control of Insurance Companies, last amended by the Act of 16 February 2009, a point 10°ter is inserted as follows:
"10°ter qualified participation: the direct or indirect detention of 10 p.c. at least of the capital of a corporation or of the voting rights attached to the securities issued by that corporation, or any other opportunity to exert a significant influence on the management of the corporation in which an interest is held; the calculation of voting rights is established in accordance with the provisions of the Act of 2 May 2007 on the advertisement of significant participations, as well as those of its enforcement orders; is not taken into account the voting rights or shares held as a result of the firm taking of financial instruments and/or the placement of financial instruments with firm commitment, provided that, on the one hand, these rights are not exercised or otherwise used to intervene in the management of the issuer and that, on the other hand, they are transferred within one year of their acquisition; "
Art. 11. In section 5, paragraph 2, of the Act, as amended by the Act of 19 July 1991 and by the Royal Decree of 6 May 1997, the following amendments are made:
(a) the 3° is replaced by the following:
"3° the communication of the identity of natural or legal persons who, directly or indirectly, acting alone or in concert with others, hold in the capital of the insurance company a qualified participation, conferring or not the right to vote; The communication must include the indication of the quotities of capital and voting rights held by those persons; »;
(b) at 3°bis, the words "as defined in Article 23bis, § 4" are repealed.
Art. 12. In Article 8, § 1er, from the same law, replaced by the Royal Decree of 6 May 1997 and amended by the Royal Decree of 25 March 2003, the words "in the sense of Article 23bis, § 4" are repealed.
Art. 13. Section 23bis of the Act, inserted by the Act of 19 July 1991 and last amended by the Act of 16 February 2009, is replaced by the following:
"Art. 23bis. § 1er. Without prejudice to sections 5 and 8 and to the law of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in conjunction with others, who has made the decision either to acquire, directly or indirectly, a qualified interest in a company of Belgian law insurances, or to carry out, directly or indirectly, an increase of such qualified participation in a company of affiliates,
§ 2. Severely, and in any event within two working days after receipt of the notification and complete information referred to in paragraph 1er, and after the eventual subsequent receipt of the information referred to in paragraph 3, the Banking, Financial and Insurance Commission shall acknowledge in writing the receipt of the information to the applicant. The acknowledgement of receipt indicates the expiry date of the assessment period.
The assessment period available to the Banking, Financial and Insurance Board for the purposes of the assessment referred to in paragraph 3 shall be not more than sixty working days from the date of receipt of the notification and all required documents with the notification on the basis of the list referred to in paragraph 3, paragraph 3.
The Banking, Financial and Insurance Commission may, during the assessment period, request additional information to complete the assessment period by the fiftieth working day of the evaluation period. This request is made in writing and specifies the necessary additional information.
During the period between the date of the request for information by the Banking, Financial and Insurance Commission and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. The Banking, Financial and Insurance Commission may make further requests to collect additional information or clarifications beyond the specified deadline in accordance with the preceding paragraph, but these requests do not, however, result in a suspension of the assessment period.
The Banking, Financial and Insurance Commission may extend the suspension referred to in paragraph 4 to thirty business days:
(a) if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
(b) if the prospective purchaser is a natural or legal person who is not subject to supervision under the Directives 2006/48/EC of the European Parliament and the Council of 14 June 2006 concerning access to the activity of the credit institutions and its exercise (reflective), 85/611/EEC of the Council of 20 December 1985 on the coordination of the legislative, regulatory and administrative provisions concerning certain organizations of collective investment in securities
§ 3. The Banking, Financial and Insurance Commission may, within the course of the assessment period referred to in paragraph 2, oppose the completion of the acquisition if it has reasonable grounds to consider, on the basis of the criteria set out in paragraph 2, that the acquirer candidate does not present the qualities necessary to ensure a sound and prudent management of the insurance business or if the information provided by the acquirer candidate is not satisfactory.
By assessing the notification and information referred to in paragraph 1er, and additional information referred to in paragraph 2, the Banking, Financial and Insurance Commission appreciates, in order to ensure a sound and prudent management of the insurance business covered by the acquisition contemplated and taking into account the likely influence of the applicant acquiring on the insurance company, the appropriateness of the applicant acquiring and the financial strength of the acquisition envisaged by applying the following criteria:
(a) the reputation of the acquirer candidate;
(b) the reputation and experience of any person referred to in section 90 who will manage the activities of the insurance company as a result of the proposed acquisition;
(c) the financial strength of the acquirer candidate, in particular in view of the type of activities carried out and envisaged in the insurance company covered by the proposed acquisition;
(d) the ability of the insurance company to meet and continue to comply with the prudential obligations arising out of this Act and the orders made pursuant to this Act, in particular whether the group to which it belongs has a structure that allows for effective monitoring, to effectively exchange information between the competent authorities and to determine the sharing of responsibilities between the competent authorities;
(e) the existence of reasonable grounds to suspect that an operation or attempt to laundering capital or financing terrorism within the meaning of section 1er the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purposes of money laundering and the financing of terrorism is in progress or has taken place in relation to the intended acquisition, or that the proposed acquisition could increase the risk.
The Banking, Financial and Insurance Commission publishes on its website a list specifying the relevant information, proportionate and appropriate to the nature of the prospective purchaser and acquisition, which are necessary to conduct the evaluation and which must be communicated to it at the time of notification referred to in paragraph 1er.
If the Banking, Financial and Insurance Commission decides, at the end of the assessment, to oppose the proposed acquisition, it shall notify the applicant in writing, within two business days and without exceeding the assessment period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the assessment period, the Banking, Financial and Insurance Commission did not object to the proposed acquisition, it is deemed to be approved.
The Banking, Financial and Insurance Commission may set a maximum period for the conclusion of the proposed acquisition and, where appropriate, extend it.
