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20 JULY 2004. - Act respecting certain forms of collective investment portfolio management (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and sanctioned the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act provides, inter alia, the partial transfer of Directive 2001/107/EC of the European Parliament and of the Council of 21 January 2002 amending Council Directive 85/611/EEC on the coordination of legislative, regulatory and administrative provisions concerning certain securities collective investment bodies (OPCVM) with a view to introducing regulations relating to simplified management companies and prospectus and the partial transfer of Directive 2001/108/EC of the European Parliament and the Council of the
Art. 3. For the purposes of this Act and the decrees and regulations made for its execution, it is understood that:
1° by "public offer" :
(a) any public offer for sale, public sale or public offer for subscription;
(b) admission to negotiation on an organized market that is accessible to the public;
(c) under the conditions determined by the King, any public proposal or advertisement to offer information or advice, or to request information or advice, relating to created or not yet created securities that are or will be the subject of an offer, public or non-public, unless such information or advice relates to titles that have been, are, or are acquired, made to be the subject of a regular public offer in Belgium;
2° by "offering": the person who makes a public offer or the person who, with respect to the public offer as referred to in Article 3, 1°, (b), applies for admission to negotiations;
3° by "titles of a collective investment organization":
a) the shares of collective investment organizations, and
(b) any other financial instruments that the collective investment organization is, if any, authorized to issue in respect of the authorized investment category for which it has opted in accordance with section 7;
4° by "parts of collective investment organization":
a) the shares of an investment corporation, and
(b) representative titles of indivisible rights in a mutual fund;
5° by "parties": holders of shares of a collective investment organization;
6° per organized market: a secondary market of financial instruments that is organized by a market company whose head office is established in Belgium or abroad;
7° by "regulated market": any regulated, Belgian or foreign market referred to in article 2, 3°, 5°, or 6°, of the law of 2 August 2002;
8° by "collective management of portfolios of collective investment organizations": the exercise by a collective investment organization management company of management functions of collective investment organizations, whether they are carried out as a collective investment organization management corporation designated by a collective investment organization or under a terms of reference contract or an enterprise contract entered into with a collective investment organization in accordance with the collective investment organization 41
9° by "management functions of collective investment organizations":
(a) the management of the investment portfolio of the collective investment agency;
(b) the administration of the collective investment organization, including:
(i) the accounting management services of the collective investment organization, including the establishment and publication of annual accounts;
ii) responses to requests for information from members of the collective investment organization;
(iii) the portfolio assessment and the determination of the securities value of the collective investment organization (including tax aspects);
(iv) monitoring compliance with the legal and regulatory provisions applicable to the collective investment organization;
(v) keeping the register of holders of titles;
(vi) the distribution of income between categories of securities and types of shares of the collective investment organization;
(vii) the issuance and redemption of shares of the collective investment agency;
(viii) the termination of contracts, including the sending of the securities of the collective investment agency;
(ix) the recording of operations and the preservation of related documents;
(c) the marketing of securities of collective investment organizations;
10° by "investment services":
(a) individual portfolio management: the management of investment portfolios on a discretionary and individualized basis, within the framework of a mandate given by clients when these portfolios have one or more financial instruments referred to in section 2, 1°, of the Act of August 2, 2002;
(b) the investment board covering one or more financial instruments referred to in section 2, 1°, of the Act of 2 August 2002;
11° by "collective investment management company designated by a collective investment organization": the management company that manages a mutual investment fund, in accordance with Article 11, § 1^eror the management corporation that is designated by an investment corporation in accordance with section 43;
12° by "collective investment organization managed by a collective investment organization management corporation": unless otherwise specified, a collective investment organization for which the collective investment organization management corporation performs management functions referred to in section 3, 9°, whether as a collective investment organization management corporation designated by the collective investment organization or under a contract of terms of reference or contract with a collective investment organization
13° by "customers of the collective investment management company": investors, including the insurance institutions referred to in Article 2, § 3, 6°, of the Act of 9 July 1975 on the control of insurance companies, to which the collective investment management company provides investment services for individual portfolio management or investment consulting;
14° by "marketing securities of collective investment organizations": public offer for sale, public sale or public offer for the subscription of securities of collective investment organizations on behalf of a collective investment agency, including the receipt and transmission of orders relating to the securities of that collective investment agency;
15° by "clean funds": the concept of equity, as defined in the regulations made pursuant to section 158;
16° by "close links":
(a) a situation in which there is a link of participation, or (b) a situation in which companies are related enterprises, or (c) a relationship of the same nature as under (a) and (b) above between a natural person and a legal person;
17° by "control, participation, link of participation, parent company, subsidiary and related company": these concepts within the meaning of the definition given in the execution orders of section 185;
18° by "the branch of a collective investment organization management company": an operating seat that is a non-legally owned part of a collective investment organization management company and that directly carries out, in whole or in part, the activities authorized by the approval of the collective investment organization management company; several operating seats created in the same State by a collective investment management company with its head office in another State are considered to be a single branch;
19° by "Reception Member State of a collective investment management company": the Member State of the European Economic Area, other than Belgium, on the territory of which a Belgian collective investment management company operates by the establishment of a branch or in the free provision of services;
20° by "credit institution": any establishment referred to in Parts II to IV of the Act of 22 March 1993;
21° by "financial institution": any enterprise referred to in Article 3, § 1^er5° of the Act of 22 March 1993;
22° by "investment company": any company referred to in Book II, Parts II to IV, of the Act of 6 April 1995;
23° by "the Act of 22 March 1993": the Act of 22 March 1993 on the Status and Control of Credit Institutions;
24° by "the Act of 6 April 1995": the Act of 6 April 1995 relating to the status of investment companies and their control, to intermediaries and investment advisers;
25° by "the Act of 2 August 2002": the Act of 2 August 2002 on financial sector surveillance and financial services;
26° by "Guideline 85/611/EEC": the Directive of the Council of 20 December 1985 on the coordination of legislative, regulatory and administrative provisions concerning certain securities collective investment bodies (OPCVM), as amended by Directive 2001/107/EC of the European Parliament and the Council of 21 January 2002 amending Council Directive 85/611/EEC on the coordination of legislative, regulatory and administrative provisions concerning certain securities collective investment organizations (OPCtro),
27° by "Guideline 93/22/EEC": Council Directive of 10 May 1993 on securities investment services;
28° by "CBFA": the Banking, Financial and Insurance Commission, as the agency referred to in section 44 of the Act of 2 August 2002;
29° by "open consultation": the procedure referred to in section 2, 18°, of the law of 2 August 2002.
PART II. - OF COLLECTIVE PLACEMENT BODIES
LIVRE I^er. - PAPLICATION CHAMP
Art. 4. Are subject to the provisions of this Part:
1° the Belgian organizations listed below, whose purpose is the collective investment of financial means:
(a) (i) organizations that collect their financial resources, in Belgium or abroad, through a public offer of shares;
(ii) organizations that collect their financial resources, in Belgium or abroad, partially through a public offer of securities;
referred to as "public collective investment organizations";
(b) organizations that collect their financial resources, in Belgium or abroad, exclusively from institutional or professional investors acting on their own behalf, and whose securities can only be acquired by such investors, referred to below, "institutional collective investment organizations";
(c) organizations that collect their financial resources, in Belgium or abroad, exclusively from private investors acting on their own behalf, and whose securities can only be acquired by such investors or by other investors under the conditions determined by the King, referred to as "private collective investment organizations";
2° foreign organizations whose purpose is the collective investment of financial means, when their securities are the subject of a public offer in Belgium.
For the purposes of this Act and the decrees and regulations made for its execution, these bodies are referred to as "collective placement bodies".
Art. 5. For the application of Article 3, 1°, b), the King can define the concept of public.
For the purposes of section 4, paragraph 1^er, 1°, a), and 2°, the King may set the criteria to determine the public nature of the operations referred to in Article 3, 1°.
These criteria may vary depending on the authorized investment category for which a collective investment organization may opt in accordance with section 7.
For the purposes of section 4, paragraph 1^er, 1°, b), the King can define what should be heard by institutional or professional investors.
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.
LIVRE II. - DES ORGANISMES
DE PLACEMENT COLLECTIF DE DROIT BELGE
PART I^er. - Common provisions
to all Belgian law collective investment organizations
Art. 6. Belgian law collective investment organizations fall under one of the following three categories:
1° the collective investment organizations with a variable number of shares that are in the form of a contract (common investment funds with a variable number of shares) or the statutory form (variable capital investment company);
2° fixed-number collective investment organizations that are in the form of a contract (common fixed-number investment funds) or a statutory form (fixed capital investment company);
3° the organizations of collective investment in receivables that are in the form of a contract (common funds of investment in receivables) or the statutory form (society of investment in receivables).
Art. 7. A collective investment organization is required to use the financial means it collects in one of the authorized investment categories listed below:
1° investments meeting the conditions set out in Directive 85/611/EEC;
2° financial instruments and liquidity;
3° raw materials, options and futures contracts on raw materials;
4° options and futures contracts on securities, currencies and contracts on stock market indices;
5° real property;
6° high-risk capital;
7° receivables held by third parties and transferred to the collective investment agency by an assignment agreement under the terms and conditions established by the King;
8° financial instruments issued by companies not listed;
9° other placements authorized by the King.
The King, by order made on the advice of the CBFA, defines the categories of authorized investments referred to in paragraph 1^er.
Art. 8. § 1^er. Net proceeds of the mutual fund or investment corporation are determined and distributed or capitalized in accordance with the management regulations or the regulations.
§ 2. The rights assigned to each share are equal; different categories of shares may not be created unless:
1° the management regulations or the statutes provide for the creation of two types of shares, the net product being distributed for one type and capitalized for the other;
2° the statutes of a variable capital investment company provide, in accordance with the criteria and conditions fixed by the King by order taken on the advice of the CBFA, the creation of different categories of shares denominated in different currencies or that support different costs or different commissions, excluding any differentiation in terms of participation in the results of the investment company's portfolio or the compartment; a notice of the decision of the board of directors to create a new class of shares, pursuant to such a statutory provision, amends the statutes;
3° the statutes of a variable capital investment corporation or a debt investment corporation provide for the creation of different classes of shares in accordance with Article 16 or Article 26;
4° the statutes of a fixed capital investment company create different categories of shares;
5° the regulation of the management of a debt investment fund or the statutes of a debt investment company create different categories of shares. The regulation or statutes determine the terms and conditions for the distribution, between the various categories of shares, of amounts paid by the debtors of the receivables comprising the debt portfolio.
Regulation or statutes may provide priority shares
§ 3. The statutes of an investment company in receivables stipulate that the profit of the company is distributed or reserved for subsequent distribution or for coverage of risks of default of payment of receivables.
Art. 9. A collective investment organization is managed or administered in accordance with the risk allocation principle and in a manner that ensures autonomous management and the exclusive interest of securities holders issued by the collective investment organization.
PART II. - Public collective investment bodies
CHAPTER I^er. - General provisions
Section I^re. - Collective investment organizations
variable number of public parts
Art. 10. By a group placement organization with a variable number of public shares, the organization must be heard:
1° whose exclusive purpose is the collective placement in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 1°, 2°, 3°, 4° and 9°, for which there is a market, in accordance with the provisions of this Law, of the decrees and regulations made for its execution and of the rules of management or the statutes of the collective investment agency;
2° whose financial means are collected through a public offer of shares, negotiable or not;
3° whose shares are at the request of the participants, redeemed or refunded, directly or indirectly, to the assets of that organization at a price calculated on the basis of the inventory value.
Assimilated to such redemptions or refunds the fact for the organization to act so that the value of its shares admitted to negotiations on an organized market does not significantly deviate from their inventory value.
Art. 11. § 1^er. By mutual fund, we must hear the indivis heritage managed by a collective investment organization management company on behalf of the participants, whose rights are represented by nominative shares, the bearer or, under the conditions determined by the King, dematerialized.
Compliance with the provisions of this Part and the orders and regulations made for its implementation, relating to a joint investment fund, is the responsibility of the collective investment organization management company.
§ 2. A joint investment fund is considered as Belgium when the statutory headquarters and central administration of its collective investment management company are established in Belgium.
§ 3. Any mutual funds with a variable number of shares shall be designated by a particular name; the latter must include the words "common investment funds with varying numbers of public shares of Belgian law" or "open public funds of Belgian law", or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er, does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. Members of a mutual fund are held for the debts of the fund only to the net assets of the fund and to the pro rata of their participation.
The creditors of the collective investment organization management company or participants do not have recourse on the assets of the fund, which only meet debts, commitments and obligations that, in accordance with the purpose described in the management regulations, may be charged with the assets of the fund.
The collective investment management company represents the mutual fund and its participants towards third parties and may, in the cases and conditions specified in the management regulations, represent the participants in court without revealing the identity of the participants.
Art. 12. The Management Regulations include the provisions defining the purpose of the mutual fund, the specific rules of management or administration applicable to it and the respective rights and obligations of the collective investment organization management company, the depositary and the participants.
The management rules may be amended by a decision of the general meeting of participants.
The management regulations determine the cases and conditions under which the collective investment organization management corporation is entitled to exercise the voting rights attached to the financial instruments included in the mutual fund.
Art. 13. § 1^er. It must be held, each year, at least one general meeting of the participants of a mutual fund at the place, day and time indicated in the Management Regulations. The General Assembly shall hear the management report and the report of the Commissioners on the annual accounts and shall discuss the annual accounts of the mutual fund. The General Assembly decides on the approval of the annual accounts, including the allocation of the outcome of the mutual fund.
§ 2. The Board of Directors of the collective investment organization management corporation and the Commissioner of the mutual fund may convene a general meeting of participants in a mutual fund.
They are required to convene this general assembly:
1° where participants who represent a fifth of the amount of the outstanding shares and establish that they have held them for three months, apply to make a decision regarding the replacement of the collective investment organization management company;
2° for any decision to amend the management regulations, to amend the authorized investment category, to report the assets of the mutual fund to another collective investment organization or to close the mutual fund;
3° each time the mutual fund management regulations provide for the convocation of the general meeting of participants;
4° in order to appoint a business reviewer to perform the duties of Commissioner of the mutual fund in accordance with section 83.
§ 3. The method of convening, deliberation and decision of the general meeting of the participants is determined by the management regulations and the provision of the joint investment fund participants of the management report, the report of the Commissioners and the annual accounts.
§ 4. In the cases referred to in § 2, paragraph 2, the general assembly of the participants may only validly deliberate if the participants present represent at least half of the number of the shares in circulation.
If this condition is not fulfilled, a new summons is necessary and the new assembly shall deliberate validly, regardless of the portion of the outstanding shares represented by the participants present.
Art. 14. By a variable capital investment company, known as "Sicav", the collective investment organization constituted in the form of an anonymous corporation or a share-sponsored corporation whose capital varies, without modification of the statutes, due to the issuance of new shares or the redemption of its shares.
A Sicav may not carry out any activities other than that provided for in Article 4, paragraph 1^er, 1°, a), i), or hold other assets other than those necessary for the realization of its statutory object.
Art. 15. § 1^er. The Sicav is subject to the Corporate Code to the extent that it is not derogated from this Title.
§ 2. By derogation from Article 78 of the Code of Societies, the name of the Sicav and all the documents that emanate from it, must contain the mention "public variable capital corporation of Belgian law" or "public public Sicav of Belgian law", or be followed immediately by these words. If the class of authorized investments for which it has opted in accordance with section 7, paragraph 1^er, does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 3. Social capital is always equal to the value of the net assets. It cannot be less than Euro1,200,000. For the purposes of section 634 of the Corporate Code, the minimum capital shall be the amount provided for in this subsection.
§ 4. Any input is made in cash. This provision does not apply in the event of the intake of assets of a collective investment organization listed or in the event of the intake of the basket of securities comprising an index, where the statutes of the collective investment agency provide that the investment policy of the collective investment agency is intended to reproduce a specified securities index.
§ 5. The shares must be fully released from the subscription; they are without designation of their nominal value.
Non-representative shares of capital may not be created.
§ 6. Articles 78, 79, paragraph 1^er, 141, 439, 440 to 443, 445 to 448, 453, paragraph 1^er, 1°, 458, 460, paragraph 1^er, 463, paragraph 3, 465, paragraph 3, 466, paragraph 4, 476, 477, 479, 483, 484, 505, 506, 508, 509, 542, 557, 559, 560, 581, 582 to 590, 592 to 607, 612 to 617, 619 to 628, of the Code of Companies are not applicable.
Derogation from paragraph 1^erArticle 560 of the Corporate Code is applicable in the case referred to in Article 8, § 2, 2°.
Art. 16. § 1^er. The Sicav statutes that have opted for authorized investment categories referred to in Article 7, paragraph 1^er, 1° or 2°, may authorize the board of directors to create different categories of shares each corresponding to a separate part, or compartment, of the heritage. In this case, the creation of each compartment gives rise to a public offer of the class of shares representative of the said part of the heritage.
The notice of the Board's decision to create a new class of shares amends the statutes.
§ 2. In keeping with the equality of shareholders, the statutes provide for the method of charging fees for the entire investment company and per compartment, as well as the method of exercising the right to vote, approval of the annual accounts and granting of the discharge to the directors and commissioners by the general assembly.
§ 3. In the event of the dissolution, liquidation or restructuring of compartments, the provisions of Book IV, Part IX or Book XI of the Code of Companies shall apply by analogy to the compartments.
Each compartment of a Sicav is liquidated separately, without giving rise to the liquidation of another compartment. Only the liquidation of the last compartment entails the liquidation of the Sicav.
§ 4. The rights of participants and creditors relating to a compartment or born in connection with the formation, operation or liquidation of a compartment are limited to the assets of that compartment.
In the event of the creation of different compartments in the heritage, any undertaking or operation is, in respect of the counterparty, imputed unequivocally to one or more compartments. Article 528, paragraph 1^er, the Corporations Code applies to offences under this provision.
By derogation from sections 7 and 8 of the Mortgage Act of 16 December 1851, the assets of a specific compartment are exclusively entitled to the rights of participants in this compartment and to the rights of creditors whose debt was born in connection with the establishment, operation or liquidation of that compartment.
The rules on judicial concordat and bankruptcy are applied in a compartmentalized manner without such judicial concordat or bankruptcy being able to result in full judicial concordat or bankruptcy of other compartments or investment society. Creditors may contractually limit or waive their right to request the dissolution, liquidation or bankruptcy of the compartments or the investment company itself.
Section II. - Collective investment organizations
fixed number of public shares
Art. 17. By a fixed-number collective investment agency, the collective investment agency must be heard:
1° whose exclusive purpose is the collective placement in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 2° to 6° and 9°, in accordance with the provisions of this Act, the decrees and regulations made for its execution and the regulation of management or the statutes of the collective investment agency;
2° whose financial means are collected through a public offer of shares, negotiable or not;
3° whose shares are not redeemed at the request of the dependants of the assets of the collective investment organization.
Art. 18. § 1^er. Article 11, § 1^er, 2 and 4, and sections 12 and 13 apply to the fixed-number mutual fund.
§ 2. Any common fixed-number investment funds shall be designated by a particular name; This includes the words "common investment funds with fixed numbers of public shares of Belgian law" or "public closed funds of Belgian law", or is immediately followed by these words. If the class of authorized investments for which it has opted in accordance with section 7, paragraph 1^er does not derive from its name, the indication of this category must always immediately follow its name.
§ 3. In the event of issuance of new shares against cash intake, they must be offered before the holders of the previously issued shares.
Art. 19. A fixed capital investment company, known as "Sicaf", must be understood as a collective investment organization constituted in the form of an anonymous company or a share-sponsored company.
A Sicaf may not carry out any activities other than that provided for in Article 4, paragraph 1^er, 1°, a), i), or hold other assets other than those necessary for the realization of its statutory object.
Art. 20. § 1^er. The Sicaf is subject to the Corporate Code to the extent that it is not derogated from this Title.
§ 2. By derogation from Article 78 of the Code of Societies, the name of the Sicaf and all the documents emanating from it contain the mention "public fixed-capital corporation of Belgian law" or "public Sicaf of Belgian law", or must be followed immediately by these words. If the class of authorized investments for which it has opted in accordance with section 7, paragraph 1^er, does not appear in its name, the indication of this category must always immediately follow its name.
§ 3. Social capital cannot be less than 1,200,000 euros. He must be fully released. For the purposes of section 634 of the Corporate Code, the minimum capital shall be the amount provided for in this subsection.
§ 4. Sections 439, 440, 448, 477, 559 and 616 of the Corporate Code are not applicable.
