Machine Translation of "Law On Public Offers Of Investment Instruments And Admission Of Investment Instruments To Trading On Regulated Markets (..." (Belgium)

Law On Public Offers Of Investment Instruments And Admission Of Investment Instruments To Trading On Regulated Markets (1)

Original Language Title: Loi relative aux offres publiques d'instruments de placement et aux admissions d'instruments de placement à la négociation sur des marchés réglementés (1)

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belgiquelex.be - Carrefour Bank of Legislation

16 JUIN 2006. - Public Offerings of Investment Instruments Act and Admissions of Investment Instruments to Negotiation in Regulated Markets (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act provides for, inter alia, the transfer of Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published in case of tender to the public of securities or for the admission of securities to the negotiation, and amending Directive 2001/34/EC, and Directive 2005/1/EC of the European Parliament and the Council of 9 March 2005 amending Directives 73/199/ EEC, 85/611/EEC, 91/675
PART II. - Definitions
Art. 3. § 1^er. For the purposes of this Act, it is necessary to hear by "public offer" a communication addressed in any form and by any means to persons and presenting sufficient information on the terms and conditions of the offer and on the investment instruments to be offered, so as to put an investor in a position to decide to buy or subscribe these investment instruments, and that is done by the person who is in a position to issue or give account.
Is presumed to act on behalf of the person who is in a position to issue or assign the investment instruments, any person who directly or indirectly perceives remuneration or advantage on the occasion of the offer.
§ 2. For the application of § 1^er, do not have a public character, the following categories of offer:
(a) offerings of investment instruments only to qualified investors;
(b) offers of investment instruments to less than 100 natural or legal persons, other than qualified investors, by Member State of the European Economic Area;
(c) offers of investment instruments that require a counterparty of at least 50,000 euros per investor and by separate offer;
(d) offers of investment instruments with a nominal unit value of at least 50,000 euros;
e) offers of investment instruments whose total amount is less than 100,000 euros.
Paragraph 1^er, e), is not applicable to offers relating to investment instruments, other than securities, which consist of futures contracts requiring no investment at the time of their conclusion, but whose liquidation is effected by a cash settlement or by delivery of the underlying to the benefit of one of the parties.
Where there is a resale of investment instruments that have previously been subject to one or more of the types of offer referred to in paragraph 1^erthe definition referred to in § 1^er and the criteria set out in paragraph 1^er this subsection applies to determine whether this resale is a public offer.
§ 3. For the application of § 1^er, do not constitute offers the free assignment of investment instruments.
§ 4. By derogation from § 1^erdo not constitute public offers in Belgian territory:
1° the only fact for a financial intermediary established in Belgium to notify its customers, who have entrusted them with their depositary instruments, of the launch of a public offer outside Belgian territory in order to enable them to exercise their rights as holders of the said investment instruments;
2° the only fact for the issuer of the said investment instruments to authorize subscriptions by Belgian residents in the exercise of the aforementioned rights.
§ 5. The threshold of 100,000 euros regarding the total amount of the offer referred to in § 2, paragraph 1^er, e), and the threshold of 2.500,000 euros regarding the total amount of the offer referred to in articles 15, 18, 22, 37 and 42 must be calculated over a period of 12 months.
Art. 4. § 1^er. For the purposes of this Act, "investment instruments" must be heard:
(1) securities;
2° instruments of the monetary market;
3° the rights directly or indirectly relating to movable or immovable property, organized in association, indivision or grouping, in law or in fact, not conferring on the holders of these rights the deprivation of such property whose collective management is entrusted to one or more persons acting in a professional capacity;
4° future financial contracts, including those in cash;
5° interest rate futures contracts ("forward rate agreements");
6° the exchange contracts ("interchanges") on interest rates or currencies and exchange contracts on shares or equity indices ("equitable swaps");
7° foreign exchange and interest-rate option contracts and all other options contracts to acquire or dispose of, inter alia, by way of subscription or exchange, investment instruments referred to in this section, including optional contracts in cash;
8° derivative contracts on precious metals and raw materials;
9° representative contracts of rights on investment instruments other than securities;
10° all other instruments enabling financial investment, regardless of the underlying assets.
§ 2. However, the following instruments are not investment instruments within the meaning of § 1^er :
1° deposits of money sought or received by institutions or institutions referred to in Article 4, paragraphs 1^er and 2, 1° to 4° and 6°, of the Act of 22 March 1993 relating to the status and control of credit institutions;
2° foreign exchanges, precious metals and raw materials;
3° the contracts referred to in Article 2 of Directive 2002/83/EC of the European Parliament and the Council of 5 November 2002 concerning direct life insurance, concluded by insurance companies.
Art. 5. § 1. For the purposes of this Act, all categories of negotiable investment instruments in the capital market (with the exception of payment instruments) must be heard by "securities" such as:
1° shares of companies and other investment instruments equivalent to shares of companies, partnership-type companies or other entities, including investment instruments issued by collective investment organizations, in the form of a contract or a trust, in representation of the rights of participants on the assets of these organizations, as well as representative certificates of shares;
2° obligations and other debt or borrowing securities, including representative certificates of such securities and real estate certificates;
3° any other value giving the right to acquire or sell such values or giving rise to a cash settlement, the amount of which is determined by reference to securities, currency, interest rate or return, raw materials or other indices or measures.
§ 2. Monetary market instruments are not securities within the meaning of § 1^er.
§ 3. By "monetary market instruments", it is necessary to hear all categories of instruments usually negotiated in the monetary market whose maturity is less than 12 months.
§ 4. By "real estate certificates", it is necessary to hear the debt titles incorporating rights on income, products and prices for realizing one or more real estate properties determined during the issuance of certificates.
Ships and aircraft are similar to buildings.
Art. 6. For the purposes of this Act, the following two categories of securities shall be distinguished:
1° the "capital securities": shares and other securities assimilable to shares, as well as any other securities conferring the right to acquire one of the aforementioned securities as a result of a conversion or exercise of that right, provided that the values of the second class are issued by the issuer of the underlying shares or by an entity belonging to the group of the said issuer;
2° securities other than capital: all securities that are not capital securities.
Art. 7. § 1^er. For the purposes of this Act, it is necessary to hear by "Member State of Origin":
(i) for any issuer of type A securities having its registered office in a Member State of the European Economic Area, the Member State where the issuer has its registered office;
(ii) for any type B securities issuer, that is, the Member State in which the issuer has its registered office, that is, where the securities considered have been or will be admitted to the negotiation on a regulated market, that is, where the securities are subject to a public offer, depending on the choice of the issuer, offerer or person seeking admission to the negotiation as the case may be;
(iii) for any issuer of type A securities having its registered office in a non-member country of the European Economic Area, i.e. the member State in which type A securities have for the first time been publicly available after 31 December 2003, i.e., where type A securities were first admitted to trading on a regulated market after 31 December 2003, depending on the choice of the issuer,
Transmitters with their registered office in a non-member country of the European Economic Area including securities of type A were already allowed to negotiate on a market regulated in the European Economic Area on 31 December 2003, choose their Member State of origin in accordance with paragraph 1 (iii)^er.
§ 2. For the purposes of this Act, it shall be understood by:
1° "Type A securities": (a) all capital securities, and (b) any securities other than capital of a nominal unit value less than 1000 euros, excluding those that give the right to acquire any transferable title or to receive an amount in cash as a result of the conversion of these securities or the exercise of the rights conferred by them;
2° "B-type securities": (a) all securities other than capital, whose nominal unit value is greater than or equal to 1,000 euros, and (b) any securities other than capital of a nominal value less than 1,000 euros giving the right to acquire any security value or to receive an amount in cash as a result of their conversion or exercise of the rights conferred by them.
§ 3. When securities are issued in a currency other than the euro, the threshold of 1,000 euros referred to in § 1^er will be considered to be achieved if the nominal value of the securities is almost equivalent to 1,000 euros at the time of the offer or admission, as the case may be.
Art. 8. For the purposes of this Act, it shall be understood by:
1° "collective placement organizations other than those of the closed type": organizations in the contractual form (common investment funds managed by a management company) or trust (unit trust) or statutory form (investment company):
(a) the exclusive purpose of which is the pooling of financial means collected from the public and whose operation is subject to the principle of risk distribution, and
(b) whose shares are, at the request of the holders, redeemed or refunded, directly or indirectly, to the assets of these organizations. Such redemptions or refunds are considered to be the fact for a collective investment organization to act so that the value of its shares admitted to the negotiations, on a regulated or non-regulated market, does not significantly deviate from their net inventory value.
2° "share of collective investment organizations": securities issued by collective investment organizations, in the form of a contract (common investment funds managed by a management company) or a trust (unit trust) or a statutory form (investment company), in representation of the rights of participants on the assets of these organizations.
Art. 9. For the purposes of this Act, it shall be understood by:
1° "supplier": a legal or physical person who offers instruments of placement to the public;
2° "issuer": a legal person who has issued, issues or proposes to issue investment instruments;
3° "competent authority": the competent authority for the approval of the prospectus in the Member State of origin;
4° "CBFA": the Banking, Financial and Insurance Commission, Belgian competent authority;
5° "regulated market": any Belgian or foreign regulated market referred to in Article 2, 3°, 5° or 6°, of the Act of 2 August 2002 on the supervision of the financial sector and financial services;
6° "market company": the company referred to in section 2, 7°, of the law of 2 August 2002;
7° "workable day": working day in the banking field, except Saturdays and Sundays.
Art. 10. § 1^er. For the purposes of this Act, "skilled investors" must be heard:
legal entities established in Belgium, approved or regulated as operators in the financial markets, including credit institutions, investment companies, other registered or regulated financial institutions, insurance companies, collective investment organizations and their management companies, pension and pension funds and their management companies, the exclusive use of investment instruments in controlled materials, and the entities established in Belgium, not approved or regulated
(b) the State, regions and communities, the National Bank of Belgium and the international and supranational organizations established in Belgium;
(c) other legal entities, as set out in (a) and (b) established in Belgium, which, according to their last annual or consolidated accounts, meet at least two of the following three criteria: an average number of employees equal to or greater than 250 persons throughout the year, a total of the balance sheet above 43.000.000 euros and an annual net turnover greater than 50.000.000 euros;
(d) legal persons having their registered office in the territory of another Member State of the European Economic Area which are established in Belgium, who do not meet at least two of the three criteria referred to in (c) and are considered qualified investors in the Member State in the territory of which their registered office is located;
§ 2. The King may extend the concept of qualified investors by distinguishing, where applicable, according to the type of investment instruments concerned:
(1) natural persons residing in Belgian territory who have expressly requested CBFA to be considered qualified investors and who meet at least two of the following three criteria:
(i) they made significant transactions in the securities market at least 10 per quarter on average over the previous four quarters,
(ii) the value of their securities portfolio exceeds 500,000 euros,
(iii) they work or have worked in the financial sector for at least one year in a professional position requiring knowledge of securities investments,
(2) any or part of the legal persons having their statutory seat in Belgian territory who do not meet at least two of the three criteria referred to in 1^er, c), and who specifically requested the CBFA to be considered qualified investors.
The CBFA registers the persons concerned. The King determines the registration procedure in this register and the terms and conditions of access to this register for third parties.
Art. 11. For the purposes of this Act, "promotional communication" must be understood: any advertisement relating to a specific public offer of investment instruments or to an admission of trading instruments to specifically promote the subscription or acquisition of such investment instruments, regardless of the medium used.
Art. 12. For the purposes of this Act, it shall be understood by:
1° "Proposal Program": a program that allows the issuance of investment instruments, belonging to a type and/or similar category, in a continuous or repeated manner, for a specified period;
2° "Continued or repeated placement instruments": the investment instruments belonging to the same type/category, issued to the valve or at least two separate occasions over a twelve-month period.
Art. 13. For the purposes of this Act, "intermediation" must be understood: any intervention, even as a temporary or incidental activity, and in any capacity whatsoever, in respect of investors in the placement of a public offer on behalf of the offerer or the issuer, against remuneration or benefit of any kind and granted directly or indirectly by the offerer.
Art. 14. For the purposes of this Act, it shall be understood by:
1° "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;
2° "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;
3° Regulation No. 809/2004: Regulation (EC) No. 809/2004 of the Commission of 29 April 2004 implementing Directive 2003/71/EC of the European Parliament and of the Council with regard to the information contained in the prospectus, the structure of the prospectus, the inclusion of information by reference, the publication of the prospectus and the dissemination of communications of a promotional nature;
4° "Law of August 2, 2002": the Act of August 2, 2002 on financial sector surveillance and financial services;
5° "July 20, 2004 Act": the Act of July 20, 2004 on certain forms of collective investment portfolio management.
PART III. - Object
Art. 15. § 1^er. This Act provides:
1° public tenders of investment instruments made in Belgian territory and admissions of instruments of placement in the negotiation on a Belgian regulated market, and
2° without prejudice to Article 22, § 2, the prospectus and communications of a promotional nature concerning public tenders of securities of a total amount greater than or equal to 2,500,000 euros, carried out in the territory of one or more Member States of the European Economic Area, excluding Belgium, and admissions of securities to trading on one or more regulated markets in one or more Member States of the European Economic Area, excluding Belgium, when Belgium is the Member State of origin.
§ 2. In the opinion of the CBFA, the King may make applicable certain provisions of this Act, with the exception of Chapter II of Title IV, to the admissions of trading instruments on the Belgian market(s) it determines, which are accessible to the public and are not regulated markets, distinguishing, where applicable, according to the type of investment instruments concerned.
§ 3. In the opinion of the CBFA, the King may make applicable certain provisions of this Act, with the exception of Chapter II of Title IV, to admissions to negotiations on a foreign market accessible to the public that is not a regulated market, of investment instruments issued by companies having their registered office in Belgian territory, where these investment instruments are not otherwise admitted to a regulated market, by distinguishing as appropriate from the type of investment concerned.
§ 4. On the advice of the CBFA, the King may, under the conditions it determines, declare all or part of the provisions of this Act not applicable:
1° to admissions to trading in regulated Belgian markets that it determines investment instruments that are not securities, that it determines, when these admissions are requested by the market company, and
2° to public offerings, made in Belgian territory, by credit institutions or investment companies that it determines, of investment instruments other than securities that it determines, provided that these instruments are allowed to negotiate in the regulated markets that it determines.
§ 5. On the advice of the CBFA, the King may, subject to the conditions that it determines, declare all or part of the provisions of this Act not applicable to public tenders of investment instruments that are not securities that it determines, when these offers are made by credit institutions or investment companies that it determines, provided that these credit institutions or investment companies are the issuers of the instruments concerned.
Art. 16. § 1^er. By derogation from section 15, this Act does not rule:
1° public tenders and admissions to the negotiation of shares issued by non-registered collective investment organizations;
2° public sales of investment instruments ordered by law;
3° public offerings and admissions to the negotiation of shares of capital in the central banks of the Member States of the European Economic Area;
4° public offerings and admissions to the negotiation of securities other than capital issued by a Member State of the European Economic Area or by one of its regional or local authorities, by international public organizations to which one or more adhere Member States of the European Economic Area, the European Central Bank or the central banks of the European Economic Area member states;
5° public offers and admissions to the negotiation of securities unconditionally and irrevocably guaranteed by a Member State of the European Economic Area or by one of its regional or local authorities;
6° public offers and admissions to the negotiation of securities other than capital issued on a continuous or repeated basis by credit institutions established in Belgium or by credit institutions under the law of others Member States of the European Economic Area and not established in Belgium as long as those securities other than capital:
(i) not subordinate, convertible or exchangeable,
(ii) do not confer the right to subscribe or acquire other types of securities and are not related to a derivative instrument,
(iii) materialize the receipt of refundable deposits,
(iv) be granted a deposit guarantee system in accordance with Directive 94/19/EC on deposit guarantee systems;
7° public offers and admissions to the negotiation of securities other than capital issued on a continuous or repeated basis by credit institutions established in Belgium or by credit institutions under the law of others Member States of the European Economic Area and not established in Belgium, when the total amount offered over 12 months is less than 50.000.000 euros, as long as those securities other than capital:
(i) not subordinate, convertible or exchangeable,
(ii) do not confer the right to subscribe or acquire other types of securities and are not related to a derivative instrument,
(iii) be granted a deposit guarantee system in accordance with Directive 94/19/EC on deposit guarantee systems;
8° public tenders of investment instruments issued by associations enjoying legal status or by non-profit organizations, recognized by a Member State of the European Economic Area, in order to obtain the means necessary for the realization of their non-profit objectives.
