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16 FEBRUARY 2009. - Reinsurance Act

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART I^er. - General provisions
CHAPTER I^er. - Object and scope
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act provides for, inter alia, the transposition of Directive 2005/68/EC of the European Parliament and the Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC and 92/49/EEC and Directives 98/78/EC and 2002/83/EC1. It also makes a partial transposition of Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 concerning the legal controls of the annual and consolidated accounts and amending Council Directives 78/660/EEC and 83/349/EEC of 17 May 2006 and repealing Council Directive 84/253/EEC2.
Art. 3. § 1^er. This Act applies to Belgian reinsurance companies and to reinsurance companies established in Belgium or operating in Belgium without being established.
§ 2. It is not applicable to the reinsurance activity carried out or fully guaranteed by a Member State acting, for reasons of a significant public interest, as a last resort reinsurer, including when this role is made necessary by a situation where it is impossible to obtain adequate reinsurance coverage by the market.
CHAPTER II. - Definitions
Art. 4. For the purposes of this Act and of the decrees and regulations made for its execution, the following means:
1° "reinsurance company": any company that, for its own account, exclusively carries out the reinsurance activity, namely:
(a) the activity of accepting risks from an insurance company or another reinsurance company;
(b) in respect of the association of subscribers called "Lloyd's", the activity that involves, for an insurance or reinsurance company, other than Lloyd's, accepting the risks assigned by any member of Lloyd's.
For the purposes of this definition, a reinsurance activity is considered to cover, by a reinsurance company, for its own account, a professional pension institution within the scope of Parts II and III of the Act of 27 October 2006 relating to the supervision of professional pension institutions.
2° "reinsurance captive company": a reinsurance company held by a financial company other than an insurance or reinsurance company or a group of insurance or reinsurance under Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the complementary supervision of insurance and reinsurance companies that are part of an insurance or reinsurance group, or by a non-financial enterprise,
3° branch: any agency or branch of a reinsurance company;
Any permanent presence of a reinsurance company in the territory of a Member State other than its Member State of origin is assimilated to an agency or branch, even if this presence does not take the form of an agency or branch, but simply consists of an office managed by the company's own staff or by an independent person, but mandated to act permanently for the company as an agency would do.
4° "institution": the head office or branch of a reinsurance company, taking into account point 3°;
5° Directive 2005/68/EC: Directive 2005/68/EC of the European Parliament and the Council on Reinsurance and amending Council Directives 73/239/EEC and 92/49/EC and Directives 98/78/EC and 2002/83/EC;
6° "Member State": a Member State of the European Economic Area;
7° "Member State of origin": the Member State in which is located the head office of the reinsurance company;
8° "Member State of the branch": the Member State in which is located the branch of a reinsurance company;
9° "Reception Member State": the Member State in which a reinsurance company has a branch or provides services;
10° "control": the link between a parent company and a subsidiary, as defined in section 5 of the Corporate Code, or a similar relationship between any natural or legal person and a company;
11° "qualified participation": holding in a company, directly or indirectly, at least 10% of the capital or voting rights, or any other opportunity to exert a significant influence on the management of the company in which an interest is held; for the calculation of voting rights, it shall be taken into account the voting rights attached to the securities assimilated to shares held by articles 6, §§ 3 et seq., 7, 9, 10 and 11, §§ 3 and 4, of the Act of 2 May 2007 on the advertisement of important participations in the issuers whose shares are admitted to the negotiation on a regulated market and bearing various provisions;
12° "mother company": a company that meets the conditions of the parent company as defined in Article 6 of the Corporate Code;
13° "subsidiary": a company that meets the conditions of the subsidiary corporation as defined in section 6 of the Corporate Code; any subsidiary of a subsidiary is also considered to be a subsidiary of the parent company that is at the head of these companies;
14° "competent authorities": national authorities authorized under a law or regulation to control reinsurance companies;
15° Close links: a situation in which at least two natural or legal persons are linked by:
(a) participation, i.e. holding, directly or through a control link, at least 20% of the voting rights or capital of a business, or
(b) a control link, in all cases referred to in Article 5, paragraphs 1^er and 2, the Corporations Code, or a similar relationship between any natural or legal person and a business;
If two or more natural or legal persons have a permanent control relationship with one person, then these natural or legal persons also have a close connection between them.
16° "financial business": one of the following entities:
a) a credit institution as defined in section 1^er, paragraph 2, of the Act of 22 March 1993 on the Status and Control of Credit Institutions, a financial institution within the meaning of Article 3, § 1^er5°, of the same law, or an auxiliary banking company within the meaning of Article 32, § 4, 5°, of the same law;
(b) an insurance company, a reinsurance company or an insurance company within the meaning of section 82, 10°, of this Act;
(c) an investment company as defined in section 44 of the Act of 6 April 1995 relating to the status and control of investment enterprises;
(d) a mixed financial company within the meaning of Article 98, § 1^er5° of this Act;
17° "securing vehicle" ("special purpose vehicule"): any legal entity, whether or not fitted with the corporate personality, other than an existing insurance or reinsurance company, that takes care of the risks transferred by an insurance or reinsurance company and that fully funds its exposure to these risks through the issuance of a debt or other financing mechanism, where the rights to the reimbursement of those who have made an insurance
18° "reinsurance ends": reinsurance under which the maximum potential loss, expressed as the maximum economic risk transferred, resulting from a significant transfer of both the risk of subscription and the risk of timing, exceeds the premium over the duration of the contract, for a limited but important amount, in conjunction with at least one of the following two characteristics:
(a) the explicit and material consideration of the time value of money,
(b) contractual arrangements to smooth the economic effects between the two parties over time to reach a target level of risk transfer;
19° "association of mutual insurance": an insurance or reinsurance company that has adopted the social form referred to in sections 10 and 11 of the Act of 9 July 1975 on the control of insurance companies;
20° "CBFA": the Banking, Financial and Insurance Commission;
21° "Law of August 2, 2002": the Act of August 2, 2002 on financial sector surveillance and financial services.
PART II. - Belgian law reinsurance companies
CHAPTER I^er. - Access to activity
Section 1^re- Accreditation
Art. 5. Belgian law reinsurance companies intending to operate in Belgium are obliged, before starting their operations, to be accredited by the CBFA.
Art. 6. § 1^er. The approval is granted, according to the application filed by the company requesting it, for life reinsurance activities, for non-life reinsurance activities, or for both types of activities.
Accreditation shall be granted in the light of the program of activity which is submitted in accordance with section 7 and in the light of the compliance with the conditions of licence established by this Act and the orders and regulations made pursuant to that Act.
When close ties exist between the reinsurance company and other natural or legal persons, the CBFA will grant its approval only if these links do not involve the proper exercise of its monitoring mission on the reinsurance company.
Any reinsurance undertaking already approved, which intends to extend its operations to other reinsurance activities that are the subject of the previous registration, must first request an extension of this approval by the CBFA.
§ 2. Life reinsurance and non-life reinsurance activities referred to in § 1^er are the accepted reinsurance transactions that relate respectively to the group of direct life insurance activities and to the group of non-life direct insurance activities referred to in Article 14, § 1^er, the Act of 9 July 1975 on the control of insurance companies.
Art. 7. The application for approval is accompanied by a program of activities including indications or justifications regarding:
1° the nature of the risks the reinsurance company proposes to cover;
2° the types of reinsurance contracts that the reinsurance company proposes to conclude with assignors;
3° its guiding principles on retrocession;
4° the elements of its minimum guarantee fund;
5° its forecast for the installation costs of administrative services and the production network, as well as the financial means to deal with it;
6° for the first three social exercises:
(a) forecasts for non-installation management costs, including current general fees and commissions;
(b) forecasts for premiums or contributions and claims;
(c) a forecast balance;
(d) forecasts of financial means for the coverage of commitments and credits.
7° the structure of the organization of the company and its close links with other people.
Applicants must provide any information necessary to assess their application.
Art. 8. When the credit is sought by a reinsurance company that is either the subsidiary of another reinsurance company, an insurance company, a credit institution, an investment company or a management company of a collective investment organization, or
Similarly, CBFA consults with the supervisory authorities referred to in paragraph 1^er for the purpose of assessing the required qualities of shareholders and leaders in accordance with Articles 16 and 17, § 1^erwhere the shareholder is a business referred to in paragraph 1^er, and that the person participating in the management of the reinsurance undertaking also participates in the direction of one of the undertakings referred to in paragraph 1^er. These authorities shall provide each other with any information relevant to the assessment of the qualifications required of the shareholders and persons participating in the management referred to in this paragraph.
Art. 9. CBFA accepts reinsurance companies that meet the conditions set out in section II. She decides on the application within four months of the introduction of a complete file.
Any decision to refuse approval is specifically motivated.
Accreditation shall be deemed to be refused if no decision has been made on the expiry of the four-month period referred to in paragraph 1^er.
Approval decisions are notified to the applicant.
Art. 10. The CBFA can provide for sound and prudent management, with conditions for the exercise of all or part of the planned activities.
Art. 11. A list of registered reinsurance companies under this title is prepared annually by the CBFA. This list and any changes made to it are published on its website.
Art. 12. The CBFA shall inform the European Commission and the competent authorities of the other Member States:
1° of any approval of a direct or indirect subsidiary of one or more parent companies that fall under the right of a non-member State of the European Economic Area;
2° of any takeover of such a parent company in a reinsurance company, which would make it a subsidiary.
In the cases referred to in 1°, the structure of the group to which this subsidiary belongs is also communicated to the European Commission.
Section 2. - Accreditation conditions
Sub-section 1^re. - Form and social object
Art. 13. Reinsurance companies are incorporated in the form of anonymized company, a share-sponsored company, a cooperative corporation, a mutual insurance association or a European corporation (SE), as defined in Council Regulation (EC) No. 2157/2001 of 8 October 2001 relating to the status of European society (SE).
Art. 14. Reinsurance companies must limit their social object to reinsurance activity and related transactions. These may include a business holding function of the financial sector, as defined in section 2, item 8, of Directive 2002/87/EC.
Sub-section II. - Minimum Guarantee Fund
Art. 15. § 1^er. Reinsurance companies must have a minimum guarantee fund of 3.000.000 euros.
However, the King may, on the advice of the CBFA, provide that in the case of reinsurance captives, the minimum guarantee fund may be less than 3.000.000 euros without being less than 1.000.000 euros.
§ 2. The amounts in euros provided for in paragraph 1^er are revised annually from 10 December 2007 based on the evolution of the European Consumer Price Index published by Eurostat for all Member States.
The adaptations are automatic and take place according to the following procedure: the base amount in euros is increased from the percentage of variation of the index above over the period from 10 December 2005 to the revision date, then it is rounded to the multiple of 100.000 euros higher.
If the variation since the last adaptation is less than 5%, the amounts are not adjusted.
§ 3. The CBFA makes every year the possible revision and the appropriate amounts referred to in paragraph 2.
Sub-section III. - Holders of capital
Art. 16. Reinsurance companies communicate to the CBFA the identity of natural or legal persons who, directly or indirectly, hold in the capital of the reinsurance company a qualified participation as defined in Article 4, 11°, as well as the amount of such participation.
CBFA does not grant approval before obtaining the information listed in paragraph 1^er.
Accreditation is refused if CBFA has reasons to consider that the natural or legal persons referred to in paragraph 1^er do not present the qualities necessary to ensure a healthy and prudent management of the reinsurance company.
Sub-section IV. - Leaders
Art. 17. § 1^er. The effective management of reinsurance companies must be entrusted to at least two natural persons. These must have the necessary professional honesty and experience to perform these functions.
Individuals who take part in the administration or management of a reinsurance company, without participating in its effective management, must have the necessary expertise and experience to perform their tasks.
§ 2. Section 19 of the Act of 22 March 1993 on the Status and Control of Credit Institutions is applicable.
Except for those responsible for the effective management of the company, the CBFA may authorize derogations from the prohibitions set out in this paragraph.
Sub-section V. - Organization
Art. 18. § 1^er. Reinsurance companies must have a management structure, an administrative and accounting organization, control and security mechanisms in the IT field and an internal control, appropriate to the activities they operate or intend to exercise. They take into account the nature, volume and complexity of these activities and the risks associated with them.
§ 2. Reinsurance companies must have an adequate management structure, including the following:
- a coherent and transparent organizational structure, providing adequate separation of functions;
- a well-defined, transparent and coherent accountability framework; and
- adequate procedures for the identification, measurement, management, monitoring and internal reporting of significant risks incurred by the reinsurance company due to the activities it carries out or intends to carry out.
Reinsurance companies are an audit committee within their legal body of administration. The audit committee is composed of non-executive members of the legal administrative body. At least one member of the audit committee is an independent member of the legal body of administration within the meaning of section 526ter of the Corporate Code and is competent in accounting and/or auditing. In addition, members of the audit committee have a collective competence in the area of the activities of the reinsurance company concerned and in accounting and auditing.
The annual report of the legal body of administration justifies the individual and collective competence of the members of the audit committee.
The Approved Commissioner:
(a) confirms each year in writing to the Audit Committee its independence from the reinsurance undertaking;
(b) communicate to the audit committee each year the additional services provided to the reinsurance undertaking;
(c) examine with the audit committee the risks to its independence and the safeguards taken to mitigate these risks, recorded by the audit committee.
In reinsurance companies 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 an audit committee within the legal body of administration is not mandatory, but the functions assigned to the audit committee must then be exercised by the legal body of administration as a whole, provided that, when the chair of the audit body is an executive member, it does not preside over the legal body of administration when it acts as an audit committee. Is presumed to be an executive member of the legal body of administration, inter alia, any director who is a member of the steering committee referred to in section 25 and any director who has been delegated daily management within the meaning of section 525 of the Corporate Code.
As long as an audit committee whose powers extend to the whole group and meeting the requirements of this Act has been established, the CBFA may, in respect of reinsurance companies that are subsidiaries or sub-sidiaries of a joint financial company, an insurance company, a financial company, a credit institution, an insurance company, another CBFA makes its policy of derogation public.
The above provisions do not prejudice the provisions of the Corporate Code relating to the Board of Audit of listed companies within the meaning of section 4 of this Code.
§ 3. Reinsurance companies must organize adequate internal control, which operates at least once a year. With regard to their administrative and accounting organization, they must organize an internal control system that provides a reasonable degree of certainty as to the reliability of the financial reporting process, so that the annual accounts are consistent with the existing accounting regulations.
Reinsurance companies take the necessary measures to be able to have an adequate independent internal audit function on an ongoing basis.
Reinsurance companies develop an adequate integrity policy, which is regularly updated. They take the necessary measures to be able to have an adequate independent compliance function on an ongoing basis, to ensure that the company respects its directors, its effective officers, its employees and its agents, the rules of law relating to the integrity of its activity.
Reinsurance companies must have an adequate independent risk management function.
§ 4. The CBFA may, without prejudice to the provisions of §§ 1^er, 2 and 3, specify what should be heard by appropriate management structure, adequate internal control, adequate independent audit function, adequate independent compliance function and adequate risk management function.
§ 5. Without prejudice to the powers vested in the legal body of administration with respect to the determination of general policy, as provided for in the Code of Companies, persons responsible for the effective management of the reinsurance company, if any the steering committee, shall take, under the supervision of the legal body of administration, the necessary measures to ensure compliance with the provisions of §§ 1^er, 2 and 3.
Without prejudice to the relevant provisions of this subsection and the legal missions of the legal body of administration, the audit committee shall at least be responsible for the following tasks:
(a) follow-up to the financial information development process;
(b) monitoring the effectiveness of internal control and enterprise risk management systems;
(c) monitoring the internal audit and its activities;
(d) Follow-up to the legal control of annual accounts and consolidated accounts, including follow-up to issues and recommendations of the authorized Commissioner;
(e) review and monitoring of the independence of the authorized commissioner, in particular with regard to the provision of complementary services to the controlled entity.
The audit committee shall report regularly to the legal body of administration on the exercise of its duties, at least at the time of the establishment by it of the annual and consolidated accounts and the periodic reports referred to in section 29, transmitted by the reinsurance company respectively at the end of the social year and at the end of the first social semester.
The CBFA may, by regulation made in accordance with section 64 of the Act of 2 August 2002, specify and supplement on technical points the items listed in the list reproduced above.
The legal body of administration of the reinsurance company must control at least once a year, if applicable through the audit committee, if the company complies with the provisions of §§ 1^er, 2 and 3 and 1^er and takes note of the appropriate measures taken.
