belgiquelex.be - Carrefour Bank of Legislation

1^er AVRIL 2007. - Public Acquisition Offer Act (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART I^re. - INTRODUCTIVE PROVISIONS
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. The purpose of this Act is to ensure the transposition of the Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on public tenders, the Directive 2004/39/EC of the European Parliament and the Council of 21 April 2004 on the markets of financial instruments, amending the Directives 85/611/EEC and 93/EEC of the Council and Directive 2000/12/EC of the European Parliament and the Council and repealing Directive 93/22/EEC
With respect to the provisions of Part II, this Act may be cited under the heading "Public tenders Act".
PART II. - PUBLIC OFFERS OF ACQUISITION
PART I^er. - General provisions
CHAPTER I^er. - Definitions and scope
Art. 3. § 1^er. For the purposes of Part II of this Act and its enforcement orders, it shall be understood by:
1° "public offer of acquisition" or "offer": an offer directed to holders of securities of the corporation concerned and intended to acquire all or part of their securities, whether the offer is voluntary or compulsory;
2° "offering": one or more natural or legal persons of public or private law who launch an offer, or on whose behalf the offer is launched in whole or in part, as well as the persons against whom the Offeror has pledged to give all or part of the securities issued by the target corporation that it holds at the end of the offer;
3° "comprised corporation": the corporation whose securities are the subject of an offer or, as a result of an acquisition of securities, must be the subject of an offer;
4° "organizational": the board of directors of an anonymous corporation of Belgian law or the equivalent body in other cases;
5° "persons acting in concert" :
(a) natural or legal persons who cooperate with the Offeror, with the company concerned or with other persons, on the basis of an agreement, formal or tacit, oral or written, aimed at obtaining control of the corporation concerned, failing an offer or maintaining control of the corporation concerned;
(b) natural or legal persons who have entered into an agreement on the concerted exercise of their voting rights with a view to carrying out a sustainable common policy vis-à-vis the society in question;
6° "control": control within the meaning of articles 5 and 7 of the Corporate Code;
7° "Parties to the Offer": the Offeror, the members of the board of directors of the Offeror and the body to which that organ of administration has delegated part of its powers, the corporation concerned, the holders of securities of the corporation concerned and the members of the board of directors of the corporation concerned and of the body to which that body of administration has delegated part of its powers, as well as those parties acting with those bodies
8° « titles » :
(a) all categories of negotiable investment instruments in the capital market, including:
(i) shares of companies and other investment instruments equivalent to shares of companies, partnership companies or other entities, including investment instruments issued by collective investment organizations, in the form of a contract or trust, in representation of the rights of participants on the assets of these organizations, as well as representative certificates of shares;
(ii) bonds and other debt or borrowing securities, including representative certificates of such securities and real estate certificates;
(iii) any other title giving the right to acquire or sell such securities or giving rise to a cash settlement that is set by reference to securities or other assets;
(b) other investment instruments referred to in section 4 of the Act of 16 June 2006;
9° "titles giving access to the right to vote": the titles conferring the right to acquire any title with the right to vote of the corporation subject to a conversion or exercise of that right, provided that such titles are issued by the issuer of the titles with the right to vote to be created;
10° "real property certificates": debt securities incorporating income rights, products and prices for the realization of one or more real property, ships or aircraft determined upon issuance of certificates;
11° "regulated market": any Belgian or foreign regulated market referred to in Article 2, 5° or 6°, of the Act of 2 August 2002;
12° "Belgian regulated market": any Belgian regulated market referred to in Article 2, 5°, of the Act of 2 August 2002;
13° "Multilateral Negotiating System" or "MTF": a multilateral system of Belgian law, operated by an investment company or a market operator, which ensures the meeting - within itself and according to non-discretionary rules - of multiple buyer and seller interests expressed by third parties for financial instruments, in a way that leads to the conclusion of contracts;
14° "main market":
(a) the Member State in the regulated market where the voting rights of the corporation concerned are allowed to negotiate, or
(b) if the titles with the right to vote of the corporation concerned are allowed to negotiate in the regulated markets of more than one Member State, the Member State in the regulated market of which the securities of the society were admitted to the negotiation in the first place, or
(c) if the voting titles of the corporation concerned are or were first admitted to the simultaneous negotiation in the regulated markets of several Member States, one of the Member States concerned as designated by the society concerned;
15° "Guideline 83/349/EEC": Council Directive 83/349/EEC of 13 June 1983, based on Article 54(3)(g) of the treaty, concerning consolidated accounts;
16° "Guideline 93/22/EEC": Council Directive 93/22/EEC of 10 May 1993 on securities investment services;
17° "Guideline 2001/34/EC": Directive 2001/34/EC of the European Parliament and the Council of 28 May 2001 concerning the admission of securities to the official symbol and the information to be published on these values;
18° "Guideline 2003/6/EC": Directive 2003/6/EC of the European Parliament and the Council of 28 January 2003 on initiation and market manipulation (market abuse);
19° "Guideline 2003/71/EC": Directive 2003/71/EC of the European Parliament and the Council of 4 November 2003 on the prospectus to be published in the event of an offer to the public of securities or for the admission of securities to the negotiation, and amending Directive 2001/34/EC;
20° "Guideline 2004/25/EC": Directive 2004/25/EC of the European Parliament and the Council of 21 April 2004 on public tenders for acquisition;
21° "Guideline 2004/39/EC": Directive 2004/39/EC of the European Parliament and the Council of 21 April 2004 on the markets of financial instruments, amending Council Directives 85/611/EEC and Directive 93/6/EEC and Directive 2000/12/EC of the European Parliament and the Council and repealing Council Directive 93/22/EEC;
22° "Guideline 2004/109/EC": Directive 2004/109/EC of the European Parliament and the Council of 15 December 2004 on the harmonization of transparency obligations with respect to information on issuers whose securities are allowed to negotiate on a regulated market and amending Directive 2001/34/EC;
23° "the Code of Societies" or "C.Soc.": the Code of Societies established by the Law of May 7, 1999;
24° "the Act of 2 August 2002": the Act of 2 August 2002 on financial sector surveillance and financial services;
25° "the Act of June 16, 2006": the Act of June 16, 2006 on public tenders for investment instruments and admissions of instruments for trading in regulated markets;
26° "CBFA": the Banking, Financial and Insurance Commission;
27° "workable day(s)" : working day(s) in the banking field, except Saturdays and Sundays;
28° "Member State": a Member State of the European Economic Area;
29° "proposal period": the period beginning at the time of publication of the notice announcing the offeror's intention to launch an offer - or the publication, at the request of the CBFA, of the release stating the intention of a potential offerer to launch an offer - and ending at the time of publication of the results of the offer, the counter-proposal as well as the overdose, or their caducity
30° "acceptance period": the period during which securities holders can accept the offer;
31° "price": the proposed counterparty to the holders of the securities subject to the offer;
32° "person": one or more natural or legal persons.
§ 2. For the application of § 1^er5°, natural or legal persons who are bound, within the meaning of Article 11 of the Code of Societies, to other natural or legal persons, are deemed to be persons acting together with these other persons and between them.
Art. 4. § 1^er. Part II of this Act and its enforcement orders apply:
1° to any voluntary public offer on securities made in Belgian territory;
2° to any obligatory public offer relating to voting titles or giving access to the right to vote issued by a company that has its statutory seat in Belgium and of which at least a part of the voting titles are allowed to negotiate on a regulated market or on a multilateral trading system designated by the King;
3° to questions relating to the consideration offered and the tender procedure in the event of a mandatory public offer relating to securities with voting rights issued by a company that has its registered office in another Member State but is not allowed to negotiate on a regulated market, provided that its main market is located in Belgium;
4° to questions relating to information in the case of a mandatory offer not referred to in 2° or 3°, when this offer is also opened in Belgium;
5° to any public offer of resumption within the meaning of Article 513, § 1^erC.Soc.
§ 2. By derogation from § 1^er, 1°, the application of the following provisions to a public voluntary procurement offer, other than an offer launched by the company concerned itself, to acquire control of the corporation concerned, of which at least a part of the voting securities are allowed to negotiate on a regulated market, and bearing on voting securities, shall be carried out in the following manner:
1° with the exception of sections 20 and 31 to 34, Part II of this Act and its enforcement orders are not applicable where both the statutory seat and the principal market of the corporation concerned are located in another Member State;
2° In addition to articles 20 and 31 to 34, the provisions of Belgian law apply only for matters relating to information to be provided to staff and matters relating to the law of companies, when the company concerned has its statutory seat in Belgium but is not allowed to negotiate on a regulated Belgian market and its main market is located in another Member State;
3° Part II of this Act and its Implementing Orders apply only to matters relating to the consideration offered and the tender procedure, where the corporation concerned has its registered office in another Member State but is not allowed to negotiate on a regulated market and its principal market is located in Belgium.