§ 4. The Banking, Financial and Insurance Commission shall conduct the assessment referred to in paragraph 3 in full consultation with any other competent authority concerned if the applicant acquires:
(a) a credit institution, an insurance company, a reinsurance company, an investment company or a collective investment organization management company approved in another Member State; or
(b) the parent company of a company having one of the qualities referred to in (a); or
(c) a natural or legal person controlling a company having one of the qualities referred to in (a).
In the cases referred to in the preceding paragraph, any decision of the Banking, Financial and Insurance Commission shall mention any notices or reservations made by the competent authority responsible for the applicant acquiring.
When the prudential evaluation of a planned acquisition is within the competence of the control authority of credit institutions, insurance companies, reinsurance companies, investment companies or management companies of collective investment organizations of another Member State, the Banking, Financial and Insurance Commission shall, as soon as possible, exchange, with that authority any essential or relevant information for the evaluation. In this context, the Commission shall provide, upon request, any relevant information and, on its own initiative, any essential information.
§ 5. Any natural or legal person who has made the decision to stop holding, directly or indirectly, qualified participation in an insurance company shall notify the Commission in writing in advance to the Banking, Financial and Insurance Commission and shall communicate the amount envisaged for its participation. Such a person shall also notify the Banking, Financial and Insurance Commission of its decision to reduce its qualified participation in such a way that the proportion of voting rights or shares of held capital falls below the thresholds of 20%, 30% or 50%, or that the insurance company ceases to be its subsidiary.
§ 6. In the event of forbearance to make the prior notifications prescribed by paragraph 1er or paragraph 5, or in the event of an acquisition or increase of an interest despite the opposition of the Banking, Financial and Insurance Commission referred to in paragraph 3, the President of the Commercial Court in whose jurisdiction the insurance company has its seat, ruling as referred, may take the measures referred to in Article 516, § 1er, the Corporate Code, as well as the cancellation of all or part of the general assembly proceedings held in the above cases.
The procedure is filed by a quote from the Banking, Financial and Insurance Commission.
Article 516, § 3, of the Corporate Code is applicable.
§ 7. Without prejudice to Article 5 and to the law of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in concert with others, who has acquired, directly or indirectly, a participation in a Belgian legal insurance company, or who has carried out, directly or indirectly, an increase in his participation in a Belgian legal insurance company, in such a way that the proportion of voting rights or shares
The same notification is required within ten working days of any natural or legal person who has ceased to hold, directly or indirectly, alone or in concert with other persons, an interest of more than 5% of the capital or voting rights of an insurance company, which did not constitute a qualified participation.
Notifications referred to in subparagraphs 1er and 2 indicate the specific identity of the acquirer(s), the number of titles acquired or disposed of, and the percentage of voting rights and capital of the inmate insurance company after the acquisition or assignment, as well as the necessary information that is published by the Banking, Financial and Insurance Commission on its website in accordance with paragraph 3, paragraph 3.
§ 8. Insurance companies shall communicate to the Banking, Financial and Insurance Commission, as soon as they are aware, the acquisitions or disposition of their securities or shares that make one or more of the thresholds referred to in paragraph 1 above or below cross.erParagraph 1er.
Under the same conditions, they communicate to the Banking, Financial and Insurance Commission, at least once a year, the identity of shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and voting rights so held. They also communicate to the Banking, Financial and Insurance Commission the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Corporate Code in cases where the Articles of Association do not prescrib their declaration to the Banking, Financial and Insurance Commission. "
Art. 14. Section 24 of the Act becomes section 25.
Art. 15. In the same Act, instead of section 24 renumbered by section 14 of this Act, an article 24 is inserted as follows:
“Art. 24. Where the Banking, Financial and Insurance Commission has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in an insurance business is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided for in this Act, it may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholder or partner in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholder or partner in question; its decision is enforceable as soon as it has been notified; the Banking, Financial and Insurance Commission may make its decision public;
2° give injunction to the shareholder or partner in question to assign, within the time limit fixed, the rights of associate he holds.
In the absence of an assignment within the specified time limit, the Banking, Financial and Insurance Commission may order the sequestering of the rights of partners to any institution or person it determines. The receiver informs the insurance company that accordingly amends the register of shares or shares of nominative partners and which only accepts the exercise of the rights attached to it by the sole receiver. It acts in the interest of sound and prudent management of the insurance company and in the interest of the holder of the rights of associates who have been the subject of the receiver. He exercises all rights attached to the shares or shares of partners. The amount paid by the holder for a dividend or other title shall be paid by the holder of the dividend only if the holder has satisfied the injunction referred to in paragraph 1erTwo. The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder. The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above. The remuneration of the receiver is fixed by the Banking, Financial and Insurance Commission and is borne by the aforementioned holder. The receiver may charge such remuneration on the amounts paid to it as a receiver or the holder referred to above for the purposes or as a consequence of the above transactions.
When voting rights have been exercised by the original holder or by a person other than the receiver, acting on behalf of the holder after the expiry of the time limit set in accordance with paragraph 1er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1er, 1°, the commercial court in whose jurisdiction the company has its seat may, upon request of the Banking, Financial and Insurance Commission, pronounce the nullity of all or part of the proceedings of the general assembly if, without the illegally exercised voting rights, the quorums of presence or majority required by the said deliberations would not have been gathered. "
Art. 16. In section 91ter 1, 1°, of the same Act, inserted by the Act of 20 June 2005 and amended by the Act of 16 February 2009, the words "the provisions of section 23bis of the Act apply by analogy" are replaced by the words "the provisions of sections 23bis and 24 of the Act apply by analogy".
Art. 17. In article 91quater decies of the same law, inserted by the Royal Decree of 14 March 2001, the words "at articles 23bis § 3 and 26 of the law" are replaced by the words "at articles 24 and 26 of the law".