Section III. - Collective investment organizations
in public debt
Art. 21. By a collective investment agency in public debts, the organization must be heard:
1° whose exclusive purpose is the collective placement in the class of authorized investments referred to in Article 7, paragraph 1^er, 7°, in accordance with the provisions of this Part, of the decrees and regulations made for its execution and the regulations of management or the statutes of the collective investment organization;
2° whose financial means are collected partially by means of a public offer of securities, negotiable or not;
3° whose shares are not redeemed at the request of the dependants of the assets of the collective investment organization.
Art. 22. In accordance with the terms and conditions agreed, the collective investment agency in receivables may charge the original assignor of receivables recovery and other duties relating to the conservation and realization of rights relating to receivables.
This does not prejudice the delegation, by the original assignor of the receivables, of the tasks referred to in this paragraph to an entity specializing in this type of management, provided that the initial assignor of the receivables is subject to a prudential control regime and that this delegation is in accordance with the prudential rules and standards in this matter. The initial assignors who have comparable institutional status and have organizational homogeneity and who have established the same portfolio of receivables awarded under equivalent criteria are considered to be the original assignor for the purposes of this paragraph.
Where a debt is transferred by or to a collective investment agency in receivables within the meaning of this Act, section 1328 of the Civil Code and section 26 of the Consumer Credit Act of 12 June 1991 and section 8 of Chapter II, Part I^er Book II of the Commercial Code, and articles 18 and 20 of the Act of 15 April 1884 on agricultural borrowing are not applicable to this assignment. The same provisions are not applicable where a receivable is given in pledges to or by a collective bargaining agency within the meaning of this Act.
Where receivables are transferred to or by a collective investment agency in receivables within the meaning of this Act, the assignee shall, by the sole performance of the formalities prescribed by Book III, Part VI, Chapter VIII of the Civil Code, obtain all rights in the insurance agreements that the assignor has to guarantee the receivables transferred. A pledge of these same rights to or by a collective investment agency in receivables is made by the fulfilment of the formalities prescribed by the provisions of Book III, Title XVII of the Civil Code or Title VI, Book I^er The Commercial Code.
Art. 23. § 1^er. Articles 11, §§ 1^er, 2 and 4, 12, paragraphs 1^er and 2, 13 and 18, § 3, apply to the mutual funds of the investment in receivables.
§ 2. Any mutual fund for debts must be designated by a particular name; the latter should include the words "a common fund for public debts of Belgian law" or be followed immediately by these words.
Art. 24. By an investment company in receivables, referred to as "SIC", it is necessary to hear the collective investment agency in receivables constituted in the form of an anonymous company or a partnership sponsored by shares.
A SIC may not carry out activities other than that provided for in Article 4, paragraph 1^er, 1°, a), ii), or hold other assets other than those necessary for the realization of its statutory object.
Art. 25. § 1^er. SIC is subject to the Corporate Code to the extent that there is no derogation from this Title.
§ 2. By derogation from Article 78 of the Code of Societies, the name of a SIC and all the documents emanating from it contain the words "investment society in public debts of Belgian law" or "Public SIC of Belgian law" or are immediately followed by these words.
§ 3. The statutes determine the amount of the fixed share of social capital.
The amount referred to in paragraph 1^er cannot be less than 61,500 euros and must be fully released.
The SIC is variable capital in excess of the fixed share of social capital. This part of the capital may be reduced without modification of the statutes, depending on the reimbursement of claims, in accordance with the terms and conditions prescribed by the statutes. In the event that the corporation has issued bonds or borrowed within the limits set out in section 66, a capital reduction may only be effected to the extent that repayments of bonds or loans are made.
§ 4. Sections 439, 440, 441, 448, 477, 559 and 616 of the Corporate Code, as well as sections 613. and 614 of the Corporations Code for the variable portion of capital are not applicable to SICs.
Art. 26. § 1^er. The statutes of an SIC may empower the Board of Directors to create different categories of shares each corresponding to a separate, or compartmentalized portion of the heritage. Section 560 of the Corporate Code is not applicable.
The creation of each compartment gives rise to a public offer of the class of shares representative of the said part of the heritage, without prejudice to Article 21, 2°. This paragraph is not applicable to shares that represent the minimum capital referred to in Article 25, § 3, paragraph 2, provided that for each compartment created, the said part of the heritage is also financed by financial means collected partially by means of a public offer of securities.
The notice of the Board's decision to create a new class of shares amends the statutes.
§ 2. In keeping with the equality of shareholders, the statutes provide for the method of charging fees for the entire investment company and per compartment, as well as the method of exercising the right to vote, approval of the annual accounts and granting of the discharge to the directors and commissioners by the general assembly.
§ 3. In the event of the dissolution, liquidation or restructuring of compartments, the provisions of Book IV, Part IX or Book XI of the Code of Companies shall apply by analogy to the compartments.
Each compartment of a SIC is liquidated separately, without giving rise to the liquidation of another compartment. Only the liquidation of the last compartment will result in the liquidation of the SIC.
§ 4. The rights of participants and creditors relating to a compartment or born in connection with the formation, operation or liquidation of a compartment are limited to the assets of that compartment.
In the event of the creation of different compartments in the heritage, any undertaking or operation is, in respect of the counterparty, imputed unequivocally to one or more compartments. Article 528, paragraph 1^er, the Corporations Code applies to offences under this provision.
By derogation from sections 7 and 8 of the Mortgage Act of 16 December 1851, the assets of a specific compartment are exclusively entitled to the rights of participants in this compartment and to the rights of creditors whose debt was born in connection with the establishment, operation or liquidation of that compartment.
The rules on judicial concordat and bankruptcy are applied in a compartment without such judicial concordat or bankruptcy may result in the legal concordat or bankruptcy of the other compartments or investment society. Creditors may contractually limit or waive their right to request the dissolution, liquidation or bankruptcy of the compartments or the investment company itself.
Art. 27. § 1^er. Sections 568 to 580 of the Corporate Code are, unless otherwise provided in the conditions of issuance, applicable to holders of bonds or other receivables issued by a collective investment agency in receivables.
In the event of issuance of bonds or other receivables by a common debt fund, the obligations of the issuing corporation or its board of directors under sections 568 to 580 above are imposed on the fund's collective investment organization management corporation.
One or more representatives of the mass of the holders of receivables belonging to the same issue or class of titles may be appointed, provided that the conditions of issue contain rules relating to the organization of the general assemblies of the holders of the relevant receivables. These representatives may bind all holders of debt titles of the same program or category and represent them in respect of third parties or in court, within the limits of the missions entrusted to them, without having to justify their power other than by presentation of the act by which they were appointed. They may act in court and represent the holders of debt securities in any bankruptcy, judicial concordat or similar procedure without having to reveal the identity of the holders of debt securities they represent.
These representatives exercise their powers in the sole interest of the holders of receivables that they represent and are required to report to them under the terms and conditions set out in the conditions of issuance or in the decision to appoint.
The representatives of the holders of receivables are appointed either before the issuer's issuance, or, if their appointment takes place after the issuance, by the assembly of the holders of the debtors concerned. Their powers are fixed under the conditions of issue or, if not, by the general assembly of the holders of the relevant debtors.
The general assembly of the holders of the relevant receivables may revoke, at any time, the representative(s) so designated provided that it simultaneously designates one or more other representatives.
Except as a more restrictive provision contained in the conditions of issuance, the General Assembly shall rule by a simple majority of the titles represented.
Representatives of the holders of receivables must be approved by the CBFA. The King, by order made on the advice of the CBFA, defines the conditions of accreditation, the rules of advertising relating to the appointment, powers and revocation of representatives, the possible limits to the powers that may be conferred upon them and the rules relating to their independence from the assignor, the management society of collective investment bodies and the collective investment agency in receivables.
§ 2. A collective investment agency in receivables may benefit holders of bonds or debt securities, referred to in Article 2, § 1^er, b), of the law of 2 August 2002, which it issued or will issue, give in pledge the receivables and other assets that the collective investment agency in receivables has acquired or will acquire in accordance with the provisions of Title VI of Book I^er The Commercial Code.
Unless otherwise provided in the pledge agreement, the pledge shall include, in full law, the income of the pledged receivables or the funds received in payment and the receivables and financial instruments in which they are invested.
Section 17, 3°, of the Bankruptcy Act of 8 August 1997 does not apply to amendments, additions or replacements with respect to the purpose of the gage referred to in this subsection, provided that the gage is established at the latest at the time of issuance of secured claims and that amendments, additions and replacements are made in accordance with the provisions of the gage agreement or in accordance with the second paragraph of that subsection.
CHAPTER II. - Access to activity
Section I^re. - Registration
Art. 28. Any collective investment organization submitted to this Title shall, before commencing its activity in Belgium, be required to register with the CBFA. The same obligation is applicable, if applicable, for the compartments of the collective investment organization.
Art. 29. The application for registration shall be accompanied by a record that meets the conditions established by the CBFA and that it is satisfied with the conditions set out in this Title and by the decrees and regulations made for its execution and which shall include the elements specified by the CBFA.
CBFA may request any additional information necessary to appraise the application for registration.
The collective placement agency shall promptly provide the CBFA with the information necessary for the permanent maintenance of the registration file.
Art. 30. The CBFA shall include the collective investment agencies and, where appropriate, the compartments that meet the conditions set out in this Title and the orders and regulations made for its execution. She decides on the application for registration within three months of the introduction of a complete file.
Registration decisions are notified to applicants within 15 days by registered letter to the position or with acknowledgement of receipt.
An appeal is open to applicants, pursuant to section 122, 20°, of the Act of 2 August 2002, against decisions of refusal of registration made by the CBFA under section 30.
Art. 31. Every year, the CBFA draws up a list of Belgian law collective investment agencies and compartments, registered under this Title. This list and all changes made during the year are published in the Belgian Monitor.
The list can include entries and sub-rubbers.
Art. 32. The collective investment agency that plans to publicly offer its securities in another Member State of the European Economic Area must first notify CBFA.
Section II. - Registration conditions
Art. 33. A collective investment organization and, where appropriate, its compartments are listed on the list of Belgian collective placement agencies and may only commence their activities if the following conditions are met:
1° the CBFA has accepted the choice of the collective investment organization management company of the mutual investment fund or has approved the investment company;
2° CBFA approved the management regulations or the statutes of the collective investment organization;
3° where applicable, the CBFA accepted the choice of the depositary of the collective investment agency.
CBFA determines compliance with the conditions referred to in paragraph 1^er within three months of the introduction of a complete file.
Decisions referred to in paragraph 1^er are notified to applicants within fifteen days by registered letter to the position or with acknowledgement of receipt.
An appeal is open to the collective investment agency, pursuant to section 122, 21°, of the Act of 2 August 2002, against decisions of refusal of approval, refusal of approval or refusal of acceptance made by CBFA under this section.
Sub-section I^re. - Acceptance of the choice of the collective investment organization management company of the mutual fund
Art. 34. The joint investment fund management corporation shall be approved, in accordance with Part III of this Act, to perform all the management functions referred to in Article 3, 9°.
It must have its registered office and central administration in Belgium.
The program of activities of the collective investment management corporation referred to in section 141 must establish that the management structure and the administrative, accounting, financial and technical organization of the collective investment organization are appropriate to the authorized investment category for which the mutual investment fund has chosen.
Art. 35. The replacement of the collective investment organization management company of the mutual fund is subject to the prior acceptance of the CBFA.
Section 33, paragraphs 2 to 4, is applicable to decisions made by CBFA under this section.
Art. 36. The King may supplement the conditions of acceptance of the choice of the collective investment organization management company of the mutual fund according to the authorized investment categories open to mutual funds.
Sub-section II. - Accreditation of the investment company
Art. 37. The investment company must demonstrate that it is satisfied with the provisions of this Title.
Its statutory headquarters and central administration must be located in Belgium.
Art. 38. The effective management of the investment company must be entrusted to at least two natural persons; they must have the necessary professional honesty and experience to perform these functions, in accordance with Article 9 and in light of the authorized investment category for which the investment company has chosen.
Any replacement of these persons must be notified before the CBFA.
Art. 39. Can not perform the functions of manager, administrator or director, or represent companies performing such functions, persons in one of the cases defined by section 1^er 3 bis, §§ 1^er and 3, and 3ter of Royal Decree No. 22 of 24 October 1934 concerning the judicial prohibition of certain convicts and failed to perform certain functions, professions or activities.
The functions listed in paragraph 1^er may no longer be exercised:
1° by persons who have been sentenced to a sentence of less than three months' imprisonment or a fine for an offence provided for in Royal Decree No. 22 of 24 October 1934 above;
2° by persons who have been convicted for offences:
(a) Articles 148 and 149 of the Act of 6 April 1995;
(b) Articles 104 and 105 of the Act of 22 March 1993;
(c) Articles 38, paragraph 4, and 42 to 45 of Royal Decree No. 185 of 9 July 1935 on the control of banks and the regime of securities and values emissions;
(d) Articles 31 to 35 of the provisions relating to private savings funds, coordinated on 23 June 1967;
(e) Sections 13-16 of the Public Savings Calls Act of 10 June 1964;
(f) Articles 110 to 112ter of Book I Title V^er the Commercial Code or sections 75, 76, 78, 150, 175, 176, 213 and 214 of the Financial Operations and Markets Act of 4 December 1990;
(g) in article 4 of Royal Decree No. 41 of 15 December 1934 protecting savings through the regulation of the temperament sale of batch values;
(h) Articles 18 to 23 of Royal Decree No. 43 of 15 December 1934 concerning the control of capitalization companies;
(i) Articles 200 to 209 of the Commercial Corporations Acts, coordinated on 30 November 1935;
(j) sections 67 to 72 of Royal Decree No. 225 of 7 January 1936 regulating mortgages and organizing the control of mortgage companies or section 34 of the Mortgage Credit Act of 4 August 1992;
(k) Articles 4 and 5 of Royal Decree No. 71 of 30 November 1939 concerning the bonding of securities and the demarcation of securities and goods and goods;
(l) Article 31 of Royal Decree No. 72 of 30 November 1939 regulating the exchanges and futures markets of goods and commodities, the profession of brokers and intermediaries dealing with these markets and the regime of the exception of play;
(m) Article 29 of the Act of 9 July 1957 regulating temperament sales and their financing or sections 101 and 102 of the Consumer Credit Act of 12 June 1991;
(n) Article 11 of Royal Decree No. 64 of 10 November 1967 organizing the status of portfolio corporations;
(o) Sections 83 to 87 of the Act of 9 July 1975. the control of insurance companies;
(p) to articles 11, 15, § 4, and 18 of the Act of 2 March 1989 on the advertisement of important participations in publicly traded companies and regulating public tenders;
(q) in section 139 of the Act of 25 June 1992 on the land insurance contract;
(r) Articles 38 to 43 of the Act of 2 August 2002;
(s) Article 25 of the Act of 22 April 2003 on public offers of securities;
(t) Articles 205 to 211 of this Act;
(u) articles 90, 91, 126 to 128, 170, 171, 196, 345 to 349, 387 to 389, 433, 434, 647 to 653, 773 and 788 of the Code of Companies;
3° by persons convicted by a foreign court for offences similar to those provided for in 1° and 2°; Article 2 of the above-mentioned Royal Decree No. 22 of 24 October 1934 is applicable in these cases.
CBFA may authorize, in favour of persons referred to in 2° and, for convictions provided for in 2°, in 3° of the second paragraph of this article, derogations from the prohibitions referred to in that second paragraph.
The King may adapt the provisions of this article to align them with the laws that amend the texts listed therein.
Art. 40. § 1^er. For the performance of the management functions referred to in Article 3, 9°, the investment company must have a management structure that is specific to it and appropriate to the activity it intends to carry out. It must also have the material, technical human resources that provide it with an administrative, accounting, financial and technical organization that is specific to it and that is appropriate to the activity it intends to carry out.
It should include monitoring and security mechanisms in the information and communications technology field appropriate to its work.
The investment company must also have adequate internal control procedures including, inter alia, a investment management regime in financial instruments to invest its initial capital.
These procedures must ensure, among other things, that each transaction of the investment company, or, where appropriate, its compartments, may be reconstituted as to its origin, to the parties concerned, to its nature, as well as at the time and place where it was carried out, and that the assets of the investment company are invested in accordance with the statutes of the investment company and the legal and regulatory provisions in force.
The investment company must use a risk management method, adapted to the authorized investment category for which it has chosen, which allows it to control and measure at any time the risk associated with the positions and their contribution to the overall risk profile of the portfolio, or, where appropriate, to the overall risk profile of the various compartments of the investment company.
The investment company must use a method for a precise and independent evaluation of the value of the voluntary derivative instruments in its portfolio or, where applicable, in the different compartments. It shall communicate to the CBFA, according to the detailed rules and the periodicity defined by the CBFA by regulation made in accordance with section 64 of the Act of 2 August 2002, the types of derivative instruments, the underlying risks, the quantitative limits and the methods chosen to estimate the risks associated with derivative transactions.
The organization of the investment company must allow it to provide, at the request of any holder of securities, additional information to those made public in the prospectus and annual and semi-annual reports, on the quantitative limits that apply to the management of the risks of the investment company, on the methods used to meet these limits, and on the recent evolution of the risks and returns of the constituent assets the authorized investment category for which it has been authorized.
§ 2. The investment company must be structured and organized so as to minimize the risk that conflicts of interest do not adversely affect the interests of holders of securities of the investment company.
§ 3. The King, by order taken on the advice of the CBFA, can define the organizational rules justified by the authorized investment category for which the investment company has opted.
Art. 41. § 1^er. In order to ensure more effective performance of its activities, the investment company may entrust to a third party, by contract of mandate or contract of business, the exercise, on its own account, of one or more of the management functions referred to in Article 3, 9°, (a), (b) or (c), with, inter alia, the following conditions:
1° the decision to assign the exercise of certain management functions to a third party must be notified before the CBFA; such notification shall establish that it is satisfied with the conditions of this Article;
2° the exercise of adequate control of the investment company cannot be hindered;
3° it cannot be prejudiced to the obligation of the investment company to exercise its activity in accordance with Article 9;
4° without prejudice to article 22, paragraph 1^er, the performance of the management functions referred to in Article 3, 9°, (a) and (b), may only be entrusted to a company subject to a prudential control regime; the corporation must have an administrative, accounting, financial and technical organization appropriate to the nature of the management functions entrusted to it and to the authorized investment category for which the investment corporation has opted, and the directors and persons who in fact provide the effective management must have the necessary professional honesty and the appropriate experience to perform these functions;
5° without prejudice to the 4°, in the case of an investment company that opted for the class of authorized investments referred to in Article 7, paragraph 1^er, 1° or 2°, and which entrusts to a third party the exercise of the management function referred to in Article 3, 9°, (a):
(a) the exercise of this management function may only be entrusted to an authorized company to provide investment services referred to in section 46, 1°, 3, of the Act of 6 April 1995 or to a collective investment management company;
(b) the investment distribution criteria set periodically by the investment company must be met.
The King determines, by order taken on the advice of the CBFA, the conditions under which the investment companies that opted for a class of authorized investments other than those referred to in Article 7, paragraph 1^er, 1° or 2°, may entrust to a third party the exercise of the management function referred to in Article 3, 9°, (a);
6° without prejudice to the 4°, the exercise of the management function referred to in Article 3, 9°, b), can only be entrusted to a company established in Belgium.
This requirement is not applicable to the tasks and tasks referred to in Article 22, paragraph 1^erprovided that this delegation of management functions has been previously approved by the CBFA;
7° where the exercise of management functions is entrusted to a company under the law of a non-member State of the European Economic Area, this undertaking must be subject in its State of origin to a monitoring equivalent to that referred to in point 4° and which is exercised permanently by a public authority. Cooperation between the relevant supervisory authorities must be ensured through collaborative agreements;
8° the performance of management functions referred to in Article 3, 9°, (a) and (b), (i), (iii), (iv) and ix), may not be entrusted or insured by the depositary of the investment company, or by any other company whose interests may be in conflict with those of the investment company or those of the holders of securities;
9° of the measures are put in place that allow the managers of the investment company to effectively control at any time the activity of the company with which the mandate contract or business contract is concluded;
10° the managers of the investment company must be able to give at any time additional instructions to the company to which management functions are entrusted and to terminate the mandate contract or the business contract with immediate effect when it comes to the interests of the holders of securities;
11° of the measures are put in place that allow, when terminated the contract of mandate or business contract for any cause, to ensure continuity of the management functions under the contract;
12° the prospectus of the investment company must indicate the management functions that the investment company has entrusted to a third party.