Effective management, if any, the steering committee, shall report at least once a year to the legal body of administration, to the CBFA and to the authorized Commissioner on compliance with the provisions of paragraph 1^er and on the appropriate measures taken.
This information is forwarded to the CBFA and the authorized commissioner on the terms and conditions determined by the CBFA.
§ 6. The Authorized Commissioner reports to the legal body of administration through the audit committee on important issues identified in the exercise of his legal audit mission, and in particular on significant weaknesses in internal control in the financial reporting process.
§ 7. If there are close ties between the reinsurance company and other natural or legal persons, these links cannot hinder the exercise of an individual or consolidated control of the company.
If the reinsurance company has close ties with a natural or legal person under the law of a non-member State of the European Economic Area, the legislative, regulatory and administrative provisions applicable to that person or their implementation may not interfere with the exercise of individual prudential control or on a consolidated basis of the enterprise.
Sub-section VI. - Central Administration
Art. 19. The central administration of the Belgian law reinsurance company must be located in Belgium.
CHAPTER II. - Operating conditions of activity
Section 1^re. - Technical provisions
Sub-section 1^re. - Establishment of technical provisions
Art. 20. Reinsurance companies are required to provide adequate technical provisions for all their activities.
The King determines the method of calculation and, where applicable, the minimum amount of these technical provisions.
The King provides for the establishment of provisions for equalization and disasters to compensate for the technical loss or the average loss rate that may appear in certain branches at the end of each exercise.
Sub-section II Representative Assets of Technical Provisions
Art. 21. § 1^er. The technical provisions referred to in section 20 shall be covered at any time by equivalent assets belonging to the company, as described below as representative values. The reinsurance company invests these assets with the following principles:
(a) consideration shall be given to the type of transactions carried out by the reinsurance company, including the nature, amount and duration of the anticipated claims, in order to ensure the sufficiency, liquidity, security, quality, performance and congruence of the investments it makes;
(b) assets are diversified and properly distributed and allow the company to respond appropriately to changes in the economic situation, in particular to changes in financial and real estate markets or major disasters. The company assesses the impact of irregular market conditions on its assets and diversifies its assets to reduce this impact;
(c) Investments in untraded assets in a regulated financial market are, in all circumstances, maintained at prudent levels;
(d) investments in derivative instruments are possible to the extent that they contribute to reducing investment risks or enabling effective portfolio management. They are assessed prudently, taking into account the underlying assets, and are included in the valuation of the company's assets. The company also avoids excessive exposure to the risks associated with a single counterparty and other derivative transactions;
(e) assets are subject to proper diversification so as to avoid excessive reliance on a single asset, a single issuer or group of companies, as well as risk accumulations in the portfolio as a whole. Investments in assets issued by the same issuer or by transmitters belonging to the same group shall not expose the company to excessive risk concentration.
The King may decide not to apply the requirements referred to in (e) to investments in securities issued by a State.
The King may, in order to monitor compliance with the principles set out in this paragraph, require reinsurance companies to communicate their investment policy to the CBFA. The King may fix the content and periodicity of this communication.
§ 2. Without prejudice to paragraph 1^er, the King may, for any reinsurance company whose head office is located in Belgian territory, establish quantitative rules for prudential purposes.
§ 3. The King shall establish more detailed rules setting the conditions of use as representative assets of the technical provisions in accordance with this article:
- stock from a securitization vehicle;
- parts of reinsurers in technical provisions, where reinsurers are unregistered reinsurance companies under Directive 2005/68/EC or non-approved insurance companies under Directives 73/239/EC or 2002/83/EC;
- debts on reinsurers, where these reinsurers are unregistered reinsurance companies under Directive 2005/68/EC or non-registered insurance companies under Directives 73/239/EC or 2002/83/EC.
§ 4. The King rules on the location of representative values and their assessment.
Section 2. - Loan margin and guarantee fund
Sub-section 1^re. - Marge of solvency
Art. 22. § 1^er. Reinsurance companies have, at any time, an adequate margin of credit for all their activities.
§ 2. The credit margin is constituted by the reinsurance company's heritage, free of any predictable commitment and deduction of intangible elements.
The King determines the method of calculating the solvency margin, the minimum level it must achieve according to the company's commitments, and the elements that compose or are excluded from it.
Reinsurance companies that simultaneously practice life reinsurance and non-life reinsurance have a credit margin equal to the total sum of the credit margin requirements applicable to life reinsurance and non-life reinsurance activities, calculated in accordance with the rules enacted by the King.
Sub-section II. - Guarantee Fund
Art. 23. § 1^er. The guarantee fund is equal to one-third of the credit margin required in Article 22, § 2.
It may not be less than the amounts fixed by or under section 15.
§ 2. The King determines the elements of the credit margin that can be retained for the composition of the fund.
Section 3. - Change of ownership
Art. 24. § 1^er. Without prejudice to the Act of 2 May 2007 on the advertisement of significant participations in issuers whose shares are admitted to negotiation on a regulated market and bearing various provisions, any natural or legal person who plans to hold, directly or indirectly, qualified participation in the capital of a reinsurance company of Belgian law must first inform CBFA and communicate the percentage of such participation. Any natural or legal person must also inform the CBFA if it intends to increase its qualified participation in such a way that the proportion of voting rights or capital shares held by it reaches or exceeds the thresholds of 20%, 33% or 50% or that the reinsurance company becomes its subsidiary.
The rules set out in articles 6, §§ 3 et seq., 7, 9, 10 and 11, §§ 3 and 4, of the Act of 2 May 2007 on the advertisement of important participations in issuers whose shares are admitted to negotiation on a regulated market and bearing various provisions, are applicable.
The CBFA has a maximum period of three months from the date of information provided in the first paragraph to object to the project if, to take into account the need to ensure sound and prudent management of the reinsurance company, it is not satisfied with the quality of the person referred to in the first paragraph. Where it does not object, the CBFA may set a maximum time limit for the completion of the project in question.
Any natural or legal person who plans to stop holding, directly or indirectly, qualified participation in a Belgian law reinsurance company must first inform the CBFA and communicate the envisaged percentage of its participation. Any natural or legal person must also inform the CBFA of its intention to reduce its qualified participation in such a way that the proportion of voting rights or shares held by it falls below the thresholds of 20%, 33% or 50% or that the company ceases to be its subsidiary.
§ 2. If the purchaser is a reinsurance company, an insurance company, a credit institution, an investment company or a management company of collective investment organizations, approved in another Member State, or the parent company of such an entity, or a natural or legal person who controls such an entity, and if, as a result of the acquisition, the reinsurance company in which the interested purchaser would
§ 3. Belgian law reinsurance companies shall, as soon as they are aware, communicate to the CBFA the acquisitions or transfers of shares in their capital that make one or more of the thresholds referred to in paragraph 1 above or below.^er.
Similarly, they disclose to the CBFA at least once a year the identity of shareholders or associates who have qualified participations as well as the amount of such participations, such as the data recorded at the annual general meeting of shareholders or associates, or information received in respect of corporate bonds listed in a stock exchange.
§ 4. Where CBFA has reasons to consider that the influence of natural or legal persons holding, directly or indirectly, qualified participation in the capital of a reinsurance company of Belgian law is likely to jeopardize the sound and prudent management of the company, and without prejudice to the other measures provided for in this Act, the CBFA may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholders or partners 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 shareholders or associates involved; its decision is enforceable as soon as it has been notified; CBFA can make its decision public;
2° give injunction to the above-mentioned persons to assign, within the time limit set, the rights of associate they hold.
In the absence of an assignment within the time limit, the CBFA may order the sequester of the rights of associate with any institution or person it determines. The latter informs the company that accordingly amends the register of the shares of the nominative partners and which, even without presentation of the shares to the holder, only accepts the exercise of the rights attached to them 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 share of partners. The sums paid by the holder for the dividend or any other title shall be paid by him. 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 CBFA and is borne by the holder mentioned above. 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 1^er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1^er, 1°, the court of commerce in which the company has its seat may, upon request of the CBFA, declare 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.
Similar measures may be applied to natural or legal persons who do not comply with the prior information requirement referred to in paragraph 1^er.
Section 4. - Leadership and leadership
Art. 25. § 1^er. The statutes of reinsurance companies may authorize the board of directors to delegate all or part of the powers referred to in section 522, § 1^erParagraph 1^er, from the Code of Societies to a steering committee established within it, of which it appoints and revokes the members and whose remuneration it determines.
However, this delegation may not focus on the determination of general policy or on acts reserved for the board of directors by the other provisions of the same Code of Companies.
§ 2. Without prejudice to section 18, directors or directors of a reinsurance company and any persons who, under any name and in any capacity, take part in the administration or management of the enterprise may, in representation or not of the reinsurance company, exercise the terms of office of a Belgian director or manager or take part in the administration or management within a commercial or commercial corporation, of another
External functions referred to in paragraph 1^er are governed by internal rules that the reinsurance company must adopt and enforce in order to pursue the following objectives:
1° to prevent the exercise of these functions by persons participating in the effective management of the reinsurance undertaking from impairing the availability required for the exercise of that direction;
2° Prevent in the head of the reinsurance company the occurrence of conflicts of interest as well as the risks associated with the exercise of these functions, including in the case of initiation operations;
3° ensure adequate advertising of these functions.
CBFA sets out the terms and conditions of these obligations by regulation made in accordance with section 64 of the Act of 2 August 2002.
Social agents appointed upon presentation of the reinsurance undertaking must be persons who participate in the effective management of the reinsurance undertaking or the persons it designates.
Directors who do not participate in the effective management of the reinsurance undertaking may not be a director of a corporation in which the company holds an interest only if they do not participate in the current management of that corporation. However, this prohibition is not applicable, for a limited period of six years, to directors appointed as a result of the acquisition of participation or resumption of the activities of the corporation in which the same persons participate in the effective management.
persons who participate in the effective management of the reinsurance company may exercise a mandate that includes participation in the current management only if it is a corporation referred to in section 32, § 4, of the Act of March 22, 1993 relating to the status and control of the credit institutions, with which the reinsurance company has close links, of a group investment organization in a statutory form or of a corporation
Reinsurance companies shall promptly notify the CBFA of the duties performed outside the reinsurance undertaking by the persons referred to in paragraph 1^erfor the purpose of monitoring compliance with the provisions of this article.
§ 3. In the event of a bankruptcy of a reinsurance business, there is no and no effect in respect of the mass, the payments made by that company, either in cash or otherwise, to its directors or managers, as aunts or other profits, in the two years preceding the time determined by the court as the termination of its payments.
Paragraph 1^er does not apply if the court recognizes that no serious and characterized fault of these persons has contributed to bankruptcy.
Art. 26. Reinsurance companies priorly inform the CBFA of the proposal for the appointment or renewal of the appointment, as well as the non-renewal of the appointment or revocation of persons participating in the administration, management or effective management of the reinsurance undertaking.
In the event of a proposal to appoint a person to participate in the administration, management or effective management of the reinsurance company, the reinsurance company shall communicate to the CBFA the information and documents that will enable it to determine whether the person has the necessary professional honesty and expertise and the appropriate experience, as referred to in Article 17, § 1^er.
CBFA shall render, within a reasonable time, notice of any proposed appointment or renewal of an appointment. When the proposal for the appointment or renewal of an appointment relates to a person who participates in the effective direction, the appointment or renewal of the appointment may only be made if the CBFA has made a notice in accordance.
Reinsurance companies also inform the CBFA of the possible division of tasks between those involved in the administration, management or effective management of the reinsurance company, where appropriate, of the division of duties between the members of the steering committee, as well as of the significant changes in this division of duties.
Art. 27. Reinsurance companies may not directly or indirectly grant loans, credits or guarantees to their administrators or managers only on normal market conditions.
The loans, credits and guarantees that these undertakings consent, directly or indirectly, to the companies or institutions in which their directors or managers or their spouses hold, on a personal or direct or indirect basis, qualified participation are notified to the CBFA in accordance with the periodicity and manner determined by the CBFA. CBFA may, if these transactions have not been concluded under normal market conditions, require the adaptation of the terms and conditions agreed upon on the date that these transactions have effected. Otherwise, the leaders who made the decision are jointly responsible for the difference to the company.
Section 5. - Mergers and assignments
Art. 28. § 1^er. Are subject to the authorization of the CBFA:
1° the merger of a reinsurance company referred to in section 9 with another reinsurance company or with an insurance company;
2° the assignment by a reinsurance company referred to in section 9, to another reinsurance company or to an insurance company, the whole or part of its reinsurance contract portfolio.
The CBFA only authorizes the merger or assignment if the competent authority responsible for the control of the solvency margin of the transferee confirms that the transferee has, in the light of the merger or assignment, the necessary credit margin referred to in Article 22, § 2.
§ 2. At the request of the competent authorities of the Member State of the transferring enterprise, and when the transferring enterprise is a reinsurance enterprise referred to in Article 5, the CBFA shall issue a certificate indicating whether the transfer of the necessary credit margin referred to in Article 22, § 2.
Section 6. - Periodic information and accounting rules
Art. 29. § 1^er. Reinsurance companies regularly communicate to the CBFA a detailed financial situation. This is established in accordance with the rules established by a regulation of the CBFA taken in accordance with section 64 of the Act of 2 August 2002. In addition, the CBFA may prescribe the regular transmission of other encrypted or descriptive information necessary to verify compliance with the provisions of this Act or the orders and regulations made pursuant to these Acts. CBFA may, for certain classes of enterprises or in special cases duly motivated, authorize derogations from the regulations made pursuant to this paragraph.
§ 2. The King may, on the advice of the CBFA, set specific rules for the preparation of annual accounts, the evaluation of various balance sheets and the presentation of the annual report of reinsurance companies.
§ 3. The effective management of the reinsurance company, if any the steering committee, tells the CBFA that the above-mentioned periodical statements transmitted to it by the company at the end of the first social semester and at the end of the social year are in accordance with accounting and inventories. For this purpose, it is required that the periodic reports be complete, i.e. that they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, i.e. that they correspond exactly with the accounting and with the inventories on which they are established. Effective management confirms that it has made the necessary steps to ensure that the above-mentioned statements are prepared in accordance with the existing instructions of the CBFA, as well as through the application of the accounting and evaluation rules presiding over the preparation of the annual accounts, or, in respect of the periodic reports that do not relate to the end of the fiscal year, by applying the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year.
CHAPTER III. - Conditions for the exercise of foreign activity
Section 1^re. - The constitution or acquisition of a subsidiary and the opening of a branch abroad
Art. 30. The reinsurance company that plans to acquire or create, directly or indirectly, a foreign affiliate carrying on the activity of an insurance or reinsurance company shall notify the CBFA of its intention. This notification includes information on the activities, organization, shareholding and management of the company concerned.
Art. 31. § 1^er. The reinsurance company that plans to open a branch in the territory of another State for the purpose of carrying out a reinsurance activity for which it is licensed, notifies its intention to the CBFA.
§ 2. The notification referred to in paragraph 1^er must be accompanied by a file containing the following information:
1° the name of the State in whose territory the reinsurance company envisages establishing the branch;
2° the program of activities, which will include the type of operations envisaged and the structure of the branch organization;
3° the address to which documents may be claimed and issued in the State of the branch.
Art. 32. The CBFA may object to the completion of the project if it considers that the project will have a negative impact on the organization, financial situation or control of the reinsurance company. It may also object to it if it has reasons to doubt the honesty and qualification or professional experience of the agent general or other persons in charge of the branch.
This opposition is motivated and must be notified to the company by registered letter to the position or with acknowledgement of receipt no later than six weeks after the receipt of the complete file including the information referred to in Articles 30 and 31.
If the CBFA has not notified a decision within this period, it is deemed not to oppose the reinsurance project.
Art. 33. When the reinsurance company intends to amend the information referred to in section 31, it shall notify the CBFA in writing at least one month before making the change.
Art. 34. When the establishment state of the branch is not a member state, the CBFA may agree with the control authority of the reinsurance companies of that State the terms and conditions for the opening and control of the branch as well as the exchange of desirable information in accordance with the rules relating to the professional secrecy of the CBFA.
Section 2. - Provision of services abroad
Art. 35. The reinsurance company that has been approved by the CBFA in accordance with Article 9 and which envisages reinsurance activity in the territory of another State without establishing a branch previously notifies its intention to the CBFA and specifies the nature of the activities envisaged.
