15 MAI 2007. - An Act to amend the Act of 22 March 1993 on the Status and Control of Credit Institutions, the Act of 6 April 1995 on the Status of Investment Businesses and their Control, Intermediaries and Investment Advisors, and the Act of 20 July 2004 on Certain Forms of Collective Investment Portfolio Management (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - Introductory provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act, in particular, ensures the transposition of Directive 2006/48/EC of the European Parliament and the Council of 14 June 2006 on access to the activity of credit institutions and its exercise (reflect) and Directive 2006/49/EC of the European Parliament and the Council of 14 June 2006 on the adequacy of the equity of investment companies and credit institutions (reflect).
CHAPTER II. - Amendments to the Act of 22 March 1993 on the Status and Control of Credit Institutions
Art. 3. Article 3 of the Act of 22 March 1993 on the Status and Control of Credit Institutions, as amended by the Acts of 20 March 1996, 9 March 1999, 25 February 2003, 6 December 2004, 15 December 2004 and 20 June 2005, the words "postal cheque offices" are, in § 1^er, 5°, paragraph 2, inserted between the words "are assimilated to financial institutions," and "the management societies of collective investment organizations".
Art. 4. Article 6, § 1^er, paragraph 2, 4°, of the same law, as amended by the Royal Decree of 6 July 1994 and by the laws of 20 March 1996, 30 October 1998, 25 February 2003, 19 November 2004 and 16 June 2006, is supplemented as follows: "or in similar terms, and the mixed financial companies referred to in section 49bis, § 1^er5° and subject to the control provided for in this article may, on their part, use the term "bank" in the term "bank holding" or similar expressions; "
Art. 5. Section 14 of the Act is repealed.
Art. 6. Section 18 of the Act is supplemented by the following paragraph: "People who take part in the administration or management of a credit institution, without participating in its effective management, must have the necessary expertise and experience to perform their duties. »
Art. 7. Section 20 of the Act is replaced by the following provision: "Art. 20. § 1^er. Credit institutions must have a management structure, an administrative and accounting organization, monitoring and security mechanisms in the IT field and an internal control, appropriate to the activities they carry out or intend to exercise.
They take into account the nature, volume and complexity of these activities, as well as the risks associated with them.
§ 2. Credit institutions 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 credit institution due to the activities it carries out or intends to carry out.
§ 3. Appropriate internal control is required by credit institutions, whose operation is assessed at least once a year. With respect 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.
Credit institutions take the necessary measures to be able to have an adequate independent internal audit function on an ongoing basis. Credit institutions develop an adequate integrity policy, which is regularly updated.
They take the necessary measures to be able to have an adequate independent compliance function at all times, to ensure that the institution respects its directors, its officers, its employees and its agents, the rules of law relating to the integrity of banking activity.
Credit institutions must have an adequate independent risk management function.
§ 4. The Banking, Financial and Insurance Commission 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 credit institution, 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 credit institution must control at least once a year, if applicable through the audit committee, if the establishment 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 Banking, Financial and Insurance Commission and to the approved Commissioner on compliance with paragraph 1^er and on the appropriate measures taken.
This information is transmitted to the Banking, Financial and Insurance Commission and to the authorized Commissioner in accordance with the terms and conditions determined by the Commission.
§ 6. The Authorized Commissioner shall, in due course, issue to the legal body of administration, if any through the audit committee, a report on important issues arising in the exercise of its legal oversight mission, and in particular on the serious deficiencies identified in the financial reporting process.
§ 7. If there are close links between the credit institution and other natural or legal persons, these links cannot hinder the exercise of individual or consolidated prudential control of the institution.
If the credit institution 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 hinder the exercise of an individual prudential control or on a consolidated basis of the establishment. »
Art. 8. Section 25 of the Act, as amended by the Acts of 16 June 2004 and 19 November 2004, is repealed.
Art. 9. In section 26 of the Act, the words "section 54, paragraph 1^er, coordinated laws on commercial companies" and the words "the same coordinated laws" are replaced respectively by the words "Article 522, § 1^erParagraph 1^er, the Code of Societies and the words "the Code of Societies".
Art. 10. An article 26bis, as follows, is inserted in the same law: "Art. 26bis Credit institutions shall notify the Banking, Financial and Insurance Commission of the proposal for the appointment or renewal of the appointment, as well as of the non-renewal of the appointment or revocation of persons participating in the administration, management or effective management of the credit institution.
In the event of a proposal to appoint a person to participate in the administration, management or effective management of the credit institution, credit institutions shall communicate to the Banking, Financial and Insurance Commission the information and documents that will enable the credit institution to determine whether the person has the necessary professional and expertise and the appropriate experience, as referred to in section 18.
The Banking, Financial and Insurance Commission shall, within a reasonable time, issue notice of any proposed appointment or renewal of an appointment. Where a 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 Board has made a notice in accordance.
Credit institutions also inform the Banking, Financial and Insurance Commission of the possible allocation of tasks between persons who take part in the administration, management or effective management of the credit facility, where appropriate, of the possible division of duties between the members of the steering committee, as well as of the significant changes in this division of duties. »
Art. 11. In article 27, § 3, of the same law, as amended by the laws of May 3, 2002 and July 20, 2004, the words "or a collective investment organization management company of a mutual fund" are deleted.
Art. 12. In Article 32 of the Act, amended by the Acts of 20 March 1996, 20 July 2004 and 16 June 2006, § 4 is replaced by the following provision: "§ 4. Credit institutions may have partner rights in: 1° credit institutions, Belgian or foreign;
2° investment companies, Belgian or foreign;
2°bis investment advisors, as referred to in Article 119 of the Act of 6 April 1995 relating to the status of investment companies and their control, to intermediaries and investment advisors;
2°ter derivative specialists, as referred to in the Royal Decree of 28 January 2004 concerning the status of derivative specialists;
2°quater liquidation agencies or organizations assimilated to liquidation bodies, as referred to in the Royal Decree pursuant to Article 23 of the Financial Sector Supervision and Financial Services Act of 2 August 2002;
3° insurance companies or reinsurance companies, Belgian or foreign;
3°bis companies managing collective investment organizations, both Belgian and foreign, as referred to in the Act of 20 July 2004 on certain forms of collective investment portfolio management;
4° other companies, whether Belgian or foreign, whose main purpose is to carry out financial transactions or to provide financial services that fall within the scope of activity of the credit institutions, as determined by Article 3, § 2, or the scope of activity of the enterprises referred to in points 1 to 3°bis, as well as in companies formed to hold the capital of such enterprises;
5° of Belgian or foreign companies whose main purpose is to provide auxiliary services to the activity of the establishments referred to in points 1 to 3°bis. »
Art. 13. In section 42, paragraph 2, of the Act, the words "46 to 49" are replaced by the words "46 to 49 bis".
Art. 14. The title II, chapter II, section X, of the Act is replaced by the following title: "Regulation standards and obligations".