§ 2. The investment company cannot resort to § 1^er to such a extent that the presence of the material, human and technical means required by section 40 is insufficient to ensure compliance with section 40.
§ 3. When a third party has been assigned to perform certain management functions in accordance with § 1^er uses itself to a third party entity to perform the management functions entrusted to it, §§ 1^er and 4 are applicable. For investment companies that opted for the authorized investment category referred to in section 7, paragraph 1^er, 5° or 7°, the King determines, by order taken on the advice of the CBFA, the conditions under which the delegation by the third party referred to in paragraph 1^er of material tasks related to management functions referred to in Article 3, 9°, (b), may derogate from paragraph 1^er.
§ 4. The fact that the investment company has entrusted a third party with the performance of certain management functions referred to in Article 3, 9°, is without impact on its liability or on that of the depositary.
Art. 42. If there are close ties between the investment company and other natural or legal persons, these links cannot hinder the exercise of adequate control of the investment company.
If the investment company has close ties with a natural or legal person under the law of a non-member State of the European Economic Area, the legislative, regulatory and administrative provisions applicable to that person or their implementation cannot hinder the exercise of adequate control of the investment company.
Art. 43. § 1^er. When the investment company does not have, in accordance with section 40, a management structure that is specific to it and is appropriate to the activity it intends to carry out, or of the material, technical human means ensuring it an administrative, accounting, financial and technical organization that is specific to it and that is appropriate to the activity it intends to carry out, it designates a management company of collective investment organizations for the purpose of carrying out the overall functions referred to it
In this case, articles 40 and 41 are not applicable.
Compliance with the provisions of this Act and the orders and regulations made for its enforcement, applicable to the investment corporation, is the responsibility of the collective investment organization management corporation designated in accordance with paragraph 1^er.
§ 2. The collective investment management company designated under § 1^er, shall be approved in accordance with Part III of this Act to perform all the management functions referred to in Article 3, 9°.
It must have its registered office and central administration in Belgium.
The program of activities of the collective investment management corporation referred to in section 141 must establish that the management structure and the administrative, accounting and technical organization of the collective investment organization are appropriate to the authorized investment category for which the investment corporation has chosen.
§ 3. The choice of the collective investment management company must be accepted by the CBFA and the replacement of the designated collective investment management company is subject to the prior acceptance of the CBFA.
Section 33, paragraphs 2 to 4, is applicable to decisions made by CBFA under this paragraph.
§ 4. The King may complete the conditions of acceptance of the choice of the collective investment management company designated in accordance with § 1^er by categories of authorized investments open to investment companies.
Sub-section III. - Approval of the management regulations
and statutes
Art. 44. The King, by order taken on the advice of the CBFA, determines the minimum content of the management rules and regulations.
Art. 45. The CBFA shall verify the conformity of the management regulations or the statutes of the collective investment organization with the provisions of this Title and the orders and regulations made for its execution.
Any changes to the Regulations or Regulations are subject to prior approval by the CBFA. The decision shall be notified to the collective placement agency within fifteen days of its decision by registered letter to the position or with acknowledgement of receipt.
Section 33, paragraphs 2 to 4, is applicable to CBFA decisions made under paragraph 2.
Art. 46. The management of a mutual fund must be deposited with the CBFA.
To be admitted to the filing, the management regulations must be signed on each page by the person or persons delegated by the collective investment management company.
When compliance with the commitments made in the management regulations to holders of securities is guaranteed by the depositary or by any other person, it is also signed on each page by those who give this guarantee.
Within fifteen days, the CBFA shall notify the deposit of the said regulation by registered letter to the post or with acknowledgement of receipt. The lack of response leads to the reintroduction of the filing procedure.
The same procedure will be observed for changes to the management regulations.
Any interested person may be aware of the regulations filed at the CBFA.
Art. 47. The Regulations or Regulations are annexed to the prospectus referred to in section 52.
The collective investment organization shall ensure that the management regulations or statutes annexed to the prospectus referred to in section 52, are at any time up-to-date and in accordance with the text submitted to the CBFA or to the Registry of the trade tribunal as the case may be.
The prospectus and the reports referred to, respectively, to articles 52 and 76, § 1^erParagraph 1^er, bear the mention that the official text of the management regulations or statutes is filed with the CBFA or the Registry of the Commercial Court as the case may be. In the event of a dispute, only the text deposited at the CBFA or the Registry of the Commercial Court, as the case may be, is authentic.
Sub-section IV. - Acceptance of the choice of the depositary
Art. 48. § 1^er. The King, by order taken on the advice of the CBFA, determines the cases in which a collective investment agency must have a depositary, as well as the missions of the depositary and the conditions that it must fulfil, in view of the category of authorized investments for which the collective investment agency has chosen.
§ 2. Without prejudice to paragraph 1^er, may only intervene as a depositary for collective institutions with a variable or fixed number of shares, the following institutions and companies:
1° credit institutions established in Belgium that are subject to the Act of 22 March 1993;
2° the National Bank of Belgium;
3° the foreign exchange companies and investment companies, established in Belgium, which are subject to the law of 6 April 1995.
Without prejudice to paragraph 1^er, in respect of collective investment bodies in receivables, may intervene as depositary the natural or legal persons designated individually or by category by the King, by order taken on the advice of the CBFA.
Art. 49. The CBFA accepts the choice of the depositary when evidence is provided that the administrative, financial and technical organization of the depositary allows it, in view of the class of authorized investments of the collective investment agency, to exercise the activity of depositary, as well as the evidence that persons who represent the depositary and who in fact manage the activity of depositary possess the necessary professional honesty and the appropriate experience in respect of the class of authorized investments Section 39 applies to persons referred to above.
CBFA can revoke its acceptance.
Any replacement of the depositary is subject to the prior acceptance of the CBFA. The latter shall notify its agreement or refusal of replacement within fifteen days of receipt of a complete file by registered letter to the position or with acknowledgement of receipt.
Section 33, paragraphs 2 to 4, is applicable to CBFA decisions made under paragraphs 2 and 3 of this section.
Art. 50. § 1^er. The depositary may not exercise effective management functions within the investment corporation of which he or she is depositary or within the collective investment organization management corporation designated by the collective investment organization of which he or she is depositary.
The appointees, within the board of directors of the investment corporation or the management corporation of the designated collective investment bodies, on presentation of the undertaking that assumes the functions of depositary of that investment corporation or of the collective investment organization that has designated that collective investment organization management corporation, may not exercise effective management functions within the said investment corporation or within the said collective investment corporation.
§ 2. The King, by order taken on the advice of the CBFA, determines the rules to be followed by the depositary in order to avoid a conflict of interest with the holders of securities of the collective investment agency.
Art. 51. The management regulations, statutes or agreements between the investment corporation or the collective investment organization management corporation and the depositary may not mitigate, limit or exclude the liability of the investment corporation.
The liability of the depositary is not affected by the fact that it entrusts to a third party all or part of the assets of which it has custody.
Section III. - Prospectus d'offre publique de titres
and documents relating to the public offer of securities
Art. 52. § 1^er. A public offer of securities of a collective investment agency can only be made after a prospectus has been made public.
In the event of a public offer of shares of a group investment agency with a variable number of shares, a simplified prospectus must also be made public.
§ 2. The prospectus, as well as the simplified prospectus, contains the information that is necessary for the public to be able to make a judgment based on the proposed placement and, in particular, on the risks of the investment and the rights attached to the securities.
The simplified prospectus contains, in a summary form, the basic information on the placement that is proposed to the public and the risks associated with it.
The prospectus specifies the extent to which social, ethical and environmental aspects are taken into account in the implementation of the investment policy.
§ 3. In the event of a public offer of shares of a group investment agency with a variable number of shares, the information contained in the prospectus and the simplified prospectus must be kept up-to-date, in particular, by any new fact that might influence the public's judgment.
In the event of a public offer of securities of a fixed-number collective investment organization of shares or a collective investment agency in receivables, any significant developments that may influence the public's judgment and intervening between the time the approval provided for in section 53 is given, and that of the closure of the transaction or, where applicable, the commencement of the negotiation on an organized market, is the subject of a supplement to the prospectus.
Art. 53. § 1^er. The prospectus, the simplified prospectus and their potential updates or supplements can only be made public after being approved by the CBFA.
Derogation from § 1^er, the King shall indicate, according to their object, the information contained in the prospectus and the simplified prospectus that, when it is updated in accordance with Article 52, § 3, may be made public without prior approval by the CBFA. Notwithstanding this paragraph, any update must be communicated to the CBFA prior to publication.
§ 2. 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, regardless of their mode of publication, after being approved by the CBFA.
Art. 54. The prospectus and the simplified prospectus, their updates or supplements contain the indication that they are published after being approved by the CBFA in accordance with Article 53, § 1^erand that this approval does not include any appreciation of the opportunity and quality of the offer, nor of the situation of the one who realizes it.
Except for the indication referred to in paragraph 1^er, no mention of the CBFA intervention may be made in the prospectus, the simplified prospectus, their updates or supplements, or in the notices, advertisements or other documents that relate to the offer or that announce or recommend it.
Art. 55. The prospectus explicitly identifies those responsible for the content of the prospectus and the simplified prospectus.
The persons referred to in the prospectus pursuant to paragraph 1^er shall be held in solidarity with the persons concerned, notwithstanding any stipulation to the contrary, of the remedy of the harm which is an immediate and direct result of the absence, inaccuracies or misleading of the statements, in the prospectus, the simplified prospectus, their updates or supplements, prescribed by or under sections 52, 54 and 56.
The Offeror, the collective investment organization, the management company of designated collective investment bodies or the intermediaries designated by them shall be held in solidarity with the persons concerned, notwithstanding any provision to the contrary, of the compensation of the damage that is an immediate and direct result of the inaccuracy or misleading of the information given in the notices, the advertisement or other documents that relate to the offer, which shall
Art. 56. The King may, by order made on the advice of the CBFA, in respect of the publication of the following documents:
1° to determine, depending on the type of offer and the purpose of the offer, the minimum content and mode of presentation of the prospectus, the simplified prospectus and their updates and supplements, as well as the minimum content and mode of presentation, notices, advertisements and other documents that relate to the offer or which announce or recommend it;
2° to determine, depending on the type of offer and the purpose of the offer, the deadlines and modes of publication of the prospectus, the simplified prospectus and their updates and supplements, as well as the deadlines and modes of publication of notices, advertisements and other documents that relate to the offer or recommend it;
3° to determine under which conditions it may be provided on the basis of the prospectus or simplified prospectus;
4° to determine under what conditions prospectus, simplified prospectus, their updates and supplements as well as notices, advertisements and other documents that relate to the offer or that announce or recommend it may be made public by posting on the website of the collective investment organization, the management company of designated collective placement organizations, the agency referred to in article 73, 1 § 2 or^er, which was entrusted with the exercise of the management function referred to in section 3, 9°, c).
Art. 57. § 1^er. Anyone who proposes to publicly offer securities from a collective investment organization shall notify the CBFA in advance.
§ 2. A notice referred to in § 1^er, is attached a file prepared in accordance with the requirements of CBFA, which shall include:
1° the prospectus project and, where appropriate, the simplified prospectus project established in accordance with Articles 52, §§ 2 and 3, 54, 55 and 56 and the decrees taken for their execution;
2° the draft of the notices, advertisements and other documents that relate to the offer, which announce or recommend it, that are prepared on the initiative of the Offeror, the collective investment agency, the management company of collective investment organizations or by the intermediaries designated by them;
3° 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;
4° where applicable, a detailed statement of titles, of any kind, held in the issuer by those who gave the notice provided in § 1^er and, where appropriate, by those who make up the trade unions referred to in the second paragraph of this paragraph.
Art. 58. Without prejudice to Article 57, § 2, 2°, anyone who proposes to make public notices, advertisements and other documents that relate to a public offer of securities of a collective investment agency, who announce such an offer or recommend it in advance to CBFA.
Art. 59. The CBFA may require persons who have given the notice referred to in sections 57 and 58, all the information necessary to assess the complete and adequate nature of the information taken, as the case may be, in the prospectus, in the simplified prospectus, in their updates or supplements, as well as to assess the complete and adequate nature of the notices, advertisements and other documents that relate to a public offer of securities of such a collective investment organization, which announces
Art. 60. Within 15 working days after receipt of a complete file, the CBFA decides either to approve, as the case may be, the prospectus, the simplifed prospectus, their updates or supplements, or the notices, advertisements and other documents that relate to a public offer of securities of a collective investment organization, that announce such offer or recommend it, or to refuse to approve, as the case may be
Art. 61. When the CBFA has not made any of the decisions referred to in Article 60, the persons who have given the notice provided for in Articles 57, § 1^er and 58 may, by registered mail, put the CBFA in place to do so. This notice may be made at the earliest of the expiry of a period of 15 working days from the date of the last application, by the CBFA, of additional information within the meaning of section 59, or, in the absence of such a request, not earlier than the expiry of a period of 15 working days from the date of the notice referred to in sections 57, § 1^er and 58.
If, on the expiry of 15 business days from the date of the time limit referred to in paragraph 1^er, the CBFA remains in default, either to make the decision, citing the missing elements, that the file may not yet be considered complete, or to make any of the decisions referred to in section 60, the application for approval, as the case may be, of the prospectus, simplified prospectus, updates or supplements or notices, advertisements and other documents that relate to a public offer of securities of an advertising agency of an advertisement
Art. 62. § 1^er. The decisions referred to in Article 60 are brought to the attention of the persons who have given the notice provided in Articles 57, § 1^er and 58, by registered letter to the post or with acknowledgement of receipt. If this is an offer referred to in Article 3, 1°, b), these decisions are also brought to the attention of the relevant market companies.
Only persons who have given the notice provided in Articles 57, § 1^er and 58, in accordance with Article 121, § 1^erParagraph 1^er5°, of the Act of 2 August 2002, appeal against the refusal of the CBFA to approve, as the case may be, the prospectus, the simplified prospectus, the updates or supplements or 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, or against the decision referred to in section 61, paragraph 2,
Decisions to approve by the CBFA as appropriate, prospectus, simplified prospectus, updates or supplements or notices, advertisements and other documents that relate to a public offer of securities of a collective investment organization, which announce or recommend such offer are not subject to appeal.
§ 2. When titles of a collective investment agency subject to a public offer referred to in Article 3, 1°, (a) or (b), have been made at a close date or are simultaneously subject to another Member State of the European Economic Area of an offer for sale or public sale or of an admission to the official quota of a stock exchange, for which a prospectus has been established and published in accordance with the national provisions taken
The prospectus approved by the competent authority of the other Member State is, however, for its distribution in Belgium, supplemented with respect to the information specific to the Belgian market, in particular with respect to the tax status of revenues, to the financial institutions that provide the financial service in Belgium and to the mode of publication of the notices to the public.
The prospectus referred to in paragraph 1^er, completed if applicable in accordance with paragraph 2, is submitted to the FAA at least fifteen days before the commencement of the offer for the control of the items referred to in paragraph 2.
This paragraph does not apply to the public offer of securities of collective investment organizations established in Belgium.
The King shall determine the terms and procedure for the application of this paragraph.
CHAPTER III. - Exercise of activity
Section I^re. - Investment policy
Art. 63. A collective investment organization that has opted for the class of authorized investments referred to in Article 7, paragraph 1 is prohibited^er, 1°, change this choice.
Art. 64. Collective investment organizations that opted for one of the authorized investment categories referred to in Article 7, paragraph 1^er, 3° to 7° and 9°, can always hold short-term investments and liquidity as an accessory or temporary measure.
Art. 65. Without prejudice to Article 7, paragraph 2, the King, by order made on the advice of the CBFA, shall determine the obligations and prohibitions to which collective investment bodies are subject in respect of the class of authorized investments for which they have chosen and, in particular:
1° the risk allocation coefficients;
2° with respect to collective investment organizations in receivables, the modalities for managing the risks of default of payment;
3° the conditions under which collective investment organizations that opted for one of the authorized investment categories referred to in Article 7, paragraph 1^er, 3° to 5° and 7°, may hold financial instruments and liquidity;
4° if collective investment organizations are authorized to carry out the following transactions and, where applicable, the limits and conditions of such authorization:
(a) the loan;
(b) the sale on the basis of an uncovered position;
(c) the firm capture and guarantee of good end of programming and the subscription of any financial commitments to third parties;
(d) the loan of securities, the granting of credits or the granting of security rights to guarantee the obligations of third parties.
Art. 66. By derogation from section 65, 4°, (a), organizations of collective investment in receivables may, within the limits provided for by their regulations or statutes and within the limits set by the King by order taken on the advice of the CBFA, issue obligations and other debt securities and enter into borrowings or credits to finance the debt portfolio or to manage the default risks of payment of creditors.
Section II. - Obligations and prohibitions
Art. 67. § 1^er. It is prohibited for a collective investment organization to acquire a quantity of securities of the same corporation, such that, given the structure and dispersion of the shareholding of the corporation, such securities would enable it to influence the management of the corporation or the designation of its directors.
The King, by order taken on the advice of the CBFA, sets the limits to detention by a group placement agency, of securities of the same class of a single issuer.
§ 2. It is prohibited for a collective investment organization to commit to voting in a specific manner with the titles it manages or to vote according to the instructions of other persons whom the participants gathered in the general assembly. It is prohibited for a collective investment organization to commit to not selling securities, granting a right of pre-emption, or to conclude any other agreement that would hinder its management autonomy.
Any convention to the contrary is null.
§ 3. The King may, by order taken on the advice of the CBFA, provide for exceptions to paragraphs 1^er and 2 for collective investment organizations that have opted for authorized investment categories referred to in Article 7, paragraph 1^er, 5°, 6° and 9°, to take into account the characteristics of the assets comprising the aforementioned authorized investment categories.
§ 4. Paragraphs 1^er and 2 do not apply in cases where an investment company has established subsidiaries that are themselves collective investment organizations within the meaning of section 4.
§ 5. The collective investment organization reports in its annual report on its policy on the exercise of voting rights attached to the securities it manages. In particular, it mentions and justifies the manner in which voting rights have been exercised or the reasons why voting rights have not been exercised.
§ 6. A collective investment agency is prohibited from acquiring securities of a Belgian law or foreign law company whose activity consists in the manufacture, use and detention of anti-personnel mines within the meaning of the law of 3 January 1933 on the manufacture, trade and port of arms and the trade of ammunition. This prohibition does not apply to investment organizations whose investment policy, in accordance with their statutes or management regulations, is intended to monitor the composition of a specified stock or bond index.
Art. 68. The King, by order taken on the advice of the CBFA, determines the rules to be followed by the investment company, by the management company of designated collective investment organizations and by the third parties referred to in section 41 to avoid conflict of interest with holders of securities of the investment company.
Art. 69. The collective investment agency is bound to respect section 26 of the Act of 2 August 2002 in its relations with the holders of securities.
The King may, by order made on the advice of the CBFA and after open consultation, adapt the provisions of section 26 of the Act of 2 August 2002 to the specificities of the activity of the collective investment agencies and determine the terms and conditions of application according to the authorized investment category for which the collective investment agency has opted.
Art. 70. The collective investment agency is required to comply with section 27 of the Act of 2 August 2002.
Art. 71. CBFA may, in individual cases and with adequate, fair and non-nominative advertising of the derogation policy, grant exemptions to the provisions referred to in sections 69 and 70 as well as to the provisions set out in these articles, if it considers that the provisions in question are inappropriate to the activities or situation of the collective investment organization and provided that the collective investment agency implements adequate alternative measures that provide an appropriate level of market integrity
Art. 72. In the event of the dissolution, liquidation or restructuring of the investment company or its compartments, the investment company shall comply with the provisions, decided by the King on the advice of the CBFA, to ensure the protection of the interests of the participants in the evaluation, costs related to such transactions, information and conditions in which the participants may, on the occasion of such transactions, obtain without charge the redemption of their shares.
Section III. - Emission and public offer of securities
a collective investment organization
Art. 73. § 1^er. The shares of the collective investment organizations with a variable number of shares are issued and redeemed by the collective investment organization to the inventory value, if any increased or reduced the fees and commissions provided by the management regulations or the statutes. The inventory value is calculated each day that the issue and the redemption of the shares are authorized by the Management Regulations or the Regulations.