§ 3. By derogation from § 1^er, 2°, are only applicable, when the statutory seat of a target company is located in Belgium, without the titles of that company being allowed to negotiate on a Belgian regulated market while its main market is located in another Member State:
1st Article 20 and Articles 31 to 34;
2° the provisions of Belgian law on matters relating to information to be provided to staff and matters relating to corporate law;
3° the provisions of Part II of this Act and its enforcement orders relating to the determination and calculation of the threshold within the framework of the mandatory offer.
§ 4. Without prejudice to the application of § 1^er, 1°, and of paragraph 2, any offer that falls within the scope of the Directive 2004/25/EC, is opened in Belgium when the voting rights of the target company are allowed to negotiate on a Belgian regulated market.
Any mandatory offer is opened in Belgium as soon as this offer is made public in Belgium in accordance with Article 6.
Art. 5. When a person holds directly or indirectly, as a result of an acquisition made by himself, by persons acting in partnership with him or by persons acting on behalf of such persons, more than 30% of the voting titles of a corporation that has its registered seat in Belgium and of which at least a part of the voting titles are allowed to the negotiation on a regulated market or on a multilateral trading system designated by the King, it is required, She informs the CBFA.
For the purposes of the preceding paragraph, the King may, by order deliberately in the Council of Ministers, taken on the advice of the CBFA, establish another percentage or additional percentage of voting securities, to take into account developments in the financial markets, and, where appropriate, take transitional measures.
Art. 6. § 1^er. The public nature of an acquisition offer launched on Belgian territory is established:
1° where there is a communication in the Belgian territory addressed to persons, in any form and by any means, that presents sufficient information on the terms of the offer to put a holder of securities in a position to decide to assign his titles and that is done by the Offeror or a person acting in concert with him or by a person acting on behalf of those persons;
2° as soon as the offeror or a person acting together with him or by a person acting on behalf of such persons is implemented in Belgian territory, advertising processes of any kind intended to announce or recommend the offer of acquisition.
§ 2. For the application of § 1^er, is presumed to act on behalf of the Offeror or a person acting in partnership with him, any person who directly or indirectly perceives remuneration or advantage on the occasion of the offer.
For the application of § 1^er, 2°, is considered as an advertising process:
1° the dissemination of information in the written press or in publications, periodical or non-recurrent, or by radio, television or any other audiovisual means;
2° the distribution of circulars or any other standardized documents relating to the operation, even if addressed personally to the recipient;
3° the dissemination of information via telephony or by means of an electronic information system;
4° the use of other techniques to bring the operation to the public.
§ 3. By derogation from § 1^er, do not have a public character, the following categories of offer:
1° the offers made in Belgian territory that concern securities only widespread among qualified investors within the meaning of Article 10 of the Law of 16 June 2006;
2° offers, on identical terms, on Belgian territory, less than 100 natural or legal persons other than qualified investors within the meaning of Article 10 of the Law of 16 June 2006;
3° offers for securities with a nominal unit value of at least 50,000 euros.
This exemption does not apply in the event of a mandatory public offer referred to in Article 4, § 1^erTwo.
Art. 7. Part II of this Act and its enforcement orders do not apply to public tenders for acquisition of securities issued by:
1° of companies whose purpose is the collective investment of financial means collected from the public, whose operation is subject to the principle of the distribution of risks and whose shares are, at the request of the holders, redeemed or refunded, directly or indirectly, to the assets of these companies. Is assimilated to such redemptions or refunds, and is not subject to the provisions of this Act and its enforcement orders, the fact for these companies to act in order to ensure that the stock exchange value of their shares does not significantly deviate from their net inventory value;
2° the central banks of the Member States.
CHAPTER II. - Enabling the King
Art. 8. The King shall, on the advice of the CBFA, determine the enforcement measures to settle the operations referred to in Article 4, taking into account, inter alia, the provisions of Directive 2004/25/EC.
In particular, it may, if any, distinguish between the nature of the transaction and the securities offered by the offer:
1° to determine the obligations and prohibitions applicable to the parties to the public offer, to which, in the opinion of the competent authority, it is reasonable to assume that they may be affected by a possible public offer and, in the event of a public offer relating to real estate certificates, to the parties who intervened during the issuance of such certificates, as well as to enact provisions to ensure the proper functioning of the market;
2° regulate the conditions and conduct of a voluntary public offer and, in particular, the irrevocability of a public offer, the invalidity of a public offer, the revision and withdrawal of a public offer, the competition of public tenders, the terms of acceptance of a public offer, the publication of results, the terms of payment of the price, the reopening of a public offer and the conditions authorized;
3° regulate the public offer launched by one or more holders of securities who, in the event of any securities held by persons related to them, exercise control over a Belgian company and, in particular, specify the rules concerning the procedure to be followed, the designation, independence and the work of one or more experts;
4° determine the procedure and procedures for the execution of the obligation to launch an offer, determine the cases and the terms and conditions of the obligation to launch an offer as a result of an indirect acquisition of control of the company concerned, determine the price to which the mandatory offer must be made, and the procedure to be followed, and determine the exemptions to the obligation to launch an offer that may possibly apply in the head of one of the persons acting
5° regulating the public offer of resumption, as referred to in Article 513, § 1^er, C.Soc., including specifying the rules concerning the procedure to be followed, the possible designation, independence and work of one or more experts, and the method of setting the price;
6° determine the obligations of the parties to the public offer after the closing of the public offer;
7° to determine the conditions under which the holders of voting titles or giving access to the right to vote may require that an offerer who, alone or in concert, holds at the end of the public offer 95% of the voting titles, resume their voting titles or give access to the right to vote, and determine the procedure to be followed and the method of setting the price;
8° provide for the conditions under which, after a public offer of resumption, the market enterprise of a Belgian regulated market or the operator of a Belgian multilateral trading system proceeds to the delisting of the securities that were admitted to the negotiation;
9° to determine, by reference to the guidance set out in section 9, the circumstances under which general exemptions to the provisions of Part II of this Act and its enforcement orders may be granted.
Art. 9. When taking the enforcement measures referred to in Article 8, the King shall take into account the following guidelines:
1° all holders of securities of the corporation in question who belong to the same class shall receive equivalent treatment; In addition, if a person acquires control of a corporation, other holders of voting rights or giving access to the right to vote must be protected;
2° the holders of securities of the corporation concerned shall have sufficient time and information to be able to make a decision on the offer knowingly; when advising the holders of voting rights or giving access to the right to vote, the board of directors of the corporation concerned must present its opinion on the impact of the implementation of the offer on the employment, terms and conditions of employment and business sites of the corporation;
3° the board of directors of the corporation concerned shall act in the interest of the society as a whole;
4° it shall not be created, because of the offer or behaviour in the leader of the parties to the offer, of contracts distorted for the securities of the company concerned, the company offering or any other company concerned with the offer so that the increase or decrease in the securities prices become artificial and that the normal functioning of the markets is disrupted;
5° an offerer shall only announce an offer after he has ascertained that he has the cash counterparty, if such consideration has been offered, and after taking all reasonable measures to ensure the supply of any other type of counterparty;
6° the corporation concerned shall not be embarrassed beyond a reasonable period of time in its activities because of an offer concerning its securities.
CHAPTER III. - Intermediation
Art. 10. § 1^er. Only the following persons or establishments can practice in Belgian territory the intermediation for the realization of an offer:
1° the European Central Bank, the National Bank of Belgium and other central banks of the Member States of the European Economic Area;
2° credit institutions registered on the list provided for in section 13 of the Act of 22 March 1993 relating to the status and control of credit institutions, with the exception of municipal savings funds;
3° the branches established in Belgium of credit institutions under the law of another Member State of the European Economic Area, registered in accordance with Article 65 of the Act of 22 March 1993 referred to above;
4° credit institutions not established in Belgium that fall under the right of another Member State of the European Economic Area and operate in Belgium in accordance with Article 66 of the Act of 22 March 1993 referred to above;
5° the stock exchange companies referred to in Book II, Title II, of the Act of 6 April 1995 relating to the status of investment companies and their control, intermediaries and investment advisors;
6° investment companies under the law of another Member State of the European Economic Area and operating in Belgium in accordance with Book II, Title III, of the law of 6 April 1995 referred to above;
7° the branches established in Belgium of investment companies under the law of non-member countries of the European Economic Area and operating in Belgium in accordance with Book II, Title IV, of the law of 6 April 1995 referred to above;
8° investment companies operating under the law of non-member countries of the European Economic Area and operating in Belgium through the provision of services, provided that the intermediation is in accordance with the statute to which they are subject under the decrees issued pursuant to Book II, Title IV, of the law of 6 April 1995.
§ 2. For the application of § 1^er, it is necessary to hear by "intermediation": any intervention, even as a temporary or incidental activity, and in any capacity whatsoever, in respect of holders of securities in the context of a public offer made on behalf of the Offeror, a person acting in partnership with him or a person acting on behalf of such persons, against compensation or benefit of any kind directly or granted
PART II. - Information
CHAPTER I^er. - Prospectus
Section I^re. - Obligation to publish a prospectus and publication of the prospectus
Art. 11. Any public offer requires the prior publication of a prospectus. In addition, a notice announcing the terms of publication of the complete prospectus is published in one or more nationally distributed newspapers in Belgium.
