17 DECEMBER 2008. - An Act to establish an Audit Committee in listed companies and financial companies

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART 1^er. - GENERAL PROVISIONS
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act transposes articles 38, 41 and 42, § 1^er, Directive 2006/43/EC of the European Parliament and Council of 17 May 2006 on the legal controls of the annual and consolidated accounts amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC.
PART 2. - TRANSPOSITION OF ARTICLES 38, 41 AND 42, § 1^er,
DIRECTIVE 2006/43/EC
CHAPTER 1^er. - Amendment of the Act of 22 March 1993 on the Status and Control of Credit Institutions
Art. 3. ÷ section 20 of the Act of 22 March 1993 on the Status and Control of Credit Institutions, replaced by the Act of 15 May 2007, the following amendments are made:
1. Paragraph 2 is supplemented by six subparagraphs as follows:
"Credit institutions 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 respective credit institution and in the area of 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.
In credit institutions meeting 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, among other things, any director who is a member of the steering committee referred to in section 26, any administrator who has been delegated daily management within the meaning of section 525 of the Corporate Code and any member of a management college of a LPD.
As long as 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 the credit institutions that are subsidiary or sub-sidiary of a joint financial company, an insurance company, a financial company, another credit institution, a re-investment company, an insurance company CBFA makes its policy of derogation public.
The Approved Commissioner:
(a) confirms each year in writing to the Audit Committee its independence from the credit facility;
(b) annually communicate to the audit committee the additional services provided to the credit facility;
(c) examine with the audit committee the risks to its independence and the safeguards taken to mitigate these risks, recorded by the audit committee.
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. »;
2° in paragraph 5, three paragraphs, as follows, are inserted between paragraph 1^er and paragraph 2:
"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 the internal control and risk management systems of the credit facility;
(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 44, respectively transmitted by the credit institution 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. »;
Paragraph 6 is replaced by the following:
“§ 6. The Authorized Commissioner reports to the legal body of administration, if any, through the audit committee if such a committee has been established, on important issues arising in the exercise of its legal audit mission, and in particular on significant weaknesses in internal control in the financial reporting process. »
CHAPTER 2. - Amendment of the Act of 9 July 1975
on the control of insurance companies
Art. 4. In the Act of 9 July 1975 on the control of insurance companies, an article 14ter is inserted as follows:
"Art. 14ter. Insurance 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 insurance 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.
In insurance 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. It is presumed to be an executive member of the legal body of administration, among other things, any director who is a member of the steering committee referred to in Article 90, § 3, and any director who has been delegated daily management within the meaning of Article 525 of the Code of Companies.
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 the undertakings of insurance that are subsidiary or sub-sidiary of a mixed financial company, an insurance holding company, a financial company, another insurance company, a reinsurance company, a reinsurance company, CBFA makes its policy of derogation public.
Without prejudice to the legal duties of the legal body of administration, the audit committee is at least 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 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 audit committee regularly reports 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 semi-annual periodic reports, respectively transmitted by the insurance company at the end of the social year and at the end of the first social semester.
The Approved Commissioner:
a) confirms each year in writing to the audit committee its independence from the insurance company;
(b) communicate to the audit committee each year the additional services provided to the insurance company;
(c) examine with the audit committee the risks to its independence and the safeguards taken to mitigate these risks, recorded by the audit committee.
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. »
CHAPTER 3. - Amendment of the Act of 6 April 1995
relating to the status and control of investment companies
Art. 5. In section 62 of the Act of 6 April 1995 on the Status and Control of Investment Businesses, replaced by the Act of 15 May 2007, the following amendments are carried out:
1. Paragraph 2 is supplemented by six subparagraphs as follows:
"Invest 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 administrative body 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 relevant investment company 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.
Exempt from the requirement to have an audit committee investment companies meeting at least two of the following three criteria:
(a) average number of employees less than 250 people over the entire year concerned,
(b) total balance sheet less than or equal to 43.000.000 euros,
(c) annual net turnover less than or equal to 50.000.000 euros.