§ 2. The collective investment body with a variable number of shares shall designate a Belgian credit institution listed in section 13 of the Act of 22 March 1993, a branch of a credit institution under the law of another Member State of the European Economic Area registered in accordance with section 65 of the Act of 22 March 1993, a Belgian stock exchange corporation listed in the list referred to in section 53 of the Act of 6 April 1995,
The King, by order made on the advice of the CBFA, determines the obligations and prohibitions to which enterprises referred to in paragraph 1 are subject.^er of this paragraph in the course of the activities described therein.
§ 3. The shares of a group investment agency with a variable number of shares may be admitted to negotiations on an organized market provided that the collective investment agency has established a mechanism to ensure that the share price does not significantly deviate from the inventory value of the shares.
The King, by order taken by the CBFA, fixes the maximum amount of this deviation.
Without prejudice to paragraph 2, the CBFA appreciates the acceptable nature of the maximum difference between the course and the inventory value under the organization's investment policy, the characteristics of the authorized investment category for which it has chosen and the characteristics of the market on which the shares are negotiated.
Art. 74. The King, by order taken on the advice of the CBFA, determines the obligations and prohibitions to which collective investment bodies and third parties referred to in Article 41, § 1^er, which has been entrusted with the performance of the management function referred to in section 3, 9°, (c), in respect of the issuance and public offer of securities of collective investment organizations and, in particular:
1° the method of calculating the inventory value of the shares of the collective investment organization;
(2) the cases in which the right of free entry and exit may be suspended;
3° the method of charging fees and commissions.
Art. 75. The shares of fixed-number collective investment agencies are allowed to negotiate on a regulated market.
The securities of the collective investment organizations that have been publicly offered are admitted to negotiations on a regulated market.
Section IV. - Periodic information and accounting rules
Art. 76. § 1^er. Every collective investment organization publishes an annual report per fiscal year and a semi-annual report covering the first six months of the fiscal year. These reports contain a detailed inventory of assets, an assessment of results and information on how social, environmental and ethical criteria were taken into account in the management of financial resources and in the exercise of portfolio securities rights. This obligation applies, if applicable, by compartment.
Without prejudice to paragraph 1^er, any collective investment agency in receivables publishes a quarterly financial statement of its assets and liabilities and its results, in accordance with the terms determined by the King by decree taken on the advice of the CBFA. This obligation applies, if applicable, by compartment.
§ 2. Annual and semi-annual reports and quarterly financial statements referred to in § 1^er are communicated to the CBFA.
§ 3. Annual and semi-annual reports and quarterly financial statements referred to in § 1^er are paid to the holders of securities of the collective investment organization who request it. The last annual or semi-annual report must always be annexed to the prospectus.
They must be made available to the public at the locations indicated in the prospectus and, where appropriate, in the simplified prospectus.
The King, by order made on the advice of the CBFA, determines the content, form, mode and time of publication of annual and semi-annual reports as well as the quarterly financial statements as well as the conditions under which the annual reports, semi-annual reports and the quarterly financial statements may be made public by posting on the website of the collective investment organization, of the management company of the designated collective investment bodies, of the third party article, of the^er, which was entrusted with the exercise of the management function referred to in section 3, 9°, c).
Art. 77. The King, by order made on the advice of the CBFA, sets out the rules that collective investment organizations maintain their accounting, if any, by compartment, carry out the inventory assessments and establish and publish their annual accounts. With respect to investment companies, it may adapt, amend and supplement the rules made pursuant to the Act of 17 July 1975 on business accounting and, under the conditions of section 122, paragraph 1^er, of the Corporations Code, the rules made pursuant to section 92 of the Corporate Code.
Art. 78. The group investment agency with a variable number of shares must publish the inventory value of the shares according to the rules fixed by the King, each day the issue or redemption of these shares is possible.
Art. 79. CBFA may, if it considers that there is a danger of confusion, require the addition of an explanatory statement to the name of the collective investment organization.
CHAPTER IV. - Control of collective investment bodies
Section I^re. - Control exercised by CBFA
Art. 80. Collective investment organizations are subject to the control of CBFA.
Without prejudice to section 59, the CBFA may be provided with all information relating to the organization, operation, situation and operations of the collective investment organizations under its control, as well as to the valuation and profitability of the assets.
It may carry out on-site inspections with the collective investment organization, the management company of designated collective investment organizations, and any other entity that exercises, directly or indirectly, management functions on behalf of the collective investment organization, as well as with the depositary, and shall be aware and copy, without displacement, of any information held by them, with a view to:
1° to verify compliance with the provisions of this Act and the orders and regulations made for its implementation, and the provisions of the regulations or regulations, as well as the accuracy and sincerity of the annual accounts and accounts, as well as annual and semi-annual reports, quarterly financial statements, periodic reports and other information transmitted to it by the collective investment organization;
2° to verify the adequacy of management structures, the administrative, accounting, financial and technical organization, and the internal control of the collective investment organization;
3° to ensure that the management of the collective investment organization is sound and prudent and is not likely to compromise the rights attached to the securities;
4° to verify the completeness and adequacy of the information contained in the prospectus, the simplified prospectus and their updates or supplements as well as in 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. In this case, CBFA may also conduct on-site inspections with financial intermediaries who intervene or have intervened in a public offer of securities of the collective investment agency.
The King determines the remuneration to be paid to the CBFA by the collective investment organizations in respect of the control costs.
Art. 81. Collective investment agencies regularly communicate to the CBFA a detailed financial situation. It is established in accordance with the rules laid down by regulation of the CBFA, taken in accordance with section 64 of the Act of 2 August 2002, which determines its content, frequency and mode of communication.
In addition, the CBFA may prescribe the regular communication of other encrypted or descriptive information necessary to verify compliance with the provisions of this Title and the orders and regulations made for their execution.
CBFA may, in special cases, authorize exemptions from the regulation referred to in paragraph 1^er.
The regulations under paragraph 1^er is taken after consultation with relevant professional associations.
Art. 82. Without prejudice to section 69, CBFA does not have a relationship between the collective investment organization and a specified participant only to the extent required for the control of the collective investment organization.
Section II. - Revisional control
Art. 83. § 1^er. Collective investment organizations are required to designate a Commissioner who acts as Commissioner under the Corporate Code.
Section 141, 2°, of the Corporate Code is not applicable to collective investment organizations.
The provisions of the Code of Societies applicable to the appointment, remuneration, resignation, revocation and competence of the Commissioner of Corporations governed by the Code of Societies are applicable to the Commissioner designated in a mutual fund.
§ 2. The functions of Commissioner may only be entrusted to a registered revisors or to one or more revisors approved by the CBFA pursuant to section 52 of the Act of 22 March 1993.
Collective placement organizations may designate alternate commissioners who perform the duties of Commissioner in the event of their licensee's lasting incapacity. The provisions of this Article and Article 84 shall apply to such substitutes.
Art. 84. Authorized reviewers perform the duties of Commissioner under section 83 through a registered reviewer appointed by them and in accordance with section 33, § 2, of the Act of July 22, 1953. creating an Institute of Business Reviewers. The provisions of this Act and the decrees and regulations made for its enforcement, which are related to the designation, functions, obligations and prohibitions of commissioners, as well as to sanctions, other than criminal, that are applicable to the commissioners, shall apply both to revisors and to approved reviewers representing them.
A registered reviser corporation may designate an alternate representative from among its eligible members to be designated.
Art. 85. The Institute of Business Revisers informs the CBFA of the opening of any disciplinary proceedings against an approved reviewer or a registered reviewer company for failure to perform its duties with a collective investment agency.
Art. 86. The designation of commissioners and alternate commissioners to collective investment organizations is subject to the prior agreement of the CBFA. This agreement must be collected by the social body that makes the nomination proposal. In the event of the designation of an approved reviser company, the agreement shall jointly deal with the company and its representative and, where appropriate, its alternate representative.
The same agreement is required for the renewal of the mandate.
When, under the Act, the Commissioner's appointment is made by the President of the Commercial Court or the Court of Appeal, they make their choice on a list of approved reviewers with the agreement of the CBFA.
Art. 87. The CBFA may, at any time, revoke, by a decision based on reasons for their status or the performance of their duties as an approved reviser or a registered reviser corporation, as provided by or under this Act, the agreement given, in accordance with section 86, to a Commissioner, an alternate commissioner, a registered reviser corporation or a representative or alternate representative of such a corporation. This revocation puts an end to the duties of Commissioner.
In the event of a commissioner's resignation, the CBFA and the collective investment agency are previously informed, as well as the reasons for the resignation.
The by-law referred to in section 52, paragraph 1^erof the Act of 22 March 1993 regulates the procedure.
In the absence of an alternate commissioner or an alternate representative of an approved reviser corporation, the collective investment organization or the registered reviewer corporation shall, in accordance with section 86, be replaced within two months.
The proposal to revoke Commissioner's terms of reference in collective investment organizations, as set out in sections 135 and 136 of the Corporate Code, is subject to the advice of the CBFA. This notice is communicated to the General Assembly.
Art. 88. § 1^er. The Commissioners shall cooperate in the control exercised by CBFA under their exclusive personal responsibility and in accordance with this paragraph, the rules of the profession and the instructions of CBFA. To this end:
1° they shall ensure that collective investment organizations have adopted the appropriate measures of administrative, accounting, financial and technical organization, and internal control for compliance with this Act and the decrees and regulations made for its execution, and the rules of management or statutes;
2° they confirm, in respect of CBFA, that the annual, semi-annual and quarterly financial statements, which are transmitted to it by the collective investment bodies under section 76, § 1^eras well as the periodic information transmitted under section 81, is complete, correct and established in accordance with the rules applicable thereto;
3° they make periodic reports to the CBFA, or at its request, of special reports on the organization, activities and financial structure of the collective investment organization;
4° in the context of their missions to the collective investment agency, or a revisoral mission to the management company of designated collective investment bodies or any other entity that exercises, directly or indirectly, management functions on behalf of the collective investment organization, to the depositary, as well as a related undertaking, within the meaning of Article 11 of the Corporate Code, with the investment corporation
(a) decisions, facts or developments that have a significant impact on or may have a significant impact on the situation of the collective investment organization in the financial or administrative, accounting, financial or technical context of the organization or its internal control;
(b) decisions or facts that may constitute violations of the Corporations Code, the statutes, this Title and the decrees and regulations made for its execution;
(c) other decisions or facts that are likely to result in a refusal to certify or issue reservations.
No civil, criminal or disciplinary action may be brought or any professional sanction imposed against the commissioners who have proceeded in good faith to any information referred to in the 4th of this paragraph.
The Commissioners shall, as the case may be, communicate to the managers of the investment corporation or the designated collective investment organization management corporation the reports they submit to the CBFA pursuant to paragraph 1^erThree. These communications fall under the secret organized by section 76 of the Act of 2 August 2002. They transmit to the CBFA copies of the communications they address to these leaders, which deal with issues of interest to the control exercised by them.
§ 2. The CBFA may require that the accuracy of the information transmitted to it under section 80 be confirmed by the Commissioner of the collective investment agency.
Commissioners may be charged by CBFA, at the request of the National Bank of Belgium or the European Central Bank, to confirm that the information that collective investment agencies are required to communicate to these authorities is complete, correct and established in accordance with the rules applicable thereto.
CHAPTER V. - Deletion of registration,
delisting of registration and accreditation,
exceptional measures and administrative sanctions
Art. 89. The CBFA deletes by decision notified by registered letter to the position or with acknowledgement of receipt, the registration of collective placement organizations and, where applicable, the registration of compartments, which did not commence their activities within three months of the registration, which renounce the registration or ceased to carry out their activities. In the case of investment companies, it also removes the approval of these companies.
Art. 90. Where, in violation of Article 52, § 3, paragraph 2, a supplement to the public tender of securities of a collective investment agency is not made public, the CBFA may, if it is aware of a fact justifying the publication of such a supplement, suspend the offer until this supplement to the prospectus is made public.
The CBFA may make public, at the expense of the Offeror, the decision to suspend the operation.
To any person who, at the expiry of the time limit set by the CBFA, fails to comply with an injunction to suspend the operation that has been addressed to it under this article, the CBFA may, that person heard or at least duly summoned, inflict a breach that may not be, per calendar day, greater than 50,000 euros, or, for the misknowledge of a same Euro suspension.50
An appeal shall be appealed against the decisions of CBFA made under paragraph 3 of this article, in accordance with Article 121, § 1^erParagraph 1^er4° of the law of 2 August 2002.
Art. 91. If CBFA considers:
1° that an offer may be made or is made under conditions that may induce the public in error, in particular on the risks inherent to the investment proposed to it or on the rights attached to the securities that are the subject of the offer; or,
2° that notices, advertisements and other documents that relate to a public offer of securities of collective investment bodies, which announce or recommend such offer, are likely to induce the public in error, including the risks inherent in the proposed investment or the rights attached to the securities that are the subject of the offer, it advises, as the case may be, the Offeror
If this notice is not taken into account, the CBFA may decide to suspend the transaction. It may also decide to suspend or withdraw notices, advertisements or other documents that relate to the offer, which announce or recommend it referred to in paragraph 1^er. Finally, it may order persons referred to in paragraph 1^er to publish a correction.
Decisions referred to in paragraph 2 shall be notified by registered letter to the position or with acknowledgement of receipt to persons referred to in paragraph 1^er, and if this is an offer within the meaning of Article 3, 1°, b), to the market companies concerned.
The CBFA may make public the decision to suspend the operation or to suspend or withdraw notices, advertisements or other documents relating to the offer, which announce or recommend it. If the correction referred to in paragraph 2 has not been made at the expiry of the time limit, the CBFA may also make the order of rectification public and, where appropriate, make the publication of the requested correction. The measures of the CBFA referred to in this paragraph shall, as the case may be, be taken at the expense of the Offeror and/or the Collective Investment Corporation and/or the Management Corporation of Designated Collective Investment Organizations and/or individuals, at the initiative of which notices, advertisements and other documents relating to the Offer, which announce or recommend it are made public, and/or intermediaries designated by them.
To any person who, at the expiry of the time limit set by the CBFA, fails to comply with a suspension or withdrawal order that has been sent to it under paragraph 2, the CBFA may, that person heard or duly summoned, inflict a breach that may not be, by calendar day, greater than 50,000 euros, or, for the lack of knowledge of a same suspension or withdrawal of euros.50
An appeal is open against CBFA decisions made under paragraph 5 of this article, in accordance with Article 121, § 1^erParagraph 1^er4° of the law of 2 August 2002.
Art. 92. § 1^er. Without prejudice to sections 90 and 91, where the CBFA finds that a collective investment organization does not work in accordance with the provisions of this Act and the regulations made for its execution or with the provisions of the management regulations or statutes, that its management or financial situation is likely to jeopardize the effective termination of its commitments, whether its management structures, administrative, accounting, technical or financial organization, or its internal control
If at the end of this period, the situation has not been resolved, the CBFA may:
1° publicize its position on the findings made under paragraph 1^er; the costs of this publication are borne by the investment company and/or the management company of designated collective investment organizations;
2° appoint a special commissioner;
3° suspend for the duration that it determines any issue or redemption of shares;
4° ask the competent market companies to suspend the bargaining of the securities of the collective investment organization;
5° enjoin the replacement of directors of the investment corporation or of the collective investment organization management corporation designated within a time frame that it determines and, in the absence of such a replacement within that time limit, substitute for all bodies of the administration and management of the investment corporation and/or the management society of collective investment organizations designated one or more provisional directors that have, on the sole or collegiate basis of The CBFA publishes its decision to the Belgian Monitor;
6° revoke the registration of the collective investment organization and, if applicable, the approval of the investment company.
§ 2. In the case referred to in § 1^er, paragraph 2, 2°, the written, general or special authorization of the Special Commissioner is required for all acts and decisions of all organs of the investment corporation and/or the management company of designated collective investment bodies, which relate directly or indirectly to the managed investment agency, including the general meeting of the participants, and to those of persons responsible for management; CBFA may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all organs of the investment corporation or the designated collective investment organization management corporation, including the general meeting of participants, and to those responsible for management, any proposals that he considers appropriate. The remuneration of the special commissioner is fixed by the CBFA and supported, as the case may be, by the investment company or by the management company of designated collective investment organizations.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions without having obtained the required authorization from the Special Commissioner are responsible in solidarity with the resulting harm to the collective bargaining agency or third parties.
If the CBFA has published to the Belgian Monitor the designation of the Special Commissioner and specifies the acts and decisions subject to its authorization, the acts and decisions taken without that authorization while it was required are null unless the Special Commissioner ratifies them. Under the same conditions, any decision of a general assembly made without obtaining the required authorization from the Special Commissioner is null unless the Special Commissioner ratifies it.
The CBFA may designate an alternate commissioner.
In the event of a serious threat to the holders of securities of the collective investment agency, the CBFA may designate a special commissioner without prior fixing of a period as provided in § 1^erParagraph 1^er.
§ 3. In the case referred to in § 1^er, paragraph 2, 3°, the members of the boards of directors and management of the investment corporation and/or the management company of designated collective investment bodies, and the persons responsible for the management who perform acts or make decisions in violation of the suspension are liable in solidarity with the resulting harm to the collective investment organization or third parties.
If the CBFA issued the suspension to the Belgian Monitor, the actions and decisions against it are null and void.
§ 4. In the case referred to in § 1^er, paragraph 2, 5°, the remuneration of the provisional director(s) is fixed by the CBFA and supported by the investment company or by the management company of designated collective investment organizations.
The CBFA may, at any time, replace the interim administrator(s) either ex officio or at the request of a majority of the members of the collective investment organization or shareholders of the designated collective investment organization management corporation when they justify that the management of the persons concerned no longer presents the necessary guarantees.
§ 5. The CBFA decisions referred to in § 1^er effect on the investment corporation and/or the collective investment organization management corporation designated as of the date of their notification to the investment corporation by registered letter to the position or with acknowledgement of receipt and, in respect of third parties, on the date of their publication in accordance with the provisions of §§ 1^er and 2.
§ 6. § 1^erParagraph 1^er and § 5 are not applicable in the event of the revocation of the registration of a collective investment organization declared bankrupt.
Art. 93. Without prejudice to Article 327, § 5, of the Income Tax Code 1992, the CBFA does not know tax matters.
However, § 1^erParagraph 1^er and paragraph 2, 2°, and § 2. of Article 92 are applicable in case the CBFA is aware of the fact that an investment corporation and/or a designated collective investment management company has established a particular mechanism for the purpose or effect of promoting tax evasion by third parties.
Art. 94. The CBFA shall promptly inform the authorities of the control of the bodies of the collective placement of the other Member States of the European Economic Area in which a collective investment body of Belgian law publicly offers its titles, of the decisions it has taken in accordance with articles 89 to 92. It keeps these authorities informed of the action taken against these decisions in accordance with articles 121, § 1^erParagraph 1^er4° and 122°, 22°, of the law of 2 August 2002.
Art. 95. Collective investment organizations whose registration has been terminated or revoked under sections 89 and 92 remain subject to this Title and to the orders and regulations made for its execution up to the refund of the holders of the securities of the collective investment organization that have been the subject of a public offer, unless CBFA exempts them for certain provisions.
This section is not applicable in the event of a revocation of the registration of a registered investment organization in bankruptcy.
Art. 96. § 1^er. Without prejudice to the other measures provided for in this Act, CBFA may set a time limit for an investment corporation and/or a designated collective investment corporation to:
(a) it shall comply with any specified provisions of this Title or any orders or regulations made for its execution, or (b) it shall make any adjustments to its management structure, administrative, accounting, technical or financial organization or internal control.
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.
§ 2. Without prejudice to the other measures provided for in this Act and without prejudice to the measures defined by other laws or other regulations, the CBFA may, when it finds an offence to the provisions of this Act or to the measures taken pursuant to these Acts, impose an administrative fine to a collective investment body of Belgian law, 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.
§ 3. Penalties and fines imposed under §§ 1^er or 2 and sections 90 and 91 are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
§ 4. An appeal is open against CBFA decisions taken under §§ 1^erparagraph 2, and 2, in accordance with Article 121, § 1^erParagraph 1^er4° of the law of 2 August 2002.
PART III. - Institutional collective investment organizations
CHAPTER I^er. - General provisions
Section I^re. - Collective investment organizations
variable number of institutional units
Art. 97. The organization must be heard by a collective institution with varying number of institutional units:
1° whose exclusive purpose is the collective placement in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 2°, 3°, 4° and 9°, for which there is a market, in accordance with the provisions of this title, of the decrees and regulations made for its execution and of the management regulations or the statutes of the organization;
2° whose financial means are collected exclusively from institutional or professional investors acting on their own behalf, and whose shares can only be acquired by such investors;
3° whose shares are at the request of the participants, redeemed or refunded, directly or indirectly, to the assets of that organization at a price calculated on the basis of the inventory value;
4° whose shares are nominal.