Section 3. - The liquidation of a Belgian reinsurance company that operates abroad
Art. 36. In the event of the winding-up of a reinsurance company, the commitments resulting from the contracts entered into by a branch or service delivery are carried out in the same way as the commitments resulting from the other reinsurance contracts of that undertaking.
CHAPTER IV. - Control of Belgian law reinsurance companies
Art. 37. Reinsurance companies are subject to the control of the CBFA.
The CBFA may be provided with any information relating to the organization, operation, situation and operations of reinsurance companies.
Reinsurance agents, brokers or intermediaries are required to provide CBFA, upon request, with any information regarding reinsurance contracts they hold.
CBFA may conduct on-site inspections and be informed and copied, without displacement, any information held by the company with a view to:
1° to verify compliance with the legal and regulatory provisions relating to the status of reinsurance companies and the accuracy and sincerity of the accounting and annual accounts, as well as the statements and other information transmitted by the company;
2° to verify the adequacy of the management structures, the administrative and accounting organization and the internal control of the company;
3° to ensure that the management of the company is healthy and prudent and that its situation or operations are not likely to jeopardize its liquidity, profitability or solvency.
Art. 38. Any significant change in the financial or administrative organization of the reinsurance undertaking, or any modification of the activity described in its registration file referred to in section 7, must be communicated to the CBFA within one month of the decision of the undertaking or its knowledge of the event giving rise to that amendment.
Art. 39. § 1^er. The CBFA carries out the necessary checks when the supervisory authorities of the host Member State of a reinsurance company of Belgian law the inform that they have reasons to consider that the activities of the reinsurance company could undermine its financial solidity.
§ 2. The CBFA may proceed to the branches of the Belgian law reinsurance companies established in another Member State, with the prior information of the authorities of that State responsible for the control of reinsurance companies, to the inspections referred to in Article 37, paragraph 4, and to any inspection to collect or verify on-site information relating to the management and management of the branch as well as any information that may facilitate the control of the reinsurance company.
It may, for the same purposes, and after having notified the supervisory authorities referred to in paragraph 1^er, load an expert, whom she designates, to carry out useful audits and expertise. The remuneration and costs of the expert are borne by the company.
It may also request such authorities to conduct the audits and expertise referred to in paragraph 1^er She tells them.
CHAPTER V. - Revisoral and actuarial control
Art. 40. The duties of commissioner under the Code of Companies may only be entrusted to one or more revisers or to one or more revisor companies approved by the CBFA in accordance with section 42.
In Belgian law reinsurance companies that are not required by the Code of Companies to have a Commissioner, the general assembly of members or associates shall appoint one or more reviewers or one or more registered reviewers as provided for in paragraph 1^er. They serve as Commissioner. The provisions of title VII of Book IV of the Code of Companies relating to Commissioners are applicable.
Reinsurance companies may designate alternate commissioners who perform the duties of commissioners in the event of their licensee's lasting incapacity. The provisions of this Article and Article 41 shall apply to such substitutes.
The auditors designated in accordance with this section shall certify the consolidated annual accounts of the reinsurance undertaking.
Art. 41. Chartered reviewers perform the duties of Commissioner under section 40 through a registered reviewer that they designate in accordance with section 132 of the Corporate Code. The provisions of this Act and the decrees made for its enforcement, which are related to the designation, functions, obligations and prohibitions of commissioners and to sanctions, other than criminal, that are applicable to them, are applicable simultaneously to the revisors and approved reviewers representing them.
A registered reviser company may designate an alternate representative from among its eligible members.
Art. 42. CBFA shall, under the approval of the Minister of Finance and the Minister of Economy, decide on the approval of revisers and revisers.
Accreditation regulations are made after consultation with approved reviewers represented by their professional organization.
The Institut des Réviseurs d'Entrentreprise informs the CBFA of the opening of any disciplinary proceedings against a registered reviewer or a registered reviewer company for failure to perform its duties with a reinsurance company and any disciplinary action taken against a registered reviewer or a registered reviewer company and its reasons.
Art. 43. The designation of certified commissioners and alternate approved commissioners to reinsurance companies is subject to the prior agreement of the CBFA. This agreement must be collected by the social body that makes the nomination proposal. In the event of the designation of a registered review company, the agreement shall jointly deal with the company and its representative.
The same agreement is required for the renewal of the mandate.
When, under the Act, the appointment of the Commissioner is made by the President of the Trade Tribunal or the Court of Appeal, they make their choice on a list of approved reviewers with the agreement of the CBFA.
Art. 44. The CBFA may, at any time, revoke, by a decision based on reasons for their status or the performance of their duties as a registered reviewer or a registered reviewer corporation, as provided for by or under this Act, the agreement given, pursuant to section 43, to an authorized commissioner, an alternate registered commissioner, an approved reviser corporation or a representative or alternate representative of such a corporation. This revocation puts an end to the duties of Commissioner.
In the event of the resignation of an authorized commissioner, the CBFA and the reinsurance company are previously informed of the resignation and its reasons.
Accreditation rules, for the surplus, the procedure.
In the absence of an alternate registered commissioner or an alternate representative of an approved reviser company, the reinsurance company or the approved reviser company shall, in accordance with section 43, be replaced within two months.
The proposal to revoke authorized commissioner's terms of reference in reinsurance companies, as set out in sections 135, paragraph 1^er, and 136 of the Corporate Code, is subject to the opinion of the CBFA. This notice is communicated to the General Assembly.
Art. 45. The authorized commissioners referred to in section 43 shall cooperate in the control exercised by the CBFA under their personal and exclusive responsibility and in accordance with this section, the rules of the profession and the instructions of the CBFA. To this end:
1° they assess the internal control measures adopted by reinsurance companies in accordance with Article 18, § 3, paragraph 1^erand communicate their findings on this matter to the CBFA;
2° they report to the CBFA on:
(a) the results of the limited review of the periodic reports transmitted by reinsurance companies to the CBFA 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 have not, in all significant respects, been prepared in accordance with the existing instructions of the CBFA. 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; CBFA may specify which periodic reports are in this case;
(b) the results of the review of the periodic reports transmitted by reinsurance companies to the CBFA at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the existing instructions of the CBFA. 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; CBFA may specify which periodic reports are in this case;
3° they make special reports to the CBFA, at its request, on the organization, activities and financial structure of the reinsurance company, reports whose settlement fees are borne by the reinsurance company in question;
4° as part of their mission to a reinsurance company or a revisoral mission to a reinsurance company, they make an initiative to report to the CBFA as soon as they find:
(a) decisions, facts or developments that significantly influence or influence the situation of the reinsurance undertaking 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 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 the refusal or reservation to certify accounts.
No civil, criminal or disciplinary action may be instituted or any professional sanction imposed against registered commissioners who have proceeded in good faith to information referred to in paragraph 4 of paragraph 1^er.
Authorized commissioners shall communicate to the executives of the reinsurance undertaking their reports to the CBFA in accordance with paragraph 1^erThree. These communications fall under the secrecy of section 74 of the Act of 2 August 2002 on financial sector surveillance and financial services. They transmit to the CBFA copies of the communications they address to these leaders, which deal with issues of interest to the control exercised by them.
Authorized auditors and certified auditors can perform audits and expertise related to their duties at the foreign branches of the company they control.
Art. 46. The CBFA may require the issuance of a report, if any, according to the regularity it determines, from one or more persons designated by the reinsurance company and with the required actuarial knowledge, concerning the rates, retrocession and the amount of technical provisions.
CBFA may, by regulation made in accordance with section 64 of the Act of 2 August 2002, set out the conditions to which such persons must be satisfied.
CHAPTER VI. - Exceptional measures and the radiation of the accreditation
Section 1^re. - exceptional measures
Art. 47. § 1^er. When the CBFA finds that a reinsurance company does not operate in accordance with the provisions of this Act and the orders and regulations made for its execution, that its management or financial situation does not provide sufficient guarantees for the successful completion of its commitments, or that its administrative or accounting organization or internal control has serious deficiencies, it sets the time limit in which it must be addressed to the situation noted.
If at the end of this period, the situation has not been resolved, the CBFA may:
1st appoint a special commissioner.
In this case, the written, general or special authorization of the company is required for all acts and decisions of all the bodies of the company and those of the persons responsible for the management; CBFA may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all corporate bodies, including the General Assembly, any proposals that he considers appropriate. The remuneration of the Special Commissioner is fixed by the CBFA and supported by the company.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions without having obtained the required authorization from the Special Commissioner are responsible in solidarity with the resulting harm to the company or third parties.
If the CBFA has published to the Belgian Monitor the designation of the Special Commissioner and specifies the acts and decisions subject to its authorization, the acts and decisions taken without that authorization while required are null unless the Special Commissioner ratifies them. Under the same conditions, any decision of a general assembly made without obtaining the required authorization of the Special Commissioner is null unless the Special Commissioner ratifies it.
The CBFA may designate an alternate commissioner.
2° suspend, for the duration it determines, the direct or indirect exercise of any or part of the activity of the enterprise or prohibit that exercise.
The members of the administrative and management bodies and those responsible for the management who perform acts or make decisions in violation of the CBFA's decision are responsible in solidarity with the resulting harm to the company or third parties.
If the CBFA issued the suspension to the Belgian Monitor, the actions and decisions against it are null and void.
3° enjoin the replacement of managers, administrators or general agents of the reinsurance company, within a time limit fixed by the reinsurance company and, if not replaced within that time, substitute a temporary manager for all the management bodies of the enterprise who has the powers of the replaced persons. The CBFA can publish its decision to the Belgian Monitor.
The remuneration of the provisional manager is fixed by the CBFA and supported by the company concerned.
The CBFA may at any time terminate the mandate of the Provisory Manager and replace it, either on its own motion or at the request of a majority of shareholders or associates, when they justify that the management of the interested party no longer presents sufficient guarantees.
4° revoke the approval.
§ 2. The CBFA decisions referred to in § 1^er release their effects to the company on the date of their notification to the company by registered letter to the position or with acknowledgement of receipt. They are out of effect with respect to third parties as of the date of publication in accordance with § 1^er.
§ 3. § 1^erParagraph 1^er, and § 2 are not applicable in the event of the cancellation of the registration of a registered reinsurance company in bankruptcy.
§ 4. The court of commerce shall pronounce at the request of any interested person, the nullities provided for in § 1^er2, 1 and 2 degrees.
The nullity action is directed against the company. If there are serious grounds to justify it, the plaintiff may apply to refer the provisional suspension of the acts or decisions under attack. The order of suspension and the judgment pronouncing nullity produce their effects on all. In the event that the suspended or annulled act or decision has been published, the suspension order and the judgment pronouncing nullity are published in extract in the same forms.
Where nullity is likely to affect the rights acquired in good faith by a third party in respect of the business, the court may declare nullity in respect of such rights without effect, subject to the right of the applicant to damages if applicable.
The action in nullity may no longer be brought after the expiration of a period of six months from the date on which the acts or decisions taken are enforceable against the person who invokes nullity or are known to him.
Art. 48. § 1^er. CBFA may restrict or prohibit the free disposition of assets of a reinsurance company in the following cases:
(a) if the reinsurance company does not comply with the provisions of section 20 and the orders and regulations made pursuant to them;
(b) in the exceptional circumstance where, while the CBFA required a recovery plan because the credit margin no longer reaches the level prescribed under section 22, the CBFA is of the opinion that the financial situation of the reinsurance undertaking will deteriorate further;
(c) if the credit rating no longer reaches the level of the guarantee fund defined under section 23.
§ 2. In order to restore the financial situation of a business whose credit margin no longer reaches the prescribed level under section 22, CBFA requires that a recovery plan be submitted to it for approval within the time limit it will indicate.
If the credit margin no longer reaches the level of the guarantee fund defined under section 23, the CBFA requires the company to submit to its approval a short-term funding plan.
§ 3. When compliance with reinsurance contracts is threatened due to the deterioration in the financial situation of the reinsurance company, CBFA may require the company to have a financial recovery strategy. The program must at least include a detailed description of the following elements for the following three subsequent financial years, or supporting documentation:
(a) an estimate of management costs, including overhead costs and commissions;
(b) a plan detailing income and expenditure forecasts for acceptances and reinsurance transfers;
(c) a forecast balance;
(d) an estimate of the financial resources to be used to cover commitments and the credit margin requirement;
(e) General retrocession policy.
§ 4. In the situation referred to in § 3, the CBFA may require companies to have a higher level of credit so that they can quickly meet the solvency requirements.
The level of this higher credit margin requirement is determined according to the financial recovery strategy referred to in § 3.
§ 5. Where the CBFA has required a financial recovery strategy in accordance with § 3, it cannot issue a credit certificate as referred to in Article 28, § 2, as long as it considers that respect for rights arising from reinsurance contracts is threatened.
The CBFA can reduce the available credit margin elements, particularly if the market value of these items has changed significantly since the end of the last fiscal year.
The CBFA may reduce the influence of retrocessions on the solvency margin requirement where the content or quality of retrocession contracts has undergone significant changes since the last fiscal year or where these contracts do not provide for any transfer of risks or limited transfer.
Art. 49. The prohibition of the free disposition of assets located in Belgium under Article 48 has the following consequences:
1° The company communicates to the CBFA a complete inventory of securities representative and real estate on the date of blocking; any act of disposition or allocation of these representative values is subject to the prior authorization of the CBFA.
2° For representative values deposited in Belgium on an uncovered deposit account, the CBFA orders the depositary agency to block the deposit account. For other values that may be deposited, the CBFA directs the company to deposit immediately on a special account and blocked by separate management to the National Bank of Belgium or to a credit institution, a stock exchange company or a foreign investment company approved by the CBFA or by the competent authority of a Member State in which that credit institution, stock exchange company or investment company has its head office.
In addition:
- depositary bodies may only return the values deposited on the production of the authorization of the CBFA;
- CBFA shall inform depositary bodies of their obligations under this article.
3° With respect to other non-depository values, the King may set the rules on the precautionary measures to which these values may be submitted.
4° Real estate values are subject to a legal mortgage for the benefit of all reinsurance beneficiaries.
Registration is required by CBFA under the conditions set out in sections 82 to 87 of the Act of 16 December 1851 on the revision of the mortgage regime.
Registration is terminated or reduced by the consent of the CBFA under the conditions provided for in sections 92 to 95 of the Act of 16 December 1851 referred to above.
The fees and fees for registration, write-off and reduction are borne by the company concerned.
5° The CBFA may, by registered letter to the mortgage preservatives, object to the cancellation or reduction of the mortgage by a third party for the benefit of the reinsurance undertaking.
Art. 50. In all cases where CBFA orders a measure in accordance with Article 47 or 48, it shall promptly inform the competent authorities of the host Member States.
In the cases referred to in Article 48, § 1^er, the CBFA informs the competent authorities of the host Member States of its intention. It may also request the competent authorities of the Member States in whose territory the assets of the reinsurance company are located to restrict or prohibit the free disposition of these assets. CBFA shall designate the assets covered by these measures.
Art. 51. When the competent authorities of another Member State in which a Belgian law reinsurance company has established a branch or carries out activities free of service, notify the CBFA that the company has breached the legal, regulatory or administrative provisions applicable in that Member State, under the control of these authorities, the CBFA shall, as soon as possible, take the most appropriate measures among those provided for in Articles 47 to 50 to ensure that the company concerned is terminated. She advises the above authorities.
Section 2. - The waiver and revocation of the accreditation
Art. 52. A registered reinsurance company has the ability to renounce all or part of its approval.
The waiver is addressed to the CBFA.
The CBFA notes the waiver and sets the date of its effects.
The waiver is posted on the CBFA website.
Art. 53. § 1^er. Without prejudice to the CBFA's authority to revoke the approval pursuant to section 47, the approval shall be revoked by a reasoned decision of the CBFA, where the undertaking does not make use of the licence within twelve months, or ceased to operate for a period of more than six months or if it no longer meets the conditions of access.
Accreditation is, in full right, considered revoked in the event of bankruptcy or dissolution of a reinsurance business.
§ 2. Any decision to revoke the approval by application of Article 47, § 1^er, paragraph 2, 4°, or by application of § 1^er this article is specifically motivated, notified to the company and published by extract on the CBFA website.
Art. 54. The renunciation of the approval or revocation of the approval, total or partial, shall preclude the approval of new contracts in the domain(s) of the activities concerned.
However, CBFA may, without prejudice to the application of Article 28, authorize the assignment to a reinsurance company that has renounced the approval, of all or part of the rights and obligations resulting from existing reinsurance contracts held by another insurance or reinsurance company that no longer has the approval, provided that the transferee enterprise has the necessary margin in accordance with Article 22, § 2, in the light of the assignment.