As long as 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 the investment undertakings that are subsidiaries or sub-sidiaries of a mixed financial company, an insurance company, a financial company, a credit institution, a re-investment company, an insurance company CBFA makes its policy of derogation public.
The Approved Commissioner:
(a) confirms each year in writing to the Audit Committee its independence from the investment undertaking;
(b) annually communicate to the audit committee the additional services provided to the investment 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.
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. »;
2° in paragraph 5, three paragraphs are inserted between paragraph 1^er and paragraph 2:
"Without prejudice to the legal missions of the legal body of administration, the audit committee is at least 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 regularly reports 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 91, respectively transmitted by the investment company 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. »;
Paragraph 6 is replaced by the following:
“§ 6. The Authorized Commissioner reports to the legal body of administration, if any, through the audit committee if such a committee has been established, on important issues arising in the exercise of its legal audit mission, and in particular on significant weaknesses in internal control in the financial reporting process. »
CHAPTER 4. - Amendment of the Act of 20 July 2004 on
certain forms of collective investment portfolio management
Art. 6. In section 153 of the Act of 20 July 2004 on certain forms of collective investment portfolio management, replaced by the Royal Decree of 27 April 2007, the following amendments are made:
1° paragraph 1^er is supplemented by six subparagraphs as follows:
"The collective investment management company is an audit committee within its legal body of administration. The audit committee is composed of non-executive members of the legal body of administration. 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 management company concerned and in the area of 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.
Exempt from the requirement to have an audit committee the collective investment management companies meeting at least two of the following three criteria:
(a) average number of employees less than 250 people over the entire year concerned;
(b) total balance sheet less than or equal to 43.000.000 euros;
(c) annual net turnover less than or equal to 50.000.000 euros.
As long as 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 the management companies of collective investment organizations that are subsidiaries or sub-sidiaries of a joint financial company, an insurance company, a financial company, a credit institution, an insurance company CBFA makes its policy of derogation public.
The Approved Commissioner:
(a) confirms each year in writing to the audit committee its independence from the collective investment management company;
(b) annually communicate to the audit committee the additional services provided to the collective investment organization management corporation;
(c) examine with the audit committee the risks to its independence and the safeguards taken to mitigate these risks, recorded by the audit committee.
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. »;
2° in paragraph 10, three paragraphs are inserted between paragraph 1^er and paragraph 2:
"Without prejudice to the legal missions of the legal body of administration, the audit committee is at least responsible for the following tasks:
(a) follow-up to the financial information development process;
(b) monitoring the effectiveness of corporate internal control and 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 185, respectively transmitted by the collective investment management company 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. »;
Paragraph 11 is replaced by the following:
“§ 11. The Authorized Commissioner reports to the legal body of administration, if any, through the audit committee if such a committee has been established, on important issues arising in the exercise of its legal audit mission, and in particular on significant weaknesses in internal control in the financial reporting process. »
CHAPTER 5. - Amendment of the Corporate Code
Art. 7. Section 96 of the Corporate Code, as amended by section 5 of the Act of 13 January 2006 and section 81 of the Act of 9 July 2004, is supplemented by the 9th drafted as follows:
"9° where applicable, the rationale for independence and competence in accounting and auditing of at least one member of the audit committee. »
At the end of the final sentence of point 8° of the same article, the final point is replaced by a comma point.
Art. 8. Section 119, paragraph 2, of the same Code, as amended by section 9 of the Act of 13 January 2006 and section 82 of the Act of 9 July 2004, is supplemented by the 6th drafted as follows:
"6° where applicable, the rationale for independence and competence in accounting and auditing of at least one member of the audit committee. »
At the end of the final sentence of point 5° of the same article, the final point is replaced by a comma point.