Art. 98. § 1^er. Articles 11, §§ 1^er, 2 and 4, 12, paragraphs 1^er and 3, and 13 apply to mutual institutional investment funds with varying number of shares.
§ 2. The management of a common institutional investment fund may be amended by a decision of the general meeting of participants.
§ 3. Any mutual fund with a variable number of institutional units shall be designated by a particular name; the latter should include the words "common investment funds with varying number of institutional units of Belgian law" or "open institutional funds of Belgian law", or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er, does not derive from this denomination, the indication of this class must always immediately follow its denomination.
Art. 99. § 1^er. Articles 14, paragraph 1^er15, §§ 1^er, 3 to 6 and 16, are applicable to the investment company with varying number of institutional units.
§ 2. An institutional investment corporation may not operate other than that provided for in Article 4, paragraph 1^er, 1°, b), or hold other assets other than those necessary for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Code of Companies, the social name of an investment company with varying numbers of institutional units and all documents emanating from it must contain the words "institutional variable capital investment company of Belgian law" or "institutional Sicav of Belgian law" or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. By derogation from Article 1^er the Corporate Code, an investment company with a variable number of institutional units may be constituted by an institutional or professional investor.
Article 646, § 1^er, paragraph 2, of the Corporate Code is not applicable.
Section II. - Collective investment organizations
fixed number of institutional units
Art. 100. By a fixed number of institutional units, the organization must be heard:
1° whose exclusive purpose is the collective placement in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 2° to 6°, 8° and 9°, in accordance with the provisions of this Act, the orders and regulations made for its execution and the management regulations or the statutes of the investment agency;
2° whose financial means are collected exclusively from institutional or professional investors acting on their own behalf, and whose shares can only be acquired by such investors;
3° whose shares are not redeemed at the request of the dependants of the assets of the organization;
4° whose shares are nominal.
Art. 101. § 1^er. Articles 11, §§ 1^er, 2 and 4, 12, paragraphs 1^er and 3, 13 and 18, § 3 apply to mutual funds of fixed number of institutional units.
§ 2. The management of a common institutional investment fund may be amended by a decision of the general meeting of participants.
§ 3. A common fixed-number investment fund shall be designated by a particular name; the latter must include the words "joint investment fund with fixed numbers of institutional units of Belgian law" or "enclosed institutional funds of Belgian law" or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
Art. 102. § 1^er. Articles 19, paragraph 1^er and 20, §§ 1^er, 3 and 4 are applicable to the fixed number investment company of institutional units.
§ 2. An institutional investment corporation may not operate other than that provided for in Article 4, paragraph 1^er, 1°, b), or hold other assets other than those necessary for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Code of Companies, the name of a fixed-number investment company of institutional units and all documents emanating from it must contain the words "institutional fixed-capital investment company of Belgian law" or "institutional Sicaf of Belgian law" or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
§ 4. By derogation from Article 1^er the Corporate Code, a fixed-number investment company may be made up of an institutional or professional investor.
Article 646, § 1^er, paragraph 2, of the Corporate Code is not applicable.
Section III. - Collective investment organizations
in institutional receivables
Art. 103. The organization must be heard by collective investment in institutional receivables:
1° whose exclusive purpose is the collective placement in the class of authorized investments referred to in Article 7, paragraph 1^er, 7°, in accordance with the provisions of this Act, of the orders and regulations made for its execution and of the management regulations or the statutes of the investment agency;
2° whose financial means are collected exclusively from institutional or professional investors acting on their own behalf, and whose securities can only be acquired by such investors;
3° whose shares are not redeemed at the request of the dependants of the assets of the collective investment organization;
4° whose shares are nominal.
Notwithstanding paragraph 1^er, 2°, the assignor of receivables, which does not have the quality of institutional or professional investor, may acquire the organization's securities or provide it with financial means in another way, as these financial means are primarily intended to provide the other investors with guarantees to manage the risks of default of payment of receivables.
Art. 104. The provisions of Article 22, paragraphs 2 and 3, shall apply.
Art. 105. Articles 11, §§ 1^er, 2 and 4, 12, paragraphs 1^er and 3, 13 and 18, § 3, apply to mutual funds for institutional receivables.
The management of a common fund for institutional receivables may be amended by a decision of the general meeting of participants.
Any mutual fund for institutional receivables must be designated by a particular name; the latter should include the words "joint fund for the placement of Belgian institutional receivables" or be followed immediately by these words.
Art. 106. § 1^er. Articles 24, paragraph 1^er25, § 3, paragraphs 1^er, 2 and 3, first sentence, § 4, 26, § 1^erParagraphs 1^er § 2 to 4, 27 § 1^erParagraphs 1^er at 7, and § 2, apply to the investment company in institutional receivables.
§ 2. An investment corporation in institutional receivables may not carry out activities other than that provided for in Article 4, paragraph 1^er, 1°, b), or hold other assets other than those necessary for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Code of Societies, the corporate name of an investment company in institutional receivables and all the documents emanating from it must contain the words "investment society in institutional debts of Belgian law" or "institutional SIC of Belgian law" or be followed immediately by these words.
§ 4. By derogation from Article 1^er the Corporate Code, an institutional debt investment company may be made up of an institutional or professional investor.
Article 646, § 1^er, paragraph 2, of the Corporate Code is not applicable.
CHAPTER II. - Access to activity and exercise of activity
Section I^re. - Registration
Art. 107. The King shall determine, by order taken on the advice of the CBFA and after open consultation, the obligations and conditions for registration to which the institutional collective investment bodies, referred to in sections 97 and 100, shall be held before their activities begin, taking into account the class of authorized investments for which they have chosen.
Art. 108. Collective institutional debt institutions are required, before starting their activities, to register with the Federal Public Service Finance on the list of institutional debt collective institutions. The same obligation is applicable, if applicable, for the compartments of the collective investment organization.
Art. 109. A collective investment agency in institutional receivables is included on this list upon presentation of a true copy of its statutes or its management regulations.
The King determines the registration conditions.
Each document issued by the Federal Public Service Finance to confirm this registration and each document that refers to this registration in order to carry out the operations of the investment agency must mention that the registration does not include any appreciation of the opportunity and quality of the transactions, nor of the situation of the investment organization.
Section II. - Exercise of activity
Art. 110. The King determines the obligations and prohibitions to which collective investment bodies are subject to varying numbers and sets institutional units.
It determines the obligations and prohibitions to which collective investment bodies are subject in institutional receivables.
These orders are taken by the King on the advice of the CBFA and after open consultation.
Art. 111. Articles 67, § 1^erParagraph 1^er§§ 2 and 4, 83, § 1^erParagraphs 1^er and 3 are applicable to collective investment organizations in institutional receivables.
Collective investment organizations in institutional receivables may always have access to or temporarily hold term investments, cash and securities.
The King may set out the rules that collective investment organizations in institutional receivables must maintain their accounting, if any, by compartment, make inventory estimates and prepare and publish their annual accounts.
CHAPTER III. - Organization control
institutional collective investment
Art. 112. The King, by order taken on the advice of the CBFA, may extend the application of sections 80 to 96 of this Act to collective institutions with varying numbers and fixed institutional shares, in the light of the class of authorized investments for which they have chosen.
PART IV. - Private collective investment organizations
CHAPTER I^er. - General provisions
Section I^re. - Collective investment organizations
to varying number of private parts
Art. 113. By a group placement agency with a variable number of private shares, the organization must be heard:
1° whose exclusive purpose is the collective placement in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 2°, 3°, 4° and 9°, for which a contract exists, in accordance with the provisions of this Act, of the decrees and regulations made for its execution and of the management regulations or the statutes of the investment agency;
2° whose financial means are collected exclusively from private investors acting on their own behalf, and whose shares can only be acquired by such investors or by other investors under the conditions determined by the King;
3° whose shares are at the request of the participants, redeemed or refunded, directly or indirectly, to the assets of that organization at a price calculated on the basis of the inventory value.
Art. 114. § 1^er. Articles 11, §§ 1^er, 2 and 4, 12, paragraphs 1^er and 3, and 13 apply to mutual funds of investments with varying number of private shares.
§ 2. The rules governing a private mutual fund may be amended by a decision of the general meeting of participants.
§ 3. Any mutual funds with a variable number of private shares shall be designated by a particular name; the latter must include the words "common investment funds with varying numbers of private shares of Belgian law" or "open private funds of Belgian law", or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er, does not derive from this denomination, the indication of this class must always immediately follow its denomination.
Art. 115. § 1^er. Articles 14, paragraph 1^er15, §§ 1^er, 3 to 6 and 16, are applicable to the investment company with a variable number of private shares.
§ 2. A private investment corporation may not operate other than that provided for in Article 4, paragraph 1^er, 1°, c), or hold other assets other than those necessary for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Code of Companies, the name of a company with a variable number of private shares and all the documents that emanate from it must contain the words "private variable capital investment company of Belgian law" or "private Sicav of Belgian law" or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
Section II. - Collective investment organizations
fixed number of private shares
Art. 116. A privately owned collective investment organization must be understood:
1° whose exclusive purpose is the collective placement in one of the authorized investment categories referred to in Article 7, paragraph 1^er, 2° to 6°, 8° and 9°, in accordance with the provisions of this Act, the orders and regulations made for its execution and the management regulations or the statutes of the investment agency;
2° whose financial means are collected exclusively from private investors acting on their own behalf, and whose shares can only be acquired by such investors or by other investors under the conditions determined by the King;
3° whose shares are not redeemed at the request of the dependants of the organism's assets.
Art. 117. § 1^er. Articles 11, §§ 1^er, 2 and 4, 12, paragraphs 1^er and 3, 13 and 18, § 3 apply to the common investment funds of fixed number of private shares.
§ 2. The rules governing a private mutual fund may be amended by a decision of the general meeting of participants.
§ 3. Any common fixed-number investment funds shall be designated by a particular name; the latter must include the words "joint investment fund with fixed numbers of private shares of Belgian law" or "private funds of Belgian law" or be immediately followed by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
Art. 118. § 1^er. Articles 19, paragraph 1^er and 20, §§ 1^er, 3 and 4 are applicable to the fixed number investment company of private shares.
§ 2. A fixed-number private equity investment corporation may not carry out any other activities other than that provided for in Article 4, paragraph 1^er, 1°, c), or hold other assets other than those necessary for the realization of its statutory object.
§ 3. By derogation from Article 78 of the Corporate Code, the name of a fixed-number investment company and all documents emanating from it must contain the words "Belgian fixed-capital investment company" or "Belgian private sicav" or be followed immediately by these words. If the class of authorized investments for which it opted under section 7, paragraph 1^er does not derive from this denomination, the indication of this class must always immediately follow its denomination.
Section III. - Private pricafs
Art. 119. By private pricaf, it is necessary to hear the collective placement agency with fixed number of shares that is in the statutory form:
1° whose exclusive purpose is the collective placement in the class of authorized investments referred to in Article 7, paragraph 1^er8°, in accordance with the provisions of this Act, any orders and regulations made for its execution or the statutes of the investment agency;
2° whose financial means are collected exclusively from private investors acting on their own behalf, and whose securities can only be acquired by such investors or other investors under the conditions determined by the King;
3° whose shares are not redeemed at the request of the dependants of the organism's assets.
Art. 120. By private pricaf, the investment company must be understood to be a fixed number of shares consisting of a single limited partnership, a share-sponsored company or anonymous company, for a maximum of 12 years and which is listed on the list of private pricafs referred to in Article 123, § 2.
A private pricaf may not carry on any activities other than that provided for in Article 4, paragraph 1^er, 1°, c), and may possess other assets only those necessary for the realization of its statutory object.
When incorporated as an anonymous corporation, day management is delegated to a single corporation that is not a director. When it is incorporated as a single-shared partnership or a share-sponsored partnership, the corporation is the only sponsoring partner. The King specifies which companies can take charge of the daily management of a private pricaf and the conditions to which they are subjected.
Art. 121. § 1^er. The private pricaf is subject to the Code of Societies insofar as it is not derogated by this title and the decrees taken for its execution.
§ 2. By derogation from Article 78 of the Code of Societies, the social name of the private pricaf and all documents emanating from it, must contain the words "private pricaf of Belgian law" or these words must immediately follow the name of the society.
§ 3. By derogation from Article 93, paragraph 2, of the Code of Companies, the private pricaf shall establish annual accounts according to the rules established by the King under Article 92, § 1^er, this code.
§ 4. By derogation from section 97 of the Corporate Code, the private pricaf must file its annual accounts with the National Bank of Belgium, in accordance with the terms of sections 98 et seq. of the Code.
§ 5. By derogation from section 141, 1 and 2 of the Code of Companies, the private pricaf must entrust control of its annual accounts to one or more commissioners, as it arises from the application of section 142 of the Code. By derogation from article 144, paragraph 1^er, 6°, of this Code, the Commissioner(s) who has been aware of any statutory provisions relating to the status as a collective investment agency, may not (may) fail to make the report mention of those offences that must be circumstantial and indicate the breaches. In cases determined by the King, the Commissioner(s) shall send a certified copy of the report to the CBFA.
§ 6. Derogation from articles 184, paragraph 1^er, 187 and 193, of the Code of Companies, the method of liquidation and designation of the liquidator(s) is fixed by statute, the investment company may no longer make new investments in companies not listed after the winding-up report and annual accounts must be established during liquidation according to the rules established by the King in accordance with Article 92, § 1^erFrom this Code.
CHAPTER II. - Access to activity and exercise of activity
Section I^re. - Registration
Art. 122. The King shall determine, by order taken on the advice of the CBFA and after open consultation, the obligations and conditions for registration to which private collective investment organizations are held, as referred to in Articles 113 and 116, before commencing their activities, in the light of the authorized investment category for which they have chosen.
Art. 123. § 1^er. Private pricafs are required, before commencing their activities, to register with the Federal Public Service Finance on the list of private pricafs.
The list can include entries and sub-rubbers.
Each document issued by the Federal Public Service Finance to confirm the registration and each document referring to the registration for the purpose of carrying out the operations of the investment agency must mention that the registration does not include any appreciation of the opportunity and quality of the transactions, or of the situation of the investment agency.
§ 2. The Federal Public Service Finance shall make available to the public, on the basis of the data it received during the registration, information concerning the identity of companies that are registered or removed from the list of private pricafs as well as the corporation referred to in section 120, paragraph 3.
Section II. - Exercise of activity
Art. 124. The King determines, by order taken on the advice of the CBFA and after open consultation, the obligations and prohibitions to which private collective investment bodies are subject to varying numbers and fixed shares and private pricafs.
Art. 125. § 1^er. The King shall determine the rules to be followed by the private pricaf and by the corporation referred to in section 120, paragraph 3, to avoid a conflict of interest with the holders of private pricaf titles.
§ 2. It is prohibited for a private pricaf to acquire a quantity of securities of the same corporation, such that, given the structure and dispersion of the shareholding of the corporation, such securities would enable it to influence the management of the corporation or the designation of its leaders.
The King sets the limits to detention by a private pricaf, titles of the same category of a same issuer.
It is prohibited for a private pricaf to commit to voting in a certain way with the titles it manages or to vote according to the instructions of other people that the participants gathered in the general assembly. It is prohibited for a private pricaf to commit to not selling securities, granting a right of pre-emption, or to conclude any other convention that would hinder its management autonomy.
Any convention to the contrary is null.
The King may provide for exceptions to paragraphs 1^er 4.
Paragraphs 1^er to 4 does not apply in cases where a private pricaf has constituted subsidiaries that are themselves collective investment organizations within the meaning of section 4.
§ 3. Private pricafs can always, incidentally or temporarily:
1° hold term investments of up to 6 months or cash;
2° hold listed titles, however:
(a) that they already hold these securities at the time of the application for listing on a stock exchange or other organized and public securities market;
(b) that these securities have been acquired by exchange of non-listed securities with the exception of its own securities;
3° in the context of coverage transactions, negotiating derivative financial instruments, whether listed or not, on underlying material or financial assets, whether listed or not.
The King defines what is necessary to hear by " incidentally or temporarily".
CHAPTER III. - Organization control
private collective investment
Art. 126. The King, by order taken on the advice of the CBFA, may extend the application of sections 80 to 96 of this Act to collective institutions with varying numbers and fixed private shares, in view of the class of authorized investments for which they have chosen.
LIVRE III. - OF COLLECTIVE PLACEMENT BODIES OF LAW AND
Art. 127. Foreign collective investment organizations whose activity is subject to the provisions of this Book shall, before commencing their operations, be required to register with the CBFA. The same obligation is applicable, if applicable, for the compartments of the collective investment organization.
Art. 128. The CBFA shall include the collective investment agencies and the compartments that meet the conditions set out in this Book and the orders and regulations made for its execution.
Art. 129. Every year, CBFA shall establish a list of foreign collective investment organizations and, where appropriate, compartments, registered under this Book.
This list and all changes made during the year are published in the Belgian Monitor.
The list can include entries and sub-rubbers.
PART I^er. - Collective investment bodies that fall under the right of another Member State of the European Economic Area and that meet the requirements of Directive 85/611/EEC
Art. 130. A collective investment agency under the right of another Member State of the European Economic Area, responding to the conditions set out in Directive 85/611/EEC and which has received from the competent authorities of the Member State where it is located the authorization to carry out its activities, submits the following documents to the CBFA when it proposes to publicly offer its shares in Belgium:
1° a certificate from the competent authorities certifying that it meets the conditions set out in Directive 85/611/EEC;
2° the settlement of the fund or its constituent documents, as the case may be;
3° its prospectus;
4° where applicable, the last annual report and the subsequent semi-annual report;
5° information on the terms and conditions for the public offer of its shares.
A collective investment organization referred to in paragraph 1^er shall designate a Belgian credit institution listed in the list referred to in article 13 of the law of 22 March 1993, a branch of a credit institution subject to the law of another Member State of the European Economic Area registered in accordance with article 65 of the law of 22 March 1993, a Belgian law exchange company registered in the list referred to in article 53 of the law of 6 April 1995 or a company of management of collective investment bodies
This collective investment agency shall be registered two months after the said communication, to the list referred to in section 129 and may, at that time, commence the public offer of its shares, unless the CBFA finds, by reasoned decision taken prior to the expiry of the two-month period, that the terms for the public offer of the shares are not in accordance with the relevant legislative and regulatory provisions.
Art. 131. 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.
The King may, by order taken 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.
Sections 58 to 62, 90, 91 and 96 of this Act apply to notices, advertisements or other documents that relate to the offer or recommend it.
Art. 132. The CBFA may, by reason of its decision, take measures to suspend or prohibit a collective investment agency referred to in Article 130 which publicly offers its shares in Belgium, in violation of Article 131 and of the legal and regulatory provisions on public offer of shares.
Articles 92, § 1^erParagraph 2, 1 and 4, § 4 and 96 are applicable.
Art. 133. Investment agencies referred to in section 130 are subject to sections 78, 79, and 82.
PART II. - Collective investment bodies that 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 collective investment bodies under the right of states that are not members of the European Economic Area
Art. 134. The King shall determine, without prejudice to section 135, the conditions to be met by the foreign law institutions referred to in this Title, with a view to their registration and the maintenance of that Title.
A refusal to register by the CBFA is motivated and notified to applicants.
The CBFA may, by reason of decision, take measures to suspend or prohibit an investment agency in the event of non-compliance with the provisions of this Title and the orders and regulations made for its enforcement.
Art. 135. The investment agencies referred to in Article 134 are subject to Articles 52 to 62, 75, 76, 77, 78, 79, 80, 2, 82, 90, 91 and 92, § 1^erParagraph 2, 1°, 3°, 4° to 6° and § 4.
Art. 136. 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.
The King may, by order taken 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.
Sections 58 to 62, 90, 91 and 96 of this Act apply to notices, advertisements or other documents that relate to the offer or recommend it.
Art. 137. The CBFA may, with the approval of the Minister of Finance, agree, on the basis of reciprocity, with the authorities of control of the State of origin of the investment bodies or companies that contribute to their activity under the law of States that are not members of the European Economic Area and with those also involved in their control in other States than Belgium, of rules relating to the exercise and prohibitions concerning the exercise of Belgium
The conventions may deviate from the provisions of this Title and from the decrees and regulations made for its execution with a view to establishing rules and procedures more appropriate to the nature and distribution of the activities of the investment agency and companies that contribute to its activity and control.