CHAPTER 4. - Reinsurance companies
Art. 18. In section 4 of the Reinsurance Act of 16 February 2009, the 11° is supplemented by the following:
"It is not taken into account the voting rights or shares held as a result of the firm taking of financial instruments and/or the placement of financial instruments with firm commitment, provided that, on the one hand, these rights are not exercised or otherwise used to intervene in the management of the issuer and that, on the other hand, they are transferred within one year of their acquisition; "
Art. 19. In section 16 of the Act, paragraph 1er is replaced by the following:
"Accreditation is subordinate to the communication to the Banking, Financial and Identity Insurance Commission of natural or legal persons who, directly or indirectly, acting alone or in concert with others, hold in the capital of the reinsurance company a qualified participation, conferring or not the right to vote. The communication must include the indication of the quotities of capital and voting rights held by those persons. "
Art. 20. Section 24 of the Act is replaced by the following:
“Art. 24. § 1er. Without prejudice to section 16 and to the law of 2 May 2007 relating to the advertisement of important participations, any natural or legal person acting alone or in conjunction with others, who has made the decision either to acquire, directly or indirectly, qualified participation in a company of reinsurance of Belgian law, or to carry out, directly or indirectly, an increase of such qualified participation in a company of reinsurance of Belgian law, in such a manner that the proportion of rights
§ 2. Severely, and in any event within two working days after receipt of the notification and complete information referred to in paragraph 1er, and after the eventual subsequent receipt of the information referred to in paragraph 3, the Banking, Financial and Insurance Commission shall acknowledge in writing the receipt of the information to the applicant. The acknowledgement of receipt indicates the expiry date of the assessment period.
The assessment period available to the Banking, Financial and Insurance Board for the purposes of the assessment referred to in paragraph 3 shall be not more than sixty working days from the date of receipt of the notification and all required documents with the notification on the basis of the list referred to in paragraph 3, paragraph 3.
The Banking, Financial and Insurance Commission may, during the assessment period, request additional information to complete the assessment period by the fiftieth working day of the evaluation period. This request is made in writing and specifies the necessary additional information.
During the period between the date of the request for information by the Banking, Financial and Insurance Commission and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. The Banking, Financial and Insurance Commission may make further requests to collect additional information or clarifications beyond the specified deadline in accordance with the preceding paragraph, but these requests do not, however, result in a suspension of the assessment period.
The Banking, Financial and Insurance Commission may extend the suspension referred to in paragraph 4 to thirty business days:
(a) if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
(b) if the prospective purchaser is a natural or legal person who is not subject to supervision under the Directives 2006/48/EC of the European Parliament and the Council of 14 June 2006 on access to the activity of the credit institutions and its exercise (reflective), 85/611/EEC of the Council of 20 December 1985 on the coordination of legislative, regulatory and administrative provisions concerning certain organizations of collective investment in securities
§ 3. The Banking, Financial and Insurance Commission may, within the course of the assessment period referred to in paragraph 2, object to the completion of the acquisition if it has reasonable grounds to consider, on the basis of the criteria set out in paragraph 2, that the acquirer candidate does not have the qualities necessary to ensure a sound and prudent management of the reinsurance undertaking or if the information provided by the incomplete applicant is.
By assessing the notification and information referred to in paragraph 1er, and additional information referred to in paragraph 2, the Banking, Financial and Insurance Commission appreciates, in order to ensure a sound and prudent management of the reinsurance undertaking referred to in the proposed acquisition and taking into account the likely influence of the acquirer candidate on the reinsurance undertaking, the appropriateness of the acquirer candidate and the financial strength of the acquisition envisaged by applying the following criteria:
(a) the reputation of the acquirer candidate;
(b) the reputation and experience of any person referred to in section 17 who will manage the reinsurance business as a result of the proposed acquisition;
(c) the financial strength of the acquirer candidate, in particular in view of the type of activities carried out and envisaged in the reinsurance undertaking referred to in the proposed acquisition;
(d) the ability of the reinsurance company to comply with and continue to comply with the prudential obligations arising out of this Act and the orders made pursuant to this Act, in particular whether the group to which it belongs has a structure that allows for effective monitoring, to effectively exchange information between the competent authorities and to determine the sharing of responsibilities between the competent authorities;
(e) the existence of reasonable grounds to suspect that an operation or attempt to laundering capital or financing terrorism within the meaning of section 1er the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for money laundering and the financing of terrorism is in progress or has taken place in relation to the intended acquisition, or that the proposed acquisition could increase the risk.
The Banking, Financial and Insurance Commission publishes on its website a list specifying the relevant information, proportionate and appropriate to the nature of the prospective purchaser and acquisition, which are necessary to conduct the evaluation and which must be communicated to it at the time of notification referred to in paragraph 1er.
If the Banking, Financial and Insurance Commission decides, at the end of the assessment, to oppose the proposed acquisition, it shall notify the applicant in writing, within two business days and without exceeding the assessment period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the assessment period, the Banking, Financial and Insurance Commission did not object to the proposed acquisition, it is deemed to be approved.
The Banking, Financial and Insurance Commission may set a maximum period for the conclusion of the proposed acquisition and, where appropriate, extend it.
§ 4. The Banking, Financial and Insurance Commission shall conduct the assessment referred to in paragraph 3 in full consultation with any other competent authority concerned if the applicant acquires:
(a) a credit institution, an insurance company, a reinsurance company, an investment company or a collective investment organization management company approved in another Member State; or
(b) the parent company of a company having one of the qualities referred to in (a); or
(c) a natural or legal person controlling a company having one of the qualities referred to in (a).
In the cases referred to in the preceding paragraph, any decision of the Banking, Financial and Insurance Commission shall mention any notices or reservations made by the competent authority responsible for the applicant acquiring.
When the prudential evaluation of a planned acquisition is within the competence of the control authority of credit institutions, insurance companies, reinsurance companies, investment companies or management companies of collective investment organizations of another Member State, the Banking, Financial and Insurance Commission shall, as soon as possible, exchange, with that authority any essential or relevant information for the evaluation. In this context, the Commission shall provide, upon request, any relevant information and, on its own initiative, any essential information.