Art. 9. In section 130 of the same Code, the following amendments are made:
1° a paragraph written as follows is inserted between the first and the second paragraph:
"When the corporation is required to establish an audit committee under the Act, the management board's proposal for the appointment of the Commissioner of the General Assembly is issued on the proposal of the audit committee. »;
2° in the second paragraph, which becomes the third paragraph, the words "paragraph 1^er are replaced by the words "previous paragraphs".
Art. 10. ÷ Article 133, § 6, paragraph 1^er, of the same Code, replaced by section 100 of the Act of 20 July 2006 and amended by section 3, 2°, of the Royal Decree of 25 April 2007, the following amendments are made:
1° 1° is replaced by the following:
"1° on favourable deliberation of the audit committee of the company concerned. In the event that the functions assigned to the audit committee are performed by the Board of Directors as a whole, the approval of the independent administrator, or, if he or she is appointed, by the majority of them, is required. »;
2° the 3° is repealed.
Art. 11. Section 135 of the Code is replaced by the following:
« § 1^er. The commissioners are appointed for a term of three years renewable.
Under penalty of damages, they can only be revoked in the course of a warrant for just cause by the General Assembly. In particular, a discrepancy on accounting treatment or control proceedings does not in itself constitute a fair ground for revocation.
Commissioners may, except for serious personal reasons, resign in the course of their term only at a general meeting and after having made a written report on the reasons for their resignation.
§ 2. The controlled corporation and the Commissioner shall inform the Superior Council of the Economic Professions referred to in section 54 of the Act of April 22, 1999 on accounting and tax professions, the revocation or resignation of the Commissioner in the course of his or her term and shall set out the reasons appropriately.
The Conseil Supérieur des Professions économiques, in the month, transmits this information to the various components of the Belgian public supervision system, listed in article 43 of the Act of 22 July 1953 creating the Institute of Directors of Entry and organizing public supervision of the profession of reviewer of companies. »
Art. 12. In section 156 of the same Code, the following amendments are made:
1° a paragraph written as follows is inserted between subparagraphs 1^er and 2:
"When the corporation is required to establish an audit committee under the Act, the management body's proposal is issued on the proposal of the audit committee. The latter is itself forwarded to the corporate board for information. »;
2° Paragraph 2, which becomes paragraph 3, is replaced by the following:
"The same procedure is applied for the renewal of the mandate of the commissioners. »
Art. 13. ÷ Article 524, § 4, of the same Code, replaced by Article 32 of the Act of 2 August 2002, the following amendments are made:
1° paragraph 2 is replaced by the following:
“Independent directors within the meaning of § 2, paragraph 1^er, meet the criteria of section 526ter. »;
2° paragraphs 3 and 4 are repealed.
Art. 14. It is included in Book VIII, Title IV, Chapter I^er, of the same Code, a section IIIbis entitled "audit committee".
Art. 15. In section IIIbis, inserted by article 14, an article 526bis is inserted, as follows:
"Art. 526bis. § 1^er. Corporations listed under section 4 are an audit committee within their board of directors.
§ 2. The audit committee is composed of non-executive members of the Board of Directors. At least one member of the audit committee is an independent administrator within the meaning of section 526ter, and is responsible for accounting and auditing.
§ 3. In companies that meet, on a consolidated basis, 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 board of directors is not mandatory, but the functions assigned to the audit committee must then be exercised by the board of directors as a whole, provided that these companies have at least one independent director and that, in the event that the chair of the board of directors is an executive member, it does not preside over that body when it acts as an audit committee.
Is presumed to be an executive member of the board of directors, inter alia, any director who is a member of the steering committee referred to in sections 524bis and 524ter and any director who has been delegated daily management within the meaning of section 525.
§ 4. Without prejudice to the legal duties of the Board of Directors, 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 corporate internal control and risk management systems;
(c) if there is an internal audit, followed by it and its effectiveness;
(d) monitoring the legal control of the annual and consolidated accounts, including the follow-up to the issues and recommendations of the Commissioner and, where appropriate, the reviewer of consolidated accounts;
(e) review and follow-up to the independence of the Commissioner and, where appropriate, the reviewer of consolidated auditing undertakings, in particular with regard to the provision of complementary services to society.