§ 2. Where the public offer or application for admission to the negotiation relates to securities referred to in § 1^er, 4°, 5° or 7°, the issuer, offerer or person seeking admission to the negotiation, as the case may be, has the choice to submit the transaction to this Act, and in particular Chapter II of Title IV, in order to benefit from the community scope of approval of the prospectus, as referred to in section 36.
PART IV. - The prospectus
CHAPTER I^er. - Obligation to publish a prospectus
Section 1^re. - Scope of application
Art. 17. This chapter applies to any public offer of investment instruments made on Belgian territory and to any admission of instruments to be negotiated on a Belgian regulated market.
Art. 18. § 1^er. By derogation from section 17, this chapter does not apply to public tenders for the following categories of investment instruments:
(a) the shares of cooperative companies approved under section 5 of the Act of 20 July 1955 establishing a National Council of Cooperation provided that the acquisition or possession of these shares constitutes the condition for their holder to be eligible for the services rendered by these cooperative companies and provided that the total amount of the offer is less than 2.500,000 euros;
(b) shares issued in substitution of shares of the same class already issued, if the issuance of these new shares does not result in an increase in the share capital;
(c) the investment instruments offered as part of a public tender for acquisition by means of a public exchange offer, provided that information considered by the CBFA as equivalent to that required by the prospectus is made available to the interested parties;
(d) the securities issued as part of a merger or as a counterpart to non-digital contributions, provided that such transactions include an offer and, provided that information considered by the CBFA as equivalent to those required by the prospectus is made available to the interested parties;
(e) dividends paid in the form of shares of the same class as those entitled to these dividends, provided that a document containing information on the number and nature of the shares and on the reasons and terms of the offer is made available to the interested parties;
(f) the securities offered to directors or employees who are old or existing by their employer whose securities are already allowed to negotiate on a regulated market or by a related corporation, provided that a document containing information on the number and nature of the securities offered, as well as on the reasons and terms of the offer is made available to the interested parties;
(g) the securities offered to directors or former or existing employees by a corporation related to their employer, provided that these securities are in the same category as those already admitted to trading in a regulated market and that a document containing information on the number and nature of the securities offered, as well as on the reasons and terms of the offer be made available to the interested parties;
(h) the securities offered to administrators or former or existing employees, either by their employer or by a company related to it, provided that the offer is in a total amount less than 2,500,000 euros and that these securities are in the same category as those already admitted to the negotiation on a market outside the European Economic Area, of regular operation, accessible to the public and in the context of which the requirements for information imposed
(i) the securities offered to workers in the execution of participation plans in a total amount less than 2.500,000 euros referred to in the Act of 22 May 2001 on the capital and profits of workers.
§ 2. By derogation from section 17, this chapter does not apply to the negotiation of the following categories of investment instruments:
(a) shares representing less than 10% of the number of shares of the same class already admitted to trading in the same market over a period of twelve months;
(b) shares issued in substitution of shares of the same class already admitted to negotiation on the same market, if the issuance of these new shares does not result in an increase in the share capital;
(c) the investment instruments offered as part of a public tender for acquisition by means of a public exchange offer, provided that information considered by the CBFA as equivalent to the information required by the prospectus is made available to the public in accordance with section 21;
(d) the securities offered, attributed or to be allocated, on the occasion of a merger or in exchange for non-digital contributions, provided that information considered by the CBFA as equivalent to that contained in the prospectus is made available to the public in accordance with section 21;
(e) the shares offered, awarded or to be allocated free of charge to existing shareholders, and the dividends paid in the form of shares of the same class as those entitled to these dividends, provided that these shares are of the same class as those already admitted to the negotiations on the same market and that a document containing information on the number and nature of the shares as well as on the reasons and terms of the offer and the public admission be made
(f) the securities offered, attributed or to be attributed to the former or existing directors or employees, either by their employer or by a corporation related to the latter, provided that these values are of the same category as those already admitted to the negotiation on the same market and that a document containing information on the number and nature of the securities as well as on the reasons and modalities of the offer and admission be made available to the public;
(g) shares resulting from the conversion or exchange of other securities, or from the exercise of rights conferred by other securities, provided that such shares are of the same category as those already admitted to trading in the same market;
(h) securities already admitted to trading in another regulated market under the following conditions:
1°) these securities, or securities of the same class, have been admitted to trading in that other market regulated for more than eighteen months,
2°) for securities first admitted to trading in a regulated market after 1^er July 2005, the admission to negotiations on this other regulated market was made in connection with the approval of a prospectus made available to the public in accordance with section 14 of Directive 2003/71/EC,
3°) except where 2°) is applied, for securities admitted for the first time in the negotiations after 30 June 1983, a prospectus was approved in accordance with the requirements of Directive 80/390/EC or Directive 2001/34/EC as the case may be,
(4) the obligations relating to negotiation in that other regulated market have been fulfilled,
(5) a person who seeks the admission of a security interest to the negotiation under this exemption shall make available to the public in accordance with section 21 a document that shall briefly and in a non-technical language the principal characteristics of the issuer, potential guarantors and securities and the principal risks posed by them; this document specifies where the financial information published by the issuer under its information obligations is available, as well as the most recent prospectus, provided that the issuer is still valid within the meaning of section 35.
§ 3. The CBFA may specify in a regulation adopted in accordance with Article 64 of the Act of 2 August 2002 the information that must be made available in order to meet the equivalence requirement referred to in §§ 1^er(c) and (d), and 2, (c) and (d).
§ 4. The language regime provided for in section 31 applies to information to be made available to interested persons under § 1^er or made available under § 2.
Art. 19. Without prejudice to section 18, for non-harmonized transactions referred to in chapter III, the King may, by order made on the advice of the CBFA, provide for cases in which a total or partial exemption from the obligation to publish a prospectus may be granted by the CBFA.
Section 2. - Publication of a prospectus
Art. 20. Any operation referred to in this chapter requires the prior publication of a prospectus by the issuer, bidder or person seeking to enter into a regulated market, as the case may be.
Art. 21. § 1^er. The prospectus is made available to the public at least three working days before the public offer is closed and, in any case, no later than the day on which it is opened.
Derogation from paragraph 1^er, in the case of a first public offer of a class of shares not yet allowed to negotiate on a regulated market and which must be it for the first time, the prospectus is available at least six working days before the closing of the public offer.
When the admission to negotiation on a regulated market takes place without a concomitant public offer, the prospectus must be made public no later than one working day before the date on which admission to the negotiation becomes effective.
Without prejudice to paragraphs 1^er and 2, when the public offer of investment instruments is preceded by a negotiation of subscription rights, the prospectus must be made public by the day the negotiations are opened.
§ 2. The prospectus is deemed to be made available to the public as soon as it is published under one of the following terms:
(a) by inserting into one or more nationally broadcasted or widely distributed newspapers in Belgium, or
(b) in a printed form made available free of charge to the public in the market offices on which the investment instruments will be admitted to the negotiation, or to the registered office of the issuer and to the offices of the financial intermediaries that place or negotiate the investment instruments concerned, including those responsible for the financial service of the issuer, or
(c) in an electronic form on the issuer's website and, where appropriate, on that of the financial intermediaries that place or negotiate the relevant investment instruments, including those responsible for the financial service of the issuer, or
(d) in electronic form on the market website where admission to negotiation is sought, or
e) in an electronic form on the website of the authority that approved the prospectus, if it has decided to offer this service.
Issuers who publish their flyers in accordance with the terms and conditions referred to in (a) or (b) must also publish them in accordance with the terms and conditions referred to in (c) to the extent that they have a website. When the prospectus was approved by the competent authority of another Member State of the European Economic Area, the issuer is subject to this obligation only in the event that the regulation of that Member State contains a similar obligation.
§ 3. Where the prospectus is made available to the public in electronic format, a paper copy must nevertheless be provided to the investor, free of charge, and upon request, by the issuer, offerer, the person seeking admission to the negotiation or financial intermediaries that place or negotiate the investment instruments concerned.
§ 4. The CBFA publishes on its website a list of the prospectus it has approved during the preceding 12 months, specifying how they have been made available to the public and where they can be obtained and inserting, if any, a hyperlink to the prospectus published on the issuer's website or on the regulated market concerned.
By derogation from the previous paragraph, the CBFA may publish all of the prospectus it has approved for the preceding 12 months on its website or on that of a third party mandated by it for that purpose.
§ 5. When the prospectus is made up of several documents and/or includes information by reference, the documents and information that compose it 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 § 2. 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.
§ 6. The form and content of the prospectus and/or its supplements, as published, are always identical to the original version approved.
CHAPTER II. - The prospectus in the context of operations harmonized by Directive 2003/71/EC
Section 1^re. - Prospectus to be approved by the CBFA
Sub-section 1^re. - Scope of application
Art. 22. § 1^er. This section applies to any public offer of securities of a total amount greater than or equal to 2,500,000 euros and to any admission of securities to the negotiation on one or more regulated markets, where the publication of a prospectus is required under Chapter 1 or the national legislation of the Member State in which the offer or admission takes place, and that Belgium is the Member State of origin.
§ 2. Where the public offer referred to in § 1^er covers a total amount less than 2.500,000 euros, the offerer or the issuer, as the case may be, has the opportunity to submit its offer in this chapter in order to benefit from the community scope of the approval of the prospectus, as referred to in section 36.
Sub-section 2. - Approval of prospectus by CBFA
Art. 23. The prospectus for an operation referred to in this section may only be published after its approval by the CBFA.
This approval does not include any appreciation of the opportunity and quality of the operation, nor of the situation of the person who realizes it.
Subsection 3. - Content of the prospectus
Art. 24. § 1^er. Without prejudice to Article 27, §§ 2 and 3, the prospectus contains all the information that, taking into account the particular nature of the issuer and the securities offered to the public or to admit to the negotiation on a regulated market, are information necessary to enable investors to evaluate the assets, the financial situation, the results and prospects of the issuer and the prospective guarantor, as well as the rights attached to these securities.
This information is presented in an easy to analyze and understand format.
§ 2. Except where the prospectus relates to the admission to negotiation on a regulated market of securities other than capital with a nominal unit value of at least 50,000 euros, the prospectus must include a summary which briefly outlines and in a non-technical language the principal characteristics of the issuer, the prospective guarantor and the principal risks presented by the issuer. The summary also includes a warning indicating:
a) that it must be read as an introduction to the prospectus, and
(b) any decision to invest in the relevant securities must be based on a comprehensive review of the prospectus, and
(c) that, where an action concerning the information contained in the prospectus is brought before a court, the complainant may, according to the national law of the State in which the said court is located, have to bear the costs of translation of the prospectus before the commencement of judicial proceedings, and
(d) that no civil liability may be attributed to anyone on the basis of the only summary, or its translation, except misleading, inaccurate or contradictory content of the other parts of the prospectus.
Art. 25. The prospectus contains the indication that it was approved by the CBFA in accordance with section 23.
Except for the indication referred to in paragraph 1^er, no mention of the CBFA intervention can be made in the prospectus and its possible supplements.
Art. 26. § 1^er. The information to be included in the prospectus is provided by Regulation No. 809/2004.
§ 2. By derogation from § 1^erwhere the issuer has its registered office in a country not a member of the European Economic Area, it may prepare a prospectus according to the legislation of that country, provided that:
1° the prospectus was developed according to international standards enacted by the international organizations of the value commissions, including the ICAO advertising standards, and
2° the information, including financial, required, is equivalent to those required under this Act and Regulation No. 809/2004.
Art. 27. § 1^er. Where the issuer or offerer, as the case may be, does not have the opportunity to include in the prospectus the final price of the offer and the final number of securities offered to the public, the prospectus must include:
- the criteria and/or conditions on which these elements will be determined, or
- the maximum price of the offer.
If the prospectus does not mention the maximum price of the offer, it must indicate that the acceptance of the acquisition or subscription of securities may be revoked for at least two working days after the publication of the final price of the offer and the final number of securities to be offered to the public.
The final price of the offer and the number of securities offered are deposited with the CBFA and, when the transaction is carried out on Belgian territory, published in accordance with Article 21, §§ 2, 3 and 5.
§ 2. CBFA may exempt from including in the prospectus certain information provided for in this Act or in Regulation No. 809/2004 if it considers:
(a) that disclosure of this information would be contrary to the public interest, or
(b) that the disclosure of this information would be a serious harm to the issuer, provided that this omission does not risk misleading the public on facts and circumstances of which knowledge is essential to an informed assessment of the issuer, offerer or potential guarantor, as well as rights attached to the securities on which the prospectus relates, or
(c) that this information is of minor importance and that it is not likely to influence the assessment of the financial situation and the prospects of the issuer, offerer or potential guarantor.
§ 3. Without prejudice to adequate investor information, in exceptional cases where some of the information to be included in a prospectus under Regulation No. 809/2004 is not appropriate to the scope of activity or the legal form of the issuer or to the securities on which the prospectus carries, the prospectus contains information equivalent to the information required, to the extent that it exists.
Sub-section 4. - Form of prospectus
Art. 28. § 1^er. Without prejudice to section 29, the issuer, offerer or person seeking admission to the negotiation may establish the prospectus in the form of a single document or several separate documents.
A prospectus composed of several separate documents subdivides the information required in:
1° a registration document, containing the transmitter information,
2° a note on securities, containing information on securities offered to the public or proposed to negotiate on a regulated market, and
3° a summary.
§ 2. The registration document referred to in § 1^er may be approved by the CBFA outside the scope of the approval of a prospectus, in the perspective of its use for future public offers or admissions to negotiation.
§ 3. The issuer who already has a registration document approved by the CBFA is required to establish only a securities note and a summary, in the event of an offer of securities to the public or the admission of such securities to the trade in a regulated market. In this case, only the note and the summary are submitted for approval by the CBFA.
When a significant change or a new fact likely to affect the investor assessment occurs after the approval of the latest version of the registration document or any supplement established pursuant to section 34, the securities note provides information that should normally be included in the registration document.
§ 4. When the registration document has not yet been approved, all documents are subject to approval by the CBFA.
Art. 29. § 1^er. For the categories of securities listed below, the prospectus may, at the choice of the issuer, offerer or person seeking admission to the negotiation, consist of a basic prospectus containing all relevant information on the issuer and on securities offered to the public or proposed for negotiation:
(a) securities other than capital, as well as all forms of subscription rights and warrants covered, issued as part of an offer program;
(b) securities other than capital issued in a continuous or repeated manner by credit institutions, where:
(i) the amounts collected through their issuance are placed, in accordance with national legislation, in assets sufficient to cover the commitments arising from these securities up to the maturity date of the securities, and
(ii) in the event of the insolvency of the issuing credit institution, the amounts in question shall be assigned as a priority to the reimbursement of the principal and interest due, without prejudice to the provisions of Directive 2001/24/EC of the European Parliament and the Council of 4 April 2001 concerning the remediation and liquidation of credit institutions.
