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14 DECEMBER 2005. - Act deleting carrier securities (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. For the purposes of this Act:
1° "titles" :
- shares, beneficiary shares, bonds, subscription rights and certificates issued by Belgian legal companies in accordance with the Code of Companies;
- public debt securities as listed in Article 1^er the Act of 2 January 1991 on the public debt market and monetary policy instruments;
- any other securities issued by a person of Belgian law and incorporating a financial debt to the issuer.
The following titles are not considered titles for the purposes of this Act:
- the effects of trade;
- the obligations to the carrier issued exclusively abroad or subject to foreign law, except for the purposes of section 4 of this Act;
- the titles referred to in Article 2, 1°, paragraph 1^erthird dash, when issued exclusively abroad or subject to foreign law, except for the purposes of section 4 of this Act.
2° "issuer": the person who is the principal debtor of rights incorporated in the title.
3° "regulated market": any regulated market as defined in section 2, 3° of the Act of August 2, 2002 on financial sector surveillance and financial services.
4° "A.R. No. 62 Coordinated": Royal Decree No. 62 Coordinated on the Deposit of Fungible Financial Instruments and the liquidation of transactions on these instruments.
5° Account holder:
- the contents of approved accounts as referred to in Article 468 et seq. of the Corporate Code,
- affiliates, as covered by the A. R. No. 62 Coordinator,
- institutions that hold accounts, as covered by the Act of 2 January 1991 on the public debt market and monetary policy instruments.
CHAPTER I^er. - General provisions
Art. 3. § 1^er. From 1^er January 2008, securities may only be issued by the issuer in the nominal or dematerialized form.
§ 2. The title, as referred to in section 2, paragraph 1^er, 1°, third drawer of this law, which is issued in the form dematerialized on the basis of the first paragraph of this article, is represented by an inscription on behalf of the owner or the owner of the law, to the issuer, a liquidation body or an affiliate member, as defined in A.R. No. 62 Contacted.
Belgian legal issuers who issued titles to the holder referred to in art. 2, 1°, paragraph 1^er, third dash, of this law, must take the necessary measures for the detention of the entire amount of the issue of such securities, either with one of the liquidation bodies defined in section 1^er, 1° of A.R. No. 62 Coordinate, either with one of the affiliated members as referred to in the above-mentioned Order, before December 31, 2007, unless the issuer takes these securities on deposit. Belgian legal issuers wishing to issue such dematerialized securities from 1^er January 2008 must take the same steps before the program.
The issuer shall issue without delay a notice indicating the liquidation organization or the affiliate member chosen by it for each securities issue. The notice must be published in the Beige Monitor, in two national broadcast media outlets, including one in French and one in Dutch, and, if applicable, on the issuer's website. If the issuer is a corporation, this notice must be filed at the office of the commercial court in the territorial jurisdiction of which the corporation is at its head office.
Art. 4. From 1^er January 2008, the holder's titles, as defined by section 2 of this Act, which are registered in the accounts, as well as the holder's securities issued abroad, subject to foreign law, or issued by a foreign issuer, may not be subject to physical release in Belgium.
This provision is not applicable to the issuance of an individual or collective title to a winding-up agency, depositary or other institution in order to achieve its capital.
Art. 5. The following bearer securities that are registered in the account are, at 1^er January 2008, fully converted into dematerialized securities:
1° the holder titles referred to in Article 2, 1°, paragraph 1^ersecond and third of the Act;
2° the titles referred to in Article 460, paragraph 1^er, the Corporate Code, which are listed on a regulated market.
These titles are, as they are entered into account-titles from 1^er January 2008, also automatically converted to dematerialized titles.
No fees may be charged directly or indirectly to the account holder because of the conversion of the right.
Art. 6. Belgian legal societies whose securities referred to in Article 460, paragraph 1^er, the Corporations Code is listed on a regulated market amend their statutes by December 31, 2007 to bring them into compliance with this Act.
In particular, the amended statutes must provide that the titles, within the meaning of Article 460, paragraph 1^er the Code of Companies, which are bearer, already issued and registered in account, exist in dematerialized form.
In addition, the companies concerned must take the necessary measures before 31 December 2007 with a registered liquidation agency to comply with the requirements of section 468, paragraph 4, of the Corporate Code.
The company concerned shall issue without delay a notice indicating the winding-up agency(s) chosen by it for each class of securities, unless the King has designated only one liquidation agency for a certain class of securities. The notice must be published in the Belgian Monitor, in two national broadcast media outlets, one in French and one in Dutch, and, if applicable, on the company's website and deposited in the office of the commercial court in the territorial jurisdiction of which the company has its head office.