The audit committee shall report regularly to the Board of Directors on the exercise of its duties, at least during the preparation by the Board of Annual Accounts, Consolidated Accounts and, where appropriate, Summary Financial Statements for publication.
§ 5. Without prejudice to the legal provisions providing for reports or warnings from the Commissioner to organs of society, the Commissioner and, where appropriate, the reviewer of consolidated auditing companies report to the audit committee on important issues arising in the exercise of their legal auditing mission, in particular significant weaknesses in internal control in the financial reporting process.
§ 6. The Commissioner and, where applicable, the corporate reviewer responsible for the control of consolidated accounts:
(a) confirm each year in writing to the audit committee their independence from society;
(b) communicate to the audit committee each year the additional services provided to the corporation;
(c) examine with the audit committee the risks to their independence and the safeguards taken to mitigate these risks, documented by them.
§ 7. Are exempt from the requirement to have an audit committee referred to in §§ 1^er 5:
(a) companies that are collective investment organizations with a variable number of public shares as defined in section 10 of the Act of 20 July 2004 on certain forms of collective investment portfolio management;
(b) companies whose only activity is to issue securities to assets within the meaning of Article 2, paragraph 5, of Regulation (EC) No. 809/2004 of the European Commission; In this case, the company discloses the reasons why it does not consider it appropriate to have an audit committee or that the board of directors is responsible for performing the functions of the audit committee. »
Art. 16. In the same section IIIbis, an article 526ter is inserted, as follows:
"Art. 526ter. The independent administrator within the meaning of Article 526bis, § 2, must at least meet the following criteria:
1° for a period of five years prior to his appointment, not having served as an executive member of the management body, or as a member of the steering committee or as a delegate for day management, or with the company, or with a company or person related to the organization within the meaning of section 11;
2° have not served on the board of directors as a non-executive administrator for more than three consecutive terms, without the period being longer than twelve years;
3° for a period of three years prior to his appointment, not having been a member of the management staff, within the meaning of section 19, 2°, of the Act of 20 September 1948, on the organization of the economy, society or a society or person related to the economy within the meaning of section 11;
4° not to receive, or have received, any remuneration or other significant benefit of a heritage nature of the corporation or of a corporation or person related to it within the meaning of section 11, outside the fortieths and fees possibly perceived as a non-executive member of the management body or a member of the monitoring body;
5° (a) have no social right representing one tenth or more of the capital, the social fund or a class of shares of the corporation;
(b) if it holds social rights that represent a quotity less than 10%:
- by the addition of social rights with those held in the same corporation by companies whose independent administrator has control, these social rights cannot reach one tenth of the capital, the social fund or a class of shares of the corporation;
or
- acts of disposition relating to such actions or the exercise of the rights thereto shall not be subject to treaty provisions or unilateral commitments to which the independent member of the management body has subscribed;
(c) not represent in any way a shareholder returning under the terms of this item;
6° shall not maintain, or maintain, in the last social exercise, a significant business relationship with the corporation or a corporation or person related to the corporation within the meaning of section 11, or directly or as a partner, shareholder, member of the management body or member of the executive staff, within the meaning of section 19, 2°, of the law of 20 September 1948 relating to the organization of the economy,
7° not having been in the last three years, partner or employee of the current or previous external auditor, of the company or of a company or person related to it within the meaning of Article 11;
8° not to be an executive member of the management body of another corporation in which an executive director of the corporation sits as a non-executive member of the management body or member of the supervisory body, or to maintain other important links with the executive directors of the corporation because of functions held in other companies or bodies;
9° having neither within the company nor within a corporation or a person related to it within the meaning of Article 11, neither spouse nor legal cohabitant, nor parents or allies until the second degree exercising a mandate of a member of the governing body, a member of the steering committee, a delegate to the day management or a member of the executive staff, within the meaning of Article 19, 2°, of September 1948
The appointment decision refers to the grounds on which the independent administrator is granted.