By means of a comprehensive control that meets the criteria set out in this Title, these conventions may exempt from the application of certain provisions of this Title and from the orders and regulations made for its implementation.
The conventions provided for in this article shall not include for the benefit of investment bodies or companies that contribute to their activity under the right of non-member states of the European Economic Area that they relate to, rules more favourable than those applicable to investment bodies or companies that contribute to their activity under the right of another Member State of the European Economic Area carrying on business in Belgium.
Conventions must include a termination clause on a notice that cannot exceed six months.
CBFA publishes in its annual report the list and substance of the conventions concluded under this article.
PART III. - SOCIETIES OF MANAGEMENT
OF COLLECTIVE PLACEMENT ORGANIZATIONS
LIVRE I^er. - PAPLICATION CHAMP
Art. 138. The provisions of this Part are applicable to Belgian legal companies whose usual activity consists in the collective management of portfolios of public collective investment bodies in a professional capacity, as well as to foreign companies operating in Belgium.
These companies are referred to as "corporation management companies".
Art. 139. The provisions of this Part shall not apply:
1° to investment companies, referred to in Book II, Parts II to IV, of the Act of 6 April 1995, which are authorized to provide the investment service referred to in Article 46, 1°, 3, of the Act of 6 April 1995, when they provide this service to collective investment bodies of Belgian law; are nevertheless applicable to these enterprises articles 147, 153, § 1^erparagraphs 4 to 6, 153, § 2, 154, § 3, 168, 170 and 174;
2° to credit institutions referred to in Parts II to IV of the Act of 22 March 1993, when they provide the investment service referred to in Article 46, 1°, 3, of the Act of 6 April 1995 to collective investment bodies of Belgian law; nevertheless apply articles 147, 153, § 1^erparagraphs 4 to 6, 153, § 2, 154, § 3, 168, 170 and 174.
LIVRE II. - DES SOCIETES DE GESTION D'ORGANISMES
DE PLACEMENT COLLECTIF DE DROIT BELGE
PART I^er. - Access to activity
CHAPTER I^er. - Accreditation
Art. 140. Any Belgian law collective investment organization management company that intends to operate in Belgium is required, before starting its activity, to be accredited to the CBFA.
The collective investment organization management company may exercise one or more management functions referred to in Article 3, 9°, (a), (b) or (c), as well as provide, as an accessory, one or more investment services referred to in Article 3, 10°.
However, 1° the performance of the management function referred to in Article 3, 9°, (c), is authorized only to the collective investment organization management company whose accreditation also covers the management functions referred to in Article 3, 9°, (a) and/or (b);
2° the provision as an accessory of the investment service referred to in Article 3, 10°, (b), is authorized only to the collective investment organization management company whose approval also covers the provision as an accessory of the investment service referred to in Article 3, 10°, (a).
Art. 141. § 1^er. The applicant shall indicate the management functions referred to in Article 3, 9°, (a), (b) or (c), that the applicant intends to perform as well as the investment services referred to in Article 3, 10°, (a) or (b), that the applicant intends to provide and for which the applicant wishes to obtain approval.
The application for approval is accompanied by a program of activities that meet the conditions set by the CBFA in which are indicated, in particular, the method of carrying out the management functions referred to in Article 3, 9°, which it intends to exercise, the volume of activities envisaged and the structure of the organization of the company, its close links with other persons and the category of authorized investments of the collective investment organizations it intends to manage. The applicant must provide any information necessary to assess the application.
§ 2. Paragraph 1^er is also applicable to applications filed by already approved collective investment management companies that wish to perform additional management functions, as referred to in Article 3, 9°, or to provide additional investment services, as referred to in Article 3, 10°, and that are not covered by their approval or intend to manage collective investment organizations that have opted for a class of authorized investments other than that specified in Program 1^er. Sections 142 to 146 are applicable.
The applicant shall promptly disclose to the CBFA the information necessary for the permanent maintenance of the accreditation file.
Art. 142. When the credit is sought by a corporation of management of collective investment organizations that is, either the subsidiary of another corporation of management of collective investment organizations, an investment company, a credit institution or a registered insurance company in another State of the European Economic Area, or the subsidiary of the parent enterprise of another corporation
Art. 143. CBFA grants the solicited approval to collective investment management companies that meet the requirements set out in Chapter II. She decides on the application within two months of the introduction of a complete file and, at the latest, within nine months of receipt of the application.
Accreditation decisions refer to the management functions and investment services that the company is authorized to provide.
Approval decisions are notified to applicants within 15 days by registered letter to the position or with acknowledgement of receipt.
An appeal is open to applicants against the approval decisions made by the CBFA under this section, pursuant to section 122, 23°, of the Act of 2 August 2002.
Art. 144. With a view to the sound and prudent management of the collective investment organization management company, CBFA may limit its accreditation to the performance of certain management functions and to the provision of certain investment services or conditions for the performance of certain management functions or the provision of certain investment services.
An appeal is open to applicants against the approval decisions made by the CBFA under this section, pursuant to section 122, 23°, of the Act of 2 August 2002.
Art. 145. A list of collective investment organizations approved under this Book is prepared annually by the CBFA. This list and all changes made during the year are published in the Belgian Monitor.
The list of collective investment management companies mentions the management functions referred to in Article 3, 9°, (a), (b) or (c), and the investment services referred to in Article 3, 10°, (a) or (b), that the collective investment management company is authorized to provide. It also specifies whether the collective investment management company operates, through the establishment of a branch or in the free provision of services, in the territory of other Member States of the European Economic Area, in accordance with Chapters VI and VII.
The list can include entries and sub-rubbers.
Art. 146. The CBFA shall notify the Commission of the European Communities of any approval granted to a management company of collective investment bodies of Belgian law which is a subsidiary of one or more parent companies that fall under the right of one or more non-member States of the European Economic Area. The notification to the Commission of the European Communities mentions the identity of this or these parent companies and, where appropriate, indicates the financial structure of the group that controls the management society of approved collective investment organizations.
The CBFA shall communicate the same information to the Commission of the European Communities, at the request of the Commission, when it is seized with an application for the approval of a Belgian law collective investment organization management company that meets the conditions set out in paragraph 1^erin the cases referred to in Article 7, §§ 4 and 5, paragraph 1^erDirective 93/22/EEC.
In the cases referred to in Article 7, § 5, paragraphs 2 to 4, of Directive 93/22/EEC, CBFA limits or suspends its decisions for the approval of companies for the management of collective investment bodies of Belgian law referred to in paragraph 1^er and this in the manner and for the duration fixed by the Council of the European Union or the Commission of the European Communities pursuant to these provisions.
For the purposes of this provision, the terms "investment company/business" and "investment companies", contained in section 7 of the above-mentioned directive, are read respectively "collective investment organization management company" and "collective investment organization management companies".
Art. 147. The management companies of collective investment bodies of Belgian law and the management companies of collective investment bodies of foreign law operating in Belgium under Books III and IV are only authorized to make public use in Belgium of the term "societies of management of collective investment bodies", in particular in their name, in the designation of their social object, in their titles, effects or documents or in their advertising.
In cases where there is a risk of confusion, the CBFA may impose on the management companies of foreign collective investment bodies authorized to use in Belgium the terms provided for in paragraph 1^erthe addition to their name of an explanatory mention.
CHAPTER II. - Conditions of licence
Section I^re. - Form
Art. 148. Management companies of collective investment bodies of Belgian law must be incorporated as an anonymous company.
Section II. - Minimum capital
Art. 149. Accreditation as a collective investment management company is subject to the existence of a minimum capital entirely freed up to at least 125,000 euros.
In the event of a company's pre-existence as a collective investment organization's management company, the emission premiums, the reserves and the deferred result are, for the purposes of paragraph 1^er, assimilated to the minimum capital. Section 158 is also applicable.
Section III. - Actionnariat
Art. 150. Accreditation is subject to the communication to the CBFA of the identity of natural or legal persons who, directly or indirectly, hold in the capital of the collective investment management company an participation, conferring or not the right to vote, at least 5%. The communication must include the indication of the quotities of capital and voting rights held by those persons. In the event of a joint or joint detention of the participation by several persons, articles 2, § 2, and 3, second sentence, of the Act of 2 March 1989 on the advertisement of important participations in publicly traded companies and regulating public procurement offers, as well as the provisions for the application of these articles carried out in accordance with that Act. Article 2, § 1^er, the same law is applicable.
Accreditation is refused if CBFA has reasons to consider that the natural or legal persons referred to in paragraph 1^er do not present the qualities necessary to ensure a healthy and prudent management of the collective investment management society.
Section IV. - Leaders
Art. 151. Effective management of collective investment organizations must be entrusted to at least two physical persons; They must have the necessary professional honesty and experience to perform these functions, particularly in the context of the program of activities referred to in section 141.
Any replacement of these persons must be notified before the CBFA.
Art. 152. Can not perform the functions of manager, administrator or director, or represent companies performing such functions, persons in one of the cases defined by section 1^er 3 bis, §§ 1^er and 3, and 3ter of Royal Decree No. 22 of 24 October 1934 concerning the judicial prohibition of certain convicts and failed to perform certain functions, professions or activities.
The functions listed in paragraph 1^er may no longer be exercised:
1° by persons who have been sentenced to a sentence of less than three months' imprisonment or a fine for an offence provided for in Royal Decree No. 22 of 24 October 1934 above;
2° by persons who have been convicted for offences:
(a) Articles 148 and 149 of the Act of 6 April 1995;
(b) Articles 104 and 105 of the Act of 22 March 1993;
(c) Articles 38, paragraph 4, and 42 to 45 of Royal Decree No. 185 of 9 July 1935 on the control of banks and the regime of securities and values emissions;
(d) Articles 31 to 35 of the provisions relating to private savings funds, coordinated on 23 June 1967;
(e) Sections 13-16 of the Public Savings Calls Act of 10 June 1964;
(f) Articles 110 to 112ter of title V of Book I^er the Commercial Code or sections 75, 76, 78, 150, 175, 176, 213 and 214 of the Financial Operations and Markets Act of 4 December 1990;
(g) in article 4 of Royal Decree No. 41 of 15 December 1934 protecting savings through the regulation of the temperament sale of batch values;
(h) Articles 18 to 23 of Royal Decree No. 43 of 15 December 1934 concerning the control of capitalization companies;
(i) Articles 200 to 209 of the Commercial Corporations Acts, coordinated on 30 November 1935;
(j) sections 67 to 72 of Royal Decree No. 225 of 7 January 1936 regulating mortgages and organizing the control of mortgage companies or section 34 of the Mortgage Credit Act of 4 August 1992;
(k) Articles 4 and 5 of Royal Decree No. 71 of 30 November 1939 concerning the bonding of securities and the demarcation of securities and goods and goods;
(l) Article 31 of Royal Decree No. 72 of 30 November 1939 regulating the exchanges and futures markets of goods and commodities, the profession of brokers and intermediaries dealing with these markets and the regime of the exception of play;
(m) Article 29 of the Act of 9 July 1957 regulating temperament sales and their financing or sections 101 and 102 of the Consumer Credit Act of 12 June 1991;
(n) Article 11 of Royal Decree No. 64 of 10 November 1967 organizing the status of portfolio corporations;
(o) Sections 53 to 57 of the Act of 9 July 1975. the control of insurance companies;
(p) to articles 11, 15, § 4, and 18 of the Act of 2 March 1989 on the advertisement of important participations in publicly traded companies and regulating public tenders;
(q) in section 139 of the Act of 25 June 1992 on the land insurance contract;
(r) Articles 38 to 43 of the Act of 2 August 2002;
(s) Article 25 of the Act of 22 April 2003 on public offers of securities;
(t) Articles 205 to 211 of this Act;
(u) articles 90, 91, 126 to 128, 170, 171, 196, 345 to 349, 387 to 389, 433, 434, 647 to 653, 773 and 788 of the Code of Companies;
3° by persons convicted by a foreign court for offences similar to those provided for in 1° and 2°; Article 2 of the above-mentioned Royal Decree No. 22 of 24 October 1934 is applicable in these cases.
CBFA may authorize, in favour of persons referred to in 2° and, for convictions provided for in 2°, in 3° of the second paragraph of this article, derogations from the prohibitions referred to in that second paragraph.
The King may adapt the provisions of this article to align them with the laws that amend the texts listed therein.
Section V. - Organization
Art. 153. § 1^er. The collective investment management company must have a management structure that is unique to it and appropriate to the management functions it intends to perform and the investment services it intends to take. It must also have material, human and technical means to provide it with an administrative, accounting, financial and technical organization that is specific to it and appropriate to the management functions it intends to perform and the investment services it intends to undertake.
In particular, it must have control and security mechanisms in the IT field appropriate to its management functions and to the investment services it intends to undertake.
It must also have adequate internal control procedures including, inter alia, an investment management regime in financial instruments to invest equity.
These procedures shall ensure, among other things, that each transaction involving a managed collective investment organization, or, where appropriate, one of its compartments, may be reconstituted as to its origin, to the parties concerned, to its nature, as well as at the time and place it was carried out, and that the assets of the managed collective investment organizations are invested in accordance with, as the case may be, the regulation of the mutual investment fund or the statutes of the investment organization.
The collective investment management company must use a risk management method, adapted to the authorized investment category of managed collective investment organizations, which allows it to monitor and measure at any time the risk associated with the positions and their contribution to the overall risk profile of the portfolio of managed collective investment organizations, or, where appropriate, to the overall risk profile of the various compartments of these collective investment organizations.
The collective investment organization management company must use a method that allows for an accurate and independent assessment of the value of the rand-based instruments in the portfolio or, where applicable, in the portfolio of the different compartments of each managed collective investment organization. It shall communicate to the CBFA, in accordance with the detailed rules and the periodicity defined by the CBFA by regulation made in accordance with section 64 of the Act of 2 August 2002, the types of derivative instruments, the underlying risks, the quantitative limits and the methods chosen to estimate the risks associated with derivative transactions for each managed collective investment organization or, where appropriate, for the different compartments of each agency of the investment.
The organization of the collective investment management company must allow the collective investment organization to provide, at the request of any holder of securities, additional information to those made public in the prospectus and annual and semi-annual reports of managed collective investment organizations, covering the quantitative limits that apply to the risk management of managed collective investment organizations, on the chosen methods to meet these limits and on the recent evolution of the authorized assets
§ 2. The collective investment management company must be structured and organized so as to minimize the risk that conflicts of interest, between itself and its clients, between itself and the managed collective investment organizations, among its clients themselves, between its clients and managed collective investment organizations or between managed collective investment organizations themselves do not adversely affect the interests of managed collective investment organizations or its clients.
Art. 154. § 1^er. In order to ensure more effective performance of its management functions for managed collective investment organizations, the collective investment management company may entrust to a third party, by contract of mandate or contract of business, the exercise, on its own behalf, of one or more of its management functions of collective investment organizations, referred to in Article 3, 9°, (a), (b) or (c), with, inter alia:
1° the decision to assign the exercise of certain management functions to a third party must be notified before the CBFA; such notification shall establish that it is satisfied with the conditions of this Article;
2° the exercise of adequate control of the collective investment management company and managed collective investment organizations cannot be hindered;
3° it may not be prejudiced to the obligation of the collective investment organization management company to perform its functions of managing collective investment organizations in accordance with Article 9;
4° without prejudice to article 22, paragraph 1^er, the performance of the management functions referred to in Article 3, 9°, (a) and (b), may only be entrusted to a company subject to a prudential control regime; the organization must have an administrative, accounting, financial and technical organization appropriate to the nature of the management functions entrusted to it and to the authorized investment category for which the managed collective investment organization has chosen; administrators and persons who in fact provide effective management must have the necessary professional honesty and experience to perform these functions;
5° without prejudice to the 4°, in the case of a managed collective investment organization that opted for a class of authorized investments referred to in Article 7, paragraph 1^er, 1° or 2°, and which entrusts to a third party the exercise of the management function referred to in Article 3, 9°, (a):
(a) the exercise of this management function may only be entrusted to an authorized company to provide investment services referred to in section 46, 1°, 3, of the Act of 6 April 1995 or to a collective investment management company;
(b) the investment allocation criteria established periodically by the collective investment management company or by the managed collective investment organization must be met.
The King determines, by order taken on the advice of the CBFA, the conditions under which collective investment management companies may entrust to a third party the exercise of the management function referred to in Article 3, 9°, (a), for managed collective investment organizations that have opted for a class of authorized investments other than those referred to in Article 7, paragraph 1^er1° or 2°;
6° without prejudice to the 4°, the exercise of the administrative management function of a managed collective investment organization can only be entrusted to a company located in Belgium;
This requirement is not applicable to the tasks and tasks referred to in Article 22, paragraph 1^erprovided that this delegation of management functions has been previously approved by the CBFA;
7° where the exercise of management functions is entrusted to a company under the law of a non-member State of the European Economic Area, this undertaking must be subject in its State of origin to a monitoring equivalent to that referred to in point 4° and which is exercised permanently by a public authority. Cooperation between the relevant supervisory authorities must be ensured through collaborative agreements;
8° the performance of management functions referred to in Article 3, 9°, (a), and (b), (i), (iii), (iv) and ix), may not be entrusted or insured by the depositary of the collective investment organization managed by the management company, or by any other enterprise whose interests may be in conflict with those of the management company of collective investment organizations or with those of the collective investment bodies or their participants;
9° of the measures are put in place that allow the managers of the collective investment management company to effectively control at any time the activity of the company with which the mandate contract or the business contract is concluded;
10° the directors of the collective investment organization management company must be able to give at any time additional instructions to the company to which management functions are entrusted and to terminate the terms of reference or business contract with immediate effect when it comes to the interest of the managed collective investment organizations or the holders of the securities of them;
11° of the measures are put in place that allow, when terminated the contract of mandate or business contract for any cause, to ensure continuity of the management functions under the contract;
12° the prospectus of the collective investment agency must indicate the management functions that the management company of the collective investment organization has been authorized by the managed collective investment organizations to entrust to a third party.
§ 2. The management society of collective investment bodies cannot resort to § 1^er to such a extent that the presence of the material, human and technical means required by section 153 is insufficient to ensure compliance with that article 153.
§ 3. When a third party has been assigned to perform certain management functions in accordance with § 1^er uses itself to a third party entity to perform the management functions entrusted to it, §§ 1^er and 4 are applicable.
For collective investment organizations that opted for the authorized investment category referred to in section 7, paragraph 1^er, 5° or 7°, the King determines, by order taken on the advice of the CBFA, the conditions under which the delegation by the third party referred to in the paragraph of material tasks related to management functions referred to in Article 3, 9°, (b), may waive paragraph 1^er.
§ 4. The fact that the collective investment management company has entrusted a third party with the performance of certain management functions referred to in Article 3, 9°, may not affect its responsibility or that of the depositary.
Art. 155. If there are close ties between the management society of collective investment organizations and other natural or legal persons, these links cannot hinder the exercise of prudential, individual or on a consolidated basis, adequate for the management society of collective investment organizations.
If the collective investment management company has close ties with a natural or legal person under the law of a non-member State of the European Economic Area, the legislative, regulatory and administrative provisions applicable to that person or their implementation cannot hinder the exercise of a prudential, individual or on a consolidated basis, adequate by the collective investment management company.
Section VI. - Central Administration
Art. 156. The statutory headquarters and the central administration of the collective investment management company must be located in Belgium.
Section VII. - Client protection
Art. 157. The collective investment management company authorized to provide the individual portfolio management investment service must adhere to the investor protection system referred to in Part V of the Act of 6 April 1995.
PART II. - Conditions of activity
CHAPTER I^er. - Minimum equity funds
Art. 158. The equity of the collective investment organization management corporation may not be less than the minimum capital amount set out in section 149.
Pursuant to section 64 of the Act of 2 August 2002, the CBFA defines by regulation:
1° the concept of equity;
2° the additional amount of equity required on the basis of the total value of the portfolios of the collective investment management company and the conditions under which the management company is authorized not to provide these additional equity funds;
3° the concept of portfolios of a collective investment management company.
CHAPTER II. - Change in capital structure
Art. 159. § 1^er. Without prejudice to section 150 of this Act and to the Act of 2 March 1989 relating to the advertisement of important participations in publicly traded companies and regulating public tenders, any natural or legal person who plans to acquire securities or shares, whether representative or not of the capital, conferring or not the right to vote, a corporation of management of collective investment bodies of Belgian law in such a way that it holds less The same information must be given to the CBFA if a natural or legal person plans to increase the participation it holds so that the quotity of the capital or voting rights it holds should reach or exceed the thresholds of 10%, 15%, 20% and so on by 5%.