§ 5. Any natural or legal person who has made the decision to stop holding, directly or indirectly, qualified participation in a reinsurance company shall notify the Banking, Financial and Insurance Commission in writing and shall communicate to the Commission the amount envisaged for its participation. Such a person shall also notify the Banking, Financial and Insurance Commission of its decision to reduce its qualified participation in such a way that the proportion of voting rights or shares of held capital falls below the thresholds of 20%, 30% or 50%, or that the reinsurance company ceases to be its subsidiary.
§ 6. In the event of forbearance to make the prior notifications prescribed by paragraph 1er or paragraph 5, or in the event of an acquisition or increase of an interest despite the opposition of the Banking, Financial and Insurance Commission referred to in paragraph 3, the President of the Commercial Court in whose jurisdiction the reinsurance company has its seat, ruling as referred, may take the measures referred to in Article 516, § 1er, the Corporate Code, as well as the cancellation of all or part of the general assembly proceedings held in the above cases.
The procedure is filed by a quote from the Banking, Financial and Insurance Commission.
Article 516, § 3, of the Corporate Code is applicable.
§ 7. Without prejudice to Article 16 and to the law of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in concert with others, who has acquired, directly or indirectly, a participation in a reinsurance company of Belgian law, or who has carried out, directly or indirectly, an increase of his participation in a reinsurance company of Belgian law, in such a way that the proportion of voting rights or shares of held capital
The same notification is required within ten working days of any natural or legal person who has ceased to hold, directly or indirectly, alone or in concert with other persons, an interest of more than 5% of the capital or voting rights of a reinsurance company, which did not constitute a qualified participation.
Notifications referred to in subparagraphs 1er and 2 indicate the specific identity of the acquirer(s), the number of titles acquired or disposed of and the percentage of the voting rights and capital of the reinsurance undertaking held after the acquisition or assignment, as well as the necessary information that is published by the Banking, Financial and Insurance Commission on its website in accordance with paragraph 3, paragraph 3.
§ 8. Reinsurance companies shall communicate to the Banking, Financial and Insurance Board, as soon as they are aware, the acquisitions or disposition of their securities or shares that make one or more of the thresholds referred to in paragraph 1 above or belowerParagraph 1er.
Under the same conditions, they communicate to the Banking, Financial and Insurance Commission, at least once a year, the identity of shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and voting rights so held. They also communicate to the Banking, Financial and Insurance Commission the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Corporate Code in cases where the Articles of Association do not prescrib their declaration to the Banking, Financial and Insurance Commission. "
Art. 21. In the same Act, an article 24/1 is inserted as follows:
"Art. 24/1. Where the Banking, Financial and Insurance Commission has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in a reinsurance business is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided by this Act, it may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholder or partner in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholder or partner in question; its decision is enforceable as soon as it has been notified; the Banking, Financial and Insurance Commission may make its decision public;
2° give injunction to the shareholder or partner in question to assign, within the time limit fixed, the rights of associate he holds.
In the absence of an assignment within the specified time limit, the Banking, Financial and Insurance Commission may order the sequestering of the rights of partners to any institution or person it determines. The receiver informs the reinsurance company that accordingly amends the register of shares or shares of nominative partners and which only accepts the exercise of the rights attached to it by the sole receiver. It acts in the interest of a healthy and prudent management of the reinsurance company and in that of the holder of the rights of associates who have been the subject of the sequester. He exercises all rights attached to the shares or shares of partners. The amount paid by the holder for the dividend or any other title shall only be paid by him if the holder has satisfied the injunction referred to in paragraph 1erTwo. The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder. The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above. The remuneration of the receiver is fixed by the Banking, Financial and Insurance Commission and is borne by the aforementioned holder. The receiver may charge such remuneration on the amounts paid to it as a receiver or the holder referred to above for the purposes or as a consequence of the above transactions.
When voting rights have been exercised by the original holder or by a person other than the receiver, acting on behalf of the holder after the expiry of the time limit set in accordance with paragraph 1er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1er, 1°, the commercial court in whose jurisdiction the company has its seat may, upon request of the Banking, Financial and Insurance Commission, pronounce the nullity of all or part of the proceedings of the general assembly if, without the illegally exercised voting rights, the quorums of presence or majority required by the said deliberations would not have been gathered. "
Art. 22. In Article 75, § 1er, of the same law, the 2° is replaced by the following:
"2° those who knowingly refrain from making the notifications provided for in Article 24, §§ 1er and 5, those who pass over to the opposition referred to in Article 24, § 3, or those who pass over to the suspension referred to in Article 24/1, paragraph 1er1°; "
Art. 23. In section 94 of the Act, the words "sections 24, § 4, 47 and 48 of the Act" are replaced by the words "sections 24/1, 47 and 48 of the Act".
CHAPTER 5. - Investment companies
Art. 24. In section 46 of the Act of 6 April 1995 on the Status and Control of Investment Businesses, replaced by the Royal Decree of 27 April 2007 and amended by the Act of 15 May 2007, the 24th is replaced by the following:
"24° by qualified participation: the direct or indirect detention of at least 10 p.c. of the capital of a corporation or of the voting rights attached to the securities issued by that corporation, or any other opportunity to exert a significant influence on the management of the corporation in which an interest is held; the calculation of voting rights is established in accordance with the provisions of the Act of 2 May 2007 on the advertisement of significant participations, as well as those of its enforcement orders; is not taken into account the voting rights or shares held as a result of the firm taking of financial instruments and/or the placement of financial instruments with firm commitment, provided that, on the one hand, these rights are not exercised or otherwise used to intervene in the management of the issuer and that, on the other hand, they are transferred within one year of their acquisition; "
Art. 25. Article 59, paragraph 1er, from the same law, replaced by the Royal Decree of 27 April 2007 and amended by the Act of 2 May 2007, the following amendments are made:
1° in the first sentence, the words "acting alone or in concert with others" are inserted between the words "directly or indirectly" and the words "hold in the capital of the investment company";
2° the last sentence is repealed.