The CBFA shall inform the competent authorities of the other Member States of the renunciation or revocation of the accreditation.
The undertakings referred to in this provision shall remain subject to the provisions of this Act and its implementing regulations until all their reinsurance contracts are liquidated, as well as any commitments thereto.
PART III. - branches and activities of free service delivery in Belgium of reinsurance companies under the law of another Member State
CHAPTER I^er. - Access to activity
Art. 55. Reinsurance companies under the right of another Member State that are empowered under their national right to exercise reinsurance activity in the European Economic Area in accordance with Directive 2005/68/EC, may, through the installation of branches or free service, exercise such activity in Belgium.
CHAPTER II. - Supervision and exceptional measures
Art. 56. § 1^er. The competent authorities of the Member State of origin of a reinsurance company may, after having first informed the CBFA, proceed themselves, or through persons they mandate for this purpose, to the verification, in the Belgian branch, of the information necessary to ensure the financial supervision of the company. CBFA can participate in this audit.
§ 2. When the competent authorities of the Member State of origin of a reinsurance company have prohibited the free disposition of assets belonging to this company located in Belgium, the Member State of origin may request that this prohibition be effective in Belgium.
After receiving a request from the State-member of origin in which the assets covered by these measures are designated, the CBFA shall notify the depositaries or debtors of these assets of the prohibition imposed by the competent authorities of the State-member of origin. This prohibition is effective from the receipt of the notification.
If the assets included include real property, these properties are subject to a legal mortgage for the benefit of all reinsurance beneficiaries.
Registration is required by CBFA under the conditions set out in sections 82 to 87 of the Act of 16 December 1851 on the revision of the mortgage regime.
Registration is terminated or reduced by the consent of the CBFA under the conditions provided for in sections 92 to 95 of the Act of 16 December 1851 referred to above.
The fees and fees for registration, write-off and reduction are borne by the company concerned.
Art. 57. If the CBFA has reasons to consider that the activities in Belgium of a registered reinsurance company in another Member State may affect its financial solidity, it shall inform the competent authorities of the original Member State of that company so that the latter can verify whether the reinsurance company complies with the prudential rules defined in Directive 2005/68/EC.
Art. 58. If the CBFA finds that a reinsurance company with a branch or operating in the free service in Belgium does not comply with the national rules applicable to it, it invites the company in question to end this irregular situation. At the same time, she informs the competent authorities of the State-member of origin.
If, despite the measures taken by the competent authorities of the Member State of origin, or because these measures prove inadequate, the reinsurance company continues to violate the rules applicable to it in Belgium, the CBFA may, after having informed the competent authorities of the Member State of origin, take appropriate measures to prevent or punish new irregularities including, to the extent that this is absolutely necessary,
PART IV. - branches in Belgium of reinsurance companies under State law which are not members of the European Economic Area
CHAPTER I^er. - Access to activity and exercise
Art. 59. Reinsurance companies under State law that are not members of the European Economic Area and intend to carry out a reinsurance activity in Belgium through a branch are required, before starting their operations, to be approved by the CBFA.
The CBFA rules on application within four months of the introduction of a complete file. Paragraphs 2 to 4 of Article 9 and Articles 10 and 11 are applicable.
Art. 60. § 1^er. Sections 6 and 7 are applicable.
In addition, the reinsurance companies referred to in Article 59 shall include the following information and documents at the request for approval:
1° the indication of the siege of Belgian operations in which they elect domicile, operating seats in Belgium and the enumeration of the countries where they practice reinsurance operations;
2° the document denoting the agent general and having sufficient authority to hire the company in respect of third parties and to represent it vis-à-vis the Belgian authorities and courts;
3° the evidence that they are authorized under their national legislation to perform reinsurance activities subject to the request;
4° proof that they have assets in Belgium for an amount equal to the minimum guarantee fund referred to in Article 23;
5° the justification for the existence of the financial assets referred to in section 61;
§ 2. The indications and documents referred to in § 1^er must be formulated at least in a national language.
§ 3. The branch executives shall designate, for a renewable period of three years, one or more approved revisers or one or more revising companies approved by the CBFA.
Articles 40 to 45, paragraphs 1^er to 3, are applicable.
§ 4. The CBFA may require the issuance of a report, if any, according to the regularity it determines, from one or more persons designated by the branch executives and with the required actuarial knowledge, regarding tariffs, retrocession and the amount of technical provisions.
CBFA may, by regulation made in accordance with section 64 of the Act of 2 August 2002, set out the conditions to which such persons must be satisfied.
Art. 61. Belgian institutions of third-country companies must have a free heritage of which CBFA appreciates the equivalence with respect to the credit margin required by Belgian companies, on the basis of the documents and justifications to be provided by these companies.
Article 21 and the provisions made pursuant to this Article shall apply.
Art. 62. Article 22 and the provisions made pursuant to this Article shall apply.
Belgian third-country companies must locate in Belgium one third of the assets corresponding to the solvency margin provided by or under Article 22 with as a minimum half of the minimum guarantee fund determined in Article 23; the rest must be located within the European Economic Area.
Art. 63. The King may, on the advice of the CBFA, impose a surety upon which he determines the amount, terms and composition.
Art. 64. With respect to the subscription of reinsurance or reinsurance contracts relating to risks in another country, the amount of technical provisions, the representation of them and the location of representative values are determined according to the rules of the country of risk if the country imposes its own rules without however that the amount of these provisions may be less than the amount obtained by the application of the Belgian rules.
CHAPTER II. - Control
Art. 65. Sections 29, 37 and 38 are applicable.
Art. 66. The direction of the branches referred to in this title shall be required to designate one or more registered reviewers or one or more registered reviewers in accordance with section 40. It may designate a substitute.
In the event of the designation of a review company, section 41 is applicable by analogy.
Articles 43, 44, subparagraphs 1^er 4 and 45, paragraphs 1^er, 2 and 3 are applicable.
Authorized reviewers or registered reviewers certify annual accounting information published in accordance with the provisions set out in or under section 29.
CHAPTER III. - Delisting, exceptional measures, injunctions and sanctions
Art. 67. Sections 47 to 50, 52 to 54 and 73 to 79 apply.
TITRE V. - From the provision of services in Belgium of reinsurance companies under the right of states that are not members of the European Economic Area
Art. 68. § 1^er. Reinsurance companies under the right of a State which is not a member of the European Economic Area and which are entitled, under their national law, to exercise the activity of reinsurance, may carry out such activity in Belgium without having an institution to do so, provided that they comply with the provisions of this Act and the provisions made under this Act.
§ 2. Companies referred to in § 1^er are required to be known before the CBFA, specifying the type of reinsurance activity they intend to develop in Belgium.
CBFA can prohibit the provision of services in Belgium to a company under the law of a State that does not provide the same opportunities for access to its market to companies reinsurance of Belgian law.
The CBFA publishes on its website the list of reinsurance companies referred to in this article that provide reinsurance services in Belgium.
Art. 69. The King sets out the rules applicable to reinsurance companies under the right of a State that is not a member of the European Economic Area and which operate such an activity in Belgium without having an establishment, so that they cannot offer their services by benefiting from a more favorable treatment than that reserved for Belgian law reinsurance companies.
Art. 70. The reinsurance companies referred to in Article 68 shall, in the exercise of their activity in Belgium, accompany their names of the mention of their State of origin and their headquarters.
Art. 71. The CBFA may impose on the undertakings referred to in Article 68 to transmit to it all information relating to their reinsurance activity in Belgium. The CBFA may impose the certification or recovery of this information by the foreign control authorities of the reinsurance company concerned, by its external reviewer or by the approved auditor who is responsible for the certification of its accounts.
Art. 72. When the CBFA finds that a business referred to in Article 68 does not act, in Belgium, in accordance with the provisions applicable to it, it shall, within the time it determines, remedy the situation.
If, at the end of this period, it has not been remedied to the situation, the CBFA takes its observations to the control authorities of the company's State of origin.
In the event of persistent breaches, CBFA may, after having notified the foreign control authorities, suspend or prohibit the continuation of all or part of the activities of the company in Belgium.
Where the undertaking concerned is not subject to the supervision of any control authority, CBFA may, if it has not been remedied to the situation at the end of the period established under paragraph 1^erimmediately suspend or prohibit all or part of the activities of the company in Belgium.
CBFA can make its decision public.
PART VI. - Injunctions, administrative sanctions and criminal sanctions
CHAPTER I^er. - Administrative injunctions and sanctions
Art. 73. Without prejudice to the other measures provided for in this Act, the CBFA may publish that a reinsurance company, an insurance holding company, a joint insurance holding company, or a joint financial company, Belgium or foreign, has not complied with the injunctions made to it to comply within the time limit that it determines the provisions of this Act or the orders made for its execution.
For reinsurance companies whose head office is located in the territory of a Member State, the CBFA informs of its decision the competent authorities of the Member State of origin.
Art. 74. § 1^er. Without prejudice to the other measures provided for in this Act, the CBFA may set a reinsurance company, an insurance holding company, a joint insurance holding company, or a joint, Belgian or foreign financial company established in Belgium, a period in which:
(a) it shall comply with any specified provisions of this Act or any order made for its execution, or
(b) it must make the necessary adjustments to its management structure, administrative and accounting organization or internal control.
The injunction referred to in paragraph 1^er, littera b), is not applicable to reinsurance companies branches of another Member State.
If the company remains in default at the expiry of the period, the CBFA may impose a breach on it at a maximum of 2.500,000 euros per offence or a maximum of 50,000 euros per day of delay.
§ 2. Without prejudice to other measures provided for in this Act and without prejudice to the measures provided for by other laws or other regulations, CBFA may, when it finds an offence to the provisions of this Act or the measures taken pursuant to it, impose on a reinsurance company, of Belgian or foreign law established in Belgium, an administrative fine which may not be less than 10,000 euros or greater, for the same fact or for the same set of euros.
§ 3. Penalties and fines imposed under §§ 1^er or 2 are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
§ 4. For reinsurance companies whose head office is located in the territory of a Member State, the CBFA shall inform the competent authorities of the Member State of origin of the measures taken pursuant to this Article.
CHAPTER II. - Criminal sanctions
Art. 75. § 1^er. Are punished by imprisonment from one month to one year and a fine of 50 euros to 10,000 euros or only one of these penalties:
1° those who exercise the activity of a reinsurance company referred to in section 5 or 59 without the approval of the reinsurance company or when the approval has been terminated or revoked;
2° those who knowingly refrain from making the declarations provided for in Article 24, § 1^erParagraphs 1^er and 3, and § 3, and those who pass beyond the opposition referred to in Article 24, § 1^erParagraph 3;
3° directors, managers or directors and other persons referred to in Article 25, § 2, which contravene the provisions of this Article;
4° directors, managers or directors who contravene section 27 or 28;
5° directors, managers or directors of a reinsurance company that contravene orders or regulations made pursuant to section 29;
6° those who perform acts or operations without obtaining the authorization of the Special Commissioner provided for in section 47, § 1^er, paragraph 2, 1°, or against a decision of suspension made in accordance with Article 47, § 1^er, paragraph 2, 2°, or section 72, paragraph 3 or 4, or that do not comply with the prohibition in accordance with article 54, paragraph 1^erArticle 58, paragraph 2 or section 72, paragraph 3 or 4;
7° those who, as Commissioner, Approved Reviewer or Independent Expert, have certified, approved or confirmed accounts, annual accounts, results accounts, or consolidated accounts of companies or periodic reports or information where the provisions of this Act or the orders made for its execution have not been complied with, or knowing that they have not been satisfied, or having not been properly complied with;
8° those who obstruct inspections and audits in the country or abroad or refuse to provide information that they are required to provide under this Act or knowingly provide inaccurate or incomplete information;
9° directors and managers who do not comply with the provisions of articles 40, paragraph 1^erand 66, paragraph 1^er.
§ 2. Any violation of the prohibition imposed by Article 19 of the Act of 22 March 1993 relating to the status and control of credit institutions, to which it is referred by Article 17, § 2, of this Law, is punishable by imprisonment of three months to two years and a fine of 1,000 euros to 10,000 euros.
Art. 76. The provisions of Book I of the Criminal Code, without exception of Chapter VII and Article 85, apply to offences punishable by this chapter.
Art. 77. Companies are civilly liable for fines to which their directors, managers, directors or agents are convicted pursuant to the provisions of this chapter.
Art. 78. Any information of the head of offence under this Act or any of the laws referred to in section 19 of the Act of 22 March 1993 relating to the status and control of credit institutions, to which it is referred by section 17, § 2, of this Act, against directors, directors, managers, agents or commissioners authorized by reinsurance companies and any information of the head of offence
Any criminal action by the head of the offences referred to in the first paragraph must be brought to the attention of CBFA to the diligence of the Public Prosecutor ' s Office.
Art. 79. The CBFA is empowered to intervene in any event before the repressive court that is seized of an offence punishable by this Act, without having to justify damage.
The intervention follows the rules applicable to the civil party.
PART VII. - Special provisions on end-of-life reinsurance and securitization vehicles
CHAPTER I^er- Reinsurance ends
Art. 80. The King may, on the advice of the CBFA, make specific provisions for the exercise of reinsurance activities in the following areas:
1° mandatory requirements to be included in all contracts entered into;
2° sound administrative and accounting procedures, appropriate internal controls and risk management requirements;
3° accounting, prudential and statistical information requirements;
4° technical provisions to ensure their adequacy, reliability and objectivity;
5° investment of assets covering technical provisions to ensure that it is taken into account the type of transactions carried out by the reinsurance company, in particular the nature, amount and duration of the expected losses, in order to ensure the sufficiency, liquidity, security, profitability and congruence of its assets;
6° rules relating to the available credit margin, the required credit margin and the minimum guarantee fund to be held by the reinsurance company in relation to end-of-life reinsurance activities.
CHAPTER II. - Titanization vehicles
Art. 81. The King may, on the advice of the CBFA, set the rules for authorizing the establishment on Belgian territory of securitization vehicles.
The establishment shall be subject to prior approval of the relevant securitization vehicles and shall determine the conditions under which the securitization vehicles established in Belgium operate. In particular, the King may make provisions in the following areas:
1° Scope of approval;
2° mandatory requirements to be included in all contracts entered into;
3° good reputation and appropriate professional qualifications of persons managing the securitization vehicle;
4° suitable and appropriate requirements for shareholders or associates holding qualified participation in the securitization vehicle;
5° sound administrative and accounting procedures, appropriate internal controls and risk management requirements;
6° accounting, prudential and statistical information requirements;
7° rules relating to the solvency requirements of securitization vehicles.
PART VIII. - Special provisions relating to the supplementary supervision of Belgian reinsurance companies that are part of an insurance or reinsurance group
CHAPTER I^er. - General provisions
Art. 82. For the purposes of this title and the decrees taken in execution of it, the following means:
1° "insurance company": a company as defined in section 91bis, 1°, of the Act of July 9, 1975 on the control of insurance companies;
2° " third country insurance company": a company as defined in section 91bis, 2°, of the same law;
3° "reinsurance company": a company whose head office is located in the European Economic Area and which, in accordance with the legislation of its Member State of origin, has obtained the approval to carry out reinsurance activities;
4° "a third country reinsurance company": a company whose head office is located outside the European Economic Area and which, if it had its head office in the European Economic Area, would be required to obtain an approval to carry out reinsurance activities;
5° "mother company": a company that meets the conditions of the parent company as defined in Article 6 of the Code of Societies, as well as any company that actually exerts, in the opinion of the CBFA, a dominant influence on another company;
6° "subsidiary company": a company that meets the conditions of the subsidiary company as defined in Article 6 of the Code of Companies, as well as any company on which a parent company actually exerts, in the opinion of the CBFA, a dominant influence. A subsidiary enterprise of a subsidiary enterprise is also considered a subsidiary of the parent company that is at the head of these companies;
7° "participation": direct or indirect detention of social rights in other companies where this detention aims, by establishing a sustainable and specific link with these companies, to allow the company to influence the direction of the management of these companies, or the direct or indirect detention of 20% or more of the voting or capital rights of other companies;
8° "participating company": a company that is either a parent company or another company that holds an interest, as well as any company with which a consortium, as defined in Article 10 of the Corporate Code, is formed;
9° "Related company": a company that is either a subsidiary or another company in which an interest is held, as well as any company with which a consortium, as defined in Article 10 of the Corporate Code, is formed;
10° "insurance holding company": a parent company whose main activity is to acquire and hold stakes in affiliate companies when these subsidiary companies are exclusively or principally insurance or reinsurance companies or insurance or reinsurance companies of third countries, at least 98 of these subsidiary companies being a joint insurance or reinsurance company, and that is not a financial company §^er5°;
11° "mixed holding company": a parent company, other than an insurance company, than a third-country insurance company, a reinsurance company, a third-country reinsurance company, a third-country reinsurance company, an insurance company or a joint financial company, which has at least one insurance or reinsurance company in its subsidiaries;
12° "competent authorities": national authorities authorized under a law or regulation to control insurance or reinsurance companies;
13° "Guideline 98/78/EC": Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary monitoring of insurance and reinsurance companies forming part of an insurance or reinsurance group.