Art. 12. § 1^er. The prospectus is published in at least one of the following terms:
1° by inserting in one or more newspapers with national or wide distribution in Belgium;
2° in a printed form made available free of charge to the public from the financial intermediaries that the Offeror has designated to ensure acceptance and payment of the price;
3° in an electronic form on the Offeror's website and, if applicable, on the financial intermediaries that the Offeror has designated to ensure receipt of acceptances and payment of the price.
The offerers who publish their flyers in accordance with 1° or 2° must also publish them in accordance with 3° as they have a website.
§ 2. When the prospectus is made available to the public in electronic format, a paper copy must nevertheless be provided to the holder of securities, free of charge, and upon request, by the Offeror or financial intermediaries that the Offeror has designated to ensure receipt of acceptances and payment of the price.
§ 3. The CBFA publishes on its website a list of the prospectus that it has approved or recognized during the preceding 12 months, specifying how they have been made available to the public and where they can be obtained and inserting, as appropriate, a hyperlink to the prospectus published on the Offeror's website.
By derogation from the previous paragraph, CBFA may publish on its website or on that of a third party mandated by it for that purpose the entire prospectus it has approved or recognized.
§ 4. When the prospectus is composed of several documents, the documents may be published and distributed separately, provided that they are made available to the public free of charge in accordance with the terms set out in § 1^er. Each document indicates where other elements constituting the complete prospectus can be obtained.
When the prospectus is prepared in the form of a single document, the prospectus summary may also be circulated separately. In this case, it indicates where the complete prospectus, including a summary, can be obtained.
§ 5. The form and content of the prospectus and/or its supplements, as published, are always identical to the original version approved.
§ 6. If the securities of the company concerned are allowed to negotiate on a regulated market in another Member State, the Offeror publishes the prospectus, after the recognition of this document by the competent authority, in terms of ensuring that, in the Member State concerned, the holders of the securities as well as the representatives of the staff or, where such representatives do not exist, the personnel themselves of the Offeror and the company concerned, can easily and easily dispose of it.
Section II. - Content, form and language of prospectus
Art. 13. § 1^er. Without prejudice to Article 35, § 1^er, paragraph 2, the prospectus mentions the terms and conditions of the offer and contains the information that, taking into account the characteristics of the Offeror, the Company concerned, the securities subject to the offer and, in the event of an offer of exchange, the securities offered in exchange, are necessary for the holders of securities of the relevant corporation to have a judgment based on the transaction.
This information is presented in an easy to analyze and understand format.
§ 2. The prospectus includes a summary that outlines, in a non-technical language, the main features of the offer, the Offeror, the Company concerned, the Offeror's intentions and, in the event of an exchange offer, the securities offered in exchange and the issuer of the securities offered in exchange.
The summary also includes a warning indicating:
1° that it must be read as an introduction to the prospectus, and
2° that any decision to respond to the offer must be based on a comprehensive review of the prospectus, and
3° that no civil liability may be attributed to anyone on the basis of the only summary or translation, except misleading, inaccurate or contradictory content to the other parts of the prospectus.
§ 3. CBFA may accept that information is included in the prospectus by reference to one or more documents previously published or simultaneously, subject to the conditions set out in section 50 of the Act of 16 June 2006. These documents are made available free of charge to the public in accordance with Article 12, § 1^er. The summary cannot include information by reference.
Art. 14. The King shall determine, on the advice of CBFA, the rules applicable to the content of the prospectus. It can make a distinction based on the nature of the transaction and the securities being offered.
Art. 15. The prospectus contains the indication that it was approved by the CBFA in accordance with Article 19, § 3, but that this approval does not include any appreciation of the opportunity and quality of the offer, nor of the situation of the one who realizes it.
Except for the indication referred to in paragraph 1^er and the indication of the approval of the submission in response, no mention of CBFA's intervention can be made in the prospectus and its possible supplements.
Art. 16. § 1^er. The prospectus is written in French and Dutch.
When the Offeror demonstrates that the target corporation usually publishes its financial information in a single national language or in a common language in the international financial sphere, the CBFA may accept that the prospectus is established in that single national language or other language.
§ 2. The summary of the prospectus is prepared or translated into French and Dutch. This translation is carried out under the responsibility of the Offeror. By derogation from this rule, if the promotional communications and other documents and notices relating to the offer referred to in Article 31, § 1^er, are broadcast in a single national language, the summary may be established or translated only in that language.
Section III. - Supplement to the prospectus
Art. 17. § 1^er. Any significant new facts or any material error or inaccuracies with respect to the information contained in the prospectus, which is likely to influence the evaluation of the offer and occurs or is found between the approval of the prospectus and the final closing of the offer acceptance period, is mentioned in a supplement to the prospectus.
§ 2. The prospectus supplement is approved, within a maximum of seven working days, in the same manner and published at least in the same manner as the initial prospectus. The summary, and any possible translation of it, also gives rise to a supplement if it is necessary to take into account the new information contained in the supplement to the prospectus.
Section IV. - Approval and recognition of prospectus
Sub-section 1^re. - Approval of prospectus
Art. 18. The prospectus is only published after its approval by the CBFA.
This approval does not include any appreciation of the opportunity and quality of the offer, nor of the situation of the one who realizes it.
Art. 19. § 1^er. When an offerer advises the CBFA of its intention to launch an offer, it sends a prospectus project.
The Offeror shall promptly forward all relevant documents for the examination of the prospectus.
§ 2. If CBFA considers, on reasonable grounds, that the documents submitted to it are incomplete or that additional information is required, it shall notify the Offeror within ten working days of the receipt of the notice referred to in § 1^er so that he completes his file.
In particular, the CBFA may require the offeror to include in the prospectus additional information if the protection of the securities holders requires it.
§ 3. Within ten working days of the submission of a complete file, the CBFA shall notify the Offeror of its decision either to approve the prospectus or to refuse to approve the prospectus.
§ 4. When the CBFA has not made any of the decisions referred to in § 3, the persons who have given the notice provided in § 1^er may, by registered letter to the position or with acknowledgement of receipt, put the CBFA in its possession. Such a notice may only take place upon the expiry of a period of ten working days from the date of the response to the last request made by the CBFA pursuant to § 2 or, in the absence of such a request, at the earliest of the expiration of a period of ten working days from the date of the notice referred to in § 1^er. If, at the expiry of a period of ten working days from the date of the stay referred to in this paragraph, the CBFA remains in default either to decide that the file is incomplete, citing the missing elements, or to make one of the decisions referred to in § 3, the request for approval of the prospectus is deemed to be rejected.
§ 5. Only persons who have given the notice provided in § 1^er may appeal, pursuant to section 121 of the Act of 2 August 2002, against a refusal of the CBFA to approve the prospectus or against the decision referred to in § 4 stating that the file cannot yet be considered complete. The CBFA approval decision is not subject to appeal.
§ 6. The final version of the approved prospectus, duly signed by the Offeror, is filed with the CBFA prior to its publication.
§ 7. The King may, by order made on the advice of the CBFA, determine the particular circumstances resulting in the suspension of the period for approval of a prospectus.
Sub-section 2. - Recognition of prospectus
Art. 20. § 1^er. The bidder may request recognition of the bid prospectus if the prospectus has been previously approved by the competent authority for this purpose in accordance with Article 4 of Directive 2004/25/EC. In such cases, neither sections II and III nor subsection 1st of section IV are applicable.
§ 2. In order to benefit from the recognition of the prospectus, the Offeror shall forward to the CBFA a file including the following documents:
1° the prospectus for which recognition is sought;
2° where applicable, a translation of this document in French, Dutch or in a usual language in the international financial sphere and accepted by the CBFA, carried out under the responsibility of the Offeror for publication in Belgium;
3° a confirmation from the competent authority certifying that it approved the prospectus.
§ 3. If this data is not included in the prospectus, the CBFA may require that additional information be included in the prospectus or annexed to the prospectus specific to the Belgian market and that the formalities to be completed to accept the offer and collect the counterparty due to the offer, as well as the tax regime that will be applicable to the counterparty offered to the holders of securities.
§ 4. Within ten working days of the submission of a complete file, the CBFA shall notify the Offeror of its decision to recognize the prospectus.
§ 5. When the CBFA has not taken the decision referred to in § 4, the persons who have introduced the application referred to in § 1^er by registered letter to the position or with acknowledgement of receipt, the CBFA shall, at the earliest of the expiration of a period of ten working days from the date of the application referred to in § 1^er. If, at the expiry of a period of ten working days from the date of the stay referred to in this subsection, the CBFA remains in default either to decide that the file is incomplete, citing the missing elements, or to recognize the prospectus, the request for recognition of the prospectus is deemed to be accepted.
§ 6. Only persons who have introduced the application referred to in § 1^er may lodge an appeal, pursuant to section 121 of the Act of 2 August 2002, against the decision referred to in § 5 stating that the file cannot yet be considered complete. The CBFA's decision to recognize the prospectus is not subject to appeal.