§ 2. If the final terms and conditions of the offer are not included in the basic prospectus or in a supplement, they are deposited with the CBFA and, where the operation is carried out on Belgian territory, published in accordance with Article 21, §§ 2, 3 and 5, as soon as possible, if possible before the launch of the transaction. The prospectus must contain either the criteria and/or conditions on which the final price of the offer and the final number of securities offered will be determined, or the maximum price of the offer.
Art. 30. § 1^er. CBFA may accept that information is included in the prospectus by reference to one or more documents previously published or simultaneously and approved by the competent authority or filed in accordance with Directive 2003/71/EC, and in particular under Article 10, or Parts IV and V of Directive 2001/34/EC. This information is the latest available to the transmitter.
The summary cannot include information by reference.
§ 2. When information is included by reference, a mapping of correspondence must be provided in the prospectus, so that investors can easily find specified information.
Subsection 5. - Linguistic regime
Art. 31. The prospectus must be written in French, Dutch or in a standard language in the international financial sphere and accepted by CBFA.
When the prospectus concerns a public offer of securities that takes place in whole or in part in Belgian territory the summary is prepared or translated into French and Dutch. This translation is carried out under the responsibility of the issuer, offerer or person responsible for drafting the prospectus. By derogation from this rule, if the promotional communications and other documents and notices relating to the operation under VI are broadcast in a single national language, the summary may be established or translated only in that language.
Sub-section 6. - Prospectus approval procedure
Art. 32. § 1^er. The issuer, offerer or person seeking admission to the negotiation, as the case may be, shall notify the CBFA of its intention to conduct an operation referred to in this section.
A notice referred to in paragraph 1^er is attached a file including:
1° the draft prospectus prepared in accordance with this section;
2° where applicable, the conditions for the firm taking of publicly available securities, as well as the composition, rights and obligations of any guarantee or investment union trained for this offer;
3° the possible blocking agreements relating to securities whose admission to negotiation is requested;
4° any special reports prescribed under the law of the companies that are related to the operation;
5° the possible reports of experts to which the prospectus refers;
6° any other relevant document for the examination of the prospectus.
Regardless of the record referred to in paragraph 2, the reports of analysts established in the course of the transaction by members of the guarantee or placement union, as well as the material communicated to analysts by the issuer, offerer or the person requesting the admission to the negotiation for the drafting of these reports, shall be forwarded to the CBFA as soon as possible.
§ 2. If the CBFA considers, for reasonable reasons, that the documents submitted to it are incomplete or that additional information is required, the CBFA shall notify the issuer, offerer or person seeking admission to the negotiation, as the case may be, within 10 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 issuer, offerer or person who seeks the admission to the negotiation that it inserts in the prospectus additional information if the investor protection requires it.
§ 3. Within 10 business days of the submission of a complete record, the CBFA shall notify the issuer, offerer or person seeking admission to the negotiation, as the case may be, as well as the market enterprises concerned, 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 mail to the position or with acknowledgement of receipt, put the CBFA in fact to do so. Such a notice may only take place upon the expiry of a period of 10 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 time after the expiry of a period of 10 working days from the date of the notice referred to in § 1^er. If, at the expiry of a period of 10 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, by 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. The period of 10 working days referred to in § 2 shall be extended to 20 working days if, in the preceding ten years, the CBFA has not approved a registration document or prospectus relating to a public offer of securities of the same issuer or an admission to negotiation on a regulated market of securities of that issuer.
§ 6. 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's decision to approve the prospectus is not subject to appeal.
§ 7. The final version of the approved prospectus must be submitted to the CBFA prior to its publication.
Art. 33. The CBFA may decide, within three working days from the date of receipt of the notice referred to in section 32, § 1^erto delegate approval of a prospectus to the competent authority of another Member State of the European Economic Area, with the agreement of the latter. The CBFA shall promptly notify the issuer, offerer or person seeking admission to the negotiation and shall communicate the record to the competent authority to which approval is delegated. The deadlines for the control and approval of the prospectus begin to run until the date of this notification. The responsibility for the approval of the prospectus is governed by the rules applicable to the competent authority to which approval of the prospectus was delegated.
Sub-section 7. - Supplement to the prospectus
Art. 34. § 1^er. Any significant new facts or any material misstatement or inaccuracy with respect to the information contained in the prospectus, which is likely to influence the valuation of securities and arises or is found between the approval of the prospectus and the final closure of the public offer or, where applicable, the commencement of the negotiation in the relevant market, is mentioned in a supplement to the prospectus.
§ 2. The 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.
§ 3. Investors who have already agreed to buy or subscribe to securities before the supplement is published have the right to revoke their acceptance, for at least two working days after the publication of the supplement. This possibility of revocation must be brought to the attention of investors at the time of publication of the supplement. This possibility of revocation is not applicable in the case of a continuing offer of securities.
Subsection 8. - Length of validity of the prospectus
Art. 35. § 1^er. A prospectus remains valid twelve months after publication, for other public offers or other admissions to negotiations on a regulated market provided that it is updated in accordance with section 34.
§ 2. In the case of an offer program, the basic prospectus remains valid for twelve months after its publication provided that it is supplemented by updated data on the issuer and securities to be offered to the public or proposed for negotiation, in accordance with section 34.
§ 3. In respect of securities other than capital, referred to in Article 29, § 1^er, b), the basic prospectus remains valid until none of the securities other than the capital concerned is issued continuously or repeatedly, provided that it is supplemented by updated data on the issuer and on securities to be offered to the public or proposed for negotiation, in accordance with section 34.
§ 4. A record document within the meaning of Article 28, previously approved, remains valid for twelve months after its approval, provided that it is updated in accordance with Articles 28, § 3, or 34.
Subsection 9. - Community scope for approval of a prospectus by the CBFA
Art. 36. § 1^er. Where a prospectus is subject to the approval of the CBFA or has been approved by the CBFA, the issuer, offerer or person seeking the admission to the negotiation, who wishes to offer the securities covered by the prospectus to the public in the territory of one or more other Member States of the European Economic Area or to request the admission of these securities to the negotiation on a prescribed market or markets located in the territory of
(i) a certificate of approval certifying that the prospectus, and its possible supplements, have been established in accordance with the provisions of this Act that transpose Directive 2003/71/EC, and mentioning the possible application of the provisions of Article 27, §§ 2 and 3, as well as its justification,
(ii) a copy of the prospectus, and its possible supplements and,
(iii) to the extent required, a translation of the summary of the prospectus in the official language(s) of the States on whose territory the offer takes place or the admission is requested. This translation is made under the responsibility of the issuer, the offerer, the person seeking admission to the negotiation or the person responsible for drafting the prospectus.
When the notification request is submitted to the CBFA prior to the approval of the prospectus, the notification shall be made within one working day after the prospectus is approved.
When the notification request is submitted to the CBFA after the prospectus is approved, the notification shall be made within three business days of the application.
§ 2. If significant developments or substantial errors or inaccuracies within the meaning of Article 34, § 1^er, occur or appear after the approval of the prospectus, the issuer, offerer or the person seeking admission to the negotiation has the obligation to publish a supplement to the prospectus. This supplement is approved within a maximum of seven working days, in the same way as the initial prospectus.
§ 3. The procedure referred to in § 1^er is applied for any prospectus supplement established after the notification referred to in § 1^er.
Section 2. - Prospectus approved by the competent authority of another Member State of the European Economic Area
Sub-section 1^re. - Scope of application
Art. 37. § 1^er. This section applies to public tenders of securities of a total amount greater than or equal to 2,500,000 euros made in whole or in part in Belgian territory and to admissions of securities to the negotiation on a Belgian regulated market, when the publication of a prospectus is required under Chapter I and that Belgium is not the Member State of origin.
§ 2. This section also applies to public offers referred to in § 1^er whose total amount is less than 2.500,000 euros, where the issuer or offerer, as the case may be, has decided to have a prospectus approved in accordance with the national provisions made pursuant to Directive 2003/71/EC and the provisions of Regulation No. 809/2004, by the competent authority of the Member State of origin, in order to benefit from the community scope of the approval of the prospectus.
Sub-section 2. - Scope in Belgium of approval of a prospectus by the competent authority of another Member State
Art. 38. § 1^er. Without prejudice to section 3 of this chapter, where a prospectus is to be published under Chapter I of this title as part of an operation referred to in this section, this publication may take place without the prospectus being previously approved by the CBFA and without the insertion of additional information, subject to the following conditions:
1° the prospectus was approved by the competent authority of another Member State of the European Economic Area in accordance with the national provisions made pursuant to Directive 2003/71/EC;
2° the prospectus is still valid within the meaning of section 35;
3° the prospectus is established either in the French or Dutch language, or in a usual language in the international financial sphere and accepted by the CBFA, at the choice of the issuer, the offerer or the person seeking admission to the negotiation. When the prospectus concerns a public offer that takes place in whole or in part in Belgian territory, the summary must be prepared or translated into French and Dutch. By derogation from this rule, if the promotional communications and other documents and notices relating to the operation under VI are broadcast in a single national language, the summary may be established or translated only in that language. The translation of the summary is produced under the responsibility of the issuer, the offerer, the person seeking admission to the negotiation or the person responsible for drafting the prospectus;
4° CBFA received notification of a file including:
(i) a certificate of approval of the prospectus prepared by the authority that approved the prospectus,
(ii) a copy of the prospectus, and
(iii) where applicable, the translation of the prospectus summary.
§ 2. If significant developments or substantial errors or inaccuracies within the meaning of section 34 occur or appear after the approval of the prospectus, the CBFA may draw the attention of the competent authority to approve the prospectus on the need to update the information contained in the prospectus. If the prospectus is the subject of an additional charge, this supplement will benefit from the passport under the conditions set out in § 1^er.
§3. If the final price of the offer and the number of securities offered or the final terms of the offer, as the case may be, are not included in the basic prospectus or prospectus, or in a supplement, the information shall be published in accordance with Article 21, §§ 2 and 3.
Subsection 3. - Conservative measures
Art. 39. When the CBFA determines that irregularities were committed by the issuer, the offerer or the financial institutions responsible for the public tender procedure, it shall inform the competent authority to approve the prospectus.
If, despite the measures taken by the competent authority to approve the prospectus or due to the inadequacy of these measures, the issuer, offerer or public offer financial institutions continue to violate the applicable legislative or regulatory provisions, CBFA may, after informing the competent authority to approve the prospectus, take all necessary measures to protect investors. CBFA informs the European Commission of these measures as soon as possible.
Section 3. - Delegation of approval of a prospectus to the CBFA
Sub-section 1^re. - Scope of application
Art. 40. This section applies to public tenders and admissions to trading in a regulated securities market where the publication of a prospectus is required under Chapter I or the national provisions of the Member State in which the offer or admission takes place and that Belgium is not the Member State of origin.
Sub-section 2. - Delegation of the approval of the prospectus to the CBFA
Art. 41. § 1^er. As part of an operation referred to in this section, the CBFA may agree to be delegated the approval of the prospectus by the competent authority of the Member State of origin.
The CBFA shall notify the authority of the Member State of origin and the issuer, offerer or person seeking admission to the negotiation, inviting it to file a file in accordance with Article 32, § 1^er.
§ 2. Sections 24 to 30 apply with respect to the content and form of the prospectus.
§ 3. For the purpose of examining and approving the prospectus by the CBFA, the prospectus is established either in the French or Dutch language, or in a common language in the international sphere and accepted by the CBFA, at the choice of the issuer, offerer or the person seeking admission to the negotiation.
§ 4. The approval procedure set out in section 32 shall apply.
§ 5. Sections 34 to 36 apply with respect to the supplement to the prospectus, the duration of the prospectus and the community scope of its approval.
§ 6. The prospectus approved by the delegation CBFA may be used to meet the requirement under section 20 under the following conditions:
1° the prospectus is still valid within the meaning of section 35;
2° where the prospectus concerns a public offer that takes place in whole or in part in Belgian territory, the prospectus summary is prepared or translated into French and Dutch. By derogation from this rule, if communications of a promotional nature and other documents and notices relating to Operation VI are broadcast in a single national language, the summary may be established or translated only in that language. The translation of the summary is produced under the responsibility of the issuer or the person responsible for drafting the prospectus.
CHAPTER III. - Prospectus in non-harmonized operations by Directive 2003/71/EC
Section 1^re. - Scope of application
Art. 42. This chapter applies:
1° to public offers of investment instruments other than securities held in Belgian territory;
2° to public offers of securities of a total amount less than 2,500,000 euros that take place in whole or in part in Belgian territory, and 3° to admissions to the negotiation of investment instruments other than securities in a Belgian regulated market;
to the extent that these transactions require the publication of a prospectus under Chapter I^er.
Section 2. - Approval of prospectus
Art. 43. The prospectus for an operation under this chapter may only be published after its approval by the CBFA.
This approval does not include any appreciation of the opportunity and quality of the operation, nor of the situation of the person who realizes it.
Section 3. - Content of the prospectus
Art. 44. § 1^er. Without prejudice to section 46, 4°, the prospectus contains all the information that, taking into account the particular nature of the issuer and the investment instruments offered to the public or proposed for the negotiation, are necessary information to enable investors to evaluate the assets, financial situation, results and prospects of the issuer and the prospective guarantor, as well as the rights attached to these investment instruments.
This information is presented in an easy to analyze and understand format.
§ 2. The prospectus includes a summary that briefly and in a non-technical language outlines the principal characteristics of the issuer, the prospective guarantor and the investment instruments and the main risks presented by them.
The summary also includes a warning indicating:
a) that it must be read as an introduction to the prospectus, and
(b) any decision to invest in the relevant investment instruments must be based on a comprehensive review of the prospectus, and
(c) that no civil liability may be attributed to anyone on the basis of the only summary or translation except misleading, inaccurate or contradictory content of the other parts of the prospectus.
Art. 45. The prospectus contains the indication that it was approved by the CBFA in accordance with section 43.
Except for the indication referred to in paragraph 1^er, no mention of the CBFA intervention can be made in the prospectus and its possible supplements.
Art. 46. The King may, by order taken on the advice of the CBFA:
1° to determine the minimum content of the prospectus and its surcharges, if any, by distinguishing between the type of operation, investment instrument, issuer or market;
2° if it makes use of the authorization referred to in Article 15, § 2, develop a specific plan of prospectus for the admission of trading instruments in certain Belgian markets accessible to the public which are not regulated markets or compartments of such markets, since these instruments of placement, markets or market compartments are determined by Him;
3° if it makes use of the authorization, referred to in Article 15, § 3, develop a specific plan of prospectus for the admission of instruments of placement to the negotiation in certain foreign markets accessible to the public which are not regulated markets or compartments of such markets, since these instruments of placement, markets or market compartments are determined by Him;
4° empowering the CBFA to grant, in special cases, derogations under 1°, 2° and 3° for appropriate, regular and non-nominative advertising of the policy followed.
Art. 47. Where the issuer or offerer, as the case may be, does not have the opportunity to include in the prospectus the final price of the offer and the final number of investment instruments available to the public, the prospectus must include:
- the criteria and/or conditions on which these elements will be determined, or
- the maximum price of the offer.
If the prospectus does not mention the maximum price of the offer, acceptance of the acquisition or subscription of the investment instruments may be revoked for at least two working days after the publication of the final price of the offer and the final number of the investment instruments to be offered to the public.