Art. 15. Section 43 of the Act, as amended by the Act of 25 February 2003, is replaced by the following provision: "Art. 43. § 1^er. Without prejudice to the legal provisions relating to regulatory measures applicable to credit institutions and motivated by monetary reasons, the Banking, Financial and Insurance Commission determines, by regulation, in accordance with European law: (a) solvency, liquidity and risk concentration standards, and other limitation standards to be met by all credit institutions or by credit establishment category;
(b) the investment standards to be met by electronic currency institutions.
The standards referred to in this paragraph may be both quantitative and qualitative in nature.
§ 2.Without prejudice to the provisions of § 1^er, credit institutions must have a policy regarding their own fund needs that is appropriate to the activities they carry out or intend to exercise. The persons responsible for the effective management of the credit institution, if any the steering committee, shall develop a policy under the supervision of the legal body of administration that identifies and determines the current and future equity needs of the credit institution, taking into account the nature, volume and complexity of these activities, the risks associated with it and the risk management policy of the institution. The credit institution regularly assesses its policy with respect to its own fund needs and adjusts this policy if necessary. The Banking, Financial and Insurance Commission may, by regulation, specify the frequency of this assessment.
§ 3. Where the Banking, Financial and Insurance Commission considers that the policy of a credit institution with respect to its own fund needs does not meet the risk profile of the establishment, it may, without prejudice to the provisions of section 57, impose, in respect of the purposes referred to in section 1^er of this Act, requirements for solvency, liquidity, risk concentration and risk positions in addition to those referred to in § 1^er. It may, by regulation, set the criteria and procedures that it applies to this effect.
§ 4. The Banking, Financial and Insurance Commission determines by-law the information that credit institutions must publish on their creditworthiness, liquidity, risk concentration and other risk positions, as well as on their own fund needs policy. It also defines the modalities and frequency of publication of this information.
§ 5. The regulations referred to in this section are taken in accordance with Article 64 of the Act of 2 August 2002 referred to above, on the advice of the National Bank of Belgium.
§ 6. The Banking, Financial and Insurance Commission may, in special cases, authorize, within the limits of European legislation, exemptions from the provisions of the regulations made under this article. »
Art. 16. In section 44 of the Act the following amendments are made: 1° the following paragraph is inserted between paragraphs 1^er and 2: "The effective management of the credit institution, if any the steering committee, shall declare to the Banking, Financial and Insurance Commission that the above-mentioned periodical statements transmitted to it by the institution 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 current instructions of the Banking, Financial and Insurance Commission, as well as by the application of the accounting and evaluation rules for the preparation of the annual accounts, or, in respect of the periodic reports that do not relate to the end of the year, by applying the accounting and evaluation rules that presided over the preparation of the annual accounts. »;
2° to paragraph 4, which becomes paragraph 5, the words "paragraphs 1^er and 3 are replaced by the words "paragraphs 1^er and 4."
Art. 17. In section 46 of the Act are made the following amendments 1° the following paragraphs are inserted between paragraphs 1^er and 2: "The Banking, Financial and Insurance Commission shall ensure that each credit institution operates in accordance with the provisions of this Act and the decrees and regulations made pursuant to these Acts.
In particular, the Banking, Financial and Insurance Commission assesses the adequacy of the management structure, administrative and accounting organization and internal control of the credit institution, as referred to in Article 20, as well as the appropriateness of the credit institution's policy with respect to its own fund needs, as referred to in Article 43, § 2. It determines the frequency and extent of this evaluation, taking into account the importance of the activities of the credit institution for the financial system, the nature, volume and complexity of these activities, as well as the principle of proportionality.
The evaluation is updated at least once a year. »;
2° to paragraph 3, which becomes paragraph 5, the words "and the internal control of the establishment" are, at 2°, replaced by the words ", internal control and policy relating to the institution's own fund needs; "
Art. 18. In section 48 of the Act, amended by the Act of 19 November 2004, the words "inspections referred to in section 46, paragraph 3" are replaced by the words "inspections referred to in section 46, paragraph 5".
Art. 19. In section 49 of the Act, as amended by the Royal Decree of 22 December 1995 and by the laws of 2 August 2002, 19 November 2004 and 20 June 2005, the following amendments are made: 1° in the Dutch version, the words "dochter" and "dochters" are replaced respectively by the words "dochteronderneming" and "dochterondernemingen";
2° to § 1^er, 1°, the words "Article 44, paragraph 3" are replaced by the words "Article 44, paragraph 4";
3° in § 2, paragraph 2, the words "internal control procedures of the consolidated whole" are replaced by the words "internal control procedures referred to in Articles 20 and 20 bis of the consolidated whole",
4° § 2, paragraph 3, is replaced by the following paragraph: "The standards and obligations provided for in Article 43, §§ 1^er to 4, may be imposed on the basis of the consolidated situation of the credit institution and its subsidiaries. The provisions of Article 43, §§ 5 and 6, apply in this case by analogy. »;
5° § 2, paragraph 6, is supplemented as follows: "If the Banking, Financial and Insurance Commission does not carry out the audit itself, it may nevertheless be associated, if it deems it desirable. »;
6° in § 4, the words "related to a Member State of the European Economic Area" are inserted between the words "or foreign" and "submitted";
7° § 4 is supplemented by the following paragraph: "Every credit institution whose parent company is a financial company that does not belong to a Member State of the European Economic Area, is subject to supervision on the basis of the consolidated financial situation of the financial company, according to the rules defined by the King. »;
8° in § 5, the word "CBFA" is replaced by the words "Bank, Financial and Insurance Commission";
9° § 6 is replaced by the following provision: “§ 6. The King regulates, for the surplus, consolidated monitoring in accordance with the provisions of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 concerning access to the activity of credit institutions and its exercise (reflect). »
Art. 20. In section 49bis of the Act, inserted by the Act of 20 June 2005, the following amendments are made: 1° the word "CBFA" is replaced by the words "Bank, Financial and Insurance Commission";
2° to § 1^er, 4°, a), the phrase "an auxiliary banking company within the meaning of Article 1^er, points 5 and 23, of Directive 2000/12/EC of 20 March 2000 concerning access to the activity of credit institutions and its exercise" is replaced by the phrase "a subsidiary service company within the meaning of Article 4, item 21, of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 concerning access to the activity of credit institutions and its exercise (reference)".
Art. 21. Under sections 50 to 54 of the Act, the words "Commissioner-Revision" and "Commissioner-Revisors" are replaced respectively by the words "Commissioner" and "Commissioner".