Art. 83. § 1^er. CBFA provides additional monitoring on Belgian law reinsurance companies:
1° that are participating companies of at least one insurance or reinsurance company, or an insurance or reinsurance company of a third country in accordance with the terms set out in chapters II, III and IV of this title;
2° the parent company is an insurance company or an insurance or reinsurance company of a third country under the terms set out in chapters II, III and V of this title;
3° of which the parent company is a joint holding company of insurance under the terms set out in chapters II and III of this title.
§ 2. The exercise of this complementary monitoring does not in any case lead to individual monitoring by the CBFA, companies, other than those referred to in Article 3, § 1^er, of the law, included in the supplementary surveillance.
§ 3. Complementary monitoring is exercised in accordance with the provisions of chapters II, III, IV and V of this title, provided that they relate to:
1° of companies related to the Belgian reinsurance company;
2° of participating companies of the Belgian reinsurance company;
3° of companies related to a participating company of the Belgian reinsurance company.
§ 4. Where there are legal obstacles to the transfer of the necessary information in the country of origin of a company whose head office is outside the European Economic Area, it may not be taken into account in the complementary monitoring of the company. However, the King sets out the rules that consideration of such a company must be made for the application of chapters V and VI of this title.
§ 5. The CBFA may decide, on a case-by-case basis, to leave a business outside of the supplementary monitoring when:
1° the undertaking to be included has a negligible interest in the objectives of the complementary monitoring;
2° taking into account the financial situation of the company would be inappropriate or in a way that would be misleading to the objectives of the complementary monitoring.
CHAPTER II. - Access to information
Art. 84. The CBFA ensures that any reinsurance company subject to supplementary monitoring has risk management procedures as well as appropriate internal controls, including adequate information and accounting systems, in order to be able to provide the data and information useful to the exercise of complementary monitoring. These procedures and systems shall enable the proper identification, measurement and monitoring of the operations referred to in section 88.
Art. 85. Belgian law firms subject to supplementary monitoring are required to exchange with their related companies and participating companies any useful information for the purpose of exercising complementary monitoring without any provision of private law being able to oppose it.
Art. 86. § 1^er. A Belgian reinsurance company in one of the cases referred to in Article 83, § 1^er, is required to communicate to the CBFA, upon request of the CBFA and within the time it determines, any useful information or information for the purposes of the exercise of the complementary monitoring of the undertaking.
When the reinsurance company fails to transmit the information requested within the time limit set out in the first paragraph, the CBFA may request the communication to:
1° companies related to the Belgian reinsurance company;
2° participating companies of the Belgian reinsurance company;
3° companies related to a participating company of the Belgian reinsurance company.
§ 2. The Belgian legal enterprises shall transmit to the competent authority of another Member State the data and information that it considers useful for the exercise of the supplementary monitoring as provided for in Directive 98/78/EC when, despite its own request to the reinsurance company concerned, it was unable to obtain the information.
Art. 87. § 1^er. The CBFA may conduct on-site, either by itself or by means of persons mandated to do so, the verification of compliance with the obligations set out in this chapter, as well as the accuracy and completeness of the data and information transmitted to it by the following Belgian law companies:
1° the reinsurance company itself;
2° the subsidiaries of this reinsurance company;
3° the parent companies of this reinsurance company;
4° the subsidiaries of a parent company of this reinsurance company.
§ 2. When the CBFA wishes, in specific cases, to verify information relating to a company located in another Member State and which is a related insurance or reinsurance company, a subsidiary company, a parent company or a subsidiary company of a Belgian reinsurance company, it asks the competent authorities of the other Member State either that they themselves carry out this verification, or that they give it the authorization to carry out the verification by itself.
If the CBFA does not carry out the audit itself, it may nevertheless be associated with it, if it considers it necessary.
When the companies concerned have their seats outside the European Economic Area, the terms of this on-site audit are regulated in cooperation agreements between the CBFA and the relevant foreign authority.
§ 3. When, in the context of the supplementary monitoring of reinsurance companies, the competent foreign authorities shall apply to it in accordance with Directive 98/78/EC, the CBFA shall conduct on-site verification of information concerning a company established in Belgium that is an insurance or related reinsurance company, a subsidiary, a parent company or a subsidiary of a parent company of the reinsurance company, or shall give such authorities the authorization to carry out such verification.
CHAPTER III. - Operations within a group
Art. 88. The CBFA has general oversight of operations between:
(a) a Belgian reinsurance company and:
- a reinsurance business;
- a participating reinsurance company;
- a company related to a participating reinsurance company;
(b) a Belgian reinsurance company and a natural person who holds an interest in:
the reinsurance company or one of the businesses related to it;
- a participating reinsurance company;
- a company related to a participating reinsurance company.
Operations within a group concern:
1st loans and credits;
2° bonds, guarantees and off-balance operations;
3° eligible heritage elements for credit margin;
4° investments and investments;
5° reinsurance and retrocession operations;
6° the cost-sharing arrangements.
Belgian reinsurance companies put in place adequate risk management and internal control systems, including sound information and accounting procedures, so that the CBFA can identify, measure, supervise and control appropriately the transactions referred to in the preceding paragraphs. They also communicate to the CBFA, depending on the frequency it determines and at least once a year, all significant operations within the group.
When it appears from this information that an operation compromises or risks compromising the solvency of a Belgian reinsurance company, the CBFA may take in respect of this reinsurance company the measures provided for in sections 47 and 48 of the law or require the modification of the terms and conditions of that operation or oppose the completion of that operation.
CHAPTER IV. - Adjusted solvency for Belgian reinsurance companies referred to in Article 83, § 1^er, 1°
Art. 89. § 1^er. Participating Belgian reinsurance companies referred to in Article 83, § 1^er, 1°, shall constitute an appropriately adjusted credit margin, on aggregate basis, relative to all their activities and activities of their related enterprises.
They shall not calculate adjusted credit margins when they are related companies of another participating Belgian insurance or reinsurance company and are taken into account in calculating the adjusted credit margin of this insurance or reinsurance company.
However, the constituent elements of the solvency margin of insurance or reinsurance companies taken into account in the calculation of the adjusted credit margin shall be, to the satisfaction of the CBFA, appropriately distributed among such companies.
When a participating Belgian reinsurance company is a company related to another insurance or reinsurance company or an insurance holding company whose head office is established in another Member State, the CBFA may exempt the Belgian reinsurance company from the obligation to calculate a adjusted solvency if the CBFA and the competent authority of the other State agree that the latter provides additional monitoring.
§ 2. The King determines the method of calculating the adjusted credit margin required according to the commitments of the participating Belgian company and those of its related companies, as well as the elements that are considered.
§ 3. Credit institutions and financial institutions within the meaning of the Act of 22 March 1993 relating to the status and control of credit institutions, investment companies and financial institutions within the meaning of the Act of 6 April 1995 relating to the status and control of investment enterprises, and the management companies of collective investment organizations within the meaning of the Act of 20 July 2004 relating to certain forms of collective management of investment portfolios, are, on the terms and conditions set out below
(a) if the parent or business that holds the participation is an insurance or reinsurance company or an insurance holding company that is at the head of a financial services group that is subject to additional monitoring in accordance with the provisions of Title IX, the companies concerned are exempt from the supplementary monitoring for the calculation of adjusted solvency;
(b) if the parent or business that holds the participation is not at the head of a financial services group within the meaning of Article 98, § 1^er2°, the enterprises concerned are included in the supplementary monitoring for the calculation of adjusted solvency; the CBFA may permit or impose the use of any of the calculation methods set out in Part IX for financial service groups, or the deduction of participation in those institutions or companies.
§ 4. The participating Belgian reinsurance companies calculate the adjusted solvency margin and transmit it to the CBFA within the same timeframe and the same frequency as for the calculation of the solvency margin of reinsurance companies.
They apply this calculation for the first time in the year's annual accounts beginning 1^er January 2008 or during this calendar year.
Art. 90. § 1^er. For the purpose of calculating the adjusted credit margin, the establishment of the consolidated accounts of a participating Belgian reinsurance company is governed by the rules set out in this article.
§ 2. The exemption from sub-consolidation provided for in section 113 of the Corporate Code is, in addition to the conditions referred to in the article, subject to the condition that the parent company of the exempt reinsurance company be an insurance or reinsurance company of Belgian law.
§ 3. When it considers it necessary for the exercise of supplementary monitoring, the CBFA may require:
(a) that a company that is not a subsidiary but in which an interest is held or with which there is another capital link, is also included in the consolidated or treated situation on the basis of the equivalence method;
(b) that a company on which a significant influence is exerted on the direction of management, apart from any participation or other capital bond, is included in the consolidated situation, either by proportional integration or by equivalence.
In its assessment for the purposes of paragraph 1 the CBFA shall take into account the risks arising from the consolidating company's relationship with the particular undertaking and, in particular, the liability incurred by the consolidating company as a result of its participation, capital bond or significant influence.
§ 4. The non-inclusion of a subsidiary in the consolidated situation is subject, in the cases referred to in sections 107, 108 and 109 of the Royal Decree of 30 January 2001 implementing the Code of Companies, to the prior authorization of the CBFA.
For the purposes of section 107, paragraph 1^er, 1°, of the aforementioned royal decree of 30 January 2001, one or more companies are considered to be of negligible importance if their total balance sheet or their total common balance sheet is less than EUR 10.000.000 and represents less than 1% of the total balance sheet of the consolidating company.
When a credit institution, a subsidiary of a reinsurance company, is itself a parent company of a reinsurance company, it is included in the consolidated situation.
Art. 91. Without prejudice to the application of other measures provided for in sections 47 and 48, the CBFA may require, in order to restore the financial situation on an aggregate basis of a participating reinsurance company whose adjusted credit margin no longer reaches the level prescribed in section 89, §§ 1^er and 2, which the company submits to it a recovery plan within the time it will indicate.
Art. 92. For the purpose of the exercise of the supplementary monitoring referred to in this chapter, the revisor(s) designated for the control of the consolidated accounts pursuant to section 146 of the Corporations Code shall be the registered or authorized commmissary(s) designated by the consolidating undertaking under section 40.
CHAPTER V. - Complementary monitoring method for Belgian companies referred to in Article 83, § 1^er, 2°
Art. 93. § 1^er. Belgian reinsurance companies in the case referred to in Article 83, § 1^er, 2° are subject to the supplementary monitoring method, the terms of which are fixed by the King.
In the case of successive participations, the supplementary monitoring method is applied only to the ultimate Belgian law parent company of the Belgian reinsurance company.
§ 2. Belgian reinsurance companies are not subject to the complementary monitoring method when they are in one of the following situations:
1° the Belgian reinsurance company is a company related to another Belgian insurance or reinsurance company and is taken into account in the complementary monitoring method applied to that other company, in accordance with this chapter;
2° the Belgian reinsurance company and one or more other Belgian insurance or reinsurance companies have as a parent company the same insurance company or the same insurance or reinsurance company of a third country and the Belgian reinsurance company is taken into account in the complementary monitoring method carried out on one of these other Belgian companies, in accordance with this chapter;
3° the Belgian reinsurance company and one or more other registered insurance or reinsurance companies in other Member States have as a parent company the same insurance holding company or the same insurance or reinsurance company of a third country and an agreement assigning the exercise of the supplementary monitoring referred to in this chapter to the competent authorities of another Member State, has been concluded in accordance with Article 96.
In the case of successive participations, the CBFA may allow the Belgian reinsurance company to be subject to the complementary monitoring method only at the level of the last parent company of the said Belgian company that is an insurance holding company or an insurance or reinsurance company of a third country in respect of which the CBFA carries out additional monitoring.
§ 3. Related Belgian reinsurance companies apply the complementary monitoring method within the same timeframe and according to the same frequency as for the calculation of the solvency margin of reinsurance companies.
They apply this method for the first time in the year's annual accounts beginning 1^er January 2008 or during this calendar year.
Art. 94. Where CBFA, on the basis of the supplementary monitoring method, is of the opinion that the solvency of a Belgian reinsurance company is compromised or at risk of being, it may take in respect of the reinsurance company the measures provided for in articles 24, § 4, 47 and 48 of the law.
Art. 95. For the purpose of the exercise of the supplementary monitoring referred to in this chapter, the revisor(s) of the designated undertaking(s) for the control of the consolidated accounts pursuant to section 146 of the Corporations Code, is or are a Commissioner(s) authorized by the CBFA.
When a Belgian reinsurance company has as a parent company an insurance holding company located outside Belgium or an insurance or reinsurance company of a third country, and that the supplementary monitoring referred to in this chapter is carried out by the CBFA, the verification and control missions are carried out in a similar manner by the approved commissioner(s) that is or are designated to the Belgian reinsurance company.
CHAPTER VI. - Cooperation between competent authorities
Art. 96. When reinsurance companies are established in different Member States, have as a parent company the same insurance holding company, the same insurance or reinsurance company of a third country or the same joint insurance holding company, the CBFA can enter into an agreement with the competent authorities of these Member States so that the respective responsibilities in the field of the complementary supervision of reinsurance companies are defined as efficiently as possible.
Art. 97. When reinsurance companies, which are established in different Member States, are directly or indirectly linked or have a joint participating company, the CBFA shall communicate to the competent authorities of each Member State upon request, all relevant information in such a way as to enable or facilitate the exercise of complementary monitoring and shall, on its own initiative, communicate any information that it considers essential to the other competent authorities.
When a Belgian reinsurance company and, either a credit institution, either a stock exchange company or a foreign investment company, either directly or indirectly linked or have a joint participating company, the CBFA and the authorities invested in the public monitoring mission of these other companies work closely together. Without prejudice to their respective competences, CBFA and these authorities shall communicate all information that may facilitate the fulfilment of their mission, in particular within the framework of supplementary monitoring.
CBFA works closely with the authorities that are responsible in Belgium for the control of labour accident legislation. These authorities transmit to the CBFA all information that may facilitate the fulfilment of its mission as part of the complementary monitoring.
The exchange of information referred to in this article may, on the basis of reciprocity, be extended to the authorities of a non-member State of the European Economic Area.
In order to implement the provisions of this Article, the CBFA may enter into agreements for cooperation with these authorities.
PART IX. - Special provisions relating to the supplementary monitoring of Belgian reinsurance companies in a group of financial services
Art. 98. § 1^er. For the purposes of this article, it is necessary to hear by:
1° "group": a set of companies made up of a parent company, its subsidiaries, companies in which the parent company or its affiliates directly or indirectly hold an interest, as well as companies with which a consortium is formed and companies that are controlled by the parent company or in which the latter hold an interest;
2° "financial services group": a group that meets the following conditions:
(a) the group includes at least one regulated company with the quality of an insurance company, a reinsurance company, a credit institution or an investment company, either at the head of the group or as a subsidiary;
(b) if the company at the head of the group is a regulated company, it is either the parent company of a business owned by the financial sector, or a company that holds directly or indirectly a participation in a business owned by the financial sector, or a company that forms a consortium with a company owned by the financial sector;
(c) if the company at the head of the group is not a regulated company, the group's activities are mainly carried out in the financial sector; the King determines what to hear by "mainly";
(d) the group operates both in the insurance sector and in the banking and/or investment services sector;
(e) the group's activities in the insurance sector and the group's activities in the banking and investment services sector are important; the King determines what to hear by "important";
3° "regulated business": a corporation that is either a reinsurance company as defined in section 82, 3° and 4° of this Act, or an insurance company as defined in section 91bis, 1° and 2°, of the Act of 9 July 1975 on the control of insurance companies, or a credit institution as defined in section 1^er, paragraph 2, of the Act of 22 March 1993 relating to the status and control of credit institutions, that is, an investment company as defined in section 44 of the Act of 6 April 1995 relating to the status and control of investment enterprises, that is, a management company of collective investment organizations as defined in section 138 of the Act of 20 July 2004 relating to certain forms of collective management of investment portfolios, and any other enterprise incorporated
4° "financial sector": one sector consisting of one or more of the following companies:
(a) a regulated company with the quality of credit establishment, a financial institution within the meaning of Article 3, § 1^er5°, of the law of 22 March 1993, an auxiliary banking company within the meaning of Article 32, § 4, 5°, of the same law; these companies are part of the same financial sector, known as the banking sector;
(b) a regulated company with the quality of an insurance or reinsurance company, an insurance company within the meaning of section 82, 10°, of this Act; these companies are part of the same financial sector, known as the insurance sector;
(c) a regulated company with the quality of an investment enterprise, a company that provides auxiliary services within the meaning of section 46, 2°, of the Act of 6 April 1995, a financial institution within the meaning of section 46, 7°, of the same Act; these companies are part of the same financial sector, known as the "investment services sector";
(d) a mixed financial company;
5° "mixed financial company": a parent company, other than a regulated company, which is at the head of a financial services group;
6° "mother company", "subsidiary", "control", "consortia", "participation": the notions within the meaning of the definition given in section 82 of this Act, chapter VII of the Act of 9 July 1975, section 49 of the Act of 22 March 1993 or section 95 of the Act of 6 April 1995.