The final price of the offer and the number of investment instruments offered are deposited with the CBFA and published in accordance with Article 21, §§ 2, 3 and 5.
Section 4. - Form of prospectus
Art. 48. § 1^er. Without prejudice to section 49, the issuer, offerer or person seeking admission to the negotiation may establish the prospectus in the form of a single document or several separate documents.
A prospectus composed of several separate documents subdivides the information required in:
1° a registration document, containing the transmitter information,
2° a note on investment instruments, containing information on investment instruments offered to the public or proposed for negotiation on a regulated market, and
3° a summary.
§ 2. The registration document referred to in § 1^er may be approved by the CBFA outside the scope of the approval of a prospectus, in the perspective of its use for future public offers or admissions to negotiation.
§ 3. The issuer who already has a registration document approved by the CBFA is required to establish only a note relating to investment instruments and a summary, in the event of the offer of instruments for public investment or the admission of these instruments for trading in a regulated market. In this case, only the note and the summary are submitted for approval by the CBFA.
When a significant change or a new fact likely to affect the investor assessment occurs after the approval of the latest version of the registration document or any supplement established pursuant to section 53, the investment instruments note provides information that should normally be included in the registration document.
§ 4. When the registration document has not yet been approved, all documents are subject to approval by the CBFA.
Art. 49. § 1^er. As part of an offer program, the prospectus may, at the choice of the issuer, offerer or person who solicits admission to the negotiation, con- sister in a basic prospectus containing all the useful information on the issuer and on the investment instruments offered to the public or proposed for negotiation.
§ 2. If the final terms of the offer are not included in the basic prospectus or in a supplement, they are published in accordance with Article 21, §§ 2, 3 and 5 and filed with the CBFA, as soon as possible, if possible before the launch of the offer. The prospectus must contain either the criteria and/or conditions on which the final price of the offer and the final number of investment instruments offered will be determined, or the maximum price of the offer.
Art. 50. § 1^er. The CBFA may accept that information is included in the prospectus by reference to one or more documents previously published or simultaneously and approved by the competent authority of the Member State of origin or by the CBFA under this chapter, or filed in accordance with Directive 2003/71/EC, and in particular under Article 10, or Parts IV and V of Directive 2001/34/EC. This information is the latest available to the transmitter.
The summary cannot include information by reference.
§ 2. When information is included by reference, a mapping of correspondence must be provided in the prospectus, so that investors can easily find specified information.
Section 5. - Linguistic regime
Art. 51. The prospectus must be written in French, Dutch or in a standard language in the international financial sphere and accepted by CBFA.
When the prospectus concerns a public offer of investment instruments, the summary is prepared or translated into French and Dutch. This translation is carried out under the responsibility of the issuer, offerer or person responsible for drafting the prospectus. By derogation from this rule, if the promotional communications and other documents and notices relating to the operation under VI are broadcast in a single national language, the summary may be established or translated only in that language.
Section 6. - Procedure for approval of prospectus and granting of prospectus exemptions
Art. 52. § 1^er. The issuer, offerer or person seeking admission to the negotiation, as the case may be, shall notify the CBFA of its intention to conduct an operation referred to in this chapter.
A notice referred to in paragraph 1^er is attached a file including:
1° the draft prospectus prepared in accordance with this chapter and/or the request for a partial or total exemption from the obligation to publish a prospectus;
2° where applicable, the conditions for the firm taking of the publicly available investment instruments, as well as the composition, rights and obligations of any guarantee or investment union trained for this offer;
3° the possible blocking agreements relating to the instruments of placement offered publicly or whose admission to negotiation is requested;
4° any special reports prescribed under the law of the companies that are related to the operation;
5° the possible reports of experts to which the prospectus refers;
6° any other relevant document for the examination of the prospectus or the application for exemption.
Regardless of the record referred to in paragraph 2, the reports of analysts established in the course of the transaction by members of the guarantee or placement union, as well as the material communicated to analysts by the issuer, offerer or the person requesting the admission to the negotiation for the drafting of these reports, shall be forwarded to the CBFA as soon as possible.
§ 2. If the CBFA considers, for reasonable reasons, that the documents submitted to it are incomplete or that additional information is required, the CBFA shall notify the issuer, offerer or person seeking admission to the negotiation, as the case may be, within 10 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 issuer, offerer or person seeking the admission to the negotiation that it includes in the prospectus additional information if it is required by the protection of investors.
§ 3. Within 10 working days of the submission of a complete record, the CBFA shall notify the issuer, offerer or person seeking admission to the negotiation, as the case may be, as well as to the market enterprises concerned, its decision is to approve the prospectus, and to grant, where appropriate, a partial exemption from the obligation to publish a prospectus or to refuse to publish a 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 mail to the position or with acknowledgement of receipt, put the CBFA in fact to do so. Such a notice may only take place upon the expiry of a period of 10 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 time after the expiry of a period of 10 working days from the date of the notice referred to in § 1^er. If, at the expiry of a period of 10 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, by citing the missing elements, or to make one of the decisions referred to in § 3, the request for approval of the prospectus or for a total exemption from the obligation to publish a prospectus is deemed to be rejected.
§ 5. The period of 10 working days referred to in § 2 shall be extended to 20 working days if, in the preceding ten years, the CBFA has not approved a registration document or prospectus relating to a public offer of investment instruments of the same issuer or an admission to negotiation on a regulated market of the investment instruments of that issuer.
§ 6. Only persons who have given the notice provided in § 1^er may lodge an appeal, pursuant to section 121 of the Act of 2 August 2002, against a refusal of the CBFA to approve the prospectus or to grant a total or partial exemption from the obligation to publish a prospectus or against the decision referred to in § 4 stating that the file is incomplete. The CBFA approval decision is not subject to appeal.
§ 7. The final version of the approved prospectus must be submitted to the CBFA prior to its publication.
Section 7. - Supplement to the prospectus
Art. 53. § 1^er. Any significant new facts or any material misstatement or inaccuracy with respect to the information contained in the prospectus, which is likely to influence the valuation of the investment instruments and arises or is found between the approval of the prospectus and the final closure of the public offer or, where applicable, the commencement of the negotiations on the market concerned, is mentioned in a supplement to the prospectus.
§ 2. The 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.
§ 3. Investors who have already agreed to purchase or subscribe to investment instruments before the supplement is published have the right to revoke their acceptance, for at least two working days after the publication of the supplement. This possibility of revocation must be brought to the attention of investors at the time of publication of the supplement. This possibility of revocation is not applicable in the case of an ongoing offer of investment instruments.
Section 8. - Length of validity of the prospectus
Art. 54. § 1^er. A prospectus remains valid twelve months after publication, for other public tenders or other admissions to the negotiation referred to in this chapter, provided that it is updated by the elements required under section 53.
§ 2. In the case of an offer program, a basic prospectus remains valid for 12 months after publication, provided that it is supplemented by updated data on the issuer and investment instruments to be offered to the public or proposed for negotiation, in accordance with section 53.
§ 3. A record document within the meaning of Article 48, previously approved, remains valid for twelve months after its approval, provided that it is updated in accordance with Articles 48, § 3, or 53.
PART V. - Intermediation
CHAPTER I^er. - Scope of application
Art. 55. This title applies to any public offer of investment instruments made in Belgian territory, excluding public tenders of investment instruments issued by collective investment agencies.
CHAPTER II. - Monopole d'intermédiation
Art. 56. Only the following persons or institutions may practice intermediation in the context of public tenders of investment instruments referred to in this title:
(a) the European Central Bank, the National Bank of Belgium and other central banks of the European Economic Area member states;
(b) credit institutions registered in the list referred to 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;
(c) 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;
(d) 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;
(e) the 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;
(f) the investment companies in financial instruments referred to in Book II, Title II, of the Act of 6 April 1995;
(g) investment companies operating under the law of another Member State of the European Economic Area and operating in Belgium under Book II, Title III, of the Law of 6 April 1995;
(h) 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;
(i) 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 intermediation is in accordance with the statute to which they are subject under the decrees pursuant to Book II, Title IV, of the Act of 6 April 1995.
Paragraph 1^er does not prejudice the possibility for the offerer or the issuer to collect acceptances of his public offer himself, or to entrust this task to a company that is related to him in the event that the offer is for the staff of the related company.
PART VI. - Promotional communications and other documents and notices relating to the operation
CHAPTER I^er. - Scope of application
Art. 57. § 1^er. This title applies:
1° to public tenders of investment instruments that take place in Belgian territory and admissions of instruments of placement for negotiation in a regulated Belgian market;
2° to public offers of securities and admissions to the trading of securities in regulated markets where these offers or admissions take place in another Member State of the European Economic Area and have been the subject of a prospectus approved by the CBFA in accordance with Section 1 of Chapter II of Title IV.
§ 2. By derogation from § 1^er, 1°, Article 60 does not apply to public tenders that take place in Belgian territory and admissions to negotiations on a Belgian regulated market that do not require the publication of a prospectus under Chapter I of Title IV.
By derogation from § 1^er, this title, with the exception of section 59, does not apply to public tenders and admissions to the negotiation of investment instruments issued by collective investment organizations.
CHAPTER II. - Content of promotional communications and other documents and notices relating to the operation
Art. 58. § 1^er. Communications of a promotional nature and other documents and notices relating to a public offer or admission to the negotiation referred to in this title, which are broadcast on the initiative of the issuer, the offerer, the person seeking admission to the negotiation or the intermediaries designated by them, shall meet the following requirements:
1° where applicable, they announce that a prospectus has been, is or will be published and indicate where investors can obtain it;
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. Promotional communications must be clearly recognizable as such.
§ 3. Without prejudice to § 1^erany information regarding the provision to the public or the admission to negotiation on a regulated market, regardless of its mode of distribution, even if it has no promotional purpose, must always be consistent with the information provided in the prospectus.
§ 4. Without prejudice to §§ 1^er2 and 3, the King may provide for other requirements for communications, other documents and notices referred to in § 1^er which relate to public tenders or admissions to negotiation in Belgian territory, distinguishing as appropriate according to the type of investment instruments concerned.
Art. 59. The important information provided, in a direct or indirect manner, by the offerer or issuer and directed to qualified investors or to special categories of investors, including those broadcast to meetings related to investment instrument offers and those communicated to financial analysts, is communicated to all investors to whom the offer is addressed.
When a prospectus is to be published in accordance with Chapter I of Title IV or the national legislation of the Member State of the European Economic Area in which the public offer takes place or the admission to negotiation is requested, this information is included in the prospectus or in a supplement to the prospectus.
CHAPTER III. - Control by CBFA
Art. 60. § 1^er. Communications of a promotional nature and other documents and notices relating to a public offer or admission to the negotiation referred to in this title, which are broadcast on the initiative of the issuer, the offerer, the person seeking admission to the negotiation or the intermediaries designated by them, may be made public only after being approved by the CBFA, taking into account the requirements set out in sections 58 and 59, as well as by the orders
§ 2. CBFA shall take action within 5 business days of receipt of promotional communications, other documents and notices referred to in § 1^er.
§ 3. A translation of promotional communications and other documents and notices referred to in § 1^er, in French, Dutch or in a standard language in the international financial sphere and accepted by the CBFA, if applicable, must be forwarded to the CBFA for review at the same time as the original version.
§ 4. Only the offerer, the issuer, the person seeking admission to the negotiation, as the case may be, and/or the intermediaries designated by them may make an appeal in accordance with section 121 of the Act of 2 August 2002, against a refusal by the CBFA to approve communications of a promotional nature, other documents and notices. The decision to approve them is not subject to appeal.
§ 5. 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.
PART VII. - Accountability
Art. 61. § 1^er. When the prospectus is submitted for approval by the CBFA, it clearly identifies who is responsible for the entire prospectus and its possible supplements. Responsible persons are identified by their name and function, or, in the case of legal persons, by their name and registered office.
Only the issuer and its administrative, managerial or supervisory bodies, the offerer, the person seeking admission to the negotiation and the guarantor may assume responsibility for the entire prospectus and its possible supplements.
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 investor, the persons designated 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 prospectus and its possible supplements or by the absence in the prospectus and its possible supplements of the information prescribed by this Act, by Regulation No. 809/2004 or by the decrees taken pursuant to this Act.
The prejudice suffered by the investor is presumed to result, unless otherwise proved, from the absence or misleading or inaccurate nature of the information in the prospectus and its possible supplements, where this absence or misleading or inaccurate character was likely to create a positive feeling in the market or to positively influence the purchase price of the investment instruments.
§ 3. No liability may be attributed to anyone on the basis of the only summary of the prospectus, or its translation, unless it contains information that is misleading, inaccurate or contradictory to the other parts of the prospectus.
§ 4. Notwithstanding any stipulation that is contrary to the investor, the issuer, offerer or the person seeking the admission to the negotiation and the intermediaries designated by the investor are required to repair the damage caused by any communication of a promotional nature or other document or notice relating to the transaction, published on their initiative, which contains misleading, inaccurate or contradictory information in respect of the prospectus or by the non-compliance
The prejudice suffered by the investor is presumed to result, unless otherwise proven, from the misleading, inaccurate or contradictory nature of the information prospectus contained in any promotional communication or other document or notice relating to the transaction, or from the non-compliance of that information with the provisions of section 58 or taken under that section, where that misleading, inexact or contradictory nature or non-compliance was likely to create a positive price
PART VIII. - Operation result
CHAPTER I^er. - Scope of application
Art. 62. This title applies to any public offer of investment instruments made in Belgian territory that requires the publication of a prospectus under Chapter I of Title IV.
CHAPTER II. - Communication of the outcome of the operation
Art. 63. Those who have made a public offer referred to in this title provide CBFA with any useful information on the outcome of this transaction. When the transaction relates to capital securities, they make this result public on the terms determined by the CBFA.
PART IX. - Public communications outside of a public offer
Art. 64. Any communication made in Belgian territory, to the attention of more than 100 natural or legal persons, other than qualified investors, to offer information or advice or to raise requests for information or advice relating to established or not yet created investment instruments that are or will be the subject of an offer for sale or subscription, where such communication emanates from the person who is in a position to issue or assign the investment instruments concerned,
- the offer falls within one of the categories referred to in Article 3, § 2, (c), (d) or (e), or
- investment instruments may be publicly available in Belgian territory without the publication of a prospectus required under Chapter I^er Title IV, or
- the competent authority for the approval of the public offer prospectus has previously been seized of an application for approval or exemption of prospectus and has not yet pronounced on such approval or application for exemption and, where the public offer concerns investment instruments issued by a collective investment agency, the CBFA has before it an application for registration in accordance with section 28 of the Act of 20 July 2004 or
- a public offer prospectus has been duly approved by the CBFA or by the competent authority of another member State of the European Economic Area and the conditions provided for in Article 38 are met and, where the public offer relates to investment instruments issued by a collective investment agency, the agency in question and, where applicable, the compartment concerned are listed under Article 31 of the Act of 20 July 2004 or
Is presumed to act on behalf of the person who is in a position to issue or assign the investment instruments, any person who directly or indirectly perceives the remuneration or benefit of that person in connection with that transaction.
TITRE X. - Annual information
CHAPTER I^er. - Scope of application
Art. 65. § 1^er. This title applies:
- the issuers having their registered office in Belgium and the issuers having their registered office in a country not a member of the European Economic Area whose Belgium is the member State of origin, including securities of type A are allowed to negotiate on a regulated market, and
- to issuers whose securities of type B are allowed to negotiate on a regulated market and who have approved a prospectus by the CBFA under title IV.