Art. 22. In section 55 of the Act, as amended by the Acts of 30 October 1998, 9 March 1999, 28 February 2002 and 19 November 2004, the following amendments are made: 1° the word "supervisors" is replaced by the word "supers";
2° paragraph 1^er, 1°, is replaced by the following text: "1° they evaluate the internal control measures adopted by credit institutions in accordance with Article 20, § 3, paragraph 1^er, and by application of Article 20bis, §§ 2, 3 and 4, and they communicate their conclusions in this matter to the Banking, Financial and Insurance Commission; »;
3rd paragraph 1^er2°, is replaced by the following text: "2° they confirm to the Banking, Financial and Insurance Commission that the periodical statements which are transmitted to it by the credit institutions at the end of the first social semester and at the end of the social exercise, are, in respect of which the accounting data, in all significant respects, compliant with the accounting and inventories, in the sense that they are complete, that they further confirm that they are not aware of any facts that would appear to be that the periodical statements have not been prepared in accordance with the current instructions of the Banking, Financial and Insurance Commission, nor, in respect of accounting data, by application of the accounting and valuation rules preside over the preparation of the annual accounts or, in respect of the periodic records that do not relate to the end of the fiscal year, by application of the rules the Banking, Financial and Insurance Commission may specify which periodic reports are subject to; »;
Paragraph 1^er, 3°, is replaced by the following text:
"3° they make special reports to the Banking, Financial and Insurance Commission, at their request, on the organization, activities and financial structure of the credit institution, reports whose settlement fees are borne by the institution in question; »;
5° to paragraph 1^er, 4°, b), the words "coordinated laws on commercial companies" are replaced by the words "of the Code of Companies".
Art. 23. Article 57 of the Act, amended by the Act of 2 August 2002, is inserted in § 1^er, paragraph 2, a point 1° bis, which reads as follows: "1°bis impose additional requirements in respect of solvency, liquidity, concentration of risks and other limitations, other than those provided for in section 43. "
Art. 24. In article 58 of the same law, the words "Council of the European Communities Directive No. 89/646/C.E. of 15 December 1989" are replaced by the words "Guideline 2006/48/EC of the European Parliament and the Council of 14 June 2006 concerning access to the activity of the credit institutions and its exercise (reference)".
Art. 25. Section 61 of the Act, as amended by the Act of 13 April 1995, is amended by the following amendments: 1° the word "supervisors" is replaced by the word "supervisors";
2° in § 2, point 5° is repealed.
Art. 26. Section 71 of the Act, amended by the Act of 28 February 2002, paragraph 1^er is supplemented as follows: "The provisions of section 44, paragraph 2, apply by analogy. »
Art. 27. In section 74 of the Act, amended by the Acts of 30 October 1998, 9 March 1999, 28 February 2002 and 19 November 2004, the following amendments are made: 1° § 2, 1°, is replaced by the following text: " 1° they assess the internal control measures adopted by branches with a view to complying with the laws, decrees and regulations applicable to branches under sections 68, 69, 71 and 72, and they communicate their findings to the Commissions »;
2° § 2, 2°, is replaced by the following text: "2° they confirm to the Banking, Financial and Insurance Commission that the periodical statements which are transmitted to it by the branches at the end of the first social semester and at the end of the social year, are, with regard to the accounting data, in all significant respects, compliant with the accounting and inventories, in the sense that they are complete, that they further confirm that they are not aware of any facts that would appear to be that the periodical statements have not been prepared in accordance with the current instructions of the Banking, Financial and Insurance Commission, nor, in respect of accounting data, by application of the accounting and valuation rules preside over the preparation of the annual accounts or, in respect of the periodic records that do not relate to the end of the fiscal year, by application of the rules 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, information that branches are required to communicate to these authorities by application of articles 69 and 71; "
Art. 28. Article 80, § 1^er, 2°, of the same law is replaced by the following text: "2° articles 26bis and 27 with respect to branch managers; "
Art. 29. Section 84 of the Act is supplemented by the following paragraph: "The Banking, Financial and Insurance Commission may revoke the approval of a branch referred to in this title if it considers that the protection of the savers or the sound and prudent management of the establishment requires the establishment of a Belgian legal society. »
Art. 30. In section 102 of the Act, amended by the Act of 20 June 2005, the words "section 1^er, point 22, of Directive 2000/12/EC of 20 March 2000" are replaced by the words "article 4, point 20, of Directive 2006/48/EC of 14 June 2006".
Art. 31. In Article 103 of the Act, amended by the Royal Decree of 20 July 2000 and by the laws of 2 August 2002, 19 November 2004 and 20 June 2005, the words "to its policy concerning its own fund needs" are, in § 1^erParagraph 1^er, b), inserted between the words "to its management structure" and "to its administrative and accounting organization".
Art. 32. Section 104 of the Act, amended by the Royal Decree of 13 July 2001 and by the laws of 25 February 2003 and 20 June 2005, are amended as follows: 1° to § 1^er, 7°, the words "in articles 44, paragraph 1^er, second sentence, and sub-paragraph 3 are replaced by the words "paragraph 44 (1)^er, second sentence, and paragraph 4 »;
2° to § 1^er8°, the words "in article 44, paragraph 1^er, first and third sentences and paragraph 2 are replaced by the words "in article 44, paragraph 1^erfirst and third sentences and paragraphs 2 and 3";
3° to § 1^er, 11°, the word "Commissioner-Reactor" is replaced by the word "Commissioner".
Art. 33. It is inserted in title XIII "Other Provisions" of the same Act, a chapter V, which reads as follows: "Chapter V From the communication of information Art. 157bis The Banking, Financial and Insurance Commission shall provide on its website the following information: 1° the law relating to the status and control of credit institutions, as well as the decrees, regulations and circulars taken under or under this legislation;
2° a table for the transposition of the provisions of the European guidelines on prudential supervision of credit institutions, indicating the options selected;
3° the verification criteria and methods it uses to conduct the assessment referred to in section 46, paragraph 3;
4° of aggregate statistical data on key aspects of the application of the legislation referred to in 1°;
5° any other information prescribed by the decrees and regulations made pursuant to this Act.
The information referred to in paragraph 1^er are, if any, published on the website of the Banking, Financial and Insurance Commission in accordance with the terms agreed between the Member States of the European Economic Area. The Commission ensures that the information provided on its website is updated regularly. "
CHAPTER III. - Amendments to the Act of 6 April 1995 relating to the status of investment companies and their control, intermediaries and investment advisors
Art. 34. In section 46 of the Act of 6 April 1995 relating to the status of investment companies and their control, to intermediaries and investment advisors, as amended by the Royal Decree of 22 December 1995 and by the laws of 9 March 1999, 15 December 2004, 20 June 2005 and 20 July 2005, the words "postal cheque offices" are, at 7°, paragraph 2, inserted between the words "are assimilated to financial institutions",
Art. 35. Section 62 of the Act is replaced by the following provision: "Art. 62. § 1^er. Investment companies must have a management structure, an administrative and accounting organization, monitoring 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. Investment 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 investment company due to the activities it carries out or intends to carry out.
§ 3. Investment companies must organize adequate internal control, whose operation 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.
Investment companies take the necessary measures to be able to have an adequate independent internal audit function on an ongoing basis.
Investment 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 executives, its employees and its agents, the rules of law relating to the integrity of the investment enterprise activity.
Investment companies must have an adequate independent risk management function.