Art. 7. § 1. No later than 31 December 2013, holders of titles issued prior to the publication of this Act and which have not been converted pursuant to section 5, apply for their conversion to title or dematerialized securities, within the limits of the statutory provisions or the legal and regulatory framework for the issuance.
§ 2. The conversion to titles is requested from the issuer. The application is admissible only if it is accompanied by the deposit with the issuer of the securities requested for conversion. Conversion shall be effected by the registration of securities in the registers prescribed by or in execution of the law. Registration in the registers is made within five working days of the application.
§ 3. The conversion to dematerialized securities is requested from a registered account content or from the designated liquidation agency. The application is admissible only if it is accompanied by the deposit with the contents of the approved accounts or the designated liquidation body of the securities whose conversion is requested. Conversion is effected by registration in the securities account.
The registered account content shall, as soon as the date of receipt, deposit the holder's securities with the competent liquidation agency, except in the cases referred to in sections 475ter of the Corporate Code and 17 of the A.R. No. 62 Contact details.
The registered account content must, as soon as the date of receipt, transmit to the issuer the titles to the carrier that it receives under section 475ter of the Corporate Code in order to allow the registration provided for in section 475ter, second paragraph, of the Corporate Code.
The liquidation agency shall, as soon as the date of receipt, forward the holder's securities to the issuer in order to permit the registration under section 468, paragraph 4, of the Corporate Code.
Art. 8. § 1^er. No later than 31 December 2012, holders issued after publication of this Act and before 1^er January 2008 and which have not been converted in accordance with Article 5, request their conversion to titles or dematerialized securities within the limits of the statutory provisions or the legal and regulatory framework of the issuance.
§ 2. The second paragraph of Article 7 is applicable to the conversion into titles.
§ 3. The third paragraph of Article 7 is applicable to conversion into dematerialized securities.
Art. 9. At the expiry of the time limits provided for in this Act in sections 7 and 8, the titles to the holder whose conversion has not been requested shall be converted to dematerialized securities and shall be entered into account by the issuer.
By derogation from the preceding paragraph, the issuer may decide to convert titles issued by the issuer to the holder. The decision must intervene no later than the day the conversion period for the securities concerned expires. Titles are registered in the register of titles in the month of the decision. When the issuer is a corporation, the decision is published in accordance with section 75 of the Corporate Code.
Until the licensee manifests and obtains the registration of titles in its name, the converted titles are registered on behalf of the issuer of titles. The opening and keeping costs of the account are borne by the issuer.
The registration of titles in the name of the issuer, made pursuant to this section, does not confer on it the quality of ownership.
Art. 10. The exercise of any right attached to a holder whose conversion has not been requested in accordance with the provisions of this Act is suspended until a person who has been able to establish his or her capacity as a holder requests and obtains that the securities be registered on his or her behalf in the register of titles or in a securities account held by the issuer, a registered account content or a liquidation body.
Art. 11. § 1^er. From 1^er January 2015, securities listed on a regulated market whose licensee remains unknown are sold by the issuer on a regulated market.
This sale shall take place for publication before the Belgian Monitor and in two nationally broadcast press bodies, including one in French and the other in Dutch, with a notice containing the text of this paragraph of this article and inviting the licensee to assert its rights on titles. The sale may only take place upon the expiration of one month from the date of publication of the notice and is made within 3 months after the date of publication.
The King, by order deliberately in the Council of Ministers, may set out the terms of the sale provided for in this paragraph.
The issuer may charge on the proceeds of the sale any fees that he or she has had to expose due to the holding and management of the securities entered into account-titles to his or her name by application of section 9 and due to the conversion of the securities issued by him or her in full law.
The amounts arising from the sale, deducting the costs referred to in the preceding paragraph, shall be deposited with the Caisse des dépôts et consignations until a person who has been able to establish his or her capacity as a licensee upon request for restitution.
§ 2. From 1^er January 2015, the securities that are not listed on a regulated market and which the licensee has not made known are sold by the issuer.
This sale shall be made by pre-publication to the Belgian Monitor and two nationally broadcast press bodies, one in French and the other in Dutch, of a notice containing the text of the paragraph of this article and inviting the licensee to assert its rights to the title. The sale may only take place upon the expiration of one month after the publication of the notice.
The issuer may charge the proceeds of the sale any fees that he or she has had to expose due to the holding and management of the securities registered in his or her name by application of section 9 and due to the conversion of the securities issued by him or her in full right.
The King, by order deliberately in the Council of Ministers, may set out the terms of the sale provided for in this paragraph.