§ 2. By derogation from § 1^er, this title does not apply to issuers whose only securities other than capital of a nominal unit value of at least 50,000 euros are allowed to negotiate on a regulated market or that have only approved by the CBFA one or more prospectus of admission of securities other than capital of a nominal unit value of at least 50,000 euros.
CHAPTER II. - Obligation of information
Art. 66. § 1^er. The issuers referred to in this title shall, at least once a year, provide a document containing or mentioning all the information they have published or made public in the last 12 months in one or more Member States of the European Economic Area and in third countries to comply with their obligations under the Community and national legislation concerning the regulation of securities, corporate law, securities issuers and securities markets.
§ 2. When the document refers to information, it specifies where such information can be obtained.
§ 3. The document includes a statement that some information may, if any, be obsolete.
§ 4. The document is filed with the CBFA and made available to the public by one of the means provided for in section 21 no later than 20 working days after the publication of the annual financial statements.
PART XI. - Powers of the CBFA
Art. 67. § 1^er. Without prejudice to the powers referred to in articles 32, § 2, 39, paragraph 2, and 52, § 2, the CBFA shall be entitled:
(a) require the issuer, offerer or person seeking admission to negotiation and persons who control them or are controlled by them to provide information and documents;
(b) to require commissioners and directors of the issuer, offerer or person seeking admission to the negotiation, as well as financial intermediaries involved in the public offer or admission to the negotiation, to provide information;
(c) to enjoin the offerer, the issuer or the person seeking admission to the negotiation to take certain measures if it considers that a public offer or an admission may be made or under conditions that may induce the public in error on the heritage, financial situation, results or prospects of the offerer and/or the issuer or on the rights attached to the investment instruments that are the subject of the offer
(d) suspending a public offer or admission to negotiation until the measures referred to in (c) have been taken;
(e) suspend a public offer or an admission to negotiation for a maximum of ten consecutive working days, whenever it has reasonable grounds to believe that there has been a violation of this Act and its enforcement measures as well as Regulation No. 809/2004;
(f) to prohibit a public offer, if it finds or has reasonable grounds to suspect that there has been a violation of the provisions of this Act and its enforcement measures as well as Regulation No. 809/2004;
(g) require the contracting company concerned to suspend the negotiations for a maximum of 10 consecutive business days, whenever it has reasonable grounds to believe that there has been a violation of this Act and its enforcement measures as well as Regulation No. 809/2004;
(h) to prohibit admission to negotiation or negotiation, if it finds that there has been a violation of the provisions of this Act and its enforcement measures as well as Regulation No. 809/2004;
(i) to suspend for a maximum of 10 business days the broadcast of promotional communications and other documents and notices referred to in section 58 whenever it has reasonable grounds to believe that there has been a violation of this Act;
(j) prohibit or order the withdrawal of the distribution of promotional communications and other documents and notices referred to in section 58, whenever it has reasonable grounds to believe that there has been a violation of this Act;
(k) order the issuer, offerer or person seeking admission to the negotiation to broadcast a correction of promotional communications, other documents or notices issued in violation of this Act;
(l) to make, where appropriate, the distribution of the orderly correction in accordance with (k) if the correction has not been made at the expiry of the time limit set;
(m) to make public any decision made in accordance with (c) to (k), unless the advertisement would seriously disrupt the financial markets or cause disproportionate harm to the parties involved;
(n) to make public the fact that the issuer does not comply with its obligations unless the advertisement could seriously disrupt the financial markets or cause disproportionate harm to the parties involved;
(o) to conduct on-site inspections and expertise, to be informed and copied on-site from any document, file and record, and to have access to any computer system, in order to ensure compliance with the provisions of this Act and its enforcement measures as well as Regulation No. 809/2004, provided that these investigative powers do not extend to private dwellings.
§ 2. Decisions referred to in § 1^er are notified by registered letter to the position or with acknowledgement of receipt, to the issuer, offerer or person seeking admission to the negotiation, as the case may be, and to the relevant market companies.
§ 3. In cases referred to in § 1^er, (e), (g) and (i), the CBFA may renew the suspension measure or the application for suspension addressed to the market company, each time for a period of ten consecutive working days.
§ 4. A person who, at the expiry of the time limit set by the CBFA, fails to comply with an injunction addressed to him 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, greater than 2.500,000 euros.
§ 5. The advertising measures referred to in § 1^er are operated, as the case may be, at the expense of the issuer, the offerer, the person seeking admission to the negotiation or the intermediaries designated by them.
PART XII. - Cooperation between authorities
Art. 68. The CBFA cooperates whenever necessary with the competent authorities of the other Member States of the European Economic Area. CBFA inter alia exchanges information and cooperates:
1° with the competent authority of another Member State of the European Economic Area, which receives, in accordance with Article 36, a file to permit the publication in that other Member State of a prospectus approved by the CBFA;
2° with the competent authority of another Member State of the European Economic Area which approved a prospectus whose publication in Belgium is envisaged in accordance with Article 38;
3° in case of application for suspension or prohibition of the negotiation of securities negotiated in various Member States of the European Economic Area in order to obtain conditions of equal competition between the different trading places and to ensure the protection of investors;
4° in case of delegation by the CBFA of the approval of a prospectus to the competent authority of another Member State of the European Economic Area under Article 33;
5° where the competent authority of another Member State of the European Economic Area has delegated to the CBFA the approval of a prospectus in accordance with Section 3 of Chapter II of Title IV.
In the hypotheses referred to in 1° and 2°, the CBFA and the competent authorities of the other Member States of the European Economic Area shall cooperate from the stage of examination of the case, in particular with regard to new or rare forms of securities and communications of a promotional nature and, if necessary, exchange information on any specific element of the market concerned.
PART XIII. - Criminal and administrative fines
Art. 69. 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 are obstructing the verifications to which they are required to submit under this Act, who refuse or fail to provide information or documents that they are required to provide under this Act or that knowingly give inaccurate or incomplete information or documents;
2° those who contravene articles 20, 23, 38, 43, 56, 59, 60 or 63;
3° those who fail to recognize a suspension or prohibition imposed under section 67 or a refusal to approve the prospectus;
4° those who knowingly publish in Belgium a prospectus or supplement that contains inaccurate or incomplete information that may induce the public in error on the heritage, financial situation, results or prospects of the offerer, the issuer or the person who solicits the admission to the negotiation or the rights attached to the investment instruments that are the subject of the offer or negotiation of which the admission to the negotiation
5° those who knowingly publish in Belgium promotional communications that contain misleading or inaccurate information that may induce the public in error on the heritage, financial situation, results or perspectives of the offerer, issuer or person who solicits admission to negotiation or on the rights attached to the investment instruments that are the subject of the offer or whose admission to the negotiation is requested;
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 60;
9° those who knowingly ignore the prohibition referred to in section 64.
Art. 70. The provisions of Book 1^er the Criminal Code, without exception of Chapter VII and Article 85, shall apply to offences punishable by this Act.
Art. 71. Without prejudice to any other measures taken pursuant to this Act, CBFA may, when it finds an offence under this Act, its enforcement orders or Regulation No. 809/ 2004, 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. 72. The treasury and fines imposed under sections 67, § 4, or 71 are recovered to the benefit of the treasury by the administration of the Cadaster, the Recording and the Domains.
PART XIV. - Miscellaneous, modal and abrogatory provisions
CHAPTER I^er. - Free allocation of investment instruments
Art. 73. § 1^er. Where there is a communication in the Belgian territory concerning a free allocation of investment instruments, by the issuer or the person who is in a position to assign the investment instruments in any form and by any means, and that such communication shall provide sufficient information on the terms and conditions of the award and on the instruments of placement to be attributed, a document containing information on the number and nature of the said instruments, as well as on the reasons
(a) the award is limited to qualified investors;
(b) the award is made to less than 100 natural or legal persons, other than qualified investors;
(c) the allocation relates to investment instruments with a nominal unit value of at least 50,000 euros.
§ 2. Information to be made available to beneficiaries under § 1^er must be written in a national language at least or in a standard language in the international financial sphere and accepted by the CBFA.
CHAPTER II. - Amendments to the Act of 22 March 1993 on the Status and Control of Credit Institutions
Art. 74. Section 4, paragraph 2, 5, of the Act of 22 March 1993 on the Status and Control of Credit Institutions is replaced by the following provision:
"5° to persons, companies and institutions who make offers on sale or subscription to investment instruments by means of which reimbursable funds are collected in accordance with the provisions of the Law on Public Offerings of Investment Instruments and Admissions of Investment Instruments in a regulated market. »
Art. 75. Article 6, § 1^er, paragraph 2, 2°, of the same law, the words "public offers of title and values within the meaning of title II of Royal Decree No. 185 of 9 July 1935" are replaced by the words "public offers of investment instruments or admissions of investment instruments to the negotiation on a regulated market within the meaning of the law of the law on public tenders of investment instruments and the admissions of market instruments to the marketplace".
Art. 76. In Article 32, § 3, paragraph 2, of the same Act, the words "in one or more participating associations for the public issuance of securities within the meaning of Article 26 of Royal Decree No. 185 of 9 July 1935" are replaced by the words "in one or more internal companies constituted for the offer for sale or subscription of investment instruments".
CHAPTER III. - Amendments to the Act of 2 August 2002
Art. 77. § 1^er. In Article 7, § 2 of the Act of 2 August 2002, the words "of the Act of 22 April 2003 relating to public tenders of securities" are replaced by the words "of the law of .. relating to public tenders of investment instruments and admissions of instruments of negotiation on a regulated market".
Art. 78. § 2. Section 15 of the Act is supplemented by the following paragraphs:
"The King, on the advice of the CBFA, may extend the application of sections 3 to 14 and 16 to 20, totally or partially, to the markets and systems referred to in paragraph 1^er. It may declare applicable to these markets and systems certain provisions of the decrees carried out under the aforementioned articles.
The King, on the advice of the CBFA, may extend the application of Articles 1^er to 14bis and 18bis of the Act of 2 March 1989 relating to the advertisement of significant participations in publicly traded companies and regulating public procurement offers, wholly, partially or in a suitable form, to the markets and systems referred to in paragraph 1^er. It may declare applicable to these markets and systems certain provisions of the decrees made pursuant to the aforementioned articles of the Act of 2 March 1989.
In the exercise of the authorization granted to it by this article, the King may, if applicable, set rules for certain types of markets or for individual markets that He designates. »
CHAPTER IV. - Amendments to the Act of 22 April 2003 on public offers of securities
Art. 79. The Act of 22 April 2003 on public tenders of securities is maintained only to the extent that it is related to public tenders. On the effective date of this Act, the Act of April 22, 2003 no longer applies:
1° to public offers for sale or subscription of securities,
2° to admissions to trading securities in a Belgian organized market that is accessible to the public,
3° to public proposals to provide information or advice or to generate information or advice relating to created or not yet created securities that are or will be the subject of a public offer or not.
CHAPTER V. - Amendments to the Act of 20 July 2004
Art. 80. Section 3 of the Act of 20 July 2004 is amended as follows:
(a) 1° is replaced by the following provision:
« 1° « by public offer » :
(a) in respect of the collective investment bodies referred to in Article 4, 1°, (a), and 2°, which collect their financial resources in Belgium:
(i) any communication addressed, in any form and by any means, to persons and presenting sufficient information on the terms and conditions of the offer and the securities to be offered in such a way as to put an investor in a position to decide to buy or subscribe these securities, and that is made by the collective investment agency, by the person who is able to assign the securities or on their behalf.
Is presumed to act on behalf of the collective investment organization or the person who is in a position to assign the securities, any person who directly or indirectly receives remuneration or benefit on the occasion of the offer.
(ii) admission to negotiation on an organized market that is accessible to the public;
(b) in respect of the collective investment organizations referred to in Article 4, 1°, (a), which collect their financial resources abroad, any transaction carried out abroad, relating to the securities of such a collective investment agency where the transaction is subject, in the country concerned, to a specific regulation for the protection of public savings, such as, inter alia, an obligation of prospectus or other similar reporting obligation; »;
(b) in 2°, the words "in 3, 1°, (b)," are replaced by the words "in 3, 1°, (a), (ii),";
(c) 14° is replaced by the following provision:
"14 by "marketing securities of collective investment organizations": the public offer within the meaning of Article 3, 1°, (a), (i), on behalf of a collective place-ment organization, including the receipt and transmission of orders relating to the securities of the said collective investment agency. Is presumed to act on behalf of the collective investment organization, any person who receives, directly or indirectly from the collective investment organization, compensation or benefit on the occasion of the public offer or receipt and transmission of orders relating to the securities of that collective investment organization; »;
(d) the article is supplemented by a 30°, written as follows:
"30° by "intermediation": any intervention, even as a temporary or incidental activity, and in any capacity, in respect of investors in the placement of a public offer of securities of collective investment bodies, referred to in Article 3, 1°, (a), (i), on behalf of the Offeror or collective investment agency, indirectly against remuneration or benefit of any kind and
(e) the article is supplemented by a 31°, written as follows:
"31° by "the law of": the law of . relating to public tenders of investment instruments and admissions of instruments for trading in regulated markets".
Art. 81. Section 5 of the Act is replaced by the following provision:
“Art. 5. § 1^er. For the purposes of Article 3, 1°, (a), (i), the following offers of securities of collective investment organizations do not have a public character:
1° offers of securities addressed only to institutional or professional investors;
2° offers of securities to less than 100 natural or legal persons, other than institutional or professional investors;
3° the offers of securities, other than shares of collective investment organizations with varying number of shares, which require a counterparty of at least 50,000 euros per investor and by securities category;
4° offers of shares of collective investment organizations with varying number of shares, which require a counterparty of at least 250,000 euros per investor and by securities category;
5° the offers of securities, other than shares of collective investment bodies with variable number of shares, whose nominal unit value is at least 50,000 euros;
6° the offers of securities of which the total amount is less than 100.000 euros, calculated over a period of 12 months.
Where there is a resale of securities that have previously been the subject of one or more of the offers referred to in paragraph 1^erthe definition referred to in Article 3, 1°, (a), (i), and the criteria referred to in paragraph 1^er this subsection applies to determine whether this resale is a public offer.
§ 2. For the purposes of Article 3, 1°, (a), (ii), the King may define the concept of public.