§ 4. The Banking, Financial and Insurance Commission 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 by the Code of Companies, the persons responsible for the effective management of the investment 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 investment 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 Banking, Financial and Insurance Commission and to the approved Commissioner on compliance with paragraph 1^er and on the appropriate measures taken.
This information is transmitted to the Banking, Financial and Insurance Commission and to the authorized Commissioner in accordance with the terms and conditions determined by the Commission.
§ 6. The Authorized Commissioner shall, in due course, issue to the legal body of administration, if any through the audit committee, a report on important issues arising in the exercise of its legal oversight mission, and in particular on the serious deficiencies identified in the financial reporting process.
§ 7. If there are close links between the investment company and other natural or legal persons, these links cannot hinder the exercise of individual or consolidated prudential control of the company.
If the investment 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 cannot hinder the exercise of an individual prudential control or on a consolidated basis of the enterprise. »
Art. 36. An article 69bis, as follows, is inserted in the same law: "Art. 69bis Investment companies shall notify the Banking, Financial and Insurance Board of the proposal for the appointment or renewal of the appointment, as well as of the non-renewal of the appointment or revocation of persons participating in the administration, management or effective management of the investment undertaking.
In the event of a proposal to appoint a person to take part in the administration, management or effective management of the investment company, the investment companies shall communicate to the Banking, Financial and Insurance Commission the information and documents that will enable the investment company to determine whether the person has the necessary professional honesty and expertise as well as the appropriate experience, as referred to in section 60.
The Banking, Financial and Insurance Commission shall, within a reasonable time, issue notice of any proposed appointment or renewal of an appointment. Where a 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 Board has made a notice in accordance.
Investment companies also inform the Banking, Financial and Insurance Board of the possible division of labour between persons who take part in the administration, management or effective management of the investment company, where appropriate, of the possible division of labour between members of the management committee, as well as of the significant changes in this division of labour. »
Art. 37. In Article 70, § 3, of the same law, as amended by the laws of May 3, 2002 and July 20, 2004, the words "in Article 76 of this Law or Article 32, § 4, of the Law of March 22, 1993 relating to the Status and Control of Credit Institutions" are replaced by the words "in Article 76, § 4," and the words "or a collective investment corporation,
Art. 38. Section 76 of the Act, as amended by the Act of 12 August 2000, is replaced by the following provision: "Art. 76. § 1^er. Investment companies may, directly or indirectly, have partner rights, regardless of the form, in one or more enterprises under the conditions and within the limits set out in this section.
§ 2. For the purposes of this article, it is necessary to hear by companies, commercial companies, commercial companies, participation associations, economic interest groups and European economic interest groups.
§ 3. Investment companies may hold in their trading portfolio the partner rights they have acquired or subscribed for their offer on sale.
Investment companies may also, for a period not exceeding one year, hold shares in one or more participating associations for the public issuance of securities within the meaning of article 26 of Royal Decree No. 185 of 9 July 1935.
They may also hold, for a period not exceeding two years, rights of associates acquired in representation of doubtful or undue claims.
§ 4. Investment companies may have partner rights in: 1° credit institutions, Belgian or foreign;
2° investment companies, Belgian or foreign;
3° Investment advisors, as referred to in Article 119;
4° derivative specialists, as referred to in the Royal Decree of 28 January 2004 concerning the status of derivative specialists;
5° winding-up agencies or organizations assimilated to liquidation bodies, as referred to in the Royal Decree pursuant to Article 23 of the Financial Sector Supervision and Financial Services Act of 2 August 2002;
6° insurance companies or reinsurance companies, Belgian or foreign;
7° companies for the management of collective, Belgian or foreign investment organizations, as referred to in the Act of 20 July 2004 on certain forms of collective investment portfolio management;
8° other companies, whether Belgian or foreign, whose main purpose is to carry out the activities referred to in section 75 or the activities of the enterprises referred to in points 1 to 7°, as well as in incorporated companies to hold the capital of such enterprises;
9° of Belgian or foreign companies whose main purpose is to provide auxiliary services to the activity of the establishments referred to in points 1 to 7°. »
§ 5. Investment companies may have partner rights in other cases than those provided for in §§ 3 and 4 provided that each position does not exceed 10 p.c. of the equity of the investment company and that the total amount of these positions does not exceed 35 p.c. of the company's own funds. These limits can be increased by Royal Decree taken on the advice of the Banking, Financial and Insurance Commission, without an investment company having qualified participations that exceed, by mail, 15 p.c. of the equity of the investment company and without the total of these participations being able to exceed 60 p.c. of the equity of the company.
For the application of the post limit set in accordance with paragraph 1^er, are considered to be a single position the shares of associates issued by companies that, regardless of their status and legal form, constitute a whole of the risk perspective; related companies are, until proven otherwise, to consider as a whole from the point of view of risk.
Without prejudice to paragraph 1^er must be fully deducted from the equity for the purposes of sections 66 and 90: (a) participation in companies with qualified participation in the investment undertaking or its subsidiaries;
(b) participation in enterprises controlled by natural or legal persons holding such qualified participations.
§ 6. In special cases, the Banking, Financial and Insurance Commission may authorize the temporary detention of associate rights outside the conditions and limits provided for in § 5.
If, as a result of the authorizations given under paragraph 1^er, an investment company holds, in other cases than those referred to in §§ 3 and 4, a qualified interest whose amount exceeds the percentage of the equity of the enterprise applicable under § 5 or if the total of such participation exceeds the percentage of the equity applicable under the same § 5, the amount of the surplus is exempted from the equity for the purposes of Articles 66 and 90. In the case of surpluses compared to the two above-mentioned limits, the highest surplus is deducted from the equity.
§ 7. The decrees provided for in this article are taken after consultation with investment companies represented by their professional associations.
§ 8. The provisions of this section shall not prejudice the regulatory provisions prescribed by application of section 90. »
Art. 39. The title of Book II, Part II, Chapter II, Section VIII, of the Act is replaced by the following title: "Regulation Standards and Obligations".
Art. 40. Section 90 of the Act, as amended by the Royal Decree of 22 December 1995, is replaced by the following provision: "Art. 90. § 1^er. The Banking, Financial and Insurance Commission determines, by regulation, the solvency, liquidity and risk concentration standards in accordance with European law, and other limitation standards to be met by all investment companies or by class of investment companies.
The standards referred to in this paragraph may be both quantitative and qualitative in nature.
§ 2. Without prejudice to the provisions of § 1^er, investment companies must have a policy regarding their own fund needs that is appropriate to the activities they operate or intend to operate. The persons responsible for the effective management of the investment company, if any the steering committee, shall develop, under the supervision of the legal body of administration, a policy that identifies and determines the current and future equity needs of the investment company, taking into account the nature, volume and complexity of these activities, the associated risks and the company's risk management policy.
The investment company regularly assesses its own fund needs policy and adjusts this policy if necessary. The Banking, Financial and Insurance Commission may, by regulation, specify the frequency of this assessment.