§ 7. The procedure determined in §§ 1^er to 6 applies to the application for recognition of approval of an additional to the recognized prospectus.
§ 8. The King may determine other cases in which the procedure provided for in §§ 2 to 7 is applicable.
Section V. - Liability for prospectus
Art. 21. § 1^er. When the prospectus is submitted for approval by the CBFA, it clearly indicates who is responsible for the prospectus and its possible supplements, with the exception, if any, of the response brief annexed to it. Responsible persons are identified by name and function or, in the case of legal persons, by name and registered office.
The prospectus resumes a statement by the responsible persons certifying that, to their knowledge, the data from the prospectus are in conformity with the reality and do not contain an omission that would alter its scope.
Without prejudice to paragraph 1^er, the prospectus may indicate the persons responsible for part of the prospectus and its possible supplements.
§ 2. Notwithstanding any stipulation contrary to the holder of securities, the persons specified in accordance with § 1^erParagraph 1^er, shall be held in solidarity with the persons concerned, the repair of the preliminary proceedings caused by the misleading or inaccurate nature of the information contained in the prospectus and its possible supplements or by the absence in the prospectus and its possible supplements of the information prescribed by Part II of this Act or by its enforcement orders.
The damage suffered by the holder of the securities of the corporation concerned is presumed to result, unless otherwise proved, from the absence or inaccurate nature of the information in the prospectus and its possible supplements.
§ 3. No liability may be attributed to anyone on the basis of the sole summary of the prospectus or its translation, unless it contains information that is misleading, inaccurate or contradictory to the other parts of the prospectus.
CHAPTER II. - Memory in response
Art. 22. In cases provided by the King and without prejudice to the application of Article 24, § 1^er, the board of directors of the corporation concerned shall establish, as part of the public offer, a response brief.
Art. 23. The submission in response shall be published by the corporation referred to in accordance with the provisions of section 12, unless the Offeror attachs this memorandum to the prospectus.
For the purposes of paragraph 1^er, the obligations of the Offeror with respect to the terms and conditions of publication of the prospectus, as set out in section 12, must be read as obligations in respect of the corporation concerned with the terms and conditions of publication of the submission in response.
Art. 24. § 1^er. In the case of a public procurement offer for voting titles or giving access to the right to vote, the submission in reply shall include at least:
1° any remarks of the company concerned concerning the prospectus;
2° the statutory clauses involving a limitation of thesesibility or the possibility of acquiring securities with voting rights or giving access to the voting rights of the corporation concerned, as well as, to the extent that the body of administration of the corporation referred to in is aware, a list of preferential rights that would have been granted to certain persons with a view to acquiring such securities;
3° the motivated notice issued on the offer.
§ 2. The King shall determine, on the advice of the CBFA and without prejudice to the application of § 1^er, the rules applicable to the content of the response memory and its various elements, as well as the terms and conditions for the submission of a submission of a submission in response to CBFA's approval. It may, for this purpose, make a distinction based on the nature of the transaction and the securities being offered.
Art. 25. The submission in reply contains the indication that it was approved by the CBFA in accordance with Article 28, § 3, but that this approval does not include any appreciation of the opportunity or quality of the offer.
Except for the indication of the approval of the prospectus and the indication referred to in paragraph 1^er, no mention of the CBFA intervention can be made in the memory in response and in its possible supplements.
Art. 26. The answer is written in French and Dutch.
When the target company demonstrates that it usually publishes its financial information in a single national language or in a common language in the international financial sphere, the CBFA may accept that the response memory is established in that single national language or other language.
Art. 27. The response brief is only published after its approval by the CBFA.
This approval does not include any appreciation of the opportunity and quality of the offer.
Art. 28. § 1^er. The corporation shall forward to the CBFA a draft response brief and all relevant documents for the review of this document.
§ 2. If CBFA considers, on reasonable grounds, that the documents submitted to it are incomplete or that additional information is required, it shall notify the corporation within five working days of the receipt of the project referred to in § 1^er so that she may complete her file.
In particular, the CBFA may require the corporation to be included in the memorandum in response to additional information if it is required to protect the securities holders.
§ 3. Within five working days of the submission of a complete file, the CBFA shall notify the corporation concerned of its decision either to approve the submission in response or to refuse to approve the submission in response.
§ 4. Only the corporation concerned may appeal, pursuant to section 121 of the Act of 2 August 2002, against a CBFA's refusal to approve the submission in response. The decision to approve the submission in response by CBFA is not subject to appeal.
§ 5. The final version of the response memorandum, duly signed by the corporation concerned, is filed with the CBFA prior to its publication.
§ 6. After its approval, the response brief is published without delay.
Art. 29. § 1^er. When the response is submitted to the approval of the CBFA, it clearly indicates who is responsible for this memory and its possible supplements. Responsible persons are identified by name and function or, in the case of legal persons, by name and registered office.
The memory in response takes a statement from those responsible certifying that, to their knowledge, the data in this memory conform to the reality and do not contain an omission that would alter its scope.
Without prejudice to paragraph 1^er, the response memory may indicate the persons responsible for part of the response memory and its possible supplements.
§ 2. Notwithstanding any stipulation contrary to the holder of securities, the persons specified in accordance with § 1^erParagraph 1^er, shall be held in solidarity with the persons concerned, the compensation of the damage caused by the misleading or inaccurate nature of the information contained in the reply brief and its possible supplements or by the absence in the reply brief and its possible supplements of the information prescribed by Part II of this Act or by its enforcement orders.
The damage suffered by the holder of the securities of the corporation concerned is presumed to result, unless otherwise proved, from the absence or misleading or inaccurate nature of the information in the response brief and its possible supplements.
Art. 30. § 1^er. Any significant new facts or any material error or inaccuracy with respect to the information contained in the response brief, which is likely to influence the evaluation of the offer and arises or is found between the approval of the response brief and the final closing of the offer, is mentioned in a supplement to the response brief.
§ 2. The supplement to the response memory is approved, within a maximum of five working days, in the same manner and published at least in the same manner as the initial response.
CHAPTER III. - Promotional communications
Art. 31. § 1^er. Any advertisement relating to a specific public procurement offer intended to specifically influence the possible acceptance of the offer, regardless of the medium used (hereinafter referred to as "promotional communication"), as well as other documents and notices relating to a public offer that are broadcast on Belgian territory on the initiative of the Offeror or intermediaries designated by it, meet the following requirements:
1° they announce that a prospectus and a response brief have been, are or will be published, and indicate where the holders of titles may obtain these documents;
2° the information contained therein may not be misleading or inaccurate;
3° the information contained therein is compatible with the information contained in the prospectus if the prospectus has already been published or should be included if it is published later.
§ 2. Communications of a promotional nature and other documents and notices relating to a public offer, which are broadcast on Belgian territory on the initiative of the targeted company or intermediaries designated by it, meet the following requirements:
1° they announce that a prospectus and a response brief have been, are or will be published, and indicate where the holders of titles may obtain these documents;
2° the information contained therein may not be misleading or inaccurate;
3° the information contained therein is compatible with the information contained in the memory in response if it has already been published or to be included in it if it is published later.
§ 3. The promotional communications referred to in the preceding paragraphs must be clearly recognizable as such.
§ 4. Without prejudice to § 1^erany information provided on the public offer by the Offeror or intermediaries designated by him, regardless of its mode of distribution, even if it has no promotional purpose, must always be consistent with the information provided in the prospectus.
§ 5. Without prejudice to § 2, any information provided on the public offer by the target corporation or the intermediaries designated by it, regardless of its mode of distribution, even if it has no promotional purpose, must always be consistent with the information provided in the response.
§ 6. Without prejudice to §§ 1^er 5, the King may, on the advice of the CBFA, provide for other requirements for communications, other documents and notices referred to in §§ 1^er and 2 relating to a public offer made in Belgian territory, distinguishing, where applicable, according to the type of securities concerned.
Art. 32. Important information for the evaluation of the offer that is provided, directly or indirectly, by the Offeror or the target corporation and is directed to qualified investors or to special investor categories, including those communicated to financial analysts, is communicated to all securities holders to whom the offer is directed.
Art. 33. §1^er. Communications of a promotional nature and other documents and notices relating to a public offer, which are broadcast on the initiative of the Offeror, the corporation or intermediaries designated by them, are made public only after being approved by the CBFA, taking into account the requirements set out in sections 31, §§ 1^er to 5, as well as by the decrees taken under Article 31, § 6.
§ 2. CBFA shall take action within five working days of receipt of promotional communications, other documents and notices referred to in § 1^er.
§ 3. Only the Offeror, the corporation and/or intermediaries designated by them may lodge an appeal, pursuant to section 121 of the Act of 2 August 2002, against a refusal by the CBFA to approve promotional communications, other documents and notices submitted to it. The decision to approve promotional communications, other documents and notices is not subject to appeal.
§ 4. No mention of the intervention of the CBFA or any other competent authority of a Member State of the European Economic Area may be made in communications of a promotional nature and in other documents and opinions referred to in § 1^erexcept for the approval of the prospectus and/or the response.