Art. 26. Section 67 of the Act, as amended by the Royal Decree of 22 December 1995, the laws of 17 December 1998 and 20 June 2005, the Royal Decree of 27 April 2007 and the laws of 2 May 2007 and 16 February 2009, are replaced by the following:
"Art. 67. § 1er. Without prejudice to section 59 and to the law of 2 May 2007 relating to the advertisement of important participations, any natural or legal person acting alone or in conjunction with others, who has made the decision either to acquire, directly or indirectly, a qualified interest in a Belgian investment undertaking, or to carry out, directly or indirectly, an increase of that qualified stake in a Belgian investment undertaking,
§ 2. Severely, and in any event within two working days after receipt of the notification and complete information referred to in paragraph 1er, and after the eventual subsequent receipt of the information referred to in paragraph 3, the Banking, Financial and Insurance Commission shall acknowledge in writing the receipt of the information to the applicant. The acknowledgement of receipt indicates the expiry date of the assessment period.
The assessment period available to the Banking, Financial and Insurance Board for the purposes of the assessment referred to in paragraph 3 shall be not more than sixty working days from the date of receipt of the notification and all required documents with the notification on the basis of the list referred to in paragraph 3, paragraph 3.
The Banking, Financial and Insurance Commission may, during the assessment period, request additional information to complete the assessment period by the fiftieth working day of the evaluation period. This request is made in writing and specifies the necessary additional information.
During the period between the date of the request for information by the Banking, Financial and Insurance Commission and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. The Banking, Financial and Insurance Commission may make further requests to collect additional information or clarifications beyond the specified deadline in accordance with the preceding paragraph, but these requests do not, however, result in a suspension of the assessment period.
The Banking, Financial and Insurance Commission may extend the suspension referred to in paragraph 4 to thirty business days:
(a) if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
(b) if the prospective acquirer is a natural or legal person who is not subject to oversight under the Directives 2006/48/EC of the European Parliament and the Council of 14 June 2006 on access to the activity of the credit institutions and its exercise (reflective), Directives 85/611/EEC of the Council of 20 December 1985 on the coordination of legislative, regulatory and administrative provisions concerning certain organizations of collective investment in securities (/49/CVM), Directives 92
§ 3. The Banking, Financial and Insurance Commission may, within the course of the assessment period referred to in paragraph 2, object to the completion of the acquisition if it has reasonable grounds to consider, on the basis of the criteria set out in paragraph 2, that the acquirer candidate does not have the qualities necessary to ensure a sound and prudent management of the investment undertaking or if the information provided by the incomplete candidate is.
By assessing the notification and information referred to in paragraph 1er, and additional information referred to in paragraph 2, the Banking, Financial and Insurance Commission appreciates, in order to ensure a sound and prudent management of the investment undertaking referred to in the proposed acquisition and taking into account the likely influence of the acquirer candidate on the investment undertaking, the appropriateness of the acquirer candidate and the financial strength of the acquisition envisaged by applying the following criteria:
(a) the reputation of the acquirer candidate;
(b) the reputation and experience of any person referred to in section 60 who will manage the activities of the investment undertaking as a result of the proposed acquisition;
(c) the financial strength of the acquirer candidate, in particular in view of the type of activities carried out and envisaged in the investment undertaking under the proposed acquisition;
(d) the ability of the investment company to comply with and continue to comply with the prudential obligations arising from this Act and the orders made pursuant to this Act, in particular whether the group to which it belongs has a structure that allows for effective monitoring, to effectively exchange information between the competent authorities and to determine the sharing of responsibilities between the competent authorities;
(e) the existence of reasonable grounds to suspect that an operation or attempt to laundering capital or financing terrorism within the meaning of section 1er the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for money laundering and the financing of terrorism is in progress or has taken place in relation to the intended acquisition, or that the proposed acquisition could increase the risk.
The Banking, Financial and Insurance Commission publishes on its website a list specifying the relevant information, proportionate and appropriate to the nature of the prospective purchaser and acquisition, which are necessary to conduct the evaluation and which must be communicated to it at the time of notification referred to in paragraph 1er.
If the Banking, Financial and Insurance Commission decides, at the end of the assessment, to oppose the proposed acquisition, it shall notify the applicant in writing, within two business days and without exceeding the assessment period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the assessment period, the Banking, Financial and Insurance Commission did not object to the proposed acquisition, it is deemed to be approved.
The Banking, Financial and Insurance Commission may set a maximum period for the conclusion of the proposed acquisition and, where appropriate, extend it.
§ 4. The Banking, Financial and Insurance Commission shall conduct the assessment referred to in paragraph 3 in full consultation with any other competent authority concerned if the applicant acquires:
(a) a credit institution, an insurance company, a reinsurance company, an investment company or a collective investment organization management company approved in another Member State; or
(b) the parent company of a company with one of the qualities referred to in (a); or
(c) a natural or legal person controlling a company having one of the qualities referred to in (a).
In the cases referred to in the preceding paragraph, any decision of the Banking, Financial and Insurance Commission shall mention any notices or reservations made by the competent authority responsible for the applicant acquiring.
When the prudential evaluation of a planned acquisition is within the competence of the control authority of credit institutions, insurance companies, reinsurance companies, investment companies or management companies of collective investment organizations of another Member State, the Banking, Financial and Insurance Commission shall, as soon as possible, exchange, with that authority any essential or relevant information for the evaluation. In this context, the Commission shall provide, upon request, any relevant information and, on its own initiative, any essential information.