The King, as well as the statutes, may provide for additional or more severe criteria. »
Art. 17. Section 533, last paragraph, of the same Code, replaced by section 511 of the Act of 27 December 2004, is supplemented by the following sentences:
"In addition, for listed companies, the audit committee's proposal on the appointment of a commissioner or the reviewer of consolidated accounts is included in the agenda. The same applies to the renewal of this appointment. "
Art. 18. In Book XV, Title IV, Chapter I^er, section II, of the same Code, an article 899bis is inserted, as follows:
"Art. 899bis. The statutory provisions for the audit committee of listed anonymous companies are applicable to listed SEs referred to in this section. »
Art. 19. In Book XV, Title IV, Chapter I^er, section III, subsection III, of the same Code, inserts an article 913bis, as follows:
"Art. 913bis. The listed SEs referred to in this section are an audit committee within their supervisory board. At least one member of the audit committee is an independent member within the meaning of section 913ter, and is responsible for accounting and auditing.
The audit committee shall report regularly to the Supervisory Board on the exercise of its duties, at least at the time of the annual accounts management board, consolidated accounts and, where appropriate, summary financial statements for publication.
The legal provisions relating to the audit committee of anonymous companies listed within the meaning of Article 4 are for the rest mutatis mutandis of application, with the exception of Article 526bis, § 1^er§ 2, § 3, paragraph 2, and § 4, last paragraph. »
Art. 20. In the same subsection, an article 913ter is inserted, as follows:
"Art. 913ter. The independent member of the Supervisory Board must at least meet the following criteria:
1° for a period of five years prior to his or her appointment, not having served as a member of the management body or board of directors or as a member of the steering committee or as a delegate of day management, or with the corporation, or with a corporation or person related to the board within the meaning of section 11;
2° having not served on the Supervisory Board for more than three successive mandates, without this period exceeding twelve years;
3° for a period of three years prior to his appointment, not having been a member of the management staff, within the meaning of section 19, 2°, of the Act of 20 September 1948, on the organization of the economy, society or a society or person related to the economy within the meaning of section 11;
4° not to receive, or have received, any remuneration or other significant benefit of a heritage nature of the corporation or of a corporation or person related to it within the meaning of section 11, outside the fortieths and fees possibly collected as a member of the supervisory board or, in the case of a monist system corporation, non-executive member of the management body;
5° (a) have no social right representing one tenth or more of the capital, the social fund or a class of shares of the corporation;
(b) if it holds social rights that represent a quotity less than 10%:
- by the addition of social rights with those held in the same corporation by companies whose independent administrator has control, these social rights cannot reach one tenth of the capital, the social fund or a class of shares of the corporation;
or
- acts of disposition relating to such actions or the exercise of the rights thereto shall not be subject to treaty provisions or unilateral commitments to which the independent member of the supervisory board has subscribed;
(c) not represent in any way a shareholder returning under the terms of this item;
6° shall not maintain, or maintain, in the last social exercise, a significant business relationship with the corporation or a corporation or person related to the corporation within the meaning of section 11, or directly or as a partner, shareholder, member of the management body, member of the board of directors or member of the executive staff, within the meaning of section 19, 2°, of the law of 20 September 1948
7° not having been in the last three years, partner or employee of the current or previous external auditor, of the company or of a company or person related to it within the meaning of Article 11;
8° not to be an executive member of the management body of another corporation in which a member of the board of directors of the corporation sits as a non-executive member of the management body or member of the supervisory board, or to maintain other important links with the executive members of the board of directors of the corporation as a result of duties held in other companies or bodies;
9° having neither within the company nor within a corporation or a person related to it within the meaning of Article 11, nor a spouse or legal cohabitant, nor parents or allies until the second degree exercising a mandate of a member of the management body, a member of the board of directors, a delegate to the day management or a member of the executive staff, within the meaning of Article 19, 2°, of September 1948
The appointment decision refers to the grounds on which the independent administrator is granted.