Articles 1^er, § 3, § 4, paragraph 2, and 2 of the Act of 2 March 1989 relating to the advertisement of important participations in publicly traded companies and regulating public tenders, as well as their enforcement orders, are applicable.
§ 2. If the purchaser is a management company of collective investment organizations, an investment company or an authorized credit institution in another Member State of the European Economic Area, or a parent company of such a management company of collective investment organizations, such investment undertaking or a credit institution or a natural or legal person who controls such a partnership
§ 3. CBFA may, within three months of receiving the information prescribed by § 1^erParagraph 1^er, opposing the completion of the acquisition if it has reasons to consider that the natural or legal person who has informed it does not present the qualities necessary to ensure a sound and prudent management of the management society of collective investment organizations. If there is no opposition, it may prescribe the period in which the acquisition must take place.
§ 4. Any natural or legal person who holds rights of associates in a collective investment organization management company of a quotity equal to or greater than 5% of the capital or conferring at least 5% of the voting rights and who intends to alienate, directly or indirectly, all or part of these rights so that their participation passes the thresholds referred to in § 1^erParagraph 1^er, must, at least one month before this alienation, communicate to the CBFA the quotity of capital as well as that of the voting rights on which the alienation bears and those that it possesses after the alienation; informs CBFA of the identity of the acquirer(s) when it knows it.
§ 5. The collective investment management company shall communicate to the CBFA, as soon as it is aware, the acquisitions or disposition of its securities or shares that make one of the thresholds referred to in § 1 cross up or downwards.^erParagraph 1^er.
Under the same conditions, it shall communicate to the CBFA, at least once a year, the identity of the shareholders or associates who have, directly or indirectly, the rights of associates representing at least 5% of the capital or conferring at least 5% of the voting rights as well as the quotity of the capital and that of the voting rights so held.
§ 6. Where the CBFA has reasons to consider that the influence of natural or legal persons holding, directly or indirectly, the rights of partners in the capital of a collective investment organization management company reaching at least 5% of the capital or 5% of the voting rights, is likely to jeopardize the sound and prudent management of the collective investment organization management company, and without prejudice to any other measures provided for by law
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholders or partners in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholders or associates involved; its decision is enforceable as soon as it has been notified; CBFA can make its decision public;
2° give injunction to the above-mentioned persons to assign, within the time it sets, the rights of associates they hold.
In the absence of an assignment within the time limit, the CBFA may order the sequester of the rights of associates to any institution or person it determines. The latter informs the company that accordingly amends the register of the shares of the nominative partners and which, even without presentation of the shares to the holder, only accepts the exercise of the rights attached to them by the sole receiver. It acts in the interest of a healthy and prudent management of the collective investment organization management company and in that of the holder of the rights of partners who have been the subject of the receiver. He exercises all rights attached to the share of partners. The sums paid by the holder for the dividend or any other title shall be paid by him. The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder. The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above. The remuneration of the receiver is fixed by the CBFA and is borne by the holder mentioned above. The receiver may charge such remuneration on the amounts paid to it as a receiver or the holder referred to above for the purposes or as a consequence of the above transactions.
Art. 160. The CBFA shall notify the Commission of the European Communities of any direct or indirect acquisition of participation in a management company of collective investment bodies under Belgian law by one or more natural or legal persons under the law of one or more States not members of the European Economic Area and whose company thus becomes the subsidiary.
The notification is accompanied by the identity of these natural or legal persons, the amount of participation and the indication of the financial structure of the group that acquires participation.
The same notifications and information shall be given to the Commission of the European Communities, at the request of the Commission, by the CBFA when the Commission is seized, in accordance with Article 159, of a proposed acquisition of participation, as described in paragraph 1^er in the cases referred to in Article 7, §§ 4 and 5, paragraph 1^erDirective 93/22/EEC.
The CBFA limits or prohibits the realization of the acquisition in the cases referred to in Article 7, § 5, paragraphs 2 to 4, of the above-mentioned directive in accordance with the terms and for the duration fixed by the Council of the European Union or the Commission of the European Communities pursuant to these provisions.
For the purposes of this provision, the terms "investment company/business" and "investment companies", contained in section 7 of the above-mentioned directive, are read respectively "collective investment organization management company" and "collective investment organization management companies".
CHAPTER III. - Management and leadership
Art. 161. The statutes of the collective investment management corporation may authorize the board of directors to delegate all or part of the powers referred to in section 522, § 1^erParagraph 1^er from the Code of Societies to a steering committee established within it, whose members are appointed and revoked and whose remuneration it determines.
However, this delegation may not focus on the determination of general policy or on acts reserved for the board of directors by the other provisions of the same Code of Companies.
Art. 162. § 1^er. Without prejudice to section 147, directors or directors of a collective investment organization management corporation and any person who, under any name and in any capacity, participate in the administration or management of the corporation may, in the representation or non-representation of the management company of collective investment bodies, exercise terms of office of administrator or manager or take part in the administration or management of any other business
§ 2. The external functions referred to in § 1^er are governed by internal rules that the collective investment organization management corporation must adopt and enforce in order to pursue the following objectives:
1° to prevent the exercise of these functions by persons participating in the effective management of the collective investment management company from impairing the availability required for the performance of that direction;
2° to prevent the occurrence of conflicts of interest and the risks associated with the performance of these functions, including in the case of initiation operations, in the head of the collective investment management company;
3° ensure adequate advertising of these functions.
CBFA sets out the terms and conditions of these obligations by regulation submitted to the King for approval pursuant to section 64 of the Act of 2 August 2002.
If the CBFA remains in default of establishing the regulation referred to in the preceding paragraph or amending it in the future, the King is empowered to make or amend the regulation himself.
§ 3. The social agents appointed upon presentation of the collective investment organization management company must be persons who participate in the effective management of the collective investment organization management company or the persons it designates.
Directors who do not participate in the effective management of the collective investment organization management corporation may not be a director of a corporation in which the management corporation holds an interest only if they do not participate in current management.
Persons who participate in the effective management of the management society of collective investment organizations may exercise a mandate that includes participation in current management only if it is a corporation referred to in section 167 of this Act or in section 32, § 4, of the Act of March 22, 1993 with which the management society of collective investment organizations has close ties, of a collective investment organization in a statutory form
§ 4. The collective investment management company shall promptly notify the CBFA of the functions performed outside the collective investment management company by the persons referred to in § 1^er for the purpose of monitoring compliance with the provisions of this article.
Art. 163. In the event of a bankruptcy of a collective investment management company, there is no and no effect on the mass, the payments made by that corporation, either in cash or otherwise, to its directors or managers, as an ash or other profit-sharing, in the two years preceding the time determined by the court as that of the termination of its payments.
Paragraph 1^er does not apply if the court recognizes that no serious and characterized fault of these persons has contributed to bankruptcy.
CHAPTER IV. - Mergers and assignments
between collective investment management companies
Art. 164. Are subject to the authorization of the CBFA:
1° mergers between collective investment management companies or between such companies and other financial institutions;
2° the assignment between collective investment management companies or between such companies and other financial institutions of the whole or part of their business.
The CBFA can only refuse authorization within three months of the prior notification that was made to it of the project and for reasons consistent with the sound and prudent management of the management company(s) of the collective investment organizations concerned. If it does not intervene within the time limit set out above, the authorization is deemed to be acquired.
Art. 165. Any total or partial transfer of rights and obligations arising from the operations of the companies or institutions concerned, and authorized in accordance with Article 164, to third parties as soon as the Belgian Monitor has published the authorization of the CBFA.
CHAPTER V. - Obligations and prohibitions
Art. 166. The collective investment organization management corporation may not, unless authorized by the CBFA, carry out any activities other than the activities authorized by its approval.
Art. 167. The collective investment organization management corporation may not, unless authorized by the CBFA, hold interest in commercial companies or borrowed the form of a commercial corporation.
This prohibition does not apply to participations in companies exercising in whole or in part the activities referred to in Article 3, 9 and 10°, or to participations in companies whose activity consists exclusively in the possession of participations in such companies.
Art. 168. The collective investment management company ensures a partition between its various activities.
It cannot account for managed investment agencies or its clients for transactions in which they have a personal interest. Individuals who are leaders or employees of the management society are subject to the same prohibition.
The King determines, by order taken on the advice of the CBFA, the rules to be followed by the management company of designated collective investment organizations and by third parties referred to in section 154 to avoid conflict of interest with holders of securities of managed collective investment organizations.
Art. 169. The collective investment management company is required to comply with section 26 of the Act of 2 August 2002 in its relations with managed collective investment organizations and in its relations with clients.
The King, on the advice of the CBFA and after an open consultation, may adapt the provisions of section 26. of the Act of 2 August 2002 and shall determine the terms and conditions of application different from the provisions as such apply in the course of the performance of management functions referred to in section 3, 9°, or as part of the provision of the investment services referred to in section 3, 10°.
Art. 170. The collective investment management company that provides individual portfolio management investment services cannot place all or part of the client's portfolio in shares of collective investment organizations that it manages unless it has received the client's general prior agreement.
Art. 171. The collective investment organization management corporation may not receive funds deposits or funds or financial instruments owned by its clients or managed collective investment organizations.
Custody of assets belonging to collective investment organizations is provided in accordance with section 48 of this Act.
The custody of managed assets owned by clients must be entrusted to a separate depositary of the collective investment management company; With respect to financial instruments and species, this depositary must be an investment company whose approval covers the custody of funds or financial instruments or a credit institution under the law of a Member State of the European Economic Area, or having established a branch in Belgium.
Art. 172. § 1^er. Without prejudice to section 153, collective investment management companies adopt an internal code of conduct with appropriate rules and procedures to ensure compliance with section 169 and section 25 of the Act of 2 August 2002 by their agents and employees, including:
1° of the procedures known as "China Walls" aimed at avoiding the undue circulation of privileged information within the organization;
2° of measures ensuring an appropriate separation of activities that may generate conflicts of interest between them;
3° of the rules for transactions on financial instruments carried out by agents and employees on their own account, including the cases in which they must inform persons referred to in § 2 of these transactions or obtain their authorization before carrying out such transactions, the procedures to be followed for the conduct and execution of orders and restrictions appropriate to the faculty of agents and employees occupying sensitive functions of such transactions;
4° of the rules and procedures forming a systematic approach to ensuring compliance with section 26, 8°, of the law of 2 August 2002.
§ 2. Collective investment management companies established in Belgium designate a person or, where the size of their organization warrants, a committee responsible for ethics.
The persons so designated must have the necessary professional honour and experience and authority to perform their duties. They report directly to the board of directors or to the similar management body of the collective investment management company.
They include:
1° to ensure the implementation of the code of conduct referred to in § 1^er and the monitoring of compliance;
2° to inform the staff of the collective investment management company on the rules and procedures set out in the code of conduct or established under the code of conduct;
3° to bring any dysfunction found in the ethical field to the knowledge of the management body and to propose appropriate corrective measures;
4° to keep a register of complaints submitted by clients and the measures taken, if any, to remedy them.
§ 3. The King, on the advice of CBFA and after open consultation, may provide for minimum rules to be included in the code of conduct referred to in this section.
Art. 173. The CBFA may, in individual cases and by appropriate, regular and non-nominative advertising of the policy of derogation followed, grant exemptions to the provisions of section 172 of this Act or section 26 of the Act of 2 August 2002 or to the provisions determined under section 172 of this Act or section 26 of the Act of 2 August 2002, if it considers that the provisions in question are inappropriate to the activities or the
Art. 174. The King shall determine, on the advice of the CBFA and after open consultation:
1° the obligations and prohibitions applicable to the provision of the investment services referred to in Article 3, 10°, and, in particular, without prejudice to Article 166, the incompatibility between that activity and other activities, the rules relating to the remuneration of that activity, the rules relating to the individual portfolio management agreement, the information of customers and the accountability of the accounts;
2° the obligations to the depositary referred to in Article 171, paragraph 3;
3° the obligations and prohibitions applicable in the case of marketing of shares of collective investment organizations.
CHAPTER VI. - Opening branches
and subsidiaries abroad
Art. 175. The collective investment organization management company that plans to open a branch abroad to perform all or part of the management functions referred to in Article 3, 9°, or to provide all or part of the investment services referred to in Article 3, 10°, which are authorized in Belgium, shall notify the CBFA of its intention.
This notification is accompanied by a programme of activities in which, among other things, the name of the Belgian collective investment agencies managed by the management company of collective investment organizations, the management functions envisaged for the exercise and the investment services envisaged for the supply abroad, the structure of the organization of the branch, the domicile of correspondence in the State concerned and the name of the executives of the branch.
The CBFA may object to the completion of the project by decision based on the adverse impact of the opening of the branch on the organization, financial situation or control of the collective investment management company.
The CBFA decision must be notified to the collective investment organization management company by registered letter to the position or with acknowledgement of receipt no later than six weeks after receipt of the complete file including the information provided in paragraph 2. If CBFA has not notified a decision within this timeframe, it is deemed not to oppose the management company's project.
An appeal shall be made, pursuant to section 122, 24°, of the Act of 2 August 2002, to the collective investment organization management company against the decisions of the CBFA made under paragraph 3 of this section.
This section applies to the opening by a collective investment management company of a representation office in a foreign state.
Art. 176. § 1^er. In the case referred to in Article 175, the benefit of mutual recognition organized by Article 6bis of Directive 85/611/EEC is only open to collective investment management companies:
1° that envisage opening a branch in the territory of another Member State of the European Economic Area; and,
2° that are collective investment management companies designated by Belgian collective investment organizations that invest in the authorized investment category referred to in Article 7, paragraph 1^er1°, of this Law; and,
3° that are authorized to perform at least the management function referred to in Article 3, 9°, a).
With respect to the exercise of the management function referred to in Article 3, 9°, (c), only the shares of the collective investment organizations managed by the collective investment management company may be marketed by the collective investment organization under the benefit of the mutual recognition organized by Article 6bis of Directive 85/611/EEC.
The programme of activities shall include, in addition to the elements mentioned in article 175, paragraph 2, the name of the collective placement bodies of Belgian law referred to in paragraph 1^er as well as the elements to consider that the organizational arrangements of the branch allow for compliance with the rules of conduct prescribed in the host Member State in respect of conflict of interest.
§ 2. In the case referred to in paragraph 1^er, the CBFA, if it has not objected to the realization of the project in accordance with Article 175, paragraph 3, or if its opposition has been reformed in accordance with Article 122, 24°, of the Law of 2 August 2002, communicates to the supervisory authority of the management societies of collective investment bodies of the host Member State, within three months of the receipt of all the information required by Articles 169,^er, paragraph 2, the information received under these provisions, as well as the possible terms and conditions of intervention, with respect to customers of the branch, of the investor protection system applicable to the collective investment management company.
§ 3. The CBFA shall communicate to the Commission of the European Communities, according to its periodicity, the number and reasons for the final opposition decisions set out in Article 175, paragraph 3 and Article 122, 24° of the Act of 2 August 2002 concerning the creation of branches in the Member States of the European Economic Area by collective investment management companies referred to in paragraph 1^er.
Art. 177. In the case referred to in section 175, the CBFA may agree with the foreign control authority of the collective investment management companies on the terms and conditions for the opening and control of the branch and exchange of information desirable in accordance with sections 74 to 77 of the Act of 2 August 2002, if:
1st opening of a branch in a Member State of the European Economic Area by a collective investment management company that manages collective investment organizations other than those that have opted for the authorized investment category referred to in Article 7, paragraph 1^er(1) of this Act;
2° opening of a branch in a non-member State of the European Economic Area.
Art. 178. The collective investment management company that has opened a branch abroad informs CBFA, at least one month in advance, of changes affecting the information provided under Articles 175, paragraphs 2 and 176, § 1^erParagraph 2.
Article 175, paragraphs 3 and 4 are applicable if applicable, as well as Article 176, § 2, depending on the changes in the information referred to in Article 176, § 2 or the applicable investor protection system.
Art. 179. Group investment management companies that plan to acquire or create a foreign affiliate carrying on the activity of a credit institution, an investment company or a collective investment management company notify the CBFA of their intention. This notification includes information on the activities, organization, shareholding and management of the company concerned.
CHAPTER VII. - Exercise of free service delivery
in another Member State of the European Economic Area
Art. 180. The collective investment management company that plans to operate in another Member State of the European Economic Area, without establishing a branch, all or part of the management functions referred to in Article 3, 9°, or to provide all or part of the investment services referred to in Article 3, 10°, which are authorized in Belgium, notifies its intention to the CBFA.
This notification is accompanied by a program of activities, which include the management functions or functions and the investment services(s) that the collective investment organization management company plans to provide.
Art. 181. In the case referred to in section 180, the benefit of mutual recognition organized by section 6ter of Directive 85/611/EEC is only open to collective investment management companies:
1° that are management companies designated by Belgian collective investment organizations that invest in the authorized investment category referred to in Article 7, paragraph 1^er1°, of this Law; and,
2° that are authorized to perform at least the management function referred to in Article 3, 9°, a).
With respect to the exercise of the management function referred to in Article 3, 9°, (c), only the shares of the collective investment organizations managed by the collective investment management company may be marketed by the collective investment organization under the benefit of the mutual recognition organized by Article 6ter of Directive 85/611/EEC.
In case of application of paragraph 1^er, the CBFA shall, within the month of its receipt, communicate the notification provided by Article 180 to the supervisory authority of the management companies of the collective investment organizations of the host Member State and the possible modalities of intervention, with respect to the clients of the collective investment management company, of the investor protection system applicable to the collective investment management company.
Art. 182. Articles 180 and 181 are applicable when the collective investment management company requires one third to market the shares of the collective investment organizations managed by it, in accordance with Articles 3, 9°, (c) and 140, paragraph 3, 1°, in a Member State of the European Economic Area.
Art. 183. In the event of changes to the content of the information notified in accordance with section 180, the collective investment management company shall notify the CBFA at least one month in advance of the change. In this case, section 181, paragraph 2 is applicable as well as in the event that information relating to the investor protection system is changed.
CHAPTER VIII. - Regulatory coefficients
Art. 184. In order to control the solvency of collective investment management companies and the control of the limitation of risks arising out of the activities referred to in Article 3, 9° and 10°, the CBFA may, by regulation made in accordance with Article 64 of the Act of 2 August 2002, establish the proportions to be met:
(a) between, on the one hand, all or some of their off-balance sheet assets and rights and, on the other, all or some of their off-balance sheet liabilities and commitments;
(b) enters, on the one hand, their own funds and, on the other hand, all or some of their assets, liabilities and duties and non-assets obligations;
(c) enters, on the one hand, their own funds and, on the other hand, all or some of their assets, liabilities and duties and non-assets obligations on or against the same counterparty or a set of counterparties that constitute a whole from the point of view of risk.
The regulations referred to in paragraph 1^er may also establish limits for some of the elements referred to in (a) to (c).
The elements referred to in paragraph 1 (a) to (c)^er, may be seized in their total amount, in their variations from a reference period or according to both criteria.
They may also be seized by currency, depending on their nature, by the categories of counterparties concerned, by their maturity or by the markets on which the transactions to which they relate are processed.
The regulations referred to in this article shall be taken after consultation with the professional associations concerned.
In special cases, CBFA may authorize exemptions from the provisions of the regulations made under this section.
CHAPTER IX. - Periodic information and accounting rules
Art. 185. Collective investment management companies regularly communicate to the CBFA a detailed financial situation. It is established in accordance with the rules set out by regulation of the CBFA, taken in accordance with section 64 of the Act of 2 August 2002, which determines its frequency and mode of communication. In addition, the CBFA may prescribe the regular communication of other encrypted or descriptive information necessary to verify compliance with the provisions of this Part or the orders and regulations made for their implementation.
The King determines, on the advice of CBFA, for all collective investment management companies:
1° the rules that collective investment management companies maintain their accounting, conduct inventory assessments and prepare and publish their annual accounts;
2° the rules to be followed by collective investment management companies for the establishment, control and publication of their consolidated accounts, as well as for the preparation and publication of management and control reports relating to these consolidated accounts.
To this end, it may adapt, amend and supplement the rules adopted pursuant to the Act of 17 July 1975 on business accounting and, under the conditions of articles 122, paragraph 1^er and 123 of the Corporations Code, the rules made pursuant to articles 92 and 117 of the Corporations Code.
CBFA may, in special cases, authorize derogations from the orders and regulations provided for in paragraphs 1^er and 2.
The regulations provided for in this article shall be taken after consultation with the professional associations concerned.