§ 3. Where the Banking, Financial and Insurance Commission considers that an investment company's policy with respect to its own fund needs does not meet the company's risk profile, it may, without prejudice to the provisions of section 104, impose, with respect to the objectives of this Act, requirements for creditworthiness, liquidity, concentration of risks and positions at risk that are in addition to those set out in § 1^er. It may, by regulation, set the criteria and procedures that it applies to this effect.
§ 4. The Banking, Financial and Insurance Commission determines by-law the information that investment companies need to publish on their credit, liquidity, risk concentration and other risk positions, as well as on their own fund needs policy. It also defines the modalities and frequency of publication of this information.
§ 5. The regulations referred to in this section are made in accordance with section 64 of the Act of 2 August 2002 referred to above.
§ 6. The Banking, Financial and Insurance Commission may, in special cases, authorize, within the limits of European legislation, exemptions from the provisions of the regulations made under this article. »
Art. 41. In section 91 of the Act the following amendments are made: 1° the following paragraph is inserted between paragraphs 1^er and 2: "The effective management of the investment company, if any the steering committee, declares to the Banking, Financial and Insurance Commission that the above-mentioned periodical statements transmitted 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 current instructions of the Banking, Financial and Insurance Commission, as well as by the application of the accounting and evaluation rules for the preparation of the annual accounts, or, in respect of the periodic reports that do not relate to the end of the year, by applying the accounting and evaluation rules that presided over the preparation of the annual accounts. »;
2° to paragraph 3, which becomes paragraph 4, the words "paragraphs 1^er and 2 are replaced by the words "paragraphs 1^er and 3".
Art. 42. In section 92 of the Act the following amendments are made: 1° the following paragraphs are inserted between paragraphs 1^er and 2: "The Banking, Financial and Insurance Commission shall ensure that each investment company operates in accordance with the provisions of this Act and the orders and regulations made pursuant to these Acts.
In particular, the Banking, Financial and Insurance Commission assesses the adequacy of the management structure, administrative and accounting organization and internal control of the investment company, as referred to in Article 62, as well as the appropriateness of the investment company's policy with respect to its own fund needs, as referred to in Article 90, § 2. It determines the frequency and extent of this evaluation, taking into account the importance of the activities of the investment company for the financial system, the nature, volume and complexity of these activities, as well as the principle of proportionality. The evaluation is updated at least once a year. »;
2° to paragraph 3, which becomes paragraph 5, the words "and the internal control of the investment undertaking" are, at 2°, replaced by the words ", the internal control and the equity policy of the investment undertaking; "
Art. 43. In section 94 of the Act, the words "inspections referred to in section 92, paragraph 3" are replaced by the words "inspections referred to in section 92, paragraph 5".
Art. 44. Section 95 of the Act, as amended by the Act of 20 June 2005, is amended by: 1° to § 1^er, 1°, the words "Article 91, paragraph 2" are replaced by the words "Article 91, paragraph 3";
2° in § 2, paragraph 2, the words "on the limits and conditions set out in Article 76" are inserted between the words "financial situation," and "management", and the words "internal control procedures of the consolidated set" are replaced by the words "internal control procedures referred to in Articles 62 and 62bis of the consolidated set";
3° § 2, paragraph 3, is replaced by the following paragraph: "The standards and obligations provided for in Article 90 §§ 1^er to 4, may be imposed on the basis of the consolidated situation of the investment company and its subsidiaries. The provisions of Article 90, §§ 5 and 6, apply in this case by analogy. »;
4° § 2, paragraph 6, is supplemented as follows: "If the control authority does not conduct the audit itself, it may nevertheless be associated with it, if it deems it desirable. »;
5° in § 4, the words "related to a Member State of the European Economic Area" are inserted between the words "or foreign" and "submitted";
6° § 4 is supplemented by the following paragraph: "Any investment company whose parent company is a financial company that does not belong to a Member State of the European Economic Area is subject to monitoring on the basis of the consolidated financial situation of the financial company, according to the rules defined by the King. »;
7° in § 5, the words "CBFA" are replaced by the words "control authority";
8° § 6 is replaced by the following provision: § 6. The King regulates, for the surplus, consolidated monitoring in accordance with the provisions of Directive 2006/48/EC of the European Parliament and the Council of 14 June 2006 on access to the activity of credit institutions and its exercise (reflect) and the provisions of Directive 2006/49/EC of the European Parliament and the Council of 14 June 2006 on the adequacy of the equity of investment companies and credit institutions (reflect). »
Art. 45. In section 95bis of the Act, inserted by the Act of 20 June 2005, the following amendments are made: 1° the word "CBFA" is replaced by the words "Bank, Financial and Insurance Commission";
2° to § 1^er, 4°, a), the phrase "an auxiliary banking company within the meaning of Article 1^er, points 5 and 23, of Directive 2000/12/EC of 20 March 2000 concerning access to the activity of credit institutions and its exercise" is replaced by the phrase "an auxiliary service company within the meaning of Article 4, item 21, of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 concerning access to the activity of credit institutions and its exercise (reference)".
Art. 46. Under sections 96 to 100 of the Act, the words "Commissioner-Recruiter" and "Recruiter" are replaced by the words "Commissioner" and "Commissioner".
Art. 47. In section 101 of the Act, as amended by the Royal Decree of 22 December 1995 and by the Acts of 30 October 1998, 9 March 1999 and 28 February 2002, the following amendments are made: 1° the word "Commissioners of Directors" is replaced by the word "Commissioners";
2° paragraph 1^er, 1°, is replaced by the following text: "1° they evaluate the internal control measures adopted by the investment companies in accordance with Article 62, § 3, paragraph 1^er, and by application of Article 62bis, §§ 2, 3 and 4, and they communicate their conclusions in this matter to the supervisory authority; »;
3rd paragraph 1^er, 2°, is replaced by the following text: "2° they confirm to the control authority that the periodical statements which are transmitted to it by the investment companies at the end of the first social semester and at the end of the social exercise are, with regard to the accounting data, in all significant respects, compliant with accounting and inventories, in which sense they are complete, that is, they further confirm that they are not aware of any facts that would appear to be that the periodical statements have not been prepared in accordance with the current instructions of the supervisory authority, nor, in respect of accounting data, by application of the accounting and evaluation rules preside over the preparation of the annual accounts or, in respect of the periodic records that do not relate to the end of the fiscal year, by application of the accounting rules and the control authority may specify which periodic reports are in this case; »;
Paragraph 1^er, 3°, is replaced by the following text: "3° they make to the supervisory authority, at its request, special reports relating to the organization, activities and financial structure of the investment company, reports whose establishment costs are borne by the undertaking in question; "
5° to paragraph 1^er, 4°, b), the words "coordinated laws on commercial companies" are replaced by the words "of the Code of Companies".
Art. 48. Article 104 of the Act, amended by the Act of 2 August 2002, is inserted in § 1^erParagraph 1^er, a point 1°bis, written as follows: "1°bis impose additional requirements in respect of solvency, liquidity, concentration of risks and other limitations, other than those provided for in section 90. »
Art. 49. In section 108 of the Act, amended by the Royal Decree of 22 December 1995 and by the Act of 20 June 2005, the words "Article 1^er, point 22, of Directive 2000/12/EC of 20 March 2000" are replaced by the words "article 4, point 20, of Directive 2006/48/EC of 14 June 2006".