§ 3. For the purposes of this Act, "institutional or professional investors" must be heard:
1° national, regional and community governments;
2° the European Central Bank, the National Bank of Belgium and other national central banks, international or supranational organizations, the Fonds des Rentes, the Fonds de protection des dépôts et des instruments financiers and the Caisse des Dépôts et Consignations;
3° legal, Belgian and foreign persons, approved or regulated as operators in the financial markets, including:
(a) Belgian and foreign credit institutions referred to in Article 1^er2 of the Act of 22 March 1993;
(b) Belgian and foreign investment companies whose usual activity is to provide investment services on a professional basis within the meaning of Article 46, 1°, of the Act of 6 April 1995;
(c) (i) companies and insurance organizations referred to in Article 2, §§ 1^er and 3 of the Act of 9 July 1975 on the Control of Insurance Companies;
(ii) foreign insurance companies that do not operate in Belgium; and
(iii) Belgian and foreign reinsurance companies;
(d) Belgian and foreign pension and pension funds and their management companies, referred to in Article 2, § 3, 4° and 6°, of the Act of 9 July 1975 on the control of insurance companies, and any other foreign pension funds;
(e) the Belgian and foreign collective investment bodies referred to in Article 4 of this Act and any other foreign collective investment bodies;
(f) the management companies of Belgian and foreign collective investment organizations referred to in section 138 of this Act and any other foreign collective investment management company;
(g) intermediaries, both Belgian and foreign, in instruments of term placement, within the meaning of Article 4 of the law of the , dealing with raw materials;
(h) other financial, Belgian and foreign institutions, approved or regulated;
4° Belgian and foreign entities, other than those referred to in the 5th of this paragraph, not approved or unregulated as operators in financial markets, whose exclusive social object is investment in investment instruments within the meaning of Article 4 of the Law of ...;
5° companies, funds or other similar entities of foreign law whose main activity is to invest in securities of collective investment bodies or in securitization structures, or to finance collective investment organizations or securitization structures, provided that such companies, funds or other similar entities of foreign law are financed, for that purpose, exclusively to institutional or professional investors recognized by or under this paragraph, or to the foreign
6° the capitalisation companies referred to in Royal Decree No. 43 of 15 December 1934 concerning the control of the capitalisation companies;
7° the coordination centres referred to in Royal Decree No. 187 of 30 December 1982 relating to the establishment of coordination centres;
8° other Belgian and foreign legal entities, than those referred to in 1° to 7°, of this paragraph, which, according to their last annual or consolidated accounts, meet at least two of the following three criteria: an average number of employees equal to or greater than 250 persons throughout the year, a total of the balance sheet greater than 43.000.000 euros and an annual net turnover greater than 50.000.000 euros;
9° other legal persons, companies and foreign institutions that are considered, according to the law under which they belong, either as institutional or professional investors, or as qualified investors for the application of Directive 2003/71/EC of 4 November 2003 concerning the prospectus to be published in the event of an offer to the public in securities or for the admission of securities to the negotiation, and amending Directive 2001/34/EC, or are considered as institutional or professional investors according to the practices.
The King may extend the concept of institutional or professional investors for the purposes of this Act by distinguishing, if any, according to the type or class of collective investment organizations:
1° to natural persons residing in Belgian territory who have expressly requested CBFA to be considered as institutional or professional investors and who meet at least two of the following three criteria:
(a) they made significant transactions in the securities market at least 10 per quarter on average over the previous four quarters,
(b) the value of their securities portfolio, within the meaning of Article 5 of the law of ..., exceeds 500,000 euros,
(c) they work or have worked in the financial sector for at least one year in a professional position requiring knowledge of the investment in securities within the meaning of Article 5 of the Law of ...;
2° to all or part of the legal persons having their statutory seat in Belgian territory who have expressly requested the CBFA to be considered institutional or professional investors and who do not meet at least two of the three criteria referred to in paragraph 1^er8° of this paragraph.
The CBFA registers the persons concerned. The King determines the registration procedure in this register and the terms and conditions of access to this register for third parties.
§ 4. For the purposes of section 4, paragraph 1^er, 1°, c), the King may define :
1° what should be heard by private investors;
2° the conditions and modalities for private investors to assign securities, issued by the private collective investment agency. »
Art. 82. Article 10, paragraph 1^er, the same law is supplemented as follows:
"4° whose operation is subject to the principle of risk distribution. »
Art. 83. Section 17 of the Act is supplemented as follows:
"4° whose operation is subject to the principle of risk distribution. »
Art. 84. In section 30 of the Act, as amended by the Act of 20 June 2005, the following amendments are made:
(a) in paragraph 1^er, first sentence, the word "marketed" is replaced by the words "publicly offered";
(b) the following paragraph shall be inserted between paragraphs 1^er and 2:
"Registration of collective placement organizations with varying number of shares or compartments of such organizations shall be maintained notwithstanding any decision of the collective placement organization, made in accordance with this Act and the decrees and regulations made for its execution, to discontinue the public offer of its shares or parts of its compartments. »
Art. 85. Section 39, paragraph 2, 2°, of the Act is supplemented as follows:
"(v) to Article 69 of the Law of ...".
Art. 86. In Article 41, § 1^er12°, of the same law, the words ", referred to in Article 52, § 2, paragraph 1^er," are inserted between the words "the investment company prospectus" and the words "must indicate the management functions".
Art. 87. The following amendments are made to section 47 of the Act:
(a) in paragraph 1^erthe words " referred to in Article 52" are replaced by the words " referred to in Article 52, § 2, paragraph 1^er.
(b) in paragraph 2, the words " referred to in Article 52" are replaced by the words " referred to in Article 52, § 2, paragraph 1^er, »
(c) in paragraph 3, the words "in articles 52 and 76, § 1^erParagraph 1^er are replaced by the words “in articles 52, § 2, paragraph 1^erand 76, § 1^erParagraph 1^er"
Art. 88. The title of Part II, Book II, Part II, Chapter II, Section III, of the Act is replaced by the following title:
"Section III - Prospectus of public tenders of shares of collective investment organizations with varying number of shares, other documents relating to the public offer of securities of collective investment organizations and intermediation in public tenders of securities of collective investment organizations".
Art. 89. It is inserted in Part II, Book II, Part II, Chapter II, Section III, of the same Act, a subsection first, comprising sections 52 to 62, entitled as follows:
"Subsection 1^er - Prospectus of public offer of shares of collective investment organizations with varying number of shares and other documents relating to the public offer of securities of collective investment organizations".
Art. 90. The following amendments are made to section 52 of the Act:
(a) § 1^er is replaced by the following provision:
« § 1^er. This subsection rules:
1° the public offer prospectus of shares of collective investment organizations with varying number of shares;
2° the notices, advertisements and other documents that relate to a public offer of securities of a collective investment agency, which announce or recommend such offer.
§ 2. A public offer of shares of a group investment agency with a variable number of shares can only be made after a prospectus and a simplified prospectus have been made public.
In the event of a public offer of securities of a collective investment organization, other than that referred to in paragraph 1^era prospectus is made public in the cases and in the manner prescribed by the law of ...".
(b) to § 2, whose current text will form § 3, paragraph 1^er, the words "in titles" are replaced by the words "in shares";
(c) § 3, the current text of which shall form § 4, shall be amended as follows:
(i) paragraph 1^er is replaced by the following provision:
"The information contained in the prospectus and the simplified prospectus must be kept up-to-date, in particular, by any new facts that may influence the public's judgment. »;
(ii) paragraph 2 is repealed.
Art. 91. Article 53, § 1^erthe following amendments are made:
(a) in paragraph 1^erthe words "or supplements" are deleted;
(b) in paragraph 2, the words "in Article 52, § 3" are replaced by the words "in Article 52, § 4".
Art. 92. An article 53bis, as follows, is inserted in the same law:
"Art. 53bis . - Any communication made in Belgian territory, to the attention of more than 100 natural or legal persons, other than institutional or professional investors, that is, to provide information or advice or to induce requests for information or advice relating to shares of collective institutions with a variable number of shares created or not yet created that are or will be the subject of an offer for sale or subscription, where such communication emanates from an organization of measure
1° the offer falls into one of the categories referred to in Article 5, § 1^erParagraph 1^er, 4° or 6°, or
2° a public tender and a simplified prospectus were duly approved by the CBFA.
Is presumed to act on behalf of the collective investment organization or the person who is in a position to assign the securities, any person who directly or indirectly receives remuneration or benefit from the collective investment organization or the person who is in a position to assign the securities. »
Art. 93. The following amendments are made to section 54 of the Act:
(a) in paragraph 1^erthe words "The prospectus and the simplified prospectus, their updates or supplements" are replaced by the words "The prospectus, the simplified prospectus and their updates";
(b) in paragraph 2, the words "in the prospectus, the simplified prospectus, their updates or supplements" are replaced by the words "in the prospectus, the simplified prospectus or their updates."
Art. 94. Section 55 of the Act is replaced by the following provision:
« § 1^er. The simplified prospectus and prospectus clearly indicate who is responsible for the completeness of the prospectus and simplified prospectus and their updates. Responsible persons are identified by their name and function, or, in the case of legal persons, by their name and registered office.
Only the Offeror, the collective investment organization and the designated collective investment organization management company, or their bodies, may assume responsibility for the entire prospectus, simplified prospectus and their updates.
The prospectus and the simplified prospectus revert to a statement by those responsible certifying that, to their knowledge, the data of the prospectus and the simplified prospectus are in conformity with the reality and do not contain an omission that would alter its scope.
Without prejudice to paragraphs 1^er and 2, the simplified prospectus and prospectus may indicate those responsible for part of the prospectus, part of the simplified prospectus and their updates.
§ 2. Notwithstanding any stipulation that is unfavourable to investors, persons designated in accordance with § 1^erParagraph 1^er, shall be held in solidarity with the persons concerned, to repair the damage caused by the absence or misleading or inaccurate nature of the information in the prospectus, the simplified prospectus or their updates.
The prejudice suffered by the investor is presumed to result, unless otherwise proved, from the absence or misleading or inaccurate nature of the information in the prospectus, the simplified prospectus or their updates, where this absence or misleading or inaccurate character was likely to create a positive feeling in the market or to positively influence the purchase or purchase price of the shares.
§ 3. Notwithstanding any stipulation that is contrary to investors, the Offeror, the Collective Investment Organization, the Management Company of Designated Collective Investment Organizations or the intermediaries designated by them shall be liable to compensation for the damage caused by any document referred to in section 53, § 2, and that is published on their initiative, which is misleading, inaccurate or contradictory with respect to the prospectus, the simplified prospectus or their updates
The damage suffered by the investor is presumed to result, unless otherwise proved, from the misleading, inaccurate or contradictory nature of the prospectus, the simplified prospectus or their updates and supplements, of information contained in a document referred to in section 53, § 2, or of the non-compliance of such a document with the provisions prescribed by or under section 56, where that misleading, inexact or contradictory »
Art. 95. Article 56 of the same law, the current text of which shall form § 1^erthe following modifications are made:
(a) in the opening sentence, the words "Without prejudice to § 2" are inserted before the words "The King may,";
(b) at 1°, the words "and supplements" are deleted and the words "that relate to the offer" are replaced by the words "that relate to a public offer of securities of collective investment organizations";
(c) at 2°, the words "and supplements" are deleted and the words "that relate to the offer" are replaced by the words "that relate to a public offer of securities of collective investment organizations";
(d) at 3°, the words "on offer" are replaced by the words "to a public offer of shares of collective placement organizations with varying number of shares";
e) at 4°, the words "and supplements" are deleted and the words "that relate to the offer" are replaced by the words "that relate to a public offer of securities of collective investment organizations";
(f) the article is supplemented by a § 2, which reads as follows:
“§2. Notices, advertisements and other documents that relate to a public offer of securities of collective investment organizations that advertise or recommend such an offer must meet the following conditions:
1° they indicate that a prospectus and, where appropriate, a simplified prospectus has been, is or will be published and indicate where investors can obtain them;
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 and, where applicable, in the simplified prospectus and their updates and supplements if they have already been published or to be included in the prospectus if they are subsequently published.
Promotional communications must be clearly recognizable as such."
Art. 96. The following amendments are made to section 57 of the Act:
(a) to § 1^er, the words "of securities of a collective investment organization" are replaced by the words "of shares of a collective investment organization with varying number of shares";
(b) in § 2, 1°, the words ", if any," are deleted and the words "in Articles 52, §§ 2 and 3" are replaced by the words "in Articles 52, §§ 3 and 4";
(c) § 2, 3°, is replaced by the following provision:
"3° the possible special reports prescribed under the law of the companies that are related to the operation";
(d) § 2, 4°, is replaced by the following provision:
"4° the potential reports of experts to which the prospectus and the simplified prospectus refer";
(e) § 2 is completed as follows:
"5° any other relevant document for the review of prospectus and simplified prospectus";
(f) the article is supplemented by a § 3, written as follows:
“§3. Anyone who proposes to publicly offer securities of a collective investment organization, other than those referred to in § 1^ercommunicates to the CBFA the draft notices, advertisements and other documents that relate to the offer, that announce or recommend it, that are prepared on the initiative of the Offeror, the Collective Investment Organization, the Management Society of Collective Investment Organizations or through the intermediaries designated by them, when making the notice referred to in section 52 of the Law of the ...".
Art. 97. In Article 58 of the Act, the words "Without prejudice to Article 57, § 2, 2°" are replaced by the words "Without prejudice to Article 57, § 2, 2° and § 3".
Art. 98. In section 59 of the Act, the words "in the prospectus, in the simplified prospectus, in their updates or supplements, as well as to appreciate the complete and adequate nature of the notices, advertisements and other documents" are replaced by the words "in the prospectus, in the simplified prospectus or in their updates, as well as to appreciate the complete and adequate nature of the information taken in the notices, advertisements and other documents".
Art. 99. In section 60 of the Act, amended by the Act of 20 June 2005, the words "or supplements" are deleted twice.
Art. 100. The following amendments are made to section 61 of the Act:
(a) in paragraph 1^erthe words “in articles 57, § 1^er and 58 are replaced twice by the words "at Articles 57, §§ 1^er and 3, and 58";
(b) in paragraph 2, the words "or supplements" are deleted.
Art. 101. In section 62 of the Act, as amended by the Act of 20 June 2005, the following amendments are made:
(a) in paragraph 1^er, first sentence, the words “in articles 57, § 1^er and 58 are replaced by the words "at Articles 57, §§ 1^er and 3, and 58";
(b) in paragraph 1^er, second sentence, the words "at 3, 1°, (b)" are replaced by the words "at 3, 1°, (a), (ii),";
(c) in paragraph 2, the words "in articles 57, § 1^er and 58 are replaced by the words "at Articles 57, §§ 1^er and 3, and 58" and the words "or supplements" are deleted;
(d) in paragraph 3, the words "or supplements" are deleted.
Art. 102. It is inserted in Part II, Book II, Part II, Chapter II, Section III, of the Act, a sub-section 2 as follows:
"Subsection II - Intermediation
Art. 62bis. - Only the following persons or establishments may practice intermediation in the context of public tenders of securities of collective investment bodies, referred to in Article 3, 1°, (a), (i), carried out in Belgium:
(a) the European Central Bank, the National Bank of Belgium and other central banks of the European Economic Area member states;
(b) credit institutions listed in the list provided for in section 13 of the Act of 22 March 1993, with the exception of municipal savings funds;
(c) 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;
(d) 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;
(e) the stock exchange companies referred to in Book II, Title II, of the Act of 6 April 1995;
(f) the investment companies in financial instruments referred to in Book II, Title II, of the Act of 6 April 1995;
(g) investment companies operating under the law of another Member State of the European Economic Area and operating in Belgium under Book II, Title III, of the Act of 6 April 1995;
(h) branches established in Belgium of investment companies under State law that are not members of the European Economic Area and operate in Belgium in accordance with Book II, Title IV, of the Law of 6 April 1995;
(i) investment companies under the law of States that are not members of the European Economic Area and operate in Belgium through the provision of services, provided that their intervention as an intermediary is in accordance with the statute to which they are subject under the decrees carried out under Book II, Title IV, of the law of 6 April 1995;
(j) collective investment management companies listed in section 145 of this Act;
(k) the management societies of collective investment bodies under the law of another Member State of the European Economic Area and operating in Belgium under Book III of Part III of this Law, provided that their intervention as an intermediary is in accordance with the status to which they are subject under the decrees taken pursuant to Book III above;
(l) the management societies of collective investment bodies under the law of States that are not members of the European Economic Area and operate in Belgium under Book IV of Part III of this Law, provided that their intervention as an intermediary is in accordance with the statute to which they are subject under the decrees taken in execution of Book IV above.
Paragraph 1^er does not prejudice the possibility for the Offeror or the collective investment agency to collect the acceptances of its offer of securities. »
Art. 103. The following amendments are made to section 73, § 2, of the Act:
(a) the words "a corporation for the management of collective investment bodies of Belgian law listed in section 145 of this Act" are deleted;
(b) the words "as long as this activity is authorized under the law applicable to it" are inserted between the words "of this Act" and the words "to ensure distribution to participants".