§ 2. Belgian law reinsurance companies that are part of a group of financial services headed by a regulated company are subject to additional monitoring at the group level in accordance with the provisions of this paragraph.
When a regulated Belgian company is at the head of a financial services group, the complementary monitoring of the group is exercised by the CBFA.
Complementary monitoring focuses on the financial situation of the financial services group in general and on the solvency of the group in particular, on the concentration of risks, intra-group operations, as well as on internal controls and risk management procedures for the group as a whole.
The King shall determine the standards applicable in accordance with paragraphs 2 and 3.
All companies in the financial services group that belong to the financial sector are included in the complementary monitoring of the group, as determined by the King.
The King may extend the additional monitoring of the group to other areas as well as companies of the group not part of the financial sector, in accordance with European regulations.
The CBFA may prescribe that regulated and unregulated companies that are included in the complementary monitoring of the group, provide any information that is relevant to the exercise of the complementary monitoring of the group. For the purpose of this monitoring, the CBFA may, at the expense of the regulated company concerned, carry out or, where appropriate, by foreign experts authorized by it for that purpose, carry out on-site verification in all enterprises included in the complementary monitoring of the group of information it has received. The CBFA shall conduct or conduct an audit with a company established in another Member State only after having notified the competent supervisory authority of that other State and unless the latter itself conducts the audit or permits a reviewer or expert to conduct it. If the CBFA does not carry out the audit itself, it may nevertheless be associated with it, if it deems it desirable.
Complementary monitoring of the group does not lead to individual monitoring by CBFA of the companies included in this monitoring. Complementary supervision of the group does not further prejudice social control and supplementary monitoring in accordance with the other provisions of this Act.
The King may determine the conditions under which Belgian companies that are part of a financial services group and are included in the complementary monitoring of the group carried out by a foreign control authority, may be required to provide information to that control authority for the exercise of the complementary monitoring of the group and may be subject to the on-site verification, by that authority or by revisers or experts mandated by it, of the information transmitted.
§ 3. Belgian law reinsurance companies that are part of a group of financial services headed by a mixed financial company are subject to additional monitoring at the group level.
Complementary supervision of the group is exercised by analogous application of the provisions of § 2. Complementary monitoring also includes, in this case, the control, in the context of the need to ensure sound and prudent management, of the shareholding of the mixed financial company and of the appropriateness of the effective management of the mixed financial company.
The King may define and supplement the terms and conditions of the additional supervision of the group, including specifying which other provisions of this Act apply to mixed financial companies.
§ 4. The King shall determine the rules of the supplementary monitoring of the group in accordance with the provisions of Directive 2002/87/EC of 16 December 2002 on the supplementary monitoring of credit institutions, insurance companies and investment enterprises owned by a financial conglomerate, and amend the Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC of the Council and Directives 98/78/EC and 2000
§ 5. In special cases, CBFA may authorize, for the purposes of this section, exemptions to orders and regulations made under this section, provided that such exemptions are applicable to all regulated companies in similar circumstances. The use of this faculty cannot be contrary to the provisions of European law.
TITRE X. - Amendments
CHAPTER I^er. - Amendments to the Act of 9 July 1975 on the control of insurance companies
Art. 99. Article 2, § 6, of the Act of 9 July 1975 on the Control of Insurance Companies, inserted by the Royal Decree of 12 August 1994 and amended by the Royal Decree of 6 May 1997, the Royal Decree of 14 March 2001, the Royal Decree of 25 March 2003, the Law of 19 November 2004 and the Law of 6 December 2004, is supplemented by a 21°, which reads as follows:
"21° "reinsurance company": a company as defined in Article 4, 1°, of the Reinsurance Act of February 16, 2009; "
Art. 100. Article 6bis, paragraph 1^er, of the same law, inserted by the law of 20 June 2005, is replaced by the following provision:
"Art. 6bis. When the credit is sought by an insurance company that is either the subsidiary of another insurance company, a reinsurance company, a credit institution, an investment company or a company that manages a collective investment, »
Art. 101. Section 14bis of the Act, inserted by the Royal Decree of 12 August 1994, is replaced by the following provision:
« § 1^er. Insurance companies must have a management structure, an administrative and accounting organization, control and security mechanisms in the IT field and an internal control, appropriate to the activities they operate or intend to exercise. They take into account the nature, volume and complexity of these activities and the risks associated with them.
§ 2. Insurance companies must have an adequate management structure, including the following:
a coherent and transparent organizational structure, providing adequate separation of functions;
- a well-defined, transparent and coherent accountability framework; and
- adequate procedures for the identification, measurement, management, monitoring and internal reporting of significant risks incurred by the insurance company due to the activities it carries out or intends to carry out.
§ 3. Insurance companies must organize adequate internal control, which is evaluated at least once a year. With regard to their administrative and accounting organization, they must organize an internal control system that provides a reasonable degree of certainty as to the reliability of the financial reporting process, so that the annual accounts are consistent with the existing accounting regulations.
Insurance companies take the necessary measures to be able to have an adequate independent audit function on an ongoing basis.
Insurance companies develop an adequate integrity policy, which is regularly updated. They take the necessary measures to be able to have an adequate independent compliance function on an ongoing basis, to ensure that the company respects its directors, its effective officers, its employees and its agents, the rules of law relating to the integrity of its activity.
Insurance companies must have an adequate independent risk management function.
§ 4. The CBFA may, without prejudice to the provisions of §§ 1^er, 2 and 3, specify what should be heard by appropriate management structure, adequate internal control, adequate independent audit function, adequate independent compliance function and adequate risk management function.
§ 5. Without prejudice to the powers vested in the legal body of administration with respect to the determination of general policy, as provided for in the Code of Companies, persons responsible for the effective management of the insurance company, if any the steering committee, shall take, under the supervision of the legal body of administration, the necessary measures to ensure compliance with the provisions of §§ 1^er, 2 and 3.
The legal authority for the administration of the insurance company must control at least once a year, if applicable through the audit committee, if the company complies with the provisions of §§ 1^er, 2 and 3 and 1^er and takes note of the appropriate measures taken.
Effective management, if any, the steering committee, shall report at least once a year to the legal body of administration, to the CBFA and to the authorized Commissioner on compliance with the provisions of paragraph 1^er and on the appropriate measures taken.
This information is forwarded to the CBFA and the authorized commissioner on the terms and conditions determined by the CBFA.
§ 6. The Authorized Commissioner reports to the legal body of administration through the audit committee on important issues identified in the exercise of his legal audit mission, and in particular on significant weaknesses in internal control in the financial reporting process. »
Art. 102. In Article 15bis of the same law, replaced by the Royal Decree of 26 May 2004, § 1^er, 2°, is replaced by the following provision:
"2° reserves (legal and free) do not correspond to commitments or are not classified as provisions for equalization and disasters; "
Art. 103. In article 17bis of the same law, inserted by the Royal Decree of 12 August 1994 and amended by the Royal Decree of 25 March 2003, the words "§ 1^er and 2 are replaced by the words "§5".
Art. 104. The following amendments are made to section 20 of the Act:
1° § 1^er, numbered and amended by the Royal Decree of 22 February 1991 and the Royal Decree of 25 March 2003, is deleted.
2° in § 2, replaced by the Royal Decree of 12 August 1994 and whose current text will form Article 20, paragraph 1^er, the words "All proposals and policies" are replaced by the words "All documents intended for the insurance taker, the insured, the beneficiary, the injured person and the third parties concerned by the execution of the insurance contract".
Art. 105. Section 22 of the Act, as amended by the Royal Decree of 22 February 1991 and the Act of 19 January 1991, are amended as follows:
1° to § 1^erParagraph 1^erthe words "annual accounts and" are deleted;
2° to § 3, the first paragraph shall be replaced by the following text:
"Belgian companies and foreign companies established in Belgium regularly communicate to the CBFA a detailed financial situation. It is established in accordance with the rules established by the CBFA, which determines its frequency. In addition, the CBFA may prescribe the regular transmission of other encrypted or descriptive information necessary to verify compliance with the provisions of this Act or the orders and regulations made pursuant to these Acts. CBFA may, for certain classes of enterprises or in special cases duly motivated, authorize derogations from the regulations made pursuant to this paragraph. »;
3° to the same § 3, the second paragraph shall be replaced by the following:
"The effective management of the insurance company, if any the steering committee, tells the CBFA that the above-mentioned periodical statements transmitted to it by the company at the end of the first social semester and at the end of the social year are in accordance with accounting and inventories. For this purpose, it is required that the periodic reports be complete, i.e. that they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, i.e. that they correspond exactly with the accounting and with the inventories on which they are established. Effective management confirms that it has made the necessary steps to ensure that the above-mentioned statements are prepared in accordance with the existing instructions of the CBFA, as well as through the application of the accounting and evaluation rules presiding over the preparation of the annual accounts, or, in respect of the periodic reports that do not relate to the end of the fiscal year, by applying the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year. »;
4° to the same § 3, paragraph 3 is deleted.
Art. 106. In section 23bis, the following amendments are made:
1° § 1^erbis, inserted by the Act of 20 June 2005, is replaced by the following provision:
« § 1^erbis. If the purchaser is an insurance company, a reinsurance company, a credit institution, an investment company or a management company of collective investment organizations, approved in another Member State, or the parent company of such an entity, or a natural or legal person who controls such an entity, and if, as a result of the acquisition, the insurance company in which the purchaser concerned would »;
2° § 3, as amended by the Royal Decree of 25 March 2003, is replaced by the following provision:
Ҥ3. Where CBFA has reasons to consider that the influence of natural or legal persons holding, directly or indirectly, qualified participation in the capital of a Belgian legal insurance company is likely to jeopardize the sound and prudent management of the company, and without prejudice to the other measures provided for in this Act, the CBFA may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholders or partners 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 shareholders or associates involved; its decision is enforceable as soon as it has been notified; CBFA can make its decision public;
2° give injunction to the above-mentioned persons to assign, within the time limit set, the rights of associate they hold.
In the absence of an assignment within the time limit, the CBFA may order the sequester of the rights of associate with any institution or person it determines. The latter informs the company that accordingly amends the register of the shares of the nominative partners and which, even without presentation of the shares to the holder, 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 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 share of partners. The sums paid by the holder for the dividend or any other title shall be paid by him. 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 CBFA and is borne by the holder mentioned above. 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 1^er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1^er, 1°, the court of commerce in which the company has its seat may, upon request of the CBFA, declare 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.
Similar measures may be applied to natural or legal persons who do not comply with the prior information requirement referred to in paragraph 1^er. »
Art. 107. Section 26 of the Act, as amended by the Royal Decree of 12 August 1994, the Act of 19 July 1991, the Act of 2 August 2002, the Royal Decree of 25 March 2003 and the Royal Decree of 26 May 2004, is replaced by the following provision:
« § 1^er. When the CBFA finds that an insurance company does not operate in accordance with the provisions of this Act and the orders and regulations made for its execution, that its management or financial situation does not provide sufficient guarantees for the successful completion of its commitments, or that its administrative or accounting organization or internal control has serious deficiencies, it sets the time limit in which it must be addressed to the situation noted.
If at the end of this period, the situation has not been resolved, the CBFA may:
1st appoint a special commissioner.
In this case, the written, general or special authorization of the company is required for all acts and decisions of all the bodies of the company and those of the persons responsible for the management; CBFA may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all corporate bodies, including the General Assembly, any proposals that he considers appropriate. The remuneration of the Special Commissioner is fixed by the CBFA and supported by the company.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions without having obtained the required authorization from the Special Commissioner are responsible in solidarity with the resulting harm to the company or third parties.
If the CBFA has published to the Belgian Monitor the designation of the Special Commissioner and specifies the acts and decisions subject to its authorization, the acts and decisions taken without that authorization while required are null unless the Special Commissioner ratifies them. Under the same conditions, any decision of a general assembly made without obtaining the required authorization of the Special Commissioner is null unless the Special Commissioner ratifies it.
The CBFA may designate an alternate commissioner.
2° suspend, for the duration it determines, the direct or indirect exercise of any or part of the activity of the enterprise or prohibit that exercise.
The members of the administrative and management bodies and those responsible for the management who perform acts or make decisions in violation of the CBFA's decision are responsible in solidarity with the resulting harm to the company or third parties.
If the CBFA issued the suspension to the Belgian Monitor, the actions and decisions against it are null and void.
3° enjoin the replacement of managers, administrators or general agents of the insurance company, within a time limit fixed by the insurance company and, if not replaced within that time limit, substitute a temporary manager for all management bodies of the company who has the powers of the replaced persons. The CBFA can publish its decision to the Belgian Monitor.
The remuneration of the provisional manager is fixed by the CBFA and supported by the company concerned.
The CBFA may at any time terminate the provisional manager's mandate and replace it, either on its own or at the request of a majority of shareholders or associates, when they justify that the management of the interested party no longer presents sufficient guarantees.
4° revoke the approval.
§ 2. The CBFA decisions referred to in § 1^er release their effects to the company on the date of their notification to the company by registered letter to the position or with acknowledgement of receipt. They are out of effect with respect to third parties as of the date of publication in accordance with § 1^er.
§ 3. § 1^erParagraph 1^er, and § 2 are not applicable in the event of the cancellation of the approval of an insurance company declared bankrupt.
§ 4. The court of commerce shall pronounce at the request of any interested person, the nullities provided for in § 1^er2, 1 and 2 degrees.
The nullity action is directed against the company. If there are serious grounds to justify it, the plaintiff may apply to refer the provisional suspension of the acts or decisions under attack. The order of suspension and the judgment pronouncing nullity produce their effects on all. In the event that the suspended or annulled act or decision has been published, the suspension order and the judgment pronouncing nullity are published in extract in the same forms.
Where nullity is likely to affect the rights acquired in good faith by a third party in respect of the business, the court may declare nullity in respect of such rights without effect, subject to the right of the applicant to damages if applicable.
The action in nullity may no longer be brought after the expiration of a period of six months from the date on which the acts or decisions taken are enforceable against the person who invokes nullity or are known to him.
§ 5. CBFA may restrict or prohibit the free disposition of the assets of an insurance company in the following cases:
(a) if the insurance company does not comply with the provisions of section 16 and the orders and regulations made pursuant to them;
(b) in the exceptional circumstance where, while the CBFA required a recovery plan because the solvency margin no longer reaches the prescribed level under Article 15, § 1^eror 15quater, the CBFA is of the opinion that the financial situation of the insurance company will deteriorate further;
(c) if the credit rating no longer reaches the level of the guarantee fund defined under section 15ter or 15quater.
§ 6. In order to restore the financial situation of a company whose credit margin no longer reaches the prescribed level under Article 15, § 1^er, or 15quater, the CBFA requires that a recovery plan be submitted to it for approval within the time it will indicate.
If the solvency margin no longer reaches the level of the guarantee fund defined under sections 15ter or 15quater, the CBFA requires the company a short-term funding plan.