Art. 34. § 1^er. Notwithstanding any stipulation contrary to the holder of securities, the Offeror and the intermediaries designated by him shall be liable to repair the damage caused by any promotional communication or other document or notice relating to the transaction, published on their initiative, which contains misleading, inaccurate or contradictory information in relation to the prospectus or by the non-compliance of such communications, other documents or notices with the provisions of Article 31, paragraph 1.^er3 and 4, or taken under Article 31, § 6.
§ 2. Notwithstanding any stipulation contrary to the holder of securities, the corporation referred to and the intermediaries designated by it shall be liable to repair the damage caused by any communication of a promotional nature or other document or notice relating to the operation, published on their initiative, which contains misleading, inaccurate or contradictory information in relation to the memory in response or by the non-compliance of such communications, other documents or notices with the provisions of Article 31,
§ 3. The damage suffered by the holder of the securities of the corporation concerned shall be presumed to result, unless otherwise proved, from the misleading, inaccurate or contradictory nature of the prospectus or memory in response to information contained in any communication of a promotional nature or other document or notice relating to the transaction, published on their initiative, or from the non-compliance of that information with the provisions of section 31, §§ 1^er to 5, or taken under Article 31, § 6.
PART III. - Control
CHAPTER I^er. - Powers of the CBFA
Art. 35. § 1^er. CBFA is solely responsible for the enforcement of Part II of this Act and its enforcement orders.
In special cases, CBFA may grant exemptions based on the provisions of Part II of this Act or its enforcement orders, and may include such exemptions. The CBFA motivates its derogation decisions by express reference to the guidance defined in Article 9.
§ 2. Without prejudice to the application of section 4, the CBFA shall, within the framework of a public procurement offer, ensure the regularity of the shares of the target corporation that would be likely to cause the offer to fail and control in particular the compliance with the provisions of sections 510, 511, 512, 556, 557, 607 and 620 C.Soc. and compliance with statutory provisions in accordance with articles 46 and 47.
If CBFA has reason to believe that the provisions referred to in paragraph 1^er has not been properly respected, she advises the company concerned. If she considers that her opinion has not or has not been sufficiently taken into account, she may make it public.
Art. 36. § 1^er. Without prejudice to the application of Article 19, § 2, and Article 78 of the Act of 2 August 2002, the CBFA may take the necessary measures and issue injunctions to ensure the correct application of the provisions of Part II of this Act and its enforcement orders.
It may include:
1° when it finds an operation, practice or omission contrary to the provisions of the law or its enforcement orders, enjoin any person who is responsible for complying with these provisions, to terminate the irregularity or to remove the effects thereof;
2° prohibit the person who is responsible for making use of the rights or benefit from the benefits that it may withdraw from the operation, practice or omission contrary to the provisions of the law or its enforcement orders;
3° require parties to the offer or parties whose CBFA has reasonable grounds to believe that they must make a mandatory offer, as well as persons who control or are controlled by them, to provide information and documents to the CBFA;
4° enjoin the Offeror to take certain measures if it considers that an offer may be made or is made under conditions that may induce the public in error;
5° suspend an offer or publication of the notice announcing the offer, for a maximum of 10 consecutive business days, whenever it has reasonable grounds to believe that there has been a violation of the provisions of Part II of this Act or its enforcement orders;
6° prohibit an offer or publication of the notice announcing the offer, if it finds or has reasonable grounds to suspect that there has been a violation of the provisions of Part II of this Act or its enforcement orders;
7to suspend, for a maximum of ten consecutive working days, the dissemination of promotional communications and other documents and notices referred to in section 31, whenever it has reasonable grounds to believe that there has been a violation of the provisions of Part II of this Act or of its enforcement orders;
8° prohibit or order the withdrawal of the distribution of promotional communications and other documents and notices referred to in section 31, whenever it has reasonable grounds to believe that there has been a violation of the provisions of Part II of this Act or of its enforcement orders;
9° order a party to the offer to publish a correction of promotional communications, other documents or notices issued in violation of the provisions of Part II of this Act or its enforcement orders;
10° make the publication of the ordered correction in accordance with the 9° if the correction was not made at the expiry of the time limit set;
11° make public any decision made in accordance with 1°, 2°, 4° to 9°, 14° and 15°, unless this advertisement could seriously disrupt the financial markets or cause disproportionate damage to the parties involved;
12° publicize the fact that a party to the offer does not comply with its obligations, unless the advertisement may seriously disrupt the financial markets or cause disproportionate harm to the parties involved;
13° to conduct on-site inspections and expertise, to read and copy on-site any document, file and record and to have access to any computer system, in order to ensure compliance with the provisions of Part II of this Act and its enforcement orders, provided that these investigative powers do not extend to private dwellings;
14° enjoin any person who, although obliged under the law and its enforcement orders, fails to make a mandatory offer, to take the necessary measures to that effect;
15° enjoin the corporation that, although obliged under the law and its enforcement orders, fails to establish and publish a memorandum in response, to take the necessary measures to that effect.
§ 2. Decisions referred to in § 1^er are notified in the most appropriate manner to the responsible person.
Any decision made pursuant to this provision shall be enforceable upon notification.
§ 3. In cases referred to in § 1^er, 5° and 7°, the CBFA can renew the suspension measure, each time for a period of ten consecutive working days at most.
§ 4. A person who, at the expiry of the time limit set by the CBFA, fails to comply with an injunction or prohibition addressed to it under § 1^er, the CBFA can inflict a breach that cannot be, per calendar day, greater than 50,000 euros, nor, for the ignorance of the same injunction or prohibition, greater than 2.500,000 euros.
§ 5. The advertising measures referred to in § 1^er are operated, as the case may be, at the cost of the Offeror, the corporation concerned, the other parties to the offer or the persons designated by them.
Art. 37. Without prejudice to other measures taken in accordance with Part II of this Act, CBFA may, where it finds an offence under Part II of this Act or its enforcement orders, impose an administrative fine on the person responsible, which may not be less than 2,500 euros or greater, for the same fact or set of facts, at 2,500,000 euros.
Art. 38. Are punished by imprisonment from one month to one year and a fine of 75 to 15,000 euros, or only one of these penalties:
(1) those who obstruct the verifications to which they are required to submit under this Act, who refuse or fail to provide the information or documents that they are required to provide under this Act or knowingly provide incorrect or incomplete information or documents;
2° those who contravene articles 10, 11, 18, 20, §§ 1^er to 3, 31, §§ 1^er and 2, 32 and 33, § 1^er;
3° those who ignore a suspension or prohibition imposed under section 36 or a refusal to approve the prospectus or those who pass over to an injunction that has been sent to them under section 36;
4° those who knowingly publish in Belgium a prospectus or supplement that contains inaccurate or incomplete information that may mislead the public on the terms of the offer;
5° those who knowingly publish in Belgium promotional communications that contain misleading or inaccurate information that may mislead the public on the terms of the offer;
6° those who make public in Belgium a prospectus or a supplement by mentioning the approval of the CBFA or the competent authority of another Member State of the European Economic Area while the latter has not been given;
7° those who knowingly make public in Belgium a prospectus or supplement, different from that approved by the CBFA or by the competent authority of another Member State of the European Economic Area;
8° those who knowingly make public in Belgium communications of a promotional nature different from those approved by the CBFA under Article 33;
9° those who knowingly ignore the prohibition referred to in section 48.
The provisions of Book 1^er the Criminal Code, without exception of Chapter VII and Article 85, shall apply to offences punishable under this section.
Art. 39. Administrative fines and trespasses imposed under sections 36, § 4, and 37 are recovered for the benefit of the treasury by the administration of the Cadaster, Recording and Domains.
Art. 40. In order to control the application of the provisions of Part II of this Act and its enforcement orders, the CBFA may require regulated market enterprises, operators of multilateral trading systems, financial intermediaries referred to in Article 2, 9°, the Act of 2 August 2002, and their constituents, that they disclose to it any information, document or document that it considers necessary to carry out its mission. Individuals who act successively in the transmission of orders or in the execution of the transactions in question, and their constituents are bound to the same obligation. The communication of documents and parts takes place on site.
Intermediaries inform the person before the request or on whose behalf they are called to act, that their intervention is subject to the authorization to disclose to the CBFA the identity of the final beneficiary of the transaction.
If the requirements of the preceding paragraph are not met, the intermediary may not perform the operations.
CHAPTER II. - Appeal to the judicial authorities
Art. 41. [...]
PART IV. - Staff information and consultation
Art. 42. As soon as an offer on voting titles or giving access to the right to vote has been made public, the boards of directors of the corporation concerned and the Offeror inform the representatives of their staff respectively or, where such representatives do not exist, the staff themselves.
Art. 43. As soon as the prospectus relating to an offer relating to voting rights or giving access to the right to vote is made public, the boards of directors of the corporation concerned and the Offeror communicate it to the representatives of their staff, or, where such representatives do not exist, to the staff themselves.