The King, as well as the statutes, may provide for additional or more severe criteria. »
Art. 21. In Article 917, § 4, of the same Code, inserted by Article 31 of the Royal Decree of 1^er September 2004, paragraphs 2, 3 and 4 are replaced by the following:
“Independent members within the meaning of § 2, paragraph 1^er, meet the criteria of section 913ter. »
CHAPTER 6. - Amendment of the Act of 22 February 1998
fixing the organic status of the National Bank of Belgium
Art. 22. In Article 21 of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium, the following amendments are made:
(a) 1 is supplemented by the following sentence:
"At least one member of the College of Censors is independent within the meaning of section 526ter of the Corporations Code. »;
(b) 2 is replaced by the following:
“2. The College of Censors monitors the preparation and execution of the budget. He is the Bank's audit committee and in this capacity exercises the powers referred to in section 21bis. »
Art. 23. In the same law, an article 21bis is inserted:
“Art. 21bis. 1. Without prejudice to the legal missions of the Bank's organs, and without prejudice to the execution of the missions and operations under the CBSS and their review by the enterprise reviewer, 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 risk management systems and the Bank's internal audit;
(c) monitoring the legal control of annual accounts, including the follow-up to the issues and recommendations of the corporate reviewer;
(d) review and follow-up to the independence of the corporate reviewer, in particular with regard to the provision of complementary services to the Bank.
2. Without prejudice to Article 27.1 of the Protocol on the Statutes of the European System of Central Banks and the European Central Bank and without prejudice to the competence of presenting the board of business, the proposal of the Steering Committee on the appointment of the company reviewer is issued on the proposal of the audit committee. The latter is itself forwarded to the corporate board for information. The audit committee also gives its opinion on the procedure for awarding the company reviewer.
3. Without prejudice to the reports or warnings of the business reviewer to the Bank's bodies, the business reviewer reports to the audit committee on the important issues arising in the exercise of his legal audit mission, in particular the significant weaknesses of internal control in the financial reporting process.
4. The company reviewer:
(a) confirms each year in writing to the Audit Committee its independence from the Bank;
(b) annually communicate to the Audit Committee the additional services provided to the Bank;
(c) examine with the audit committee the risks to its independence, as well as the safeguards taken to mitigate these risks and that it has documented in the audit documents.
5. The rules of procedure specify the rules of operation of the audit committee. »
CHAPTER 7. - Entry into force and transitional provisions
Art. 24. § 1^er. The provisions of this title come into force on the tenth day following that of the publication of this Act to the Belgian Monitor.
The provisions of this title relating to the tasks and responsibilities of the audit committee are for the first time applied in social exercises beginning after the publication of this law to the Belgian Monitor.
§ 2. In credit institutions, insurance companies, investment companies and collective investment management companies, members of the legal board of directors appointed prior to the entry into force of this title, who meet the criteria defined and published in the annual report of the legal body of administration to determine their independence, may continue to serve as independent members up to 1^er July 2011.
§ 3. In listed companies, directors appointed before the entry into force of this title, who meet the criteria of Article 524, § 4, paragraph 2, of the Code of Companies but not the criteria of Article 526ter of the same Code, may continue to serve as independent directors within the meaning of Articles 524, § 2, paragraph 1^er, and 526bis, § 2, of the Code of Companies up to 1^er July 2011.
Article 524, § 4, paragraph 2, is maintained in force until 1^er July 2011 for the purposes of the preceding paragraph.