The sums from the sale, deducting from the imputation referred to in the preceding paragraph, shall be deposited with the Caisse des dépôts et consignations until a person who has been able to establish his or her capacity as a holder requests restitution.
§ 3. The person who requests the restitution of the sums from the sale referred to in § 1^er and § 2 or any securities referred to in § 4, which are deposited at the Caisse des dépôts et consignations, is liable for a fine calculated per year of delay from December 31, 2015.
The amount of the fine is, by year of delay, equal to 10% of the sum or counter-value of the securities that are the subject of the claim for restitution.
Every year started is considered full for the calculation of the fine amount.
The King shall, by order deliberately in the Council of Ministers, establish the modalities for calculating the counter-value of the securities deposited in accordance with § 4, the amount of the fees to be charged to the resolding holder and the manner in which the fine referred to in this article is collected.
§ 4. The securities that are not sold under this section as of 30 November 2015 are deposited by the issuer with the Caisse des dépôts et consignations.
Art. 12. § 1^er. On the occasion of the collection of this fine, the Caisse des dépôts et consignations shall communicate to the public authorities the data available to it and that are related to the owner who has requested the restitution of the sums from the sale referred to in Article 11.
§ 2. The King, by royal decree deliberated in the Council of Ministers, shall designate the public authorities referred to in paragraph 1^er and sets out the conditions under which communication with public authorities must operate.
Art. 13. § 1^er. The King may amend and/or repeal all or part of the laws that contain provisions relating to bearer titles to ensure their consistency with this Act.
§ 2. With respect to federal debt, the King is authorized to:
1° amend the laws and conventions subject to Belgian law constituting borrowing conventions which are represented, in whole or in part, by bearer titles in order to allow the dematerialization of these borrowings, by 31 December 2012 or 31 December 2013, as the case may be;
2° to establish exceptions to the provisions of Article 3, § 1^erof this Act if:
(a) the specific conditions for issuing the borrowing make the removal of titles to the carrier representative of the latter technically impossible; or
(b) borrowings are only issued abroad or under foreign law.
§ 3. Other public law issuers shall, where appropriate, take all necessary measures to comply with the law.
Art. 14. The violation of articles 3, 4, 6 and 11, § 4, is punishable by a fine of 200 to 100,000 euros. The provisions of the Book of the Penal Code, without exception of Chapter VII and Article 85, are applicable to offences punishable under this provision.
CHAPTER II. - Amendments to the Corporate Code
Art. 15. Article 453, paragraph 1^er, 5°, of the Corporate Code, is replaced by the following provision:
« 5° The form of the securities provided for in section 460 and the provisions relating to their conversion to the extent that they differ from those established by law; "
Art. 16. § 1^er. Section 460, paragraph 2, of the same Code, is replaced by the following paragraph:
"These titles are nominal or dematerialized. »
§ 2. Section 460 of the same Code is supplemented by the following paragraph:
"The bonds issued exclusively abroad or subject to foreign law may, however, take the form of individual or collective securities to the bearer. »
Art. 17. Section 462 of the same Code is replaced by the following provision:
"The holder or dematerialized securities owners may at any time request the conversion, at their own expense, to name titles. »
Art. 18. In section 463 of the Code, the following amendments are made:
1° after the first paragraph, the following paragraph is inserted: "The general meeting of shareholders may decide that the register is held in electronic form. The King may determine the conditions to which the electronic registry must meet. »;
2° paragraph 3, 3°, is replaced by the following provision:
"3° transfers or transmissions with their date and the conversion of nominal shares into dematerialized shares, if the statutes allow it; »;
3° paragraph 4, 4°, is replaced by the following provision:
"4° transfers or transmissions with their date and the conversion of the nominative shares into dematerialized shares, if the statutes allow it; "
Art. 19. § 1^er. Section 466 of the Corporate Code is supplemented by a sixth paragraph, which reads as follows: "Paragraphs 2 and 3 are not applicable to collective securities taking the form of consolidated certificates deposited with a liquidation body pending the printing of the holder securities they represent. The number of bearer titles represented by these certificates must be determined or determinable. »
§ 2. In section 466 of the same Code, paragraphs 2 and 4 are repealed and the sixth paragraph is replaced by the following provision:
"Paragraph 2 is not applicable to collective bond securities taking the form of consolidated certificates deposited with a winding-up organization pending the printing of the carrier securities they represent. The number of bearer titles represented by these certificates must be determined or determinable. »
Art. 20. § 1^er. Article 468, paragraph 1^er, the same Code is replaced by the following paragraph:
"The dematerialized title is represented by an account, on behalf of the owner or the owner, to a winding-up organization or an authorized account content. »
§ 2. Section 468, paragraph 3, of the same Code is replaced by the following paragraph:
"The King shall designate by class of securities the liquidation bodies responsible for the conservation of dematerialized securities and the liquidation of transactions on such securities. It aggregates the accounts in Belgium individually or generally by category of establishments, depending on their activity. »
§ 3. Section 468 of the same Code is supplemented by the following paragraph:
"The Banking, Financial and Insurance Commission is responsible for monitoring compliance, by the contents of approved accounts, with the rules set out in or under this section. For the exercise of this control, for the imposition of administrative sanctions and for the taking of other measures in respect of the contents of approved accounts, the Banking, Financial and Insurance Commission:
1° uses, in respect of credit establishments, the powers assigned to it by the Act of 22 March 1993 relating to the status and control of credit institutions;
2° uses, in the case of investment companies, the competencies assigned to it by the Act of 6 April 1995 on the status of investment companies and their control, to intermediaries and investment advisors;
3° uses, in respect of compensation and liquidation bodies, the powers assigned to it by the Financial Sector Supervision and Financial Services Act of 2 August 2002.