Art. 44. At the same time, the board of directors of the corporation shall communicate at the same time to the representatives of the employees of the corporation or, where such representatives do not exist, to the staff themselves, its notice of the public tender in respect of titles with voting rights or giving access to the right to vote.
If the board of directors of the corporation concerned receives in a timely manner the separate position of the board of directors regarding the offer and, in particular, its impact on the employment, this position is attached to the document; in the absence of a unanimous position of the board of business, the position of the various components of the board is attached to the document.
Art. 45. If there is a board of business within the company concerned, the company shall hear the representatives of the board of directors of the Offeror, unless the members of that board of business unanimously decide to give up such an hearing.
The hearing referred to in paragraph 1^er, takes place no later than ten days after the beginning of the offer acceptance period. The corporation's board of business shall communicate the date of the hearing no later than three days in advance to the agent's board of directors.
In the hearing referred to in paragraph 1^er, representatives of the offeror's administrative body may be assisted by persons of their choice. The Offeror's representatives make a presentation to the company's board of business on the Offeror's industrial and financial policy, as well as its strategic plans for the target corporation and their likely impact on the employment and business sites of the affected company. The Offeror's representatives are aware of any remarks made by the company's board of the relevant company.
As long as the bidder, who was invited, did not appear at the hearing referred to in paragraph 1^erat the general assembly of the corporation concerned, it shall not exercise the voting rights attached to the securities it has acquired in the course of the offer.
PART V. - Complementary Rules for Public Acquisition Offers
CHAPTER I^er. - Optional regimes
Art. 46. § 1^er. The statutes of a company that has its statutory seat in Belgium and of which at least a part of the voting rights are allowed to negotiate on a regulated market, may provide for:
1° that, during the offer period, the administrative body and the body to which the administrative body has delegated part of its powers, will undertake actions that may cause the public offer to fail only if they have been previously and specifically authorized by the general assembly;
2° that decisions that may have failed the public offer that would have been made prior to the commencement of the offer period by the administrative body and the body to which the administrative body has delegated part of its powers, and that would not have been implemented or would have yet been partially implemented shall be approved or confirmed by the general assembly, unless they are in the normal course;
3° that restrictions on the transfer of titles with the right to vote and titles giving access to the right to vote, entered in both the statutes and in contractual agreements concluded with or between holders of securities, will not apply to the Offeror during the period of acceptance of the public offer;
4° that restrictions on the right to vote, both in the statutes and in contractual agreements concluded with or between holders of securities, will not apply to a general assembly that would be convened during the offer period and whose agenda would include the taking of defence measures;
5° that restrictions on the transfer of securities or the right to vote, including the right to multiple votes, referred to in 3° and 4°, or the extraordinary statutory rights of shareholders regarding the appointment or revocation of members of the board of directors, shall not apply to the first general meeting convened at the request of the Offeror no later than two weeks, and no later than two months, after the publication of the results of
Paragraph 1^er, 1° and 2°, is applicable from the beginning of the offer period or, if it is earlier, from the receipt by the board of directors of the relevant company of the Offeror's decision to launch an offer.
For the purpose of obtaining prior authorization, approval or confirmation referred to in paragraph 1^er, 1° or 2°, the General Assembly may be held two weeks after the convocation.
§ 2. When rights are deleted on the basis of the statutory provisions referred to in § 1^er, 3°, 4° and 5°, fair compensation is provided for any loss registered by the holders of these rights.
§ 3. Decisions taken under § 1^er must be notified promptly to the CBFA and the supervisory authorities of all Member States in which the company's securities are admitted to trading on a regulated market, or in which a request for that purpose has been filed.
Art. 47. The corporation that has established statutory provisions under section 46 may provide in its statutes that if its securities are subject to a public offer launched by a corporation that does not apply section 9, paragraphs 2 and 3, and/or section 11 of Directive 2004/25/EC, it will in turn not be required to apply the corresponding provisions. The acts or decisions of the company and the statutory or treaty provisions that provide for restrictions on the transfer of titles or the right to vote shall, in this case, be governed by the rules laid down in the Code of Companies as well as by the statutes of the corporation or by the relevant contractual agreements.
This regime is registered in the statutes with the authorization of the General Assembly, the said authorization to have been received no later than eighteen months before the publication of the notice announcing the public offer.
Paragraph 1^er is also applicable where the public offer is launched by a subsidiary located directly or indirectly under the control of a corporation that does not apply section 9, paragraphs 2 and 3, and/or section 11 of Directive 2004/25/EC.
CHAPTER II. - Other obligations and prohibitions
Art. 48. Any communication made in Belgian territory, to the attention of 100 or more natural or legal persons, other than qualified investors, is prohibited, for the purpose of providing information or advice or for requests for information or advice relating to a public offer, where such communication comes from the Offeror, a person acting in partnership with him or a person acting on behalf of such persons, unless:
(a) the offer falls within one of the categories referred to in Article 6, § 3;
(b) the competent authority for the approval of the public tender prospectus has previously been seized of an application for approval and has not yet ruled on such approval;
(c) the public offer prospectus has been duly approved by the CBFA or by the competent authority of another Member State of the European Economic Area.
Is presumed to act on behalf of the Offeror or a person acting in partnership with him, any person who directly or indirectly perceives a remuneration or benefit of the Offeror or a person acting in partnership with him, on the occasion of that transaction.
Art. 49. If the voting rights of a corporation are first admitted to the simultaneous negotiation in the regulated markets of several Member States without the right to vote trading in a regulated market in the Member State where its registered office is located, the company determines which competent authority, among those of these Member States, is for the control of an offer, informing these regulated markets and their control authorities on the first day of the negotiations.
Paragraph 1^er is only applicable to the extent that the company has its statutory seat in Belgium or is allowed to negotiate on a Belgian regulated market.
The corporation shall make public the decisions referred to in paragraph 1^er.
CHAPTER III. - Cooperation between authorities
Art. 50. § 1^er. CBFA cooperates with other authorities of a Member State responsible for controlling capital markets, in particular in accordance with Directive 93/22/EEC, Directive 2001/34/EC, Directive 2003/6/EC, Directive 2003/71/EC, Directive 2004/39/EC and Directive 2004/109/EC.
This cooperation includes the exchange of information to the extent necessary for the application of the rules established in accordance with Directive 2004/25/EC, the ability to notify the legal acts necessary for the application of the measures taken by the inspection authorities in relation to bids, as well as any other assistance that may reasonably be required by a supervisory authority for the purpose of investigating the actual or alleged violations of the rules adopted or introduced under the Directive 2004/EC.
§ 2. For the application of § 1^er, the CBFA may, within this framework, require parties to the offer, as well as persons who control them or are controlled by them to provide information and documents.
PART III. - OTHER PROVISIONS
CHAPTER I^er. - Transposition of the Financial Instrument Market Guidelines
Art. 51. § 1. The King may, by order deliberately in the Council of Ministers, take on the advice of the CBFA:
1st take the necessary measures to implement the mandatory provisions of Directive 2004/39/EC;
2° take the necessary measures to transpose the mandatory provisions arising from Commission Directive 2006/73 on measures
the implementation of the Directive 2004/39/EC of the European Parliament and of the Council with regard to the organizational requirements and the conditions of exercise applicable to investment companies and the definition of certain terms for the purposes of the Directive;
3° take the necessary adaptation measures as a result of Commission Regulation 1287/2006 on enforcement measures of Directive 2004/39/EC of the European Parliament and of the Council with regard to the obligations of the investment companies in respect of registration, the account of transactions, market transparency, the admission of financial instruments to the negotiation and definition of terms for the purposes of the Directive;
4° to take, in the event of the use of the possibility provided for in Article 3 of the above-mentioned Directive 2004/39/EC to exempt from the application of the Directive persons defined in the article, the measures necessary to guarantee compliance with the Directive, such as the determination of the conditions of registration and the procedure of registration, the conditions of exercise, including the rules of conduct, the rules of compliance and control by the Commission
5° take the necessary measures to ensure compliance with the above-mentioned Implementing Directive, in the event of the use of the possibility provided for in Article 4 of the Implementing Directive to maintain, in the materials covered by the above-mentioned Implementing Directive, certain existing requirements with respect to investment companies that go further than the Directive;
6° to determine, in accordance with Article 23 of the above-mentioned Directive, the obligations of investment companies that employ related agents, as well as related agents;
7° to recognize, in accordance with Article 24, paragraphs 3 and 4, of the aforementioned Directive, companies and other entities as eligible counterparties.
§ 2. Orders under this article may amend, supplement, replace, repeal or coordinate existing legislation, including the determination of measures, administrative sanctions and penalties for non-compliance.
The authorization granted to the King by this article, except for the coordinating power, expires eighteen months after the entry into force of the above-mentioned Implementing Directive.
Orders under this section shall be repealed in full law if they have not been confirmed by law within twenty-four months after publication to the Belgian Monitor.
CHAPTER II. - Combating financial crime
Art. 52. The Royal Decree of 24 August 2005 amending the Financial Sector Supervision and Financial Services Act of 2 August 2002 with respect to market abuse provisions is confirmed with effect on the date of its entry into force.