§ 5. Any natural or legal person who has made the decision to stop holding, directly or indirectly, qualified participation in an investment company shall notify the Commission in writing in advance to the Banking, Financial and Insurance Commission and shall communicate the amount envisaged for its participation. Such a person shall also notify the Banking, Financial and Insurance Commission of its decision to reduce its qualified participation in such a way that the proportion of voting rights or shares of held capital falls below the thresholds of 20%, 30% or 50%, or that the investment company ceases to be its subsidiary.
§ 6. In the event of forbearance to make the prior notifications prescribed by paragraph 1er or paragraph 5, or in the event of an acquisition or increase of an interest despite the opposition of the Banking, Financial and Insurance Commission referred to in paragraph 3, the President of the Commercial Court in whose jurisdiction the investment company has its seat, having as a reference, may take the measures referred to in Article 516, § 1er, the Corporate Code, as well as the cancellation of all or part of the general assembly proceedings held in the above cases.
The procedure is filed by a quote from the Banking, Financial and Insurance Commission.
Article 516, § 3, of the Corporate Code is applicable.
§ 7. Without prejudice to section 59 and to the law of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in concert with others, who has acquired, directly or indirectly, a stake in a Belgian investment company, or who has carried out, directly or indirectly, an increase in its participation in a Belgian investment company, in such a way that the proportion of voting rights or shares of capital held
The same notification is required within ten working days of any natural or legal person who has ceased to hold, directly or indirectly, alone or in concert with other persons, an interest of more than 5% of the capital or voting rights of an investment company, which did not constitute a qualified participation.
Notifications referred to in subparagraphs 1er and 2 indicate the specific identity of the acquirer(s), the number of titles acquired or disposed of and the percentage of voting rights and capital of the investment undertaking held after the acquisition or assignment, as well as the necessary information that is published by the Banking, Financial and Insurance Commission on its website in accordance with paragraph 3, paragraph 3.
§ 8. Investment companies shall communicate to the Banking, Financial and Insurance Commission, as soon as they are aware, the acquisitions or disposition of their securities or shares that make one or more of the thresholds referred to in paragraph 1 above or below cross.erParagraph 1er.
Under the same conditions, they communicate to the Banking, Financial and Insurance Commission, at least once a year, the identity of shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and voting rights so held. They also communicate to the Banking, Financial and Insurance Commission the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Corporate Code in cases where the Articles of Association do not prescrib their declaration to the Banking, Financial and Insurance Commission. "
Art. 27. In the same law, an article 67bis is inserted as follows:
"Art. 67bis. Where the Banking, Financial and Insurance Commission has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in an investment undertaking is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided for in this Act, it may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholder or partner in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholder or partner in question; its decision is enforceable as soon as it has been notified; the Banking, Financial and Insurance Commission may make its decision public;
2° give injunction to the shareholder or partner in question to assign, within the time limit fixed, the rights of associate he holds.
In the absence of an assignment within the specified time limit, the Banking, Financial and Insurance Commission may order the sequestering of the rights of a partner to a particular institution or person it determines. The receiver informs the investment company that amends the register of shares or shares of nominative partners and which only accepts the exercise of the rights attached to them by the sole receiver. It acts in the interest of sound and prudent management of the investment company and in that of the holder of the rights of partners who have been the subject of the receiver. He exercises all rights attached to the shares or shares of partners. The amount paid by the holder for the dividend or any other title shall only be paid by him if the holder has satisfied the injunction referred to in paragraph 1erTwo. The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder. The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above. The remuneration of the receiver is fixed by the Banking, Financial and Insurance Commission and is borne by the aforementioned holder. The receiver may charge such remuneration on the amounts paid to it as a receiver or the holder referred to above for the purposes or as a consequence of the above transactions.
When voting rights have been exercised by the original holder or by a person other than the receiver, acting on behalf of the holder after the expiry of the time limit set in accordance with paragraph 1er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1er, 1°, the commercial court in whose jurisdiction the company has its seat may, upon request of the Banking, Financial and Insurance Commission, pronounce the nullity of all or part of the proceedings of the general assembly if, without the illegally exercised voting rights, the quorums of presence or majority required by the said deliberations would not have been gathered. "
Art. 28. In Article 68, paragraph 3, of the same law, replaced by the Royal Decree of 27 April 2007, the words "Article 67, § 5, is of application" are replaced by the words "Article 67, § 6, is of application".
Art. 29. In Article 104, § 1er, 2°, fourth sentence, of the same law, the words "Article 67, § 7, paragraph 2 is applicable" are replaced by the words "Article 67bis, paragraph 2, is applicable".
Art. 30. In Article 148, § 4, of the same law, as amended by the laws of 12 December 1996 and 10 August 1998, the Royal Decree of 13 July 2001, and the laws of 2 August 2002, of 20 June 2005 and of 15 May 2007, the 3rd is replaced by the following:
"3° those who knowingly refrain from making the notifications provided for in Article 67, §§ 1er and 5, those who pass over to the opposition referred to in Article 67, § 3, or those who pass over to the suspension referred to in Article 67bis, paragraph 1er1°; "
CHAPTER 6. - Management societies of collective investment organizations
Art. 31. In section 3 of the Act of 20 July 2004 on certain forms of collective management of investment portfolios, as amended by the Act of 16 June 2006 and the Royal Decree of 27 April 2007, a 15°bis is inserted as follows:
"15°bis by qualified participation: the direct or indirect detention of at least 10 p.c. of the capital of a corporation or of the voting rights attached to the securities issued by that corporation, or any other opportunity to exert a significant influence on the management of the corporation in which an interest is held; the calculation of voting rights is established in accordance with the provisions of the Act of 2 May 2007 on the advertisement of significant participations, as well as those of its enforcement orders; is not taken into account the voting rights or shares held as a result of the firm taking of financial instruments and/or the placement of financial instruments with firm commitment, provided that, on the one hand, these rights are not exercised or otherwise used to intervene in the management of the issuer and that, on the other hand, they are transferred within one year of their acquisition; "
Art. 32. Article 150, paragraph 1er the Act, amended by the Act of 2 May 2007, is replaced by the following:
"Accreditation is subordinate to the communication to the Banking, Financial and Identity Insurance Commission of natural or legal persons who, directly or indirectly, acting alone or in concert with others, hold in the capital of the collective investment management company a qualified participation, conferring or not the right to vote. The communication must include the indication of the quotities of capital and voting rights held by those persons. "
Art. 33. Section 159 of the Act, as amended by the Acts of 22 July 2004, 20 June 2005, 2 May 2007 and 16 February 2009, is replaced by the following:
"Art. 159. § 1er. Without prejudice to section 150 and to the law of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in concert with others, who has made the decision either to acquire, directly or indirectly, a qualified interest in a company of management of collective investment bodies of Belgian law, or to carry out, directly or indirectly, an increase of that qualified participation in a company of management of collective investment bodies
§ 2. Severely, and in any event within two working days after receipt of the notification and complete information referred to in paragraph 1er, and after the eventual subsequent receipt of the information referred to in paragraph 3, the Banking, Financial and Insurance Commission shall acknowledge in writing the receipt of the information to the applicant. The acknowledgement of receipt indicates the expiry date of the assessment period.