Art. 104. The following amendments are made to section 76, § 3, of the Act:
(a) in paragraph 1^er, the words "to the prospectus. are replaced by the words "to the prospectus referred to in Article 52, § 2, paragraph 1^er.
(b) in paragraph 2, the words ", if any," are deleted and the words " referred to in Article 52, § 2, paragraph 1^er." are added after the words "in the simplified prospectus".
Art. 105. The following amendments are made to section 80, paragraph 3, 4, of the Act:
(a) in the first sentence, the words "in the prospectus, the simplified prospectus and their updates or supplements" are replaced by the words "in the prospectus, the simplified prospectus and their updates, relating to an offer referred to in article 52, § 2, paragraph 1^er, »
(b) in the second sentence, the words "of the Offeror, when it is not one of the persons referred to in this paragraph, as well as "very" are inserted between the words "also with" and the words "financial intermediaries".
Art. 106. Article 88, § 1^erParagraph 1^er, 2°, the words ", according to a periodicity determined by the CBFA by regulation" are moved and inserted between the words "as well as" and the words "reported information".
Art. 107. Section 90 of the Act is repealed.
Art. 108. The following amendments are made to section 91 of the Act:
(a) in paragraph 1^er, 1°, the words « referred to in Article 52, § 2, paragraph 1^er," are inserted between the words "that an offer" and the words "risk to be done";
(b) in paragraph 2, first sentence, the words "to suspend the operation" are replaced by the words "to suspend or prohibit the operation for the duration it determines. »;
(c) in paragraph 2, second sentence, the words "or prohibit publication" are inserted between the words "to suspend" and the words "or remove";
(d) in paragraph 3, the words "Article 3, 1°, (b)," are replaced by the words "Article 3, 1°, (a), (ii),";
(e) paragraph 4, first sentence, is replaced by the following provision:
"The CBFA may make public the decision to suspend or prohibit the operation or to suspend, prohibit or withdraw notices, advertisements or other documents relating to the offer, which announce or recommend it, unless the publication may seriously disrupt the financial markets or cause disproportionate prejudice to the parties involved. »;
(f) in paragraph 4, second sentence, the words "unless this publication may seriously disrupt the financial markets or cause disproportionate harm to the parties in question," are inserted between the words "the order of rectification" and the words "and proceed if any";
(g) in paragraph 5, the words ", prohibition" are inserted between the words "to a suspension injunction" and the words "or withdrawal".
Art. 109. The following amendments are made to section 92 of the Act:
(a) to § 1^erParagraph 1^erthe words "Without prejudice to sections 90 and 91" are replaced by the words "Without prejudice to section 91,"
(b) to § 1^er, paragraph 2, 3°, the words "or prohibit" are inserted between the word "stop" and the words "for the duration"; the word "parts" is replaced by the word "titles";
(c) § 1^er, paragraph 2, 4°, is replaced by the following provision:
"4 suspend or prohibit, for the duration it determines, the trading in the securities market of the collective investment organization; »;
(d) to § 1^er, paragraph 2, 6°, the words ", or a compartment of the collective investment organization" are inserted between the words "of the collective investment organization" and the words "and, if any,";
(e) § 1^er, paragraph 2, 6°, is supplemented by the following provision:
"CBFA publishes its decision to the Belgian Monitor".
(f) to § 3, paragraph 1^er, the words "or prohibition" are inserted between the words "of suspension" and the words "are responsible";
(g) in § 3, paragraph 2, the words "or prohibition" are inserted between the words "suspension" and the words "to the Belgian Monitor";
(h) the article is supplemented by a § 8, which reads as follows:
“§ 8. Without prejudice to the measures defined by other laws and regulations, §§ 1^er to 7 are applicable when the CBFA finds that a collective investment organization, or a compartment of a collective investment organization, which is subject to the application of the law of ..., does not work in accordance with the law of ...".
Art. 110. Article 95, paragraph 1^er, of the same law, the words ", or compartments of collective placement bodies" are inserted between the words "Group placement organizations" and the words "whose inscription" and the words ", or compartment," are inserted between the words "holders of the securities of the collective placement organization" and the words "whose offer was made public".
Art. 111. In section 96, § 3, of the same law, the words "Articles 90 and 91" are replaced by the words "Article 91".
Art. 112. Section 97 of the Act is supplemented by the following paragraphs:
"Without prejudice to paragraph 1^er, 2°, in the event of admission to negotiation on an organized market that is accessible to the public of the shares of a collective investment agency with varying number of institutional units or where the shares of such a collective investment agency are held, following the third party, by investors other than institutional or professional investors, it is not impaired the institutional character of the collective investment agency so far as it takes appropriate measures
The King, by order taken on the advice of the CBFA, may determine, if any, taking into account the authorized class of investments for which the collective investment agency has opted, the conditions under which the collective investment agency with varying number of institutional units is presumed to take the appropriate measures, within the meaning of paragraph 2, to ensure the quality of institutional or professional investors of its participants. »
Art. 113. Section 100 of the Act is supplemented by the following paragraphs:
"Without prejudice to paragraph 1^er, 2°, in the event of admission to negotiation on an organized market that is accessible to the public of the shares of a collective investment agency with fixed number of institutional units or when the shares of such a collective investment agency are held, following the third party, by investors other than institutional or professional investors, it is not impaired the institutional character of the collective investment organization so that the investor does not take appropriate measures
The King may, by order taken on the advice of the CBFA, determine, where appropriate, taking into account the authorized class of investments for which the collective investment agency has opted, the conditions under which the fixed-number collective investment agency is presumed to take the appropriate measures, within the meaning of paragraph 2, to ensure the quality of institutional or professional investors of its participants. »
Art. 114. Section 103 of the Act is supplemented by the following paragraphs:
"Without prejudice to paragraph 1^er, 2°, in the event of an admission to the negotiation on an organized market that is accessible to the public of the securities of a collective investment agency in institutional receivables or where the securities of such a collective investment agency are held, through third parties, by investors other than institutional or professional investors, it is not affected by the institutional character of the collective investment organization provided that the investor takes adequate measures to guarantee its investor
The King may, by order taken on the advice of the CBFA, determine the conditions under which the collective investment organization in institutional receivables is presumed to take the appropriate measures, within the meaning of paragraph 3, to ensure the quality of institutional or professional investors of the holders of its securities.
Derogation from paragraph 1^er, 1° and 2°, the collective investment agency in institutional receivables may collect its financial resources exclusively from a single institutional or professional investor as long as it is an institutional or professional investor referred to in Article 5, § 3, 5°. »
Art. 115. Section 113 of the Act is supplemented by the following paragraphs:
"Without prejudice to paragraph 1^er2°, in the event of admission to negotiation on an organized market that is accessible to the public of the shares of a collective investment agency with a variable number of private shares or when the shares of such a collective investment agency are held, following the third party, by investors other than private investors, it is not impaired the private character of the orlen gaism of collective investment to the extent that it takes appropriate measures
The King may, by order taken on the advice of the CBFA, determine, if any, taking into account the class of authorized investments for which the collective investment agency has opted, the conditions under which the group investment agency with a variable number of private shares is presumed to take the appropriate measures, within the meaning of paragraph 2, to guarantee the quality of private investors of its participants. »
Art. 116. Section 116 of the Act is supplemented by the following paragraphs:
"Without prejudice to paragraph 1^er, 2°, in the event of an admission to negotiation on an organized market that is accessible to the public of the shares of a group investment agency with fixed number of private shares or where the shares of such a collective investment agency are held, following the third party, by investors other than private investors, it is not impaired the private character of the group investment agency provided that the private investor does not take adequate measures to guarantee its shareholders
The King may, by order taken on the advice of the CBFA, determine, if any, taking into account the class of authorized investments for which the collective investment agency has opted, the conditions under which the private fixed-number collective investment agency is presumed to take the appropriate measures, within the meaning of paragraph 2, to ensure the quality of private investors of its participants. »
Art. 117. Section 119 of the Act is supplemented by the following paragraphs:
"Without prejudice to paragraph 1^er, 2°, in the event of admission to negotiation on an organized market that is accessible to the public of the shares of a private pricaf or when the shares of a private pricaf are held, through third parties, by investors other than private investors, it is not impaired the private character of the pricaf as long as it takes adequate measures to guarantee the quality of private investors of its
The King may, by order made on the advice of the CBFA, determine the conditions under which the private pricaf is presumed to take the appropriate measures, within the meaning of paragraph 2, to guarantee the quality of private investors of its participants. »
Art. 118. In section 120 of the Act, paragraph 3 is repealed.
Art. 119. In Article 123, § 2, of the same law, the words "as well as the society referred to in Article 120, paragraph 3. » are deleted.
Art. 120. Article 125, § 1^er, in the same law, the words "and by the corporation referred to in section 120, paragraph 3," are replaced by the words "and by persons performing private pricaf management functions."
Art. 121. Section 128 of the Act, as amended by the Act of 20 July 2005, is replaced by the following provision:
"Art. 128. § 1^er. The CBFA shall include the collective investment agencies and the compartments that meet the conditions set out in this Book and the decrees and regulations made for its execution and which are actually publicly available in Belgium.
§ 2. The CBFA deletes by decision notified by registered letter to the position or with acknowledgement of receipt, the registration of collective investment bodies and, if applicable, the registration of the compartments, which have not made a public offer of their securities in Belgium within three months of the registration, which give up the registration or decide to end the public offer of their securities in Belgium.
Derogation from paragraph 1^er, for collective investment organizations with varying number of shares that have decided to put an end to the public offer, in Belgium, of their parts or parts of their compartments, the CBFA deletes by decision notified by registered letter to the post or with acknowledgement of receipt, the registration of these collective investment bodies or their compartments when less than 100 natural or legal persons in Belgium, other than institutional or professional investors, hold these collective investments or units
Section 95 is applicable to this paragraph.
§ 3. Without prejudice to the other measures provided for in this Book, the CBFA may set a time limit for a collective investment agency to comply with the provisions of this Book or the orders or regulations made for its execution.
If the collective investment organization remains in default at the expiry of the period, the CBFA may, the collective investment organization heard or at least duly summoned, inflict a breach on it at a maximum of 2.500,000 euros per offence or 50,000 euros per day of delay.
§ 4. Without prejudice to the other measures provided for in this Book and without prejudice to the measures defined by other laws or other regulations, CBFA may, when it finds an offence to the provisions of this Book or to the measures taken pursuant to these Acts, impose an administrative fine to a collective bargaining agency, which may not be less than 5,000 euros, or greater, for the same fact or for the same set of facts, at 2.500,000 euros.
§ 5. The trespasses and fines imposed under §§ 3 and 4 and articles 131, § 3, and 136 § 3, are recovered to the benefit of the treasury by the administration of the Cadaster, the Recording and the Domains. »
Art. 122. An article 129bis, as follows, is inserted in the same law:
"Art. 129bis . - Any communication made in Belgian territory, to the attention of more than 100 natural or legal persons, other than institutional or professional investors, that is, to provide information or advice or to induce requests for information or advice relating to shares of collective institutions with a variable number of shares created or not yet created that are or will be the subject of an offer for sale or subscription, where such communication emanates from an organization of measure
1° the offer falls into one of the categories referred to in Article 5, § 1^erParagraph 1^er, 4° or 6°, or
2° in respect of shares of collective investment bodies referred to in Part I of this Book, or a compartment of such a body, the CBFA has entered the book in accordance with section 128, or
3° with respect to the shares of collective investment organizations referred to in Part II of this Book, or a compartment of such a body, the CBFA has entered it in accordance with section 128 and a public tender and, where applicable, a simplified prospectus has been duly approved by the CBFA.
Is presumed to act on behalf of the collective investment organization or the person who is in a position to assign the securities, any person who directly or indirectly receives remuneration or benefit from the collective investment organization or the person who is in a position to assign the securities. »
Art. 123. In section 130, paragraph 2, of the Act, the following amendments are made:
(a) the words "or a corporation for the management of Belgian law collective investment organizations listed in section 145 of this Act" are deleted;
(b) the words "as long as this activity is authorized under the law applicable to it" are inserted between the words "of this Act" and the words "to ensure distribution to participants".
Art. 124. Section 131 of the Act is replaced by the following provision:
"Art. 131. § 1^er. Notices, advertisements and other documents that relate to a public offer of securities of a collective investment organization that advertise or recommend such an offer may only be made public after being approved by the CBFA.
No mention of CBFA's intervention may be made in notices, advertisements or other documents that relate to an offer or that announce or recommend it. Articles 55, § 3, 57, § 3, and 58 to 62 are applicable.
§ 2. Without prejudice to paragraph 2 of this paragraph, the King may, by order made on the advice of the CBFA:
1° to determine, depending on the nature of the offer, the minimum content of the notices, advertisements or other documents that relate to the offer or that announce or recommend it;
2° Determine the timelines and modes of publication of notices, advertisements or other documents that relate to the offer or that announce or recommend it.
Notices, advertisements and other documents that relate to the offer, which announce or recommend it, must meet the following conditions:
1° they indicate that a prospectus and a simplified prospectus has been, is or will be published and indicate where investors can obtain them;
2° the information contained therein may not be misleading or inaccurate;
3° the information contained therein is compatible with the information contained in the simplified prospectus and prospectus and their updates if they have already been published or are to be included in it if they are published later.
Promotional communications must be clearly recognizable as such.
§ 3. Section 91 is applicable to notices, advertisements or other documents that relate to the offer or recommend it to the CBFA, which the CBFA considers that they are likely to mislead the public, including the risks inherent in the proposed investment or the rights attached to the securities that are the subject of the offer. »
Art. 125. The following amendments are made to section 132 of the Act:
(a) in paragraph 1^er, the words "Without prejudice to Article 131, § 3," are inserted before the words "CBFA can," and the words "in violation of Article 131 and the legal and regulatory provisions concerning public offer of shares. are replaced by the words "in violation of the provisions prescribed by or under sections 130 and 131";
(b) Paragraph 2 is replaced by the following provision:
“Articles 92, § 1^erParagraph 1^er and paragraphs 2, 1°, 3°, 4° and 6°, §§ 3 and 5 to 7, are applicable".
Art. 126. In section 133 of the Act, the number "62bis" is inserted between the words "to the articles" and the number "78".
Art. 127. Section 134 of the Act is replaced by the following provision:
"Art. 134. § 1^er. The King shall determine, without prejudice to Articles 135 and 136, the conditions to be met by the collective investment bodies which fall under the right of another Member State of the European Economic Area and which do not meet the requirements of Directive 85/611/EEC and the collective investment bodies under the right of States that are not members of the European Economic Area, with a view to their registration and the maintenance of it.
A refusal to register by the CBFA is notified to applicants.
§ 2. Without prejudice to section 136, § 3, of this Act and section 65 of the Act of , CBFA may, by reason of decision, take measures to suspend or prohibit a collective investment agency in the event of non-compliance with the provisions of this Title or the orders and regulations made for its enforcement. Articles 92, § 1^erParagraph 1^er and paragraphs 2, 1°, 3°, 4° and 6°, §§ 3 and 5 to 7, are applicable. »
Art. 128. Section 135 of the Act, as amended by the Act of 20 June 2005, is replaced by the following provision:
“The collective investment bodies referred to in this Title shall be subject to articles 52 to 55, §§ 1^er and 2, 56, 57, §§ 1^er and 2, 62 bis, 75, 76, 77, 78, 79, 80, 2, 82 and 91.