Art. 53. Section 49 of the Act of 2 August 2002 on the supervision of the financial sector and services, as amended by the Royal Decree of 25 March 2003, the Act of 19 November 2004 and the Act of 14 February 2005, is supplemented by a paragraph 9, which reads as follows:
“§ 9. In the matters referred to in Articles 25, 39 and 40, the steering committee shall designate one of its members for a period of six months for the purpose of making decisions for the application of Article 70, § 1^er. The member concerned does not participate in the deliberations of the steering committee on the possible imposition of an administrative sanction for the practice in question. "
Art. 54. § 1. In the title of section 5 of chapter III of the Act, the words "administrative sanctions" are replaced by the words "administrative fines and trenches".
§ 2. ÷ Article 70, § 1^er, of the same law, as amended by the Royal Decree of 25 March 2003, are made the following amendments:
1° the words "an administrative penalty" are replaced by the words "the imposition of an administrative fine or a breach";
2° the words ", except in the cases provided for in Article 49, § 9," are inserted between the words "direction" and "charge".
Art. 55. Section 71 of the Act is supplemented by § 3, which reads as follows:
Ҥ3. The auditor may propose a transactional settlement when the facts are not contested. In the event of an agreement by the author of the practice on the proposed transactional settlement, the proposed settlement is submitted to the steering committee.
If the steering committee accepts the transactional settlement, the decision is notified by registered letter to the author of the practice. If the steering committee refuses the transactional settlement, it forwards the file to the judicial authorities. The person who is the subject of the transactional regulation may ask to be heard by the steering committee. Transactional regulations are not subject to appeal. Their amount is recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains. "
Art. 56. In section 72 of the Act, as amended by the Royal Decree of 25 March 2003, the following amendments are made:
1° to § 1, 1°, the words "to impose one of the administrative sanctions" are replaced by the words "to impose an administrative fine or a breach according to the terms";
2° to § 1, 2°, the words "administrative sanction" are replaced by the words "administrative fine or a breach";
3° to § 1^er, the 3° is deleted;
4° § 4 is replaced by the following provision:
“§4. Decisions taken by the steering committee pursuant to § 1^er, 1°, as well as the transactional regulations referred to in Article 71, § 3, are published on the CBFA website. In its decision, the steering committee may state that it will be published in a summary or aggregated form, anonymously or not. "
Art. 57. In section 73 of the Act, as amended by the Royal Decree of 25 March 2003, the following amendments are made:
1° the words "and become final" are replaced by the words "and any transactional settlement made by the CBFA with a person who has become final";
2° the words "impute" are replaced by the words "imputent".
CHAPTER III. - Modificative, transitional and abrogatory provisions
Art. 58. If, as of May 20, 2006, a corporation's right to vote securities had already been admitted to negotiations on regulated markets of several Member States without the right to vote securities being allowed to negotiate on a regulated market in the Member State where its registered office is located, and have been admitted simultaneously, the company shall promptly determine the control authority that will be the competent authority.
Section 49, paragraphs 2 and 3, is applicable.
Art. 59. The following amendments are made to section 438 of the Corporate Code:
1° paragraphs 2 and 3 are replaced by the following paragraphs:
"An anonymous company making or publicly using savings within the meaning of paragraph 1^er is required to indicate this quality in its statutes and, where appropriate, to adapt them to comply with the provisions applicable to such companies. The Statute Amendment Act contains the evidence that the company has acquired this quality. The act is subject to a filing and publication in accordance with section 74.
The quality referred to in paragraph 1^er is maintained until the end of the resuming offer referred to in section 513 or until the date on which the board of directors found in an authentic act that it appears from the supporting documents submitted that the securities issued by the corporation are no longer widespread in the public and that the corporation has, therefore, lost the quality referred to in paragraph 1^er. The act is subject to a filing and publication as described in paragraph 2. The statutes must be adapted accordingly. »;
2° paragraphs 4 and 5 are repealed.
Art. 60. ÷ section 513 of the same Code are made the following amendments:
1° § 1^erParagraph 1^er, is replaced by the following provision:
"A natural or legal person, or several natural or legal persons who act together and who hold, together with the corporation, 95% of the securities conferring the right to vote of an anonymous corporation that made or publicly appealed to savings, may acquire, as a result of a public offer of resumption, all the securities with the right to vote or giving access to the right to vote. »
2° § 1^er is completed by the following paragraph:
"By people acting in concert, one must hear:
(a) natural or legal persons acting in concert within the meaning of Article 3, § 1^er, 5°, a), of the law of ... relating to public tenders of acquisition;
(b) natural or legal persons who have entered into an agreement on the concerted exercise of their voting rights with a view to carrying out a sustainable common policy vis-à-vis the corporation concerned;
(c) natural or legal persons who have entered into an agreement relating to the possession, acquisition or assignment of securities conferring the right to vote. »
3° In § 3, the words "subject to § 2" are inserted between the words "the offer of recovery" and ", and in particular".
Art. 61. The King:
1° determines the conditions under which an operation referred to in section 438, paragraph 1^er, the Corporations Code is public in nature, with the faculty also reserved to declare these conditions applicable to companies that had previously made or had already made a public appeal to savings;
2° determines when the securities of a corporation are considered to be no longer widespread in the public for the purposes of section 438, paragraph 3, of the Corporate Code;
3° may foresee and establish the terms and conditions of a transitional regime under which a corporation that, taking into account the conditions determined under the 1°, is no longer considered to be a corporation making or having made public use of savings, may choose to retain that quality for a limited period of time.
Art. 62. In Article 11, § 6, of the Act of 20 July 2004 on certain forms of collective management of investment portfolios, inserted by the law of 20 June 2005, the words ", with the exception of Articles 184, § 1^erparagraphs 2 and 5 and 2, 189 bis, 190, § 1^er, paragraphs 3 and 4, and 195bis, are inserted between the words "book IV, title IX" and "book XI of the Code of Societies".
Art. 63. In Article 15, § 6, of the same Law, the words "184, § 1^erparagraphs 2 and 5 and 2, 189 bis, 190, § 1^erparagraphs 3 and 4, 195 bis, paragraph 1^er, 3°, 196, paragraph 1^er, 5°," are inserted between the words "41," and "439".
Art. 64. Article 16, § 3, paragraph 1^erof the same law, the words ", except articles 184, § 1^erparagraphs 2 and 5 and 2, 189 bis, 190, § 1^erParagraphs 3 and 4, and 195bis, are inserted between the words "Book IV, Part IX" and "Book XI of the Code of Societies".
Art. 65. Article 18 of the Act is supplemented by § 4, which reads as follows:
“§4. In the event of the dissolution, liquidation or restructuring of a common fixed-number investment fund, the provisions of Book IV, Title IX or Book XI of the Corporations Code shall apply by analogy. »
Art. 66. Article 23 of the Act is supplemented by a § 3, which reads as follows:
Ҥ3. In the event of the dissolution, liquidation or restructuring of a joint debt-investment fund, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy. "
Art. 67. Section 98 of the Act, as amended by the Act of 20 June 2005, is supplemented by § 4, which reads as follows:
Ҥ4. In the event of the dissolution, liquidation or restructuring of a joint investment fund with a variable number of institutional units, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy. "
Art. 68. The following amendments are made to section 99 of the Act:
(a) § 1^er is replaced by the following provision:
« § 1^er. Articles 14, paragraph 1^er15, §§ 1^er3-5 and 16 §§ 1^er, 2 and 4, are applicable to the investment company with varying number of institutional units.
Articles 78, 79, paragraph 1^er, 141, 439, 440 to 443, 445 to 448, 453, paragraph 1^er, 1°, 458, 460, paragraph 1^er, 463, paragraph 3, 465, paragraph 3, 466, paragraph 4, 476, 477, 479, 483, 484, 505, 506, 508, 509, 542, 557, 559, 560, 581, 582 to 590, 592 to 607, 612 to 617 and 619 to 628, of the Code of Companies are not applicable.
By derogation from the preceding paragraph, Article 560 of the Corporate Code is applicable in the case referred to in Article 8, § 2, 2°. »
(b) a paragraph 5 is added, which reads as follows:
Ҥ 5. In the event of the dissolution, liquidation or restructuring of compartments of an investment company with varying number of institutional units, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy to compartments.
Each compartment of an investment company with a variable number of institutional units is liquidated separately, without giving rise to the liquidation of another compartment. Only the liquidation of the last compartment leads to the liquidation of the investment company. »
Art. 69. Article 101 of the Act is supplemented by § 4, which reads as follows:
Ҥ4. In the event of the dissolution, liquidation or restructuring of a joint investment fund with a fixed number of institutional units, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy. "
Art. 70. Section 105 of the Act is supplemented by the following paragraph:
"In the event of the dissolution, liquidation or restructuring of a common fund for institutional receivables, the provisions of Book IV, Title IX or Book XI of the Corporate Code shall apply by analogy. "
Art. 71. Article 114 of the Act, as amended by the Act of 20 June 2005, is supplemented by § 4, which reads as follows:
“§4. In the event of the dissolution, liquidation or restructuring of a common privately owned investment fund, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy. »
Art. 72. The following amendments are made to section 115 of the Act:
(a) § 1^er is replaced by the following provision:
« § 1^er. Articles 14, paragraph 1^er15, §§ 1^er3-5 and 16 §§ 1^er, 2 and 4, are applicable to the investment company with a variable number of private shares.