The assessment period available to the Banking, Financial and Insurance Board for the purposes of the assessment referred to in paragraph 3 shall be not more than sixty working days from the date of receipt of the notification and all required documents with the notification on the basis of the list referred to in paragraph 3, paragraph 3.
The Banking, Financial and Insurance Commission may, during the assessment period, request additional information to complete the assessment period by the fiftieth working day of the evaluation period. This request is made in writing and specifies the necessary additional information.
During the period between the date of the request for information by the Banking, Financial and Insurance Commission and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. The Banking, Financial and Insurance Commission may make further requests to collect additional information or clarifications beyond the specified deadline in accordance with the preceding paragraph, but these requests do not, however, result in a suspension of the assessment period.
The Banking, Financial and Insurance Commission may extend the suspension referred to in paragraph 4 to thirty business days:
(a) if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
(b) if the prospective acquirer is a natural or legal person who is not subject to oversight under the Directives 2006/48/EC of the European Parliament and the Council of 14 June 2006 on access to the activity of the credit institutions and its exercise (reflective), Directives 85/611/EEC of the Council of 20 December 1985 on the coordination of legislative, regulatory and administrative provisions concerning certain organizations of collective investment in securities (/49/CVM), Directives 92
§ 3. The Banking, Financial and Insurance Commission may, within the course of the assessment period referred to in paragraph 2, object to the completion of the acquisition if it has reasonable grounds to consider, on the basis of the criteria set out in paragraph 2, that the recipient candidate does not have the necessary qualities in relation to the need to ensure a sound and prudent management of the collective investment management company or if the information provided by the applicant is unsuccessful.
By assessing the notification and information referred to in paragraph 1er, and additional information referred to in paragraph 2, the Banking, Financial and Insurance Commission appreciates, in order to ensure a sound and prudent management of the collective investment organization management company covered by the planned acquisition and taking into account the likely influence of the prospective purchaser candidate on the collective investment organization management company, the appropriateness of the acquirer candidate and the financial strength of the proposed acquisition by applying the following criteria:
(a) the reputation of the acquirer candidate;
(b) the reputation and experience of any person referred to in section 151 who will manage the activities of the collective investment organization management corporation following the proposed acquisition;
(c) the financial strength of the prospective purchaser, in particular in view of the type of activities carried out and envisaged in the collective investment organization management corporation under the proposed acquisition;
(d) the ability of the collective investment management company to meet and continue to meet the prudential obligations arising out of this Act and the decisions taken pursuant to this Act, in particular whether the group to which it belongs has a structure that allows for effective monitoring, to effectively exchange information between the competent authorities and to determine the sharing of responsibilities between the competent authorities;
(e) the existence of reasonable grounds to suspect that an operation or attempt to laundering capital or financing terrorism within the meaning of section 1er the Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for money laundering and the financing of terrorism is in progress or has taken place in relation to the intended acquisition, or that the proposed acquisition could increase the risk.
The Banking, Financial and Insurance Commission publishes on its website a list specifying the relevant information, proportionate and appropriate to the nature of the prospective purchaser and acquisition, which are necessary to conduct the evaluation and which must be communicated to it at the time of notification referred to in paragraph 1er.
If the Banking, Financial and Insurance Commission decides, at the end of the assessment, to oppose the proposed acquisition, it shall notify the applicant in writing, within two business days and without exceeding the assessment period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the assessment period, the Banking, Financial and Insurance Commission did not object to the proposed acquisition, it is deemed to be approved.
The Banking, Financial and Insurance Commission may set a maximum period for the conclusion of the proposed acquisition and, where appropriate, extend it.
§ 4. The Banking, Financial and Insurance Commission shall conduct the assessment referred to in paragraph 3 in full consultation with any other competent authority concerned if the applicant acquires:
(a) a credit institution, an insurance company, a reinsurance company, an investment company or a collective investment organization management company approved in another Member State; or
(b) the parent company of a company having one of the qualities referred to in (a); or
(c) a natural or legal person controlling a company having one of the qualities referred to in (a).
In the cases referred to in the preceding paragraph, any decision of the Banking, Financial and Insurance Commission shall mention any notices or reservations made by the competent authority responsible for the applicant acquiring.
When the prudential evaluation of a planned acquisition is within the competence of the control authority of credit institutions, insurance companies, reinsurance companies, investment companies or management companies of collective investment organizations of another Member State, the Banking, Financial and Insurance Commission shall, as soon as possible, exchange, with that authority any essential or relevant information for the evaluation. In this context, the Commission shall provide, upon request, any relevant information and, on its own initiative, any essential information.