Derogation from paragraph 1^er, the CBFA may, subject to the conditions it determines, authorize a group investment agency with a variable number of shares to publish only a prospectus and not publish simplified prospectus, provided that this collective investment agency is not required to publish a simplified prospectus under the law of the State under which it reports. »
Art. 129. Section 136 of the Act is replaced by the following provision:
"Art. 136. § 1^er. Notices, advertisements and other documents that relate to a public offer of securities of a collective investment organization that advertise or recommend such an offer may only be made public after being approved by the CBFA.
No mention of CBFA's intervention may be made in notices, advertisements or other documents that relate to an offer or that announce or recommend it.
Articles 55, § 3, 57, § 3, and 58 to 62 are applicable.
§ 2. Without prejudice to paragraph 2 of this paragraph, the King may, by order made on the advice of the CBFA:
1° to determine, depending on the nature of the offer, the minimum content of the notices, advertisements or other documents that relate to the offer or that announce or recommend it;
°2 determine the timelines and modes of publication of notices, advertisements or other documents that relate to the offer or that announce or recommend it.
Notices, advertisements and other documents that relate to the offer, which announce or recommend it, must meet the following conditions:
1° they indicate that a prospectus and, where appropriate, a simplified prospectus has been, is or will be published and indicate where investors can obtain them;
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 and, where applicable, the simplified prospectus and their updates and supplements if they have already been published or to be included in the prospectus if they are subsequently published.
Promotional communications must be clearly recognizable as such.
§ 3. Section 91 of the Act is applicable to notices, advertisements or other documents that relate to the offer or recommend it to which the CBFA considers that they are likely to mislead the public, including the risks inherent in the proposed investment or the rights attached to the securities that are the subject of the offer. »
Art. 130. Section 152, paragraph 2, 2°, of the Act is supplemented as follows:
"(v) to Article 69 of the Law of ...".
Art. 131. In Article 154, § 1^er12°, of the same law, the words ", referred to in Article 52, § 2, paragraph 1^er," are inserted between the words "the prospectus" and the words "of the collective investment organization".
Art. 132. Article 197, § 5, of the same law is supplemented by the words "or Article 145".
Art. 133. Article 203 of the same law, of which the current text will form § 1^er, is supplemented by §§ 2, 3 and 4, as follows:
“§2. Without prejudice to the other measures provided for by or under this Act, the CBFA may set a collective investment management company under the right of another Member State of the European Economic Area, established in Belgium a time limit in which it must comply with the provisions determined by or under this Book.
If the collective investment organization management corporation referred to in paragraph 1^er remains in default on the expiry of the period, the CBFA may, the company heard or at least duly summoned, inflict a breach on it at a maximum amount of 2.500,000 euros per offence or 50,000 euros per day of delay.
§ 3. Without prejudice to the other measures provided for by or under this Law, and without prejudice to the measures defined by other laws or other regulations, CBFA may, when it finds an offence to the provisions provided for by or under this Law, impose on a corporation of management of collective investment bodies, falling under the right of another Member State of the European Economic Area, established in Belgium, an administrative fine that may not be less than 5,000 euros,
§ 4. Article 202, §§ 3 and 4, is applicable to CBFA decisions taken under §§ 2 and 3. »
Art. 134. Article 204 of the same law, of which the current text will form § 1^er, is supplemented by §§ 2, 3 and 4, as follows:
“§2. Without prejudice to the other measures provided for by or under this Act, the CBFA may set a collective investment management company under the right of a non-member State of the European Economic Area, established in Belgium a time limit for:
(a) it shall comply with specified provisions of or under this Book, or
(b) it must make the necessary adjustments to its management structure, administrative, accounting, financial or technical organization, or internal control.
If the collective investment organization management corporation referred to in paragraph 1^er remains in default on the expiry of the period, the CBFA may, the company heard or at least duly summoned, inflict a breach on it at a maximum amount of 2.500,000 euros per offence or 50,000 euros per day of delay.
§ 3. Without prejudice to the other measures provided for by or under this Law, and without prejudice to the measures defined by other laws or other regulations, CBFA may, when it finds an offence to the provisions provided for by or under this Law, impose on a corporation of management of collective investment bodies, falling under the right of a State not a member of the European Economic Area, established in Belgium, an administrative fine that may not be less than 5000 euros,
§ 4. Article 202, §§ 3 and 4, is applicable to CBFA decisions taken under §§ 2 and 3. »
Art. 135. The following amendments are made to section 206 of the Act:
(a) 1° is replaced by the following provision:
"1° those who contravene articles 52, § 2, paragraph 1^er, 53, 57, §§ 1^er and 3, 58, 62 bis, 131, and 136; »;
(b) at 2°, the words "that pass over to a suspension or withdrawal made under sections 90, 91, paragraph 2, 131, paragraph 3, or 136, paragraph 3, or fail to know a refusal to approve the prospectus, an update or a supplement to the prospectus" are replaced by the words "the ones that pass over to a suspension, a prohibition or a withdrawal made under sections 91
(c) at 3°, the words "who knowingly publish, or publish, a prospectus, an update or a supplement to the prospectus" are replaced by the words "who knowingly publish, or publish, a prospectus, a simplified prospectus or an update to the prospectus or a simplified prospectus";
(d) at 4°, the words "the ones that make public a prospectus, an update or a supplement to the prospectus," are replaced by the words "the ones that make public a prospectus, a simplified prospectus or an update to the prospectus or a simplified prospectus,"
(e) at 5°, the words "the ones that make public a prospectus, an update or a supplement to the prospectus" are replaced by the words "the ones that make public a prospectus, a simplified prospectus or an update to the prospectus or a simplified prospectus,"
(f) an 8° shall be inserted, as follows:
"8° those who knowingly ignore the prohibition under articles 53bis and 129bis. »
Art. 136. In section 207 of the Act, as amended by the Act of 20 June 2005, the following amendments are made:
(a) at 1°, the words "or in ignorance of a suspension measure referred to in Articles 90, paragraph 1^er, 91, paragraph 2, first sentence, or 92, § 1^er, paragraph 2, 3°" are replaced by the words "or in ignorance of a measure of suspension or prohibition referred to in articles 91, paragraph 2, first sentence, or 92, § 1^er, paragraph 2, 3 or 4";
(b) at 2°, the words "or 134, paragraph 3" are replaced by the words "or 134, § 2";
(c) the 3rd is completed as follows:
", except where this use in Belgium is made by a foreign collective investment agency that is authorized to use such a designation in its country of origin; »;
(d) at 11°, the words "decision of suspension made in accordance with Article 92, § 1^er, paragraph 2, 3;" are replaced by the words "decision of suspension or prohibition made in accordance with Article 92, § 1^erParagraph 2, 3 or 4; "
Art. 137. In Article 208, § 1^er, 1° of the same law, the words "or Book IV of Part III" are inserted between the words " referred to in Article 138" and ", without being approved".
Art. 138. Article 230 of the same law, whose current text forms a § 1^er, is supplemented by § 2, which reads as follows:
“§2. The King may, by order deliberately in the Council of Ministers, take, on the advice of the CBFA, the necessary measures to transpose the mandatory provisions resulting from international treaties or acts taken under them in the matters regulated by this Act. The King may, according to the same procedure, determine that offences against these provisions are subject to administrative measures and sanctions under articles 96, 128, 202, 203 and 204.
Royal orders under paragraph 1^er, may amend, supplement, replace or repeal existing legal provisions.
Royal orders under paragraph 1^er, are repealed in full law when they have not been confirmed by law within twenty-four months after their publication to the Belgian Monitor. »
Art. 139. Section 242 of the Act is supplemented by the following paragraph:
"CBFA is responsible for monitoring compliance with the provisions of the Act of 4 December 1990 as long as they remain in force. For the execution of this mission, it has the skills assigned to it by articles 80 to 96, 128 and 131, § 3, to 135. »
CHAPTER VI. - Future adaptations
Art. 140. The King may, by order deliberately in the Council of Ministers, take, on the advice of the CBFA, measures to transpose the mandatory provisions resulting from international treaties or acts taken under them, as well as the adaptation measures made necessary by the adoption of such international acts, in the matters regulated by this Act. The King may, according to the same procedure, determine that the offences to these provisions are subject to administrative sanctions under section 71.
Royal orders under paragraph 1^er may amend, supplement, replace or repeal existing legal provisions.
Royal orders under paragraph 1^er are repealed in full law when they have not been confirmed by law within twenty-four months after publication to the Belgian Monitor.
CHAPTER VII. - Transposition of Directive 2005/1/EC of the European Parliament and of the Council of 9 March 2005 amending Council Directives 73/239/EEC, 85/611/EEC, 91/675/EEC, 92/49/EEC and 93/6/EEC and Council Directives 94/19/EC, 98/78/EC, 2000/12/EC, 2001/34/EC, 2002/83/EEC and 2002/87/EC to organize, according to a new structure, the relevant financial services committees
Art. 141. § 1^er. In section 37bis of the Act of 9 July 1975 relating to the control of insurance companies, renumbered by the Royal Decree of 12 August 1994 and amended by the Act of 19 November 2004, the following amendments are made:
1° to § 1^erParagraph 1^erthe words "and the competent authorities of other Member States" are inserted between the words "the European Commission" and "any approval";
2° to § 1^er, paragraph 2, the words "this notification" are replaced by the words "Notice to the European Commission";
3° to § 2, paragraph 1^erthe words "and the competent authorities of other Member States" are inserted between the words "European Commisison" and "any acquisition";
4° in § 2, paragraph 2, the words "this notification" are replaced by the words "the notification to the European Commission".
§ 2. Section 82 of the Act, replaced by the Act of 19 July 1991, renumbered by the Royal Decree of 12 August 1994 and amended by the Acts of 26 June 2000, 2 August 2002 and 20 June 2005 and the Royal Decree of 25 March 2003, are amended as follows:
1° to § 1^er, the words "to an insurance company, an insurance company, a joint insurance company or a mixed financial company, of Belgian or foreign law established in Belgium" are replaced by the words "to a company";
2° to § 2, the words "the enterprises referred to in § 1^er have been heard in their defence" are replaced by the words "the enterprise referred to in § 1^er was heard in his defence."
Art. 142. § 1^er. Article 14, paragraph 1^erthe Act of 22 March 1993 on the Status and Control of Credit Institutions, as amended by the Act of 19 November 2004, is supplemented as follows:
"The Banking, Financial and Insurance Commission also informs the supervisory authorities of other Member States of the granting of such approvals. »
Art. 143. § 2. The following amendments are made to section 25 of the Act:
1st paragraph 1^er is completed as follows:
"The Banking, Financial and Insurance Commission also informs the supervisory authorities of the other Member States of the acquisition of such participation in a Belgian credit facility. »;
2° in paragraph 2, the words "to the Commission of the European Communities" are inserted between the words "Notice" and "is accompanied".
Art. 144. § 3. Article 79, § 1^er, of the same law, it is inserted between the 2° and the 3° a 2°bis, written as follows:
"2°bis . Article 14, paragraph 1^erwith respect to the notification to the Commission of the European Communities of the granting of approval to a branch referred to in this title. »
Art. 145. § 1^er. Article 54, paragraph 1^er, of the Act of 6 April 1995 on the Status of Investment Enterprises and their Control, to intermediaries and investment advisors is supplemented as follows:
"The Banking, Financial and Insurance Commission also informs the supervisory authorities of the other Member States of such approval. »
Art. 146. § 2. The following amendments are made to section 68 of the Act:
1st paragraph 1^er is completed as follows:
"The Banking, Financial and Insurance Commission also informs the supervisory authorities of other Member States of the acquisition of such participation in a Belgian law investment company. »;
2° in paragraph 2, the words "to the Commission of the European Communities" are inserted between the words "Notice" and "is accompanied".
Art. 147. § 1^er. Article 146, paragraph 1^er, the Act of 20 July 2004 on certain forms of collective investment portfolio management, the following provision is inserted after the first sentence:
"The CBFA also informs the supervisory authorities of other Member States of the granting of such approval. »;
Art. 148. § 2. The following amendments are made to section 160 of the Act:
1st paragraph 1^er is completed as follows:
"The CBFA also informs the supervisory authorities of the other Member States of the acquisition of such participation in a management company of collective investment bodies of Belgian law. »;
2° in paragraph 2, the words "to the Commission of the European Communities" are inserted between the words "Notice" and "is accompanied".
PART XV. - Transitional provisions
Art. 149. Articles 1^er to 73 does not apply to public offers when the offer period is in progress on the date of their entry into force.
Art. 150. § 1^er. Public collective investment bodies under Belgian law, and where applicable their compartments, listed in section 31 of the Act of 20 July 2004, on the date of entry into force of sections 80 and 81 of this Act, shall retain their registration.
§ 2. Collective investment bodies with varying number of public shares, referred to in § 1^er, shall comply, if any, with the provisions prescribed by or under articles 80 and 81, in that the latter article introduces article 5, §§ 1^er, 2 and 3, in the Act of 20 July 2004, no later than 13 February 2007.
Paragraph 1^er and paragraph 1^er of this paragraph shall also apply to organizations of collective placement with a variable number of public shares, and, where applicable, to their compartments, which are registered, on the date of entry into force of Articles 80 and 81, to the list referred to in Article 120, § 1^erof the Financial Operations and Financial Markets Act of 4 December 1990, pursuant to sections 234 to 236 of the Act of 20 July 2004.
Notwithstanding paragraphs 1^er and 2, the provisions prescribed by or under articles 80 and 81, in that the latter article introduces article 5, §§ 1^er, 2 and 3, in the Act of 20 July 2004, shall apply, upon entry into force, to the compartments created, after the entry into force of the above-mentioned provisions, within collective bodies with a variable number of public shares listed in the list referred to in Article 31 of the Act of 20 July 2004 or to the list referred to in Article 120, § 1^erthe Financial Transactions and Financial Markets Act of 4 December 1990.
§ 3. The provisions prescribed by or under sections 80 and 81 apply to fixed-number collective investment bodies and to public debt collective institutions, as referred to in § 1^er, and if applicable to their compartments, at the first public offer of their securities made after the entry into force of articles 80 and 81.
§ 4. §§ 1^er to 3 shall apply to foreign collective investment organizations, and, where applicable, to their compartments, listed under section 129 of the Act of 20 July 2004 or to the list referred to in section 137 of the Act of 4 December 1990 on financial transactions and financial markets, in accordance with section 239, paragraph 2, of the Act of 20 July 2004.
§ 5. The organizations of collective investment in institutional receivables, and the case beyond their compartments, listed in section 108 of the Act of 20 July 2004, at the date of entry into force of section 81 of this Act, in that this section introduces section 5, § 3, in the Act of 20 July 2004, retain their registration and their institutional character, notwithstanding the fact that they would have, as appropriate, collected
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 on 16 June 2006.
ALBERT
By the King:
Minister of Finance,
D. REYNDERS
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Session 2005-2006.
House of Representatives
Documents. - Bill 51-2344. - No. 1, Bill. - No. 2, Amendment. Report number three. - No. 4, Amendments. - No. 5, supplementary report. - Nr. 6, Text adopted by the commission.
Senate
Documents. - Project not referred to by the Senate.

Law On Public Offers Of Investment Instruments And Admission Of Investment Instruments To Trading On Regulated Markets (1)

Original Language Title: Loi relative aux offres publiques d'instruments de placement et aux admissions d'instruments de placement à la négociation sur des marchés réglementés (1)

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16 JUIN 2006. - Public Offerings of Investment Instruments Act and Admissions of Investment Instruments to Negotiation in Regulated Markets (1)

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