Articles 78, 79, paragraph 1^er, 141, 439, 440 to 443, 445 to 448, 453, paragraph 1^er, 1°, 458, 460, paragraph 1^er, 463, paragraph 3, 465, paragraph 3, 466, paragraph 4, 476, 477, 479, 483, 484, 505, 506, 508, 509, 542, 557, 559, 560, 581, 582 to 590, 592 to 607, 612 to 617 and 619 to 628, of the Code of Companies are not applicable.
By derogation from the preceding paragraph, Article 560 of the Corporate Code is applicable in the case referred to in Article 8, § 2, 2°. »
(b) a paragraph 4 is added, which reads as follows:
Ҥ4. In the event of the dissolution, liquidation or restructuring of compartments of a privately owned investment company, the provisions of Book IV, Title IX or Book XI of the Corporate Code are applicable by analogy to the compartments.
Each compartment of an investment company with a variable number of private shares is liquidated separately, without giving rise to the liquidation of another compartment. Only the liquidation of the last compartment leads to the liquidation of the investment company. »
Art. 73. Article 117 of the Act is supplemented by § 4, which reads as follows:
Ҥ4. In the event of the dissolution, liquidation or restructuring of a common privately owned investment fund, the provisions of Book IV, Title IX or Book XI of the Corporations Code are applicable by analogy. "
Art. 74. § 1^er. Individual or legal persons who, on the date of entry into force of section 5 hold, either alone or in concert, more than 30% of the voting titles of a corporation referred to in this section or designated under that section, are not subject to the obligation to issue an offer, as established in accordance with sections 5 and 8, provided that:
1° that the notification referred to in § 6 and the communication referred to in § 7 have been carried out on a regular basis and within the prescribed time;
2° that, in the event that the notification was made by a corporation, by a corporation other than a corporation or by a similar construction, the identity of the natural or legal person holding the control of that corporation, a legal entity or construction, was notified and communicated in accordance with § 6 and 7.
§ 2. If the persons referred to in § 5 acquire additional titles with the right to vote of the society concerned, then this acquisition does not take the obligation to launch an offer, provided that the provisions of §§ 6 to 8 are respected.
Neither does the obligation to initiate an offer, the acquisition of voting securities of a corporation referred to in or designated under section 5 by third parties to which the exemption referred to in § 1 does not apply.^er and acting together with one or more persons referred to in § 5, provided that the persons referred to in § 5 have complied with the provisions of §§ 6 to 8 and that they continue to hold more than 30% of the titles with the right to vote of the society concerned.
§ 3. In the case of a person who has made the notification referred to in § 6 alone, the exemption is no longer applicable as soon as the person ceases to hold himself or as a result of the intervention of persons related to him or her, more than 30% of the titles with the right to vote of the company concerned.
Where persons referred to in § 5, 3° or 4° have acquired notified titles of a person who has made the notification referred to in § 6 alone, the exemption is no longer applicable as soon as they cease to hold, if any with that person or as a result of the intervention of persons who are related to him more than 30% of the titles with the right to vote of the society concerned.
In the case of persons acting in concert, the dispensation is no longer applicable as soon as these persons cease to hold together or as a result of the intervention of persons related to them, more than 30% of the titles with voting rights of the company concerned.
The dispensation in the head of one of the persons involved in the concert action is no longer applicable as soon as the person exceeds, either alone or as a result of the intervention of the persons related to him, the 30% threshold of the titles with the right to vote as a result of the acquisition of titles.
The waiver of the requirement to launch an offer is, however, maintained if the threshold is upward after being cut by not more than 2%, as long as the upward crossing remedies the downward crossing in a 12-month period.
§ 4. Where the corporation's voting rights are held by a corporation or by a corporation other than a corporation, the exemption is no longer applicable as soon as the control of that corporation or corporation is transferred.
Where the titles with the right to vote of the society concerned are held by a similar construction within the meaning of § 9, paragraph 2, the dispensation is no longer applicable as soon as the majority of the rights of the persons holding control within the meaning of § 9, paragraph 2, ceases to be held by the persons referred to in § 5.
§ 5. The dispensation of the obligation to launch an offer under § 1^er benefits the following persons:
1° natural or legal persons who, on the date of entry into force of section 5, hold, either alone or in concert, more than 30% of the voting titles of a corporation referred to in or designated under that section;
2° in the case where the voting rights of the corporation concerned are held by a corporation, by a corporation other than a corporation or by a similar construction, the natural or legal persons holding control of such entities;
3° the spouse, the parents or allies up to the fourth degree of a natural person referred to in 1° or 2° who, as a result of a transfer between alive or because of death, acquires titles with the right to vote which have been notified under § 6 and which, if any, remain subject to a notified concert action;
4° the companies whose titles with the right to vote are held up to 95% at least by the persons referred to in 1° to 3°, as well as other legal persons or constructions whose control is exercised by the persons referred to in 1° to 3°, and who acquire titles with the right to vote that have been notified under § 6 and that remain, if any, subject to a notified concert action.
§ 6. Within 120 working days after the date of entry into force of Article 5, the persons referred to in § 5, 1 and 2° shall notify the CBFA, by registered letter with acknowledgement of receipt.
The notification mentions the identity of each title holder, whether or not it acts in concert and the parties involved in the concert action, the importance of its participation and, where appropriate, the natural or legal persons holding control. In the case of persons acting in concert, the notification addressed to the CBFA is accompanied by a communication of the terms and conditions of the concert action agreement.
§ 7. Within 120 working days after the date of entry into force of Article 5, the persons referred to in § 5, 1 and 2° shall send a communication to the society concerned, by registered letter with acknowledgement of receipt.
This communication mentions the identity of each holder of titles, whether or not they act together and the parties involved in the concert action, the importance of their participation and, where appropriate, the natural or legal persons holding control; However, this communication must not mention the name of natural persons and natural persons holding the control referred to in § 5, 2°, who hold directly or indirectly in the society concerned an interest representing less than 3% of the titles with the right to vote of that society.
This communication is the subject of a publication by the company concerned; It is published in the annual report of the corporation in question, as long as it remains relevant.
§ 8. Any transfer of securities with the right to vote of the corporation concerned or any modification of the interest held by the natural or legal person holding control in a corporation, a legal person other than a corporation or similar construction that holds securities in the corporation concerned, shall be notified annually to the CBFA from the date of entry into force of Article 5. It is also communicated, on the same frequency, to the company concerned.
§ 9. The definitions and presumptions set out in section 3 are applicable to this section.
For the purposes of this section, it is necessary to hear by "physical or legal persons holding control" natural or legal persons who directly or indirectly exercise control over a corporation or on a legal person other than a corporation, irrespective of the legal form of that entity or whatever the right of which it is under, or, in the case of a "similar construction", natural or legal persons who are directly or indirectly of the persons
Art. 75. With the exception of section 18bis, chapter II of the Act of March 2, 1989 on the advertisement of significant participations in publicly traded companies and regulating public tenders, as amended by the Act of June 16, 1998, the Act of March 10, 1999, the Royal Decree of July 13, 2001, the Act of August 2, 2002 and the Act of July 20, 2004, is repealed on the date fixed by the King.
The Act of 22 April 2003 on public offers of securities, as amended by the Act of 20 July 2004, is repealed on the date fixed by the King.
Art. 76. The King shall take the enforcement orders of this Act on the proposal of the Minister of Finance, except those relating to sections 8, paragraph 2, 5, and 61.
The King shall take the enforcement orders of section 61 on the proposal of the Minister of Justice.
The King shall take the enforcement orders of section 8, paragraph 2, 5, on the proposal of the Minister of Justice and the Minister of Finance.
Art. 77. The King shall, possibly by section or group of articles, establish the date of entry into force of this Act. In this context, it may determine the terms and conditions of entry into force for current files.
By derogation from the first paragraph, articles 52 to 57 come into force on the day of the publication of this law to the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels, 1^er April 2007.
ALBERT
By the King:
Deputy Prime Minister and Minister of Finance,
D. REYNDERS
Deputy Prime Minister and Minister of Justice,
Ms. L. ONKELINX
Minister of Economy,
Mr. VERWILGHEN
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Parliamentary references:
Documents of the House of Representatives:
51 2834/2006/2007.
001: Bill.
002 and 003: Amendments.
004: Report.
005: Text adopted by the Finance Committee and Budget.
Full report: 15 February 2007.
Documents of the Senate:
3-2071-2006/2007
No. 1: Text adopted by the commission.
No. 2: Text adopted in plenary and subject to Royal Assent.
Annales du Sénat : 15 mars 2007.