Art. 50. In section 109 of the same law, amended by the Royal Decree of 20 July 2000 and by the laws of 2 August 2002 and 20 June 2005, the words "to its policy concerning its own fund needs" are, at § 1^erParagraph 1^er, b), inserted between the words "to its management structure" and "to its administrative and accounting organization".
Art. 51. In section 126 of the Act, the words "applicable to these persons" are replaced by the words "applied by analogy to investment advisors and their management".
Art. 52. Article 148 of the Act, amended by the Royal Decrees of 12 December 1996 and 13 July 2001 and by the laws of 10 August 1998, 2 August 2002 and 20 June 2005, are amended as follows: 1° to § 4, 4°, the words "91, paragraph 1^er, 1^re and 3^e sentences" are replaced by the words "91, paragraph 1^er, 1^re and 3^e sentences, and paragraph 2";
2° to § 4, 6°, the words "Articles 91, paragraph 1^er, second sentence, and second paragraph 2 are replaced by the words "articles 91, paragraph 1^er, 2^e sentence, and paragraph 3;
3° in § 4, 9°, the word "Commissioner-Reactor" is replaced by the word "Commissioner".
Art. 53. The title of Book IV of the Act is replaced by the following title: "Professional secrecy, collaboration between competent authorities and communication of information".
Art. 54. It is inserted in Book IV of the same Law, a title III, written as follows: « Title III From the communication of information Art. 147bis The competent authority shall provide on its website the following information: 1° the legislation relating to the status and control of the investment companies, as well as the decrees, regulations and circulars carried out or pursuant to that legislation;
2° a table for the transposition of the provisions of the European directives relating to the prudential supervision of investment companies, indicating the options selected;
3° the verification criteria and methods it uses to conduct the assessment referred to in section 92, paragraph 3;
4° of aggregate statistical data on key aspects of the application of the legislation referred to in 1°;
5° any other information prescribed by the decrees and regulations made pursuant to this Act.
The information referred to in paragraph 1^er are, if any, published on the website of the competent authority according to the terms agreed between the Member States of the European Economic Area. The competent authority shall ensure that the information provided on its website is updated regularly. »
CHAPTER IV. - Amendments to the Act of 20 July 2004 on certain forms of collective investment portfolio management
Art. 55. Section 13 of the Act of 20 July 2004 on certain forms of collective management of investment portfolios is amended as follows: 1° to § 4, paragraph 1^erthe words "1°, 2° and 3°" are inserted between the words "paragraph 2," and "the general assembly of the participants";
2° § 4 is supplemented by the following paragraph: "The two preceding paragraphs are not applicable to the deliberations and decisions referred to in § 1^er. »
Art. 56. In section 34 of the Act, the words "the management structure as well as the administrative, accounting, financial and technical organization of the management structure are adapted" are replaced by the words "the management structure, the administrative, accounting, financial and technical organization and the internal control of it are adapted".
Art. 57. Section 38 of the Act is replaced by the following provision: "Art. 38. § 1^er. The effective management of the investment company must be entrusted to at least two individuals or private companies with limited liability and, as a permanent representative within the meaning of Article 61, § 2, of the Corporate Code, the sole partner and manager of the company. Individuals and permanent representatives of the unipersonal limited liability private companies referred to in this provision must have the necessary professional honourability and adequate experience to perform these functions, in accordance with Article 9 and in light of the authorized investment category for which the investment company has chosen.
§ 2. Individuals who take part in the administration or management of an investment company, without participating in its effective management, must have the necessary expertise and experience to perform their tasks.
§ 3. The investment company shall inform the CBFA prior to 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 investment company.
In the event of a proposal to appoint a person to participate in the administration, management or effective management of the investment company, the investment 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 §§ 1^er and 2.
CBFA shall render, within a reasonable time, notice of any proposed appointment or renewal of an appointment. Where a 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 Board has made a notice in accordance.
The investment company also informs CBFA of the possible distribution of tasks between those involved in the administration, management or effective management of the investment company, as well as significant changes in this division of labour. »
Art. 58. Section 40 of the Act is replaced by the following provision: "Art. 40. § 1^er. For the performance of the management functions referred to in Article 3, 9°, the investment company must have a management structure that is specific to it and is appropriate to the activities it carries out or intends to perform. An appropriate management structure includes a coherent and transparent organizational structure that provides for adequate separation of functions, and a well-defined, transparent and coherent accountability framework.
§ 2. The investment company must also have the material, human and technical means to provide it with an administrative, accounting, financial and technical organization that is specific to it and that is appropriate to the activities it carries out or intends to carry out.
It should include monitoring and security mechanisms in the information and communications technology field appropriate to its activities.
§ 3. The investment company must organize an adequate internal control, whose operation is evaluated at least once a year.
The internal control procedures established by the investment company include a plan for the management of investments in financial instruments to invest its initial capital.
These procedures must ensure, among other things, that each transaction of the investment company or, where appropriate, its compartments, may be reconstituted as to its origin, to the parties concerned, to its nature, as well as at the time and place of operation, and that the assets of the investment company are invested in accordance with the statutes of the investment company and the legal and regulatory provisions in force.
With respect to its administrative and accounting organization, the investment company must organize an internal control system that provides a reasonable degree of certainty as to the reliability of the financial reporting process, so that, in particular, annual accounts and semi-annual accounts, as well as the annual report and semi-annual report, are consistent with the existing accounting regulations.
§ 4. The investment company is developing an adequate integrity policy, which is regularly updated.
It takes the necessary measures to be able to have an adequate independent compliance function on an ongoing basis, to ensure that the investment company respects its directors, its effective officers, its employees and its agents, the rules of law relating to the integrity of the activity of an investment company.
The investment company must be structured and organized so as to minimize the risk that conflicts of interest do not adversely affect the interests of holders of securities of the investment company.
The investment company develops appropriate rules applicable to personal, direct and indirect transactions, carried out on financial instruments by the investment company, its directors, its effective officers, its employees and its agents.
The King, on the advice of CBFA, specifies the rules and obligations in this regard. These rules and obligations may include: - the persons concerned to whom these rules and obligations are applicable;
- personal transactions that are deemed to be contrary to the law;
- the terms under which the persons concerned are required to notify their personal transactions to the investment company;
- the way in which investment companies must maintain a registration of personal transactions.
The investment company must be structured and organized so as to minimize the risk that conflicts of interest do not adversely affect the interests of holders of securities of the investment company.
§ 5. The investment company must use a risk management method, adapted to the authorized investment category for which it has chosen, which allows it to control and measure at any time the risk associated with the positions and the contribution of the positions to the overall risk profile of the portfolio, or, where applicable, to the overall risk profile of the various compartments of the investment company.