§ 7. When compliance with the rights of insurance licensees and/or insured persons is threatened due to the deterioration of the financial situation of the insurance company, CBFA may require the company to have a financial recovery strategy. The program must at least include a detailed description of the following elements for the following three subsequent financial years, or supporting documentation:
(a) an estimate of management costs, including overhead costs and commissions;
(b) a plan detailing income and expenditure forecasts for both direct and reinsurance transactions and reinsurance transfers;
(c) a forecast balance;
(d) an estimate of the financial resources to be used to cover commitments and the credit margin requirement;
(e) general reinsurance policy.
§ 8. In the situation referred to in § 7, the CBFA may require companies to have a more substantial margin of credit in order to meet the solvency requirements in the future as well.
The level of this higher credit margin requirement is determined on the basis of the financial recovery strategy referred to in § 7.
§ 9. When the CBFA required a financial recovery strategy in accordance with § 7, it cannot issue a solvency certificate as referred to in sections 53 and 60 of the law in Article 16, § 1^er(a), Directive 88/357/EEC and Article 42 of Directive 2002/83/EC, as long as it considers that respect for the rights of insurance licensees and/or insured persons is threatened.
The CBFA can reduce the available credit margin elements, particularly if the market value of these items has changed significantly since the end of the last fiscal year.
The CBFA may reduce the impact of reinsurance on the credit margin requirement where the content or quality of reinsurance contracts has undergone significant changes since the last fiscal year or where these contracts do not provide for any risk transfer or limited transfer. »
Art. 108. § 1^er. The title of section II of chapter IV of the Act is replaced by the following title: "Revisional control".
§ 2. Section 38 of the Act, amended by the Royal Decree of 22 February 1991, the Act of 19 July 1991, the Royal Decree of 25 March 2003 and the Act of 27 October 2006, is replaced by the following provision:
"The duties of commissioner under the Code of Companies may only be entrusted to one or more revisors or to one or more revisor companies approved by the CBFA in accordance with section 40.
In Belgian legal insurance companies that are not required by the Corporations Code to have a Commissioner, the General Assembly of Members or Associates shall appoint one or more reviewers or one or more registered reviewers as provided for in paragraph 1^er. They serve as Commissioner. The provisions of title VII of Book IV of the Code of Companies relating to Commissioners are applicable.
Insurance companies may designate alternate commissioners who perform the duties of commissioners in the event of their licensee's lasting incapacity. The provisions of this Article and Article 39 shall apply to such substitutes.
The authorized auditors designated in accordance with this section shall certify the consolidated annual accounts of the insurance company. »
Art. 109. Section 39 of the Act, amended by the Act of 19 July 1991 and the Royal Decree of 25 March 2003, is replaced by the following provision:
"Accredited reviewers perform the duties of Commissioner under section 38 through a registered reviewer that they designate in accordance with section 132 of the Corporate Code. The provisions of this Act and the decrees made for its enforcement, which are related to the designation, functions, obligations and prohibitions of commissioners and to sanctions, other than criminal, that are applicable to them, are applicable simultaneously to the revisors and approved reviewers representing them.
A registered reviser company may designate an alternate representative from among its eligible members. »
Art. 110. Section 40 of the Act, amended by the Royal Decree of 6 May 1997 and the Royal Decree of 25 March 2003, is replaced by the following provision:
"On the advice of the Commission des Assurances, the CBFA shall, under the approval of the Minister of Finance and the Minister of Economy, decide on the approval of revisers and revisers.
Accreditation regulations are made after consultation with approved reviewers represented by their professional organization.
The Institut des Réviseurs d'Entr sociétés informs the CBFA of the opening of any disciplinary proceedings against an approved reviewer or a registered reviewer company for failure to perform its duties with an insurance company and any disciplinary action taken against a registered reviewer or a registered reviewer company and its reasons. »
Art. 111. Section 40bis of the Act, inserted by the Act of 19 July 1991 and amended by the Royal Decree of 25 March 2003, is replaced by the following provision:
"The designation of certified commissioners and qualified commissioners to insurance companies is subject to the prior agreement of the CBFA. This agreement must be collected by the social body that makes the nomination proposal. In the event of the designation of a registered review company, the agreement shall jointly deal with the company and its representative.
The same agreement is required for the renewal of the mandate.
When, under the Act, the appointment of the Commissioner is made by the President of the Trade Tribunal or the Court of Appeal, they make their choice on a list of approved reviewers with the agreement of the CBFA. »
Art. 112. An article 40ter, as follows, is inserted in the same law:
"The CBFA may, at any time, revoke, by a decision based on reasons for their status or the performance of their duties as a registered reviewer or a registered reviewer corporation, as provided for by or under this Act, the agreement given, in accordance with section 40 bis, to an authorized commissioner, an alternate registered commissioner, a registered reviewer corporation or a representative or alternate representative of a corporation. This revocation puts an end to the duties of Commissioner.
In the event of the resignation of an authorized commissioner, the CBFA and the insurance company are previously informed of this resignation and its reasons.
Accreditation rules, for the surplus, the procedure.
In the absence of an alternate registered commissioner or an alternate representative of an approved reviser company, the insurance company or the approved reviser company shall, in accordance with section 40 bis, be replaced within two months.
The proposal to revoke authorized commissioner's terms of reference in insurance companies, as set out in sections 135, paragraph 1^er, and 136 of the Corporate Code, is subject to the opinion of the CBFA. This notice is communicated to the General Assembly. »
Art. 113. An article 40quater, as follows, is inserted in the same law:
"The authorized commissioners referred to in section 40bis shall cooperate in the control exercised by the CBFA under their personal and exclusive responsibility and in accordance with this section, the rules of the profession and the instructions of the CBFA. To this end:
1° they assess the internal control measures adopted by insurance companies in accordance with Article 14bis, § 3, paragraph 1^erand communicate their findings on this matter to the CBFA;
2° they report to the CBFA on:
(a) the results of the limited review of the periodic reports transmitted by insurance companies to the CBFA 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 have not, in any significant respects, been prepared in accordance with the existing instructions of the CBFA. 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; CBFA may specify which periodic reports are in this case;
(b) the results of the review of the periodic reports transmitted by insurance companies to the CBFA at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the existing instructions of the CBFA. 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; CBFA may specify which periodic reports are in this case;
3° they make special reports to the CBFA, at its request, on the organization, activities and financial structure of the insurance company, reports whose settlement fees are borne by the insurance company in question;
4° as part of their mission to an insurance company or a revisoral mission to an insurance company, they make an initiative to the CBFA as soon as they find:
(a) decisions, facts or developments that have a significant impact on or may have a significant impact on the financial position of the insurance company or on the basis 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 the refusal or reservation to certify accounts.
No civil, criminal or disciplinary action may be instituted or any professional sanction imposed against registered commissioners who have proceeded in good faith to information referred to in paragraph 4 of paragraph 1^er.
Authorized commissioners communicate to the directors of the insurance company the reports they send to the CBFA in accordance with paragraph 1^erThree. These communications fall under the secrecy of section 74 of the Act of 2 August 2002 on financial sector surveillance and financial services. They transmit to the CBFA copies of the communications they address to these leaders, which deal with issues of interest to the control exercised by them.
Authorized auditors and certified auditors can perform audits and expertise related to their duties at the foreign branches of the company they control. »
Art. 114. An article 40quinquies, as follows, is inserted in the same law:
"The CBFA may require the issuance of a report, if any, according to the regularity it determines, from one or more persons designated by the insurance company and having the actuarial knowledge required, regarding the rates, retrocession and the amount of the technical reserves or provisions.
CBFA may, by regulation made in accordance with section 64 of the Act of 2 August 2002, set out the conditions to which such persons must be satisfied. »
Art. 115. Article 44, paragraph 1^er, of the same law, is supplemented as follows:
"The CBFA, however, may, without prejudice to the application of sections 76, 77 and 78, authorize the assignment to an insurance company that has renounced the approval, of all or part of the rights and obligations resulting from existing insurance contracts held by another insurance company that no longer has the approval, provided that the transferee company has the necessary margin in view of the assignment. »
Art. 116. In article 63, § 2, of the same law, inserted by the royal decree of 12 August 1994 and amended by the law of 6 December 2004, the words "40 bis" are replaced by the words "40quinquies".
Art. 117. In Article 90 of the Act, replaced by the Act of 19 July 1991 and renumbered by the Royal Decree of 12 August 1994, § 1^er is replaced by the following provision:
« § 1^er. Effective management of insurance companies must be entrusted to at least two physical persons. These must have the necessary professional honesty and experience to perform these functions.
Individuals who take part in the administration or management of an insurance company, without participating in its effective management, must have the necessary expertise and experience to perform their tasks. »
Art. 118. An article 90bis, as follows, is inserted in the same law:
"Art. 90bis. Insurance companies prior to inform CBFA of the proposal for the appointment or renewal of the appointment, as well as the non-renewal of the appointment or revocation of persons who take part in the administration, management or effective management of the insurance business.
In the event of a proposal to appoint a person to participate in the administration, management or effective management of the insurance company, insurance companies shall communicate to the CBFA the information and documents that will enable it to determine whether the person has the necessary professional and expertise and the appropriate experience, as referred to in section 90.
CBFA shall render, within a reasonable time, notice of any proposed appointment or renewal of an appointment. When the proposal for the appointment or renewal of an appointment relates to a person who participates in the effective direction, the appointment or renewal of the appointment may only be made if the CBFA has made a notice in accordance.
Insurance companies also inform CBFA of the possible division of labour between persons who take part in the administration, management or effective management of the insurance company, where appropriate, of the possible division of labour between the members of the management committee, as well as significant changes in this division of labour. »
Art. 119. The title of Chapter VIIbis of the Act, inserted by the Royal Decree of March 14, 2001 and amended by the Royal Decree of March 25, 2003, the Act of November 19, 2004 and the Act of June 20, 2005, is replaced by the following title:
“Chapter VIIbis. Special provisions relating to the supplementary supervision of Belgian insurance companies that are part of an insurance or reinsurance group".
Art. 120. In section 91bis of the Act, inserted by the Royal Decree of March 14, 2001 and amended by the Royal Decree of March 25, 2003, the Act of November 19, 2004 and the Act of June 20, 2005, are amended as follows:
(a) the 3° is replaced by the following provision:
"3° reinsurance company: a company as defined in section 82, 3° of the Reinsurance Act of 16 February 2009; »;
(b) It is inserted as follows:
"3°bis reinsurance company of a third country: a company as defined in section 82, 4°, of the law of 16 February 2009 on reinsurance; »;
(c) 9° is replaced by the following provision:
"9° insurance holding company: a parent company whose main activity is to acquire and hold stakes in affiliate companies where these subsidiary companies are exclusively or principally insurance or reinsurance companies or insurance or reinsurance companies of third countries, at least one of these subsidiary companies being an insurance or reinsurance company, and that is not a joint financial company of a common sense; »;
(d) 10° is replaced by the following provision:
"10° joint holding company of insurance: a parent company, other than an insurance company, than an insurance company of a third country, a reinsurance company, a reinsurance company of a third country, an insurance company or a joint financial company, which has at least one insurance or reinsurance company, »;
(e) a 10°bis is inserted, as follows:
"10°bis competent authorities: national authorities authorized under a law or regulation to control insurance or reinsurance companies; »;
(f) the 11th is replaced by the following provision:
"11° Directive 98/78/EC: Directive 98/78/EC of the European Parliament and of the Council of 27 October 1998 on the supplementary supervision of insurance and reinsurance companies forming part of an insurance or reinsurance group. »
Art. 121. Article 91ter, § 1^er, of the same law, inserted by the Royal Decree of 14 March 2001 and amended by the Royal Decree of 25 March 2003, are made the following amendments:
(a) 1° is replaced by the following provision:
"1° that are participating companies of at least one insurance or reinsurance company, or an insurance or reinsurance company of a third country in accordance with the terms set out in sections II, III and IV of this chapter; »;
(b) 2° is replaced by the following provision:
"2° the parent company is an insurance company or an insurance or reinsurance company of a third country in accordance with the terms set out in sections II, III and V of this chapter; "
Art. 122. Section 91ter 1 of the Act, inserted by the Act of 20 June 2005, is amended as follows:
1° the following paragraph is inserted between paragraphs 2 and 3:
"If the statutes of a Belgian legal insurance company provide for the establishment of a steering committee as referred to in section 524bis of the Corporate Code, this steering committee shall consist of at least two directors. »;
2° to paragraph 3, whose current text will form paragraph 4, the words "of Article 90, §§ 2 to 5", are replaced by the words "of Articles 9bis, 90, §§ 2 to 5, and 90 bis".
Art. 123. Section 91s of the Act, inserted by the Royal Decree of March 14, 2001 and amended by the Royal Decree of March 25, 2003, the Act of November 19, 2004 and the Act of June 20, 2005, are amended as follows:
1° § 2, paragraph 1^er, is replaced by the following provision:
"When the CBFA wishes, in specific cases, to verify information relating to a company located in another Member State and which is a related insurance or reinsurance company, a subsidiary company, a parent company or a subsidiary company of a Belgian insurance company, it asks the competent authorities of the other Member State either that they themselves carry out such an audit, or that they give it the authorization of itself to the CBFA. »;
2° § 3 is replaced by the following provision:
“§3. Where, in the context of the supplementary monitoring of insurance companies, the competent foreign authorities shall apply to it in accordance with Directive 98/78/EC, the CBFA shall conduct on-site verification of information concerning a company established in Belgium that is an insurance or related reinsurance company, a subsidiary, a parent company or a subsidiary of a parent company of the insurance company, or give the authority to carry out an audit by them »
Art. 124. Section 91octies of the Act, inserted by the Royal Decree of 14 March 2001 and amended by the Royal Decree of 25 March 2003 and the Act of 20 June 2005, are amended as follows:
(a) paragraph 2, 5°, is supplemented by the following words: "and retrocession";
(b) Paragraph 3 is replaced by the following provision:
"Belgian insurance companies put in place adequate risk management and internal control systems, including sound information and accounting procedures, so that the CBFA can identify, measure, supervise and control, appropriately, the transactions referred to in the preceding paragraphs. They also communicate to the CBFA, depending on the frequency it determines and at least once a year, all significant operations within the group. »
Art. 125. Section 91 of the Act, inserted by the Royal Decree of March 14, 2001 and amended by the Royal Decree of March 25, 2003 and the Act of June 20, 2005, are amended as follows:
1° § 1^erParagraph 2 is replaced by the following provision:
"They must not calculate adjusted credit margins when they are related companies of another participating Belgian insurance or reinsurance company and are taken into account in calculating the adjusted credit margin of this insurance or reinsurance company. »;
2° to § 1^er, paragraph 3, the words "or reinsurance" are inserted between the words "insurance companies" and "taking into account";
3° in § 2bis, a), the words "or reinsurance" are inserted between the words "an insurance company" and "or an insurance company";
4° to § 3, the words "at least once a year at the time of the preparation of the annual accounts and transmit it to the CBFA at least three weeks before the general assembly in which the annual accounts are approved" are replaced by "in the same time and according to the same frequency as for the calculation of the credit margin of insurance companies".
Art. 126. In section 91decies, § 2, of the same law, inserted by the royal decree of 14 March 2001 and amended by the law of 20 June 2005, the words "or reinsurance" are inserted between the words "an insurance company" and "Belgian law".
Art. 127. In section 91undecies of the Act, inserted by the Royal Decree of 14 March 2001 and amended by the Royal Decree of 25 March 2003, paragraph 2 is deleted.
Art. 128. § 1^er. In section 91terdecies, § 2, of the same law, inserted by the Royal Decree of 14 March 2001 and amended by the Act of 20 June 2005, the following amendments are made:
(a) paragraph 1^er, 1°, is replaced by the following provision:
"1° the Belgian insurance company is a company related to another Belgian insurance or reinsurance company and is taken into account in the complementary monitoring method applied to that other company, in accordance with this section; »;
(b) paragraph 1^er, 2°, is replaced by the following provision:
"2° the Belgian insurance company and one or more other Belgian insurance or reinsurance companies have as a parent company the same insurance company or the same insurance or reinsurance company of a third country and the Belgian insurance company is taken into account in the complementary monitoring method carried out on one of these other Belgian companies, in accordance with this section; »;
(c) paragraph 1^er, 3°, is replaced by the following provision:
"3° the Belgian insurance company and one or more other registered insurance or reinsurance companies in other companies Member States shall have as a parent company the same insurance holding company or the same insurance or reinsurance company of a third country and an agreement assigning the exercise of the supplementary monitoring referred to in this section to the competent authorities of another Member State, has been concluded in accordance with Article 91sexiesdecies. »;
(d) Paragraph 2 is replaced by the following provision:
"In the case of successive participations, the CBFA may allow the Belgian insurance company to be subject to the complementary monitoring method only at the level of the last parent company of the said Belgian company which is a holding company of insurances or an insurance company of a third country in respect of which the CBFA carries out additional monitoring. »
§ 2. In section 91terdecies, § 3, of the same law, inserted by the Royal Decree of 14 March 2001, the words "at least once a year at the time of the preparation of the annual accounts and transmit it to the CBFA at least three weeks before the general assembly during which the annual accounts are approved" are replaced by the words "in the same time and according to the same frequency as for the calculation of the credit margin".