PART 3. - MODIFICATION OF PUBLICATION MODALITIES
OF LISTS OF REGULATIONS
Art. 25. In section 13 of the Act of 22 March 1993 on the Status and Control of Credit Institutions, as amended by the Royal Decree of 7 April 1995 and the Act of 20 March 1996, paragraph 1^er is replaced by the following:
"CBFA shall establish a list of credit institutions authorized under this title. This list and any changes made therein are posted on its website and notified to the Commission of the European Communities. »
Art. 26. In section 65 of the Act, as amended by the Act of 19 November 2004, the last paragraph shall be replaced by the following:
"The CBFA sets out the list of registered branches, this list and all modifications made to it are published on its website. »
Art. 27. In article 66 of the same law, the sentence "It publishes in the Belgian Monitor the list of these institutions that receive in Belgium deposits of money and other reimbursable funds from the public as well as the changes made during the year. is replaced by the sentence: "It publishes on its website a list of these institutions that receive money deposits and other funds repayable from the public and the modifications made therein. »
Art. 28. In section 4 of the Act of 9 July 1975 on the control of insurance companies, replaced by the Royal Decree of 22 February 1991 and amended by the Act of 2 August 2002 and the Royal Decree of 25 March 2003, the last two paragraphs are replaced by the following:
"CBFA sets out a list of registered insurance companies under this chapter. This list and any changes made to it are published on its website. »
Art. 29. In section 42 of the Act, amended by the Act of 2 August 2002 and the Royal Decree of 25 March 2003, the last paragraph is repealed.
Art. 30. In section 43, § 3, of the same law, amended by the laws of 19 July 1991 and 2 August 2002 and the Royal Decree of 25 March 2003, the following amendments are made:
1° in paragraph 1^erthe words "and published by extract to the Belgian Monitor" are repealed;
2° Paragraph 2 is replaced by the following:
"Without prejudice to section 4, CBFA may, if it considers that the safeguarding of the rights of affiliates and beneficiaries requires it, publish in the manner it determines and at the expense of the insurance company concerned, a notice of revocation or expiry of the full right of the licence. This notice mentions the date on which the revocation or expiry of the right produces its effects. »
Art. 31. Section 66 of the Act, inserted by the Royal Decree of 12 August 1994 and amended by the Royal Decree of 25 March 2003, is replaced by the following:
"CBFA sets out a list of all insurance companies covered in this chapter. This list and any changes made to it are published on its website. »
Art. 32. In section 31 of the Act of 20 July 2004 on certain forms of collective investment portfolio management, as amended by the Act of 20 June 2005, paragraph 1^er is replaced by the following:
"CBFA shall annually establish a list of Belgian law collective investment organizations and compartments, registered under this Title. This list is published annually on its website. The changes to the list between two annual publications are made public at regular intervals on the CBFA website. »
Art. 33. In section 129 of the Act, as amended by the Act of 20 June 2005, paragraph 1^er is replaced by the following:
"CFA shall annually establish a list of foreign collective investment organizations and, where appropriate, compartments registered under this Book. This list is published annually on its website. The changes to the list between two annual publications are made public at regular intervals on the CBFA website. »
Art. 34. In section 145 of the Act, paragraph 1^er is replaced by the following:
"CBFA sets out a list of collective investment management companies approved under this Book. This list and all modifications made to it are published on its website. »
Art. 35. Section 53 of the Act of 6 April 1995 on the Status and Control of Investment Businesses, as amended by the Royal Decree of 27 April 2007, is supplemented by a paragraph written as follows:
"The Banking, Financial and Insurance Commission sets out a list of investment companies approved under this title. This list and any changes made therein are posted on its website and notified to the Commission of the European Communities. »
Art. 36. The provisions of this title come into force on the tenth day following that of the publication of this Act to the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 17 December 2008.
ALBERT
By the King:
Deputy Prime Minister and Minister of Finance,
D. REYNDERS
Seal of the state seal:
Deputy Prime Minister and Minister of Justice,
J. VANDEURZEN
____
Note
Parliamentary references:
House of Representatives documents: 52-1471 - 2008/2009. - No. 1: Bill. - No. 2: Amendments. - N^bones 3 and 4: Reports. - No. 5: Text corrected by the commissions. - No. 6 Text adopted in plenary and transmitted to the Senate.
Full report: 27 November 2008.
Document of the Senate: 4-1031 - 2008/2009. - No. 1: Project not referred to by the Senate.