The corresponding provisions which criminally sanction the violation of the aforementioned provisions are applicable. »
Art. 21. An article 475bis, as follows, is inserted in the same Code:
"Articles 2279 and 2280 of the Civil Code apply to the dematerialized titles referred to in this section. »
Art. 22. An article 475ter, as follows, is inserted in the same Code:
"Except for securities listed on a regulated market, the provisions of this section are applicable to dematerialized securities, provided that the holder of a account has agreed and without the content of account being required to pay them to the liquidation agency.
The account content registered in its name in the Register of Named Titles dematerialized securities in circulation at any time, by securities issue.
The entire amount of a dematerialized securities issue of a transmitter can only be entered in the name register on behalf of a single account content.
In this case, the registration of titles in account confers a right of co-ownership, of an intangible nature, on the universality of the securities of the same issue registered in the name of the liquidation agency in the register of titles. »
Art. 23. The following amendments are made to section 478 of the Code:
1° § 1^er is completed as follows:
"The collective shares taking the form of aggregate certificates deposited with a winding-up organization pending the printing of the shares to the bearer they represent shall not carry a number of order and the numbers of the bearer shares represented by these certificates shall not follow. »;
2° Paragraphs 1 to 3 of § 1^er are repealed;
3° In § 2, the words "to the bearer" are deleted.
Art. 24. Section 486 of the same Code is supplemented as follows:
"Community obligations in the form of consolidated certificates deposited with a winding-up organization pending the printing of the bearer bonds they represent shall not carry a number of orders and the bearer bond numbers represented by these certificates shall not follow. »
Art. 25. Article 503, § 1^erParagraph 1^erthe following amendments are made to the Code:
1° the second sentence of the first paragraph is replaced by the following provision: "These certificates may take the nominal form or dematerialized form. » ;
2° the third sentence of the first paragraph is deleted;
3° in the third sentence of the third paragraph, the words "bearers" are replaced by "dematerialized goods".
Art. 26. § 1^er. Article 504, paragraph 1^er, of the same Code, is amended to read:
"The assignment of titles shall be effected by a transfer declaration registered in the register relating to these titles, dated and signed by the assignor and the assignee or by their power bases.
If the registry is held in electronic form, the transfer declaration may take electronic form and be made of an advanced electronic signature made on the basis of a qualified certificate attesting to the identity of the assignor and the assignee and designed by means of a secure electronic signature creation device, in accordance with applicable legislation.
It is permissible for the company to accept and register in the registry a transfer that would be recognized by the correspondence or other documents establishing the agreement of the assignor and the assignee. »
§ 2. Section 504, paragraph 2, of the same Code, is repealed.
Art. 27. Article 508, paragraph 1^erin the same Code, the third and fourth sentences are deleted.
Art. 28. Article 510, paragraph 1^er, of the same Code, is replaced by the following provision:
"Statutes, authentic acts of issuance of convertible bonds or subscription rights and any other conventions may limit thesesibility between live or transmissibility as a result of death of nominal shares or dematerialized shares, subscription rights or any other securities entitled to the acquisition of shares, including convertible bonds, bonds with subscription rights or repayable bonds. »
Art. 29. In section 513 of the same Code, the following amendments are made:
1° to § 1, paragraph 2, the second sentence is deleted.
2° to § 2, paragraph 2, the second sentence shall be replaced by the following provision:
"The dematerialized titles that the owner has indicated that he refuses to undo are converted to name titles and are registered in the register of titles by the issuer. »
3° to § 2, paragraph 3 is repealed.