Art. 129. In section 91quinquiesdecies of the same Act, inserted by the Royal Decree of 14 March 2001 and amended by the Royal Decree of 25 March 2003 and the Act of 20 June 2005, paragraph 2 is replaced by the following provision:
"When a Belgian insurance company has as a parent company an insurance company located outside Belgium or an insurance or reinsurance company of a third country, and that the additional monitoring referred to in this section is carried out by the CBFA, verification and control missions are carried out in a similar manner by the authorized commissioner(s) designated to the Belgian insurance company. »
Art. 130. Section 91sexiesdecies of the same Act, inserted by the Royal Decree of 14 March 2001 and amended by the Royal Decree of 25 March 2003, is replaced by the following provision:
"When insurance companies are established in different Member States, have as a parent company the same insurance holding company, the same insurance or reinsurance company of a third country or the same joint insurance holding company, the CBFA can enter into an agreement with the competent authorities of these Member States so that the respective responsibilities in the field of complementary supervision of insurance companies are defined as efficiently as possible. »
Art. 131. Article 91octiesdecies, § 1^erthe same Act, which was inserted by the Act of 20 June 2005, are amended as follows:
(a) at 2°, (a), the words ", reinsurance business" are inserted between the words "insurance business" and "insurance business";
(b) at 3°, the words "a reinsurance company as defined in section 82, 3° and 4° of the Reinsurance Act 16 February 2009" are inserted between the words "a insurance company as defined in section 91bis, 1° and 2° of this Act", and "a credit institution as defined in section 1^erParagraph 2 of the Act of 22 March 1993 on the Status and Control of Credit Institutions;
(c) at 4° (b), the words ", a reinsurance company within the meaning of section 91bis, 3°, of this Act" are replaced by the words " or reinsurance";
(d) at 6°, the words "in section 82 of the Reinsurance Act of 16 February 2009" are inserted between the words "in chapter VIIbis of this Act" and "in section 49 of the Act of 22 March 1993".
CHAPTER II. - Amendments to the Act of 22 March 1993 on the Status and Control of Credit Institutions
Art. 132. Section 9 of the Act of 22 March 1993 on the Status and Control of Credit Institutions, as amended by the Act of 20 June 2005, paragraph 1^er is replaced by the following provision:
"When the credit is sought by a credit institution that is either the subsidiary of another credit institution, an insurance company, a reinsurance company, an investment company or a management company of a collective investment organization, approved in another Member State of the European Economic Area, »
Art. 133. In section 24 of the Act, § 2, replaced by the Act of 20 June 2005, is replaced by the following provision:
“§2. If the purchaser is a credit institution, an insurance company, a reinsurance company, an investment company or a management company of collective investment bodies, approved in another Member State of the European Economic Area, or the parent company of such an entity, or a natural or legal person who controls such an entity, and if, following the acquisition, the credit institution concerned in which »
Art. 134. In section 49bis of the Act, inserted by the Act of 20 June 2005 and amended by the Act of 15 May 2007, the following amendments are made:
(a) to § 1^er, 2°, a), the words ", a reinsurance company" are inserted between the words "insurance business" and "or investment companies";
(b) to § 1^er, 3°, the words "is a reinsurance company as defined in section 82, 3° and 4°, of the law of 16 February 2009 relating to reinsurance," are inserted between the words "is an insurance company as defined in section 91bis, 1° and 2°, of the law of 9 July 1975 relating to the control of insurance companies," and "is an investment company defined as
(c) to § 1^er, 4°, b), the words ", a reinsurance company within the meaning of section 91bis, 3°, of the law of July 9, 1975" are replaced by the words "or reinsurance";
(d) to § 1^er, 6°, the words ", in section 82 of the Act of 16 February 2009 on reinsurance" are inserted between the words "in chapter VIIbis of the Act of 9 July 1975" and " or in section 95 of the Act of 6 April 1995".
Art. 135. Section 55 of the Act, as amended by the Acts of 30 October 1998, 9 March 1999, 28 February 2002, 19 November 2004 and 15 May 2007, paragraph 1^er, 2°, is replaced by the following text:
"2° they report to the Banking, Financial and Insurance Commission on:
(a) the results of the limited review of the periodical statements transmitted by credit institutions to the Banking, Financial and Insurance Commission 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 have not, in all significant respects, been prepared in accordance with the current instructions of the Banking, Financial and Insurance Commission. 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 Banking, Financial and Insurance Commission may specify the relevant periodic reports;
(b) the results of the review of the periodic reports transmitted by credit institutions to the Banking, Financial and Insurance Commission at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the current instructions of the Banking, Financial and Insurance Commission. 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 Banking, Financial and Insurance Commission may specify the relevant periodic reports; "
Art. 136. Section 74 of the Act, amended by the Acts of 30 October 1998, 9 March 1999, 28 February 2002, 19 November 2004 and 15 May 2007, § 2, 2°, is replaced by the following text:
"2° they report to the Banking, Financial and Insurance Commission on:
(a) the results of the limited review of the periodic reports transmitted by the branches referred to in section 65 to the Banking, Financial and Insurance Commission at the end of the first social semester, confirming that they are not aware of any facts that would appear to have been found that these periodic reports have not, in all significant respects, been prepared in accordance with the current instructions of the Banking, Financial and Insurance Commission. 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 Banking, Financial and Insurance Commission may specify which periodic reports are subject to;
(b) the results of the review of the periodic reports transmitted by the branches referred to in section 65 to the Banking, Financial and Insurance Commission at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the current instructions of the Banking, Financial and Insurance Commission. 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 Banking, Financial and Insurance Commission may specify which periodic reports are concerned.
They may be charged by the Banking, Financial and Insurance Commission, at the request of the National Bank of Belgium or the European Central Bank, to confirm, as well, the information that the successors are required to communicate to these authorities by application of articles 69 and 71; "
CHAPTER III. - Amendments to the Act of 6 April 1995 on the Status and Control of Investment Businesses
Art. 137. Section 49 of the Act of 6 April 1995 on the Status and Control of Investment Businesses, as amended by the Act of 20 June 2005, paragraph 1^er is replaced by the following provision:
"When the credit is sought by an investment company that is either the subsidiary of another investment company, a credit institution, an insurance company, a reinsurance company, or a management company of a collective investment agency, »
Art. 138. In section 67 of the Act, § 2, replaced by the Act of 20 June 2005, is replaced by the following provision:
“§2. If the purchaser is an investment company, a credit institution, an insurance company, a reinsurance company or a management company of collective investment bodies, approved in another member State of the European Economic Area, or the parent company of such an entity, or a natural or legal person who controls such an entity, and if, following the acquisition, the acquisition of the affected acquisition entity »
Art. 139. In section 95bis of the Act, inserted by the Act of 20 June 2005 and amended by the Act of 15 May 2007, the following amendments are made:
(a) to § 1^er, 2°, a), the words ", reinsurance company" are inserted between the words "insurance business" and "insurance business";
(b) to § 1^er, 3°, the words "is a reinsurance company as defined in section 82, 3° and 4°, of the law of 16 February 2009 relating to reinsurance," are inserted between the words "is an insurance company as defined in section 91bis, 1° and 2°, of the law of 9 July 1975 relating to the control of insurance companies," and "is a collective investment management company defined by
(c) to § 1^er, 4°, b), the words ", a reinsurance company within the meaning of section 91bis, 3°, of the law of July 9, 1975" are replaced by the words " or reinsurance"
(d) to § 1^er, 6°, the words "or chapter VIIbis of the law of 9 July 1975" are replaced by the words ", in chapter VIIbis of the law of 9 July 1975 or in section 82 of the law of 16 February 2009 on reinsurance. »;
Art. 140. Section 101 of the Act, amended by the Royal Decree of 22 December 1995 and by the Acts of 30 October 1998, 9 March 1999, 28 February 2002 and 15 May 2007, paragraph 1^er, 2°, is replaced by the following text:
"2° they report to the control authority on:
(a) the results of the limited review of the periodic reports transmitted by investment companies to the supervisory authority 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 have not, in all significant respects, been prepared in accordance with the current instructions of the supervisory authority. 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 control authority may specify which periodic reports are in this case;
(b) the results of the review of the periodic reports transmitted by investment companies to the supervisory authority at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the current instructions of the supervisory authority. 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 control authority may specify which periodic reports are in this case; "
CHAPTER IV. - Amendment of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium
Art. 141. In article 35, paragraph 3, 2°, of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium, the words "and insurance companies" are replaced by the words ", insurance companies and reinsurance companies".
CHAPTER V. - Amendment of the Financial Sector Supervision and Financial Services Act of 2 August 2002
Art. 142. In Article 45, § 1^er, of the Act of 2 August 2002 on the supervision of the financial sector and financial services, amended by the Royal Decree of 25 March 2003, the Act of 20 July 2004 and the Act of 27 October 2006, point 6° is supplemented by the following words: ", and by the Act of 16 February 2009 on reinsurance".
CHAPTER VI. - Amendments to the Act of 20 July 2004 on certain forms of collective investment portfolio management
Art. 143. Article 88 of the Act of 20 July 2004 on certain forms of collective investment portfolio management, as amended by the Acts of 20 June 2005, 16 June 2006 and 15 May 2007, § 1^erParagraph 1^er, 2°, is replaced by the following text:
"2° they report to the CBFA on:
(a) the results of the limited review of the semi-annual reports, as well as of the quarterly financial statements provided by the collective investment agencies to the CBFA pursuant to section 76, § 2, confirming that they are not aware of the facts of which it appears that the semi-annual reports and the aforementioned financial statements issued at the end of the semester and at the end of the fiscal year have not, in all significant respects, been prepared They further confirm that the semi-annual reports and the above-mentioned financial statements issued at the end of the semester and at the end of the fiscal year are, with respect to accounting data, in all significant respects, in accordance 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 prepared, and they also confirm that they are not aware of the facts that would appear to be that the semi-annual reports and the above-mentioned financial statements issued at the end of the semester and at the end of the fiscal year 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;
(b) the results of the monitoring of the annual reports submitted by the collective investment agencies to the CBFA at the end of the social year under section 76, § 2, as well as the periodic financial statements transmitted by the collective investment agencies to the CBFA pursuant to section 81 according to a regulatory period established by the CBFA, confirming that the reports and statements referred to above have, in all significant respects, been prepared in force according to the instructions in force. They further confirm that the annual reports and financial statements 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 contained in the accounting and in the inventories on which they are established, and that they are correct, that is to say, the basis with which they are prepared, and that they are correct, that is, the basis of accounting they also confirm that annual reports and financial statements have been prepared by application of the accounting and evaluation rules that preside over the preparation of annual accounts; "
Art. 144. Section 142 of the Act, as amended by the Act of 20 June 2005, paragraph 1^er is replaced by the following provision:
"When the credit is sought by a collective investment company that is, either the subsidiary of another group investment company, an investment company, a credit institution, an insurance company or a reinsurance company registered in another European Economic Area, »
Art. 145. In section 159 of the Act, § 2, as amended by the Act of 20 June 2005, is replaced by the following provision:
“§2. If the purchaser is a collective investment management company, an investment company, an insurance company, a reinsurance company or a credit institution, approved in another member state of the European Economic Area, or the parent company of such an entity, or a natural or legal person who controls such an entity, and if, following the acquisition, the investment management corporation »
Art. 146. Section 189 of the Act, amended by the Act of 20 June 2005 and the Act of 15 May 2007, are amended as follows:
(a) to § 1^erParagraph 1^er, 2°, the words "or section 91octiesdecies of the Act of 9 July 1975 relating to the control of insurance companies" are replaced by the words ", section 91octiesdecies of the Act of 9 July 1975 relating to the control of insurance companies or section 98 of the Act of 16 February 2009 relating to reinsurance";
(b) § 1^erParagraph 2 is replaced by the following provision:
"Groups of businesses including a credit institution, an investment company, an insurance company or a reinsurance company are subject, with respect to the supervision of the group, to the provisions of section 49 of the Act of 22 March 1993, section 95 of the Act of 6 April 1995, chapter VIIbis of the Act of 9 July 1975 or Title VIII of the Act of 16 February 2009 on reinsurance. »
(c) to § 1^er, paragraph 3, the words "or reinsurance" are inserted between the words "insurance business" and ", are submitted";
(d) to § 5, paragraph 1^er, the words ", of section 98 of the law of 16 February 2009 relating to reinsurance" are inserted between the words "of section 95bis of the law of 6 April 1995" and "or section 91octiesdecies of the law of 9 July 1975 referred to above."
Art. 147. Section 195 of the Act, as amended by the Act of 15 May 2007, paragraph 1^er, 2°, is replaced by the following text:
"2° they report to the CBFA on:
(a) the results of the limited review of the periodic reports transmitted by the collective investment management companies to the CBFA 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 have not, in all significant respects, been prepared in accordance with the existing instructions of the CBFA. 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; CBFA may specify which periodic reports are in this case;
(b) the results of the review of the periodic reports transmitted by the collective investment management companies to the CBFA at the end of the social year, confirming that these periodic reports have, in all significant respects, been prepared in accordance with the existing instructions of the CBFA. 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; CBFA may specify which periodic reports are in this case; "
PART XI. - Transitional provisions
Art. 148. § 1^er. Belgian reinsurance companies, which, as of 10 December 2005, were authorized to carry out reinsurance activities, are deemed to be approved in accordance with Article 5.
However, they are required to comply with the provisions relating to the exercise of the reinsurance activity and the requirements set out in sections 13 to 19.
§ 2. Without prejudice to § 1^er, the undertakings referred to in this Act file with the CBFA within three months of the coming into force of this Act, a file comprising the information referred to in Article 7, 1° to 4° and 7°.
Art. 149. Reinsurance companies that, as of December 10, 2007, have ceased to subscribe to new reinsurance contracts and only administer their existing portfolio with a view to ending their business are not subject to this Act. However, they are required to be known to the CBFA, specifying the type of reinsurance activity under the contract portfolio that they administer.
The CBFA lists the reinsurance companies concerned and communicates it to the competent authorities of all other Member States.
rt. 150. § 1^er. Reinsurance companies that are not members of the European Economic Area and which have a branch in Belgium file with the CBFA within three months of the coming into force of this Act, a registration record in accordance with Article 60.
They may continue their activities pending the approval of the CBFA, provided they have filed an accreditation file with the CBFA.
§ 2. Reinsurance companies under state law that are not members of the European Economic Area and that take reinsurance services in Belgium are required to be known to the CBFA, specifying the type of reinsurance activity they take in Belgium.
The CBFA publishes on its website the list of reinsurance companies concerned.
PART XII. - Miscellaneous provisions
CHAPTER I^er. - Adaptation to the law of the European Community
Art. 150. § 1^er. The King may, by order deliberately in the Council of Ministers, adapt the provisions of this Law to the obligations arising in Belgium from international agreements or treaties, to the extent that these are matters which the Constitution does not reserve to the legislature.
§ 2. The royal decrees mentioned in § 1^er are subject to the opinion of the law section of the Council of State.
This notice is published at the same time as the report to the King and the royal decree relating thereto.
§ 3. Royal decrees taken in execution of § 1^er are repealed if they have not been confirmed by law in the year following their publication in the Belgian Monitor.
CHAPTER II. - Adaptation of references to subsequent legislation
Art. 151. The King may adapt the references contained in the provisions of this Act to align them with subsequent legislation and coordination.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 16 February 2009.
ALBERT
By the King:
Deputy Prime Minister and Minister of Finance and Institutional Reforms,
D. REYNDERS
Minister of Justice,
S. DE CLERCK
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
Note
(1) Parliamentary references 2008/2009:
House of Representatives.
Documents. - 001: Bill. - 002: Annexes. - 003: Report. - 004: Text adopted in plenary and transmitted to the Senate.
Full report: 16 December 2008 and 8 January 2009 1^er February 2007.
Senate.
Document. - 001: Project not referred to by the Senate.