§ 5. Any natural or legal person who has made the decision to stop holding, directly or indirectly, qualified participation in a collective investment management company shall notify the Banking, Financial and Insurance Commission in writing and shall communicate the proposed amount of its participation. Such a person shall also notify the Banking, Financial and Insurance Commission of its decision to reduce its qualified participation in such a way that the proportion of voting rights or shares of held capital falls below the thresholds of 20%, 30% or 50%, or that the collective investment management company ceases to be its subsidiary.
§ 6. In the event of forbearance to make the prior notifications prescribed by paragraph 1er or paragraph 5 or in the event of the acquisition or increase of an interest despite the opposition of the Banking, Financial and Insurance Commission referred to in paragraph 3, the President of the Commercial Court in whose jurisdiction the collective investment organization management company has its seat, ruling as referred, may take the measures referred to in Article 516, § 1er, the Corporate Code, as well as the cancellation of all or part of the general assembly proceedings held in the above cases.
The procedure is filed by a quote from the Banking, Financial and Insurance Commission.
Article 516, § 3, of the Corporate Code is applicable.
§ 7. Without prejudice to section 150 and to the law of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in concert with others, who has acquired, directly or indirectly, a stake in a company of management of collective investment bodies of Belgian law, or who has carried out, directly or indirectly, an increase of his participation in a company of management of collective investment bodies of Belgian law,
The same notification is required within ten working days of any natural or legal person who has ceased to hold, directly or indirectly, alone or in concert with other persons, an interest of more than 5% of the capital or voting rights of a collective investment management company, which did not constitute qualified participation.
Notifications referred to in subparagraphs 1er and 2 indicate the specific identity of the acquirer(s), the number of titles acquired or disposed of, and the percentage of the voting rights and capital of the collective investment management corporation held after the acquisition or assignment, as well as the necessary information that is published by the Financial Banking Commission and Insurance on its website in accordance with paragraph 3, paragraph 3.
§ 8. Collective investment management companies shall communicate to the Banking, Financial and Insurance Commission, as soon as they are aware, the acquisitions or disposition of their securities or shares that make one or more of the thresholds referred to in paragraph 1 above or below.erParagraph 1er.
Under the same conditions, they communicate to the Banking, Financial and Insurance Commission, at least once a year, the identity of shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and voting rights so held. They also communicate to the Banking, Financial and Insurance Commission the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Corporate Code in cases where the Articles of Association do not prescrib their declaration to the Banking, Financial and Insurance Commission. "
Art. 34. In the same Act, an article 159bis is inserted as follows:
"Art. 159bis. Where the Banking, Financial and Insurance Commission has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in a collective investment management corporation is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided for in this Act, the Banking, Financial and Insurance Commission may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholder or partner in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholder or partner in question; its decision is enforceable as soon as it has been notified; the Banking, Financial and Insurance Commission may make its decision public;
2° give injunction to the shareholder or partner in question to assign, within the time limit fixed, the rights of associate he holds.
In the absence of an assignment within the specified time limit, the Banking, Financial and Insurance Commission may order the sequestering of the rights of partners to any institution or person it determines. The sequester informs the management company of collective investment organizations, which accordingly amends the register of shares or shares of nominative partners and which only accepts the exercise of the rights attached to it by the sole receiver. It acts in the interest of sound and prudent management of the collective investment organization management company and in the interest of the holder of the rights of partners who have been the subject of the receiver. He exercises all rights attached to the shares or shares of partners. The amount paid by the holder for a dividend or other title shall be paid by the holder of the dividend only if the holder has satisfied the injunction referred to in paragraph 1erTwo. The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder. The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above. The remuneration of the receiver is fixed by the Banking, Financial and Insurance Commission and is borne by the aforementioned holder. The receiver may charge such remuneration on the amounts paid to it as a receiver or the holder referred to above for the purposes or as a consequence of the above transactions.
When voting rights have been exercised by the original holder or by a person other than the receiver, acting on behalf of the holder after the expiry of the time limit set in accordance with paragraph 1er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1er, 1°, the commercial court in whose jurisdiction the company has its seat may, upon request of the Banking, Financial and Insurance Commission, pronounce the nullity of all or part of the proceedings of the general assembly if, without the illegally exercised voting rights, the quorums of presence or majority required by the said deliberations would not have been gathered. "
Art. 35. In article 160, paragraph 6 of the same law, inserted by the law of July 22, 2004, the words "Article 159, § 5, is of application" are replaced by the words "Article 159, § 6, is of application".
Art. 36. In Article 197, § 3, paragraph 3, of the Act, the words "Article 159, § 7, paragraph 2 is applicable" are replaced by the words "Article 159 bis, paragraph 2, is applicable".
Art. 37. In Article 208, § 1er, as amended by the Acts of 16 June 2006 and 15 May 2007, of the Act, the 3° is replaced by the following:
"3° those who knowingly refrain from making the notifications provided for in Article 159, §§ 1er and 5, those who pass over to the opposition referred to in Article 159, § 3, or those who pass over to the suspension referred to in Article 159 bis, paragraph 1er1°; "
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given to Trapani, July 31, 2009.
ALBERT
By the King:
Minister of Finance,
D. REYNDERS
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
____
Note
(1) Parliamentary references:
Documents of the House of Representatives:
K.52-2011.
Deposit: May 28, 2009.
Adoption en commission (corrigé) : 26 June 2009.
Review, complete record. - Review: 2 July 2009.
Overall vote: does not vary.
Full report: 2 July 2009.
Adoption without amendment: 2 July 2009.
Documents of the Senate:
S-4-1382.
Transmission to the Senate for the first time: July 3, 2009.
Overall vote: not varies: 8 July 2009.
Adoption without amendment: 8 July 2009.
Overall vote: not varies: 16 July 2009.
Adoption without amendment: 16 July 2009.
Transmission to the Chamber for Penalty: July 16, 2009.