Art. 30. In section 536, paragraph 2, of the same Code, the words "to be deposited with the bearer" are deleted.
Art. 31. In section 571, paragraph 2, of the same Code, the words "to be deposited with the carrier" are deleted.
Art. 32. Section 651, 1 and 2 of the Code is repealed.
CHAPTER III. - Miscellaneous changes
Art. 33. § 1^er. Article 2, paragraph 1^er, Royal Decree No. 62, coordinated on the deposit of fungible financial instruments and the liquidation of transactions on these instruments, is replaced by the following provision:
"The National Bank of Belgium, the central depositary and its affiliates may receive in deposit under the provisions of this decree any financial instruments referred to in Article 2, 1°, of the above-mentioned law of 2 August 2002, whether materialized or dematerialized, to the bearer, in order or nominative, of Belgian or foreign law, irrespective of the form in which these securities are issued according to the law which governs them. »
§ 2. Article 19, as follows, is inserted in the same order:
“Articles 2279 and 2280 of the Civil Code apply to financial instruments held under the same order. »
Art. 34. § 1^er. Article 1^er the Act of 2 January 1991 on the public debt market and monetary policy instruments is replaced by the following provision:
“Art. 1^er. The debt of the State, the Communities, the Regions, the provinces, the communes, other public authorities, public institutions, public interest bodies and the National Bank of Belgium, as well as other persons as the King assimilates, for the purposes of this Act, to persons of the public sector referred to above, is represented by:
1° of the nominal inscriptions in a large book of the debt of the issuer,
2° of the dematerialized titles which are exclusively registered in account;
3° of the individual or group holders, provided they are only issued abroad or subject to foreign law.
The issuance or borrowing agreement determines the form or forms of debt representative securities.
If the issuance order or borrowing agreement specifically provides for the form of dematerialized securities, the securities of the loan may only be accounted for and transferred from account to account in that form. »
§ 2. An article 14, as follows, is included in chapter 1^er of the same law:
“Articles 2279 and 2280 of the Civil Code apply to dematerialized securities of public debt. »
§ 3. Without prejudice to the provisions of this Act deleting the titles to the holder of the public debt that are in circulation on the day of the coming into force of this section, they shall maintain their full value and validity.
Art. 35. Article 1^er§ 1^erParagraph 3 of the Act of 22 July 1991 on cash and deposit certificates is replaced by the following provision:
"Cashnotes and deposit certificates are representative of a receivable right. They are created for a specified duration and have the form of nominative titles or dematerialized titles that are exclusively registered in account. »
Art. 36. In Article 7, § 1^er, of the Act of 22 July 1991 on cash and deposit certificates, the number "12" is replaced by "14".
Art. 37. Article 7 of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium is supplemented by the following paragraph:
"Section 8 of the Financial Security Act of 15 December 2004 is applicable to claims that the Bank is taking in pledges to cover its credit transactions. »
Art. 38. Sections 19 and 35 of the Act of 15 July 1998 amending various legal provisions relating to financial instruments and securities compensation systems are repealed.
Art. 39. Article 8, § 3, of the Act of 28 April 1999 to transpose Directive 98/26/EC of 19 May 1998 concerning the final character of the regulation in the payment and settlement systems of securities transactions is amended as follows:
"A security right within the meaning of this Article shall be any guarantee, any transaction of transfer-retrocession or transfer of property, or any other form of similar guarantee or any special privilege relating to achievable assets (including money and receivables), organized by Belgian law or by a foreign law, in favour of participants or concluded in favour of a central bank of a Member State of the European Union or the European Central Bank for their operations. »
CHAPTER IV. - Entry into force
Art. 40. Articles 1^er at 15, 17, 18, 1°, 19, § 1^er, 20 to 22, 23, 1°, 24, 26, § 1^er32, 33, 34, § 2, 36 to 39 come into force on the day of the publication of this Act to the Belgian Monitor.
Articles 16, 18, 2° and 3°, 19, § 2, 23, 2° and 3°, 25, 26, § 2, 27 to 31, and 35 come into force on 1^er January 2014.
The King determines the effective date of Article 34, § 1^er and § 3.
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 14 December 2005.
ALBERT
By the King:
The Minister of Justice,
Ms. L. ONKELINX
Minister of Finance,
D. REYNDERS
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
( 1) Doc 51 1974/ (2004/2005):
001: Bill.
002: Amendments.
003: Report.
004: Text corrected by the Commission.
005: Text adopted in plenary and transmitted to the Senate.
See also:
Full record:
17 November 2005.
3-1435/1 Project not referred to by the Senate.