The investment company must use a method for a precise and independent assessment of the value of the voluntary derivative instruments in its portfolio or, where applicable, in the different compartments. It shall communicate to the CBFA, in accordance with the detailed rules and the periodicity defined by the CBFA by regulation made in accordance with section 64 of the Act of 2 August 2002, the types of derivative instruments, the underlying risks, the quantitative limits and the methods chosen to estimate the risks associated with derivative transactions.
§ 6. The organization of the investment company must allow it to provide, at the request of any holder of securities, additional information to those made public in the prospectus and annual and semi-annual reports, on the quantitative limits that apply to the management of the risks of the investment company, on the methods used to meet these limits and on the recent evolution of the risks and returns of the assets comprising the authorized investment category.
§ 7. The CBFA may specify, if any by-law made pursuant to section 64 of the Act of 2 August 2002, what should be heard by appropriate management structure, adequate internal control, adequate independent compliance function and adequate risk management function.
It can also define organizational rules on conflict of interest management.
§ 8. The persons responsible for the effective management of the investment company shall, under the supervision of the board of directors, take the necessary measures to ensure compliance with the provisions of §§ 1^er 6.
Without prejudice to the provisions of the Code of Companies, the board of directors must control at least once a year if the investment company complies with the provisions of §§ 1^er to 6 and paragraph 1^er and takes note of the appropriate measures taken.
Effective management officials report at least once a year to the Board of Directors, the CBFA and the Approved Commissioner on compliance with 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.
§ 9. The Authorized Commissioner shall, in due course, provide the Board with a report on important issues arising in the exercise of its legal oversight mission, and in particular on the serious deficiencies identified in the financial reporting process. »
Art. 59. In section 76 of the Act, amended by the Acts of 20 June 2005 and 16 June 2006, § 2 is supplemented by the following paragraph: "The persons responsible for the effective management of the collective investment organization shall declare to CBFA that the periodic reports and financial statements referred to in § 1^er are in accordance with accounting and inventories.
For this purpose, it is required that these reports and financial statements be complete, i.e., that they refer to all data in accounting and in inventories on the basis of which periodic financial reports and statements are prepared, and that they are correct, i.e., that they correspond exactly with accounting and inventories on the basis of which periodic financial reports and statements are prepared. They confirm that they have made the necessary steps to ensure that the above-mentioned reports and statements are prepared in accordance with the existing instructions of CBFA, as well as by applying the accounting and evaluation rules for the preparation of the annual accounts, with respect to the periodic financial reports and statements prepared at the end of the year, or by applying the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year, in that case. "
Art. 60. In section 81 of the Act, the following paragraph is inserted between paragraphs 2 and 3: "People responsible for the effective management of the collective investment organization shall declare to the CBFA that the periodic financial statements referred to in paragraph 1^er are in accordance with accounting and inventories. For this purpose, it is required that these periodic statements be complete, i.e., that they refer to all data in accounting and in inventories on the basis of which the periodic financial statements are prepared, and that they are correct, i.e., that they correspond exactly with accounting and inventories on the basis of which the periodic financial statements are prepared.
They confirm that they have 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 by applying the accounting and evaluation rules for the preparation of the annual accounts. »
Art. 61. In section 88 of the Act, as amended by the Acts of 20 June 2005 and 16 June 2006, the following amendments are made:
1° § 1^erParagraph 1^er, 1°, is replaced by the following text: "1° they evaluate the internal control measures adopted by the collective investment organization in accordance with Article 40, § 3, and communicate their conclusions in this matter to the CBFA; »;
2° § 1^erParagraph 1^er, 2°, is replaced by the following text: "2° they confirm to the CBFA that the annual and semi-annual reports as well as the quarterly financial statements transmitted to it by the collective investment bodies under Article 76, § 1^er, in respect of accounting data, in all significant respects, consistent with accounting and inventories, in that they are complete, that is to say, 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 correspond exactly with the basis of the accounting and with the inventories established; they further confirm that they are not aware of any facts that appear to be that the above-mentioned reports and statements have not been prepared in accordance with the instructions in force of the CBFA, nor, in respect of accounting data, by applying the accounting and evaluation rules preside over the preparation of annual accounts, with respect to the periodic financial reports and statements prepared at the end of the year, or by applying the accounting and accounting rules
they shall also make confirmations referred to in the preceding paragraph, based on a regulatory period established by the CBFA, for the periodic financial statements transmitted to the CBFA under section 81; »;
3° § 1^erParagraph 1^er, 3°, is replaced by the following text: "3° they make special reports to the CBFA, at its request, on the organization, activities and financial structure of the collective investment organization, reports that are supported by the institution in question; "
Art. 62. Section 151, paragraph 2, of the Act is replaced by the following paragraph: "People who take part in the administration or management of a collective investment organization management corporation, without participating in its effective management, must have the necessary expertise and experience to perform their duties. »
Art. 63. An article 161bis, as follows, is inserted in the same law: "Art. 161bis Collective investment management 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 involved in the administration, management or effective management of the corporation.
In the event of a proposal to appoint a person to participate in the administration, management or effective management of the collective investment organization management company, the collective investment organization management companies shall communicate to the CBFA the information and documents that will enable it to determine whether the person has the necessary professional honourability and expertise and the appropriate experience, as referred to in section 151.
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.
Collective placement management companies also inform CBFA of the possible division of labour between persons who participate in the administration, management or effective management of the corporation, where appropriate, of the possible division of labour between the members of the steering committee, as well as significant changes in this division of labour. »
Art. 64. In section 162, § 3, of the same law, the words "in section 167 of this Act or" and "in a collective investment management society" are deleted.
Art. 65. Section 184 of the Act is replaced by the following provision: "Art. 184. § 1^er. The CBFA determines by-law the solvency, liquidity and risk concentration standards, and other limitation standards to be met by collective investment management companies. The standards referred to in this paragraph may be both quantitative and qualitative in nature.
§ 2. Without prejudice to the provisions of § 1^er, collective investment management companies must have a policy regarding their own fund needs that is appropriate to the activities they operate or intend to exercise. The persons responsible for the effective management of the collective investment management company, if any the steering committee, shall develop, under the supervision of the legal body of administration, a policy that identifies and determines the current and future equity needs of the corporation, taking into account the nature, volume and complexity of these activities, the associated risks and the company's risk management policy. The collective investment management company regularly assesses its policy regarding its own fund needs and adjusts if necessary this policy.
The CBFA may, by regulation, specify the frequency of this evaluation.
§ 3. Where the CBFA considers that the policy of a collective investment organization management corporation with respect to its own fund needs does not meet the company's risk profile, it may, without prejudice to the provisions of section 197, impose, with respect to the objectives of this Act, requirements for credit, liquidity, risk concentration and risk positions in addition to those set out in § 1^er. It may, by regulation, set the criteria and procedures that it applies to this effect.
§ 4. The CBFA determines by-law information that collective investment management companies are required to publish on their credit, liquidity, risk concentration and other risk positions, as well as on their own fund needs policy.
It also defines the modalities and frequency of publication of this information.
§ 5. The regulations referred to in this section are made in accordance with section 64 of the Financial Sector Supervision and Financial Services Act of August 2, 2002.
§ 6.The CBFA may, in special cases, authorize, within the limits of European legislation, exemptions from the provisions of the regulations made under this article. »
Art. 66. In section 185 of the Act the following amendments are made: 1° the following paragraph is inserted between paragraphs 1^er and 2: "The effective management of the collective investment management company, if any the steering committee, declares to the CBFA that the above-mentioned periodical statements transmitted by the corporation 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. »;
2° to paragraph 4, which becomes paragraph 5, the words "paragraphs 1^er and 2 are replaced by the words "paragraphs 1^er and 3".
Art. 67. In section 186 of the Act the following amendments are made: 1° the following paragraphs are inserted between paragraphs 1^er and 2: "CBFA shall ensure that each collective investment organization management corporation operates in accordance with the provisions of this Act and the orders and regulations made pursuant to these Acts.
In particular, the CBFA assesses the adequacy of the management structure, the administrative and accounting organization and the internal control of the collective investment management company, as referred to in Article 153, as well as the adequacy of the policy of the collective investment management company regarding its own fund needs, as referred to in Article 184, § 2. It determines the frequency and extent of this evaluation, taking into account the importance of the activities of the collective investment management company for the financial system, the nature, volume and complexity of these activities, as well as the principle of proportionality.
The evaluation is updated at least once a year. »;
2° to paragraph 3, which becomes paragraph 5, the words "and the internal control of the collective investment management company" are, at 2°, replaced by the words ", internal control and the policy relating to the equity needs of the collective investment management company; "
Art. 68. Section 189 of the Act, amended by the Act of 20 June 2005, is amended as follows: 1° to § 1^er, 1°, the words "Article 185, paragraph 2" are replaced by the words "Article 185, paragraph 3";
2° to § 2, paragraph 2, the words "internal control procedures of the consolidated whole" are replaced by the words "internal control procedures referred to in Article 153 of the consolidated whole";
3° § 2, paragraph 6, is supplemented as follows: "If CBFA does not carry out the audit itself, it may nevertheless be associated with it, if it deems it desirable. »;
4° in § 4, the words "related to a Member State of the European Economic Area" are inserted between the words "or foreign" and "submitted";
5° § 4 is supplemented by the following paragraph: "A company that manages collective investment organizations whose parent company is a financial company that does not belong to a Member State of the European Economic Area is subject to supervision on the basis of the consolidated financial situation of the financial company, according to the rules defined by the King. »;
6° § 6 is replaced by the following provision: § 6. The King regulates, for the surplus, consolidated monitoring in accordance with the provisions of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 concerning access to the activity of credit institutions and its exercise (reflect). »
Art. 69. In section 195 of the Act the following amendments are made: 1° paragraph 1^er, 1°, is replaced by the following text: "1° they evaluate the internal control measures adopted by the management societies of collective investment bodies in accordance with Article 153, § 3, paragraph 1^erand communicate their findings on this matter to the CBFA; »;
2° paragraph 1^er, 2°, is replaced by the following text: "2° they confirm to the CBFA that the periodical statements which are transmitted to it by the management companies of collective investment bodies at the end of the first social semester and at the end of the social year, are, with regard to the accounting data, in all significant respects, compliant with the accounting and inventories, in the sense that they are complete, that is they further confirm that they are not aware of any facts that would appear to be that the periodical statements have not been prepared in accordance with the existing instructions of the FABC, or, in respect of accounting data, by application of the accounting and assessment rules presided at the annual accounts or, in respect of the periodical statements that do not relate to the end of the year, by application of the accounting and accounting rules CBFA may specify which periodic reports are in this case; »;
3rd paragraph 1^er, 3°, is replaced by the following text: "3° they make to the CBFA, at its request, special reports on the organization, activities and financial structure of the management society of collective investment organizations, reports whose settlement fees are borne by the company in question; "
Art. 70. In Article 197 of the Act, amended by the laws of 22 July 2004 and 16 June 2006, the following amendments are made: 1° in the Dutch version of § 1^erParagraph 1^erthe word "beheerstructruren" is replaced by the word "beleidsstructuren";
2° to § 1^er, paragraph 2, it is inserted a point 1°bis, which reads as follows: "1°bis impose additional requirements in respect of solvency, liquidity, concentration of risks and other limitations, other than those provided for in section 184. "
Art. 71. In section 201 of the Act, amended by the Act of 20 June 2005, the words "section 1^er, point 22, of Directive 2000/12/EC of 20 March 2000" are replaced by the words "article 4, point 20, of Directive 2006/48/EC of 14 June 2006".
Art. 72. In section 208 of the Act, amended by the Act of 16 June 2006, the words " 185, paragraph 1^er, second sentence, and second paragraph 2 » are, in § 1^er, 6°, replaced by the words « 185, paragraph 1^er, second sentence, and paragraph 3".
Art. 73. An article 230bis, as follows, is inserted in Part V "Modificative and various provisions" of the same Act: "Art. 230bis The King may, on the advice of the CBFA, provide on its website the following information: 1° the legislation relating to the status and control of the management societies of collective investment bodies, as well as the decrees, regulations and circulars taken in or pursuance of this legislation;
2° a table for the transposition of the provisions of the European directives relating to the prudential supervision of collective investment management companies, indicating the options selected;
3° the verification criteria and methods it uses to conduct the assessment referred to in section 186, paragraph 3;
4° of aggregate statistical data on key aspects of the application of the legislation referred to in 1°;
5° any other information prescribed by the decrees and regulations made pursuant to this Act.
The information referred to in paragraph 1^er are, if any, published on the CBFA website in accordance with the terms agreed between the Member States of the European Economic Area. The CBFA shall, where appropriate, ensure that the information provided on its website is updated regularly. »
CHAPTER V. - Transitional and final provisions
Art. 74. The persons referred to in section 18, paragraph 2, of the Act of 22 March 1993 referred to above, in section 60, paragraph 2, of the Act of 6 April 1995 referred to above and to sections 38, § 2, and 151, paragraph 2, of the Act of 20 July 2004 referred to above, which, on the date of publication of this Act, take part in the administration or management, shall be deemed to have, until the next proposal for the renewal of their appointment,
Art. 75. This Act produces its effects on 1^er January 2007.
Given in Brussels on 15 May 2007.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
ALBERT
By the King:
Deputy Prime Minister and Minister of Finance,
D. REYNDERS
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Note
(1) Parliamentary references:
House of Representatives documents: 51 3047/2006/2007
001: Bill.
002: Report
003: Text adopted in plenary and transmitted to the Senate.
Full report: 19 April 2007.
Senate documents: 3-2422-2006/2007
No. 1: Text adopted by the commission.
No. 2: Text adopted without amendment and transmission to the Chamber for sanction.
No. 3: Submitted to the Royal War.