PART III. - Control of management companies
collective investment organizations
CHAPTER I^er. - Control exercised by CBFA
Art. 186. Collective investment management companies are subject to the control of the CBFA.
CBFA may be provided with any information relating to the organization, operation, situation and operations of the collective investment management companies it controls.
It may conduct on-site inspections with the collective investment organization management company and with any entity that carries out, directly or indirectly, activities on behalf of the collective investment organization management company and shall, without displacement, be aware of and copy of any information held by the collective investment organization management company, with a view to:
1° to verify compliance with the legal and regulatory provisions relating to the status of collective investment management companies as well as the accuracy and sincerity of annual accounts and accounts, as well as the statements and other information transmitted to it by the collective investment management company;
2° to verify the adequacy of management structures, the administrative, accounting, financial and technical organization, and the internal control of the collective investment management company;
3° to ensure that the management of the collective investment management company is sound and prudent and that its situation or operations are not likely to jeopardize its liquidity, profitability or solvency.
The King determines the remuneration to be paid to the CBFA by the management companies of collective investment organizations in charge of control fees.
Art. 187. Without prejudice to section 169, the CBFA does not know a relationship between the collective investment management company and a specified client or a managed collective investment organization only to the extent required for the control of the collective investment management company.
Art. 188. The CBFA may proceed to the branches of the management companies of Belgian collective law institutions established in another Member State of the European Economic Area, with the prior information of the authorities of that State responsible for the control of the management companies of collective investment organizations, to the inspections referred to in Article 186, paragraph 3, and to any inspection to collect or verify on-site information relating to the management and management of the branch
It may, for the same purposes, and after having notified the supervisory authorities referred to in paragraph 1^er, load an expert, whom she designates, to carry out useful audits and expertise. The remuneration and expenses of the expert are borne by the management company of collective investment organizations.
It may also request such authorities to conduct the audits and expertise referred to in paragraph 1^er She tells them.
Art. 189. § 1^er. For the purposes of this section:
1° the notions of "exclusive or joint control" and "consortia" agree in the meaning of their definition in the regulations relating to the annual accounts and consolidated accounts of the management companies of collective investment organizations under section 185, paragraph 2;
2° "financial company" means a financial institution whose subsidiaries are exclusively or principally one or more credit institutions, collective investment management companies or financial institutions, at least one of these subsidiaries being a credit institution, an investment company or a collective investment management company.
Groups of companies with a credit institution are subject, with respect to their consolidated control, to the provisions of section 49 of the Act of 22 March 1993.
Groups of businesses that do not include a credit institution are subject to the provisions of this section.
§ 2. When a collective investment management company is a parent company, it is subject to the control of the CBFA on the consolidated basis of the whole it constitutes with its Belgian and foreign affiliates.
Consolidated-based control focuses on the financial situation, on the management, organization and internal control procedures of the consolidated set and on the influence of companies included in consolidation on other companies. The King may extend the consolidated control to other areas provided for by the directives of the European Community.
The proportions and limits set out in paragraphs 1^er to 3 of section 184 may be imposed on the basis of the consolidated situation of the collective investment organization management company and its subsidiaries.
For the purpose of consolidated control, the management companies of the relevant collective investment organizations periodically communicate to the CBFA a consolidated financial situation. CBFA determines, after consultation with the relevant professional associations, the rules for establishing this situation, including the rules relating to the consolidation scope, the modes of inclusion in the consolidation and frequency of communications of these situations.
Where it deems it necessary for prudential control, the CBFA may require that companies that are not affiliates be included in consolidation, but in which the collective investment organization management company holds an interest or with which it has another capital bond.
The CBFA may require or require that the management companies of the relevant collective investment organizations, their subsidiaries and other companies that have been reclaimed in the consolidation, provide it with any useful information for the exercise of consolidated control. For the purpose of this control, the CBFA may, at the expense of the management companies of the collective investment organizations concerned, by approved reviewers or, where appropriate, by foreign experts authorized by the CBFA to this effect, carry out on-site verification in all the enterprises included in the consolidation of information received under the consolidated control. The CBFA does or does not conduct an audit with a company established in another Member State of the European Economic Area only after having notified the supervisory authority of that State and unless that authority itself conducts such an audit or permits a reviewer or expert to do so.
The authorities responsible for the control of collective investment management companies, the control of investment companies, the control of credit institutions and the control of insurance companies work closely together. These institutions shall be provided with all information relating to the management, situation and operations of companies, companies and institutions subject to their control and which are necessary for the implementation of consolidated control. The terms and conditions of this collaboration and information exchange are specified by a protocol submitted for approval by the Minister of Finance and the Minister of Economic Affairs.
These modalities are determined in accordance with the specific competencies of each of these institutions.
Consolidated-based control does not lead to individual control by the CBFA of the companies included in consolidation. Consolidated-based control does not prejudice the individual control of collective investment management companies included in consolidation. However, it may be taken into account the implications of consolidated-based control to determine the content and modalities of control on an individual basis of the management companies of collective investment organizations or the under-consolved-based control of a collective investment management company that is a subsidiary of another collective investment management company.
The King may determine the conditions under which Belgian companies included in the consolidation of a foreign collective investment management company may be required to provide information to the competent foreign authority for the consolidated control of this collective investment management company and may be subject to the on-site verification by that authority or by reviewers or experts mandated by it, of the information it has transmitted.
CBFA may, under the approval of the Minister of Finance, enter into bilateral agreements with the supervisory authorities of the management companies of collective investment organizations of other Member States of the European Economic Area with a view to defining in the most effective way the respective responsibilities of the contracting authorities with regard to monitoring on an individual basis or on a consolidated basis of the management societies of collective investment bodies that are part of the same group. The CBFA informs the Commission of the European Communities of the agreements reached.
§ 3. When a collective investment management company forms a consortium with one or more other companies, it is subject to consolidated control covering the companies forming the consortium and their subsidiaries.
The provisions of § 2 shall apply.
§ 4. Any collective investment management company whose parent company is a financial company, Belgian or foreign, is subject to monitoring on the basis of the consolidated financial situation of the financial company. This monitoring covers the substances referred to in the second and third paragraphs of § 2. The King may define, adapt and supplement the terms and conditions of this monitoring by specifying which other provisions of this Act are applicable to the financial companies.
§ 5. Companies that are neither investment companies, nor collective investment management companies, nor financial companies that control, exclusively or jointly with others, a collective investment organization management company, as well as their subsidiaries are required to communicate to the CBFA and the competent foreign control authority the information and information required as useful for the exercise of the supervision of collective investment management companies.
Such a reporting obligation is also applicable to companies that, although subsidiaries of a collective investment organization management company or a financial company, are not included in consolidated monitoring. Where the subsidiary in question is a collective investment management company, the CBFA or the competent foreign control authority for the control of the said subsidiary may require that the parent investment company or the financial company disclose the information and information required for the exercise of the supervision of that subsidiary.
The King determines:
(a) the terms and conditions of the obligations arising from subparagraphs 1^er and 2 as well as on-site audits of the information and information they provide;
(b) sanctions provided for in articles 201. and 202 that are applicable in the event of a breach of their obligations by enterprises referred to in paragraph 1^er and 2 of this paragraph.
§ 6. The King, on the advice of the CBFA, sets out the modalities of consolidated monitoring in accordance with the provisions of Council Directive 93/6/EEC of 15 March 1993 on the adequacy of the equity of investment companies and credit institutions.
§ 7. In special cases, CBFA may authorize derogations from the orders and regulations made under this section.
CHAPTER II. - Revisoral control
Art. 190. The functions of commissioner under the Code of Societies shall not be entrusted to a registered revisors or to one or more revisors accredited by the CBFA pursuant to section 52 of the Act of 22 March 1993.
Section 141, 2° of the Corporate Code is not applicable to collective investment management companies.
Corporations for the management of collective investment organizations may designate alternate commissioners who perform the duties of Commissioner in the event of their licensee's lasting incapacity. The provisions of this Article and Article 191 shall apply to such substitutes.
Commissioners designated in accordance with this section shall certify, where appropriate, the consolidated accounts of the collective investment organization management corporation.
Art. 191. Authorized reviewers perform the duties of commissioner under section 190 by means of an approved reviewer designated by them and in accordance with section 33, § 2, of the Act of July 22, 1953 creating an Institute of Business Reviewers. The provisions of this Act and the decrees and regulations made for its enforcement, which are related to the designation, functions, obligations and prohibitions of commissioners, as well as to sanctions, other than criminal, that are applicable to the commissioners, shall apply both to revisors and to approved reviewers representing them.
A registered reviser corporation may designate an alternate representative from among its eligible members to be designated.
Art. 192. The Institute of Business Reviewers informs the CBFA of the initiation of any disciplinary proceedings against a registered reviewer or a registered reviewer company for failure to perform its duties with a collective investment management company.
Art. 193. The designation of commissioners and alternate commissioners to collective investment management companies is subject to the prior agreement of the CBFA. This agreement must be collected by the social body that makes the nomination proposal. In the event of the designation of an approved reviser company, the agreement shall jointly deal with the company and its representative and, where appropriate, its alternate representative.
The same agreement is required for the renewal of the mandate.
When, by virtue of the Act, the Commissioner's appointment is made by the President of the Commercial Court or the Court of Appeal, they make their choice on a list of approved reviewers with the agreement of the CBFA.
Art. 194. The CBFA may, at any time, revoke, by a decision based on reasons for their status or the performance of their duties as an approved reviser or a registered reviser corporation, as provided by or under this Act, the agreement given, pursuant to section 193, to a Commissioner, an alternate commissioner, a registered reviser corporation or a representative or alternate representative of such a corporation. This revocation puts an end to the duties of Commissioner.
In the event of a commissioner's resignation, the CBFA and the management company of collective investment organizations are previously informed, as well as the reasons for the resignation.
The by-law referred to in section 52, paragraph 1^erof the Act of 22 March 1993 regulates the procedure.
In the absence of an alternate commissioner or an alternate representative of an approved reviser corporation, the collective investment organization management company or the registered reviewer corporation shall, in accordance with section 187, be replaced within two months.
The proposal to revoke the commissioner's terms of reference in collective investment management companies, as set out in sections 135 and 136 of the Corporations Code, is subject to the advice of the CBFA. This notice is communicated to the General Assembly.
Art. 195. The Commissioners cooperate in the control exercised by CBFA under their personal and exclusive responsibility and in accordance with this section, the rules of the profession and the instructions of CBFA. To this end:
1° they ensure that collective investment management companies have adopted the appropriate measures of administrative, accounting, financial and technical organization, and internal control for compliance with laws, decrees and regulations relating to the legal status of collective investment management companies;
2° they confirm, in respect of the CBFA, that the periodical statements transmitted to it by the collective investment management companies at the end of the first social semester and at the end of the social exercise are complete, correct and established in accordance with the rules applicable therein;
3° they make to the CBFA periodic reports or, at its request, special reports on the organization, activities and financial structure of the management society of collective investment organizations;
4° as part of their mission to the management company of collective investment organizations or a revisoral mission to a company related to the management company of collective investment organizations or a collective investment organization managed by the company, they make an initiative to the CBFA as soon as they find:
(a) decisions, facts or developments that have a significant impact on or may have a significant impact on the situation of the collective investment management corporation or managed collective investment organizations, whether financially or in the context of their administrative, accounting, technical or financial organization or internal control;
(b) decisions or facts that may constitute violations of the Code of Societies, the statutes, this book and the decrees and regulations made for its execution.
(c) other decisions or facts that are likely to result in refusal or reservation to certify annual accounts.
No civil, criminal or disciplinary action may be brought or any professional sanction imposed against the commissioners who have proceeded in good faith to an information referred to in paragraph 4 (1)^er.
Commissioners shall communicate to the directors of the collective investment organization management corporation the reports they submit to the FAA pursuant to paragraph 1^erThree. These communications fall under the secret organized by section 76 of the Act of 2 August 2002. They transmit to the CBFA copies of the communications they address to these leaders, which deal with issues of interest to the control exercised by them.
Commissioners and certified reviewers can perform audits and expertise related to their duties with branches abroad of the collective investment management company they control.
They may be charged by CBFA at the request of the National Bank of Belgium or the European Central Bank to confirm that the information that collective investment management companies are required to communicate to these authorities is complete, correct and established according to the rules applicable therein.
PART IV. - Radiation of accreditation,
exceptional measures and administrative sanctions
Art. 196. The CBFA shall revoke by a decision notified by registered letter to the position or with acknowledgement of receipt, the approval of collective investment management companies that have not commenced their activities within twelve months of the accreditation, that renounce the accreditation, that have been declared bankrupt, or that have ceased to carry out their activities. It amends the approval of collective investment management companies that partially renounce it.
Art. 197. § 1^er. Where the CBFA finds that a collective investment management corporation does not operate in accordance with the provisions of this book and the regulations and regulations made for its execution, that its management or financial situation are likely to cause the effective termination of its commitments or provide sufficient guarantees in respect of its creditworthiness, its fairness or profitability, or that its management structures, its administrative organization,
If at the end of this period, the situation has not been resolved, the CBFA may:
1st appoint a special commissioner;
2° suspend for the duration that it determines the direct or indirect exercise of any or part of the activity of the collective investment organization management company or prohibit that exercise;
3° enjoin the replacement of directors or managers of the collective investment organization management corporation within a time frame that it determines and, if no such replacement within that time limit, substitute for all administrative and management bodies of the collective investment management company one or more provisional directors or managers who have, alone or collegially, the powers of the persons replaced. The CBFA publishes its decision to the Belgian Monitor;
4° revoke the approval in whole or in part.
§ 2. In the case referred to in § 1^er, paragraph 2, 1°, the written, general or special authorization of the Special Commissioner is required for all acts and decisions of all organs of the collective investment management society, including the General Assembly, and for those of persons responsible for management; CBFA may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all bodies of the collective investment management corporation, including the general assembly, and to those responsible for management, any proposals that he considers appropriate. The remuneration of the Special Commissioner is fixed by the CBFA and supported by the collective investment organization management company.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions without having obtained the required authorization from the Special Commissioner are responsible in solidarity with the resulting harm to the collective investment management company or third parties.
If the CBFA has published to the Belgian Monitor the designation of the Special Commissioner and specifies the acts and decisions subject to its authorization, the acts and decisions taken without that authorization while it was required are null unless the Special Commissioner ratifies them. Under the same conditions, any decision of a general assembly made without obtaining the required authorization from the Special Commissioner is null unless the Special Commissioner ratifies it.
The CBFA may designate an alternate commissioner.
In the event of a serious risk to investors, CBFA may designate a special commissioner without prior fixing of a time limit as provided in § 1^erParagraph 1^er.
§ 3. In the case referred to in § 1^er, paragraph 2, 2°, the members of the administrative and management bodies and the persons responsible for the management who carry out acts or make decisions in violation of the suspension are responsible in solidarity with the resulting harm to the management of collective investment organizations or third parties.
If the CBFA issued the suspension to the Belgian Monitor, the actions and decisions against it are null.
The CBFA may, as well, enjoin a collective investment organization management corporation to cede its holdings in accordance with section 167; Article 159, § 7, paragraph 2 is applicable.
§ 4. In the case referred to in § 1^er, paragraph 2, 3°, the remuneration of the director(s) or provisional manager(s) is fixed by the CBFA and supported by the management company of collective investment organizations.
The CBFA may, at any time, replace the provisional directors or managers, either on its own or at the request of a majority of shareholders or associates when they justify that the management of the persons concerned no longer presents the necessary guarantees.
§ 5. The CBFA decisions referred to in § 1^er effect on the collective investment organization management corporation on the date of notification to the corporation by registered letter to the position or with acknowledgement of receipt and, in respect of third parties, on the date of publication in accordance with the provisions of §§ 1^er and 2.
§ 6. Without prejudice to Article 327, § 5, of the Income Tax Code 1992, the CBFA does not know tax matters.
However, § 1^erParagraph 1^er and paragraph 2, 2°, and § 2. are applicable in the event that the CBFA is aware that a collective investment management company has established a particular mechanism for the purpose or effect of promoting tax evasion by third parties.
§ 7. § 1^erParagraph 1^er and § 5 are not applicable in the event of the cancellation of the approval of a collective investment management company declared bankrupt.
Art. 198. When the supervisory authorities of the management companies of collective investment bodies of another member State of the European Economic Area in which a company of management of collective investment bodies of Belgian law has established a branch or performs management functions or provides investment services referred to in Article 3, 9° and 10°, under the free provision of services, take the CBFA of violations of the legal, regulatory or administrative provisions applicable in a shorter manner^erthat these violations impose. She advises the supervisory authorities mentioned above. Article 197, § 1^er, and section 122, 25° of the law of 2 August 2002 are applicable.
Art. 199. The CBFA shall promptly inform the supervisory authorities of the management companies of collective investment organizations of the other Member States of the European Economic Area in which a management company of collective investment bodies of Belgian law has established branches or has carried out management functions or provides investment services under the free service delivery regime, of the decisions it has taken in accordance with Articles 196 and 197. It keeps these authorities informed of the action taken against these decisions pursuant to Article 122, 25° of the Act of 2 August 2002.
Art. 200. Corporations for the management of collective investment organizations whose accreditation has been terminated or revoked under sections 196 and 197, remain subject to this book and to the orders and regulations made for its implementation until the collective investment organizations that they manage have provided for their replacement and until the termination of the company's commitments resulting from funds and financial instruments due to the customers, unless certain companies are exempted from the financial arrangements and arrangements due to the clients,
This section is not applicable in the event of the revocation of the approval of a partnership for the management of registered collective investment organizations in bankruptcy.
Art. 201. Without prejudice to the other measures provided for in this Act, CBFA may publish that a collective investment organization management corporation has not complied with the injunctions it has made to comply with within the time limit it determines the provisions of this book or the orders and regulations made for its execution. The costs of this publication are borne by the management company of the collective investment organizations concerned.
Art. 202. § 1^er. Without prejudice to the other measures provided for in this Act, CBFA may set a time limit for a collective investment management corporation to:
(a) it shall comply with the specific provisions of this book or the orders made for its execution, or (b) it shall make the necessary adjustments to its management structure, administrative, accounting, financial or technical organization, or internal control.
If the collective investment management company remains in default on the expiry of the period, the CBFA may, the corporation 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.
§ 2. Without prejudice to the other measures provided for in this Act 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 Act or to the measures taken pursuant to these Acts, impose on a corporation of management of collective investment bodies of Belgian law or foreign law established in Belgium, an administrative fine which may not be less than 5.000 euros, or more, for the same fact.
§ 3. Penalties and fines imposed under §§ 1^er or 2 are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
§ 4. An appeal is open against CBFA decisions taken under §§ 1^erparagraph 2, and 2, in accordance with Article 121, § 1^erParagraph 1^er4° of the law of 2 August 2002.
LIVRE III. - SUCCURSALES AND ACTIVITIES OF THE PRESTATION OF BELGIUM SERVICES OF THE MANAGEMENT SOCIETIES OF COLLECTIVE PLACEMENT ORGANIZING THE LAW OF A BIRTH MEMBER OF EUROPEAN ECONOMIC SPACE
Art. 203. The King, on the advice of the CBFA, regulates the status and control of branches and service delivery activities in Belgium of the management companies of collective investment bodies under the law of another Member State of the European Economic Area.
LIVRE IV. - SUCCURSALES AND ACTIVITIES OF THE PRESTATION OF BELGIUM SERVICES OF MANAGEMENT SOCIETIES OF COLLECTIVE PLACEMENT ORGANIZING THE RELEVANT TO THE RIGHT OF TESTS NOT MEMBER OF EUROPEAN ECONOMIC SPACE
Art. 204. The King, on the advice of the CBFA, regulates the status and control of the branches of the management societies of collective investment bodies under the law of states that are not members of the European Economic Area.
The King may, on the advice of the CBFA, regulate the status and control of service delivery activities in Belgium of the management companies of collective investment bodies under the law of states that are not members of the European Economic Area.
PART IV. - PENAL PROVISIONS
Art. 205. A penalty shall be imposed from one month to one year imprisonment and a fine of 75 euros to 15,000 euros, or from one of these penalties only, those who obstruct the verifications to which they are required under this Act, in Belgium or abroad, or knowingly giving false, inaccurate or incomplete information, documents or documents.
Art. 206. Are punished by imprisonment from one month to one year and a fine of 75 euros to 15,000 euros, or only one of these penalties:
1° those who contravene articles 52, § 1^er, 53, 57, § 1^er58, 131 and 136;
2° those who pass in addition to a suspension or withdrawal made under sections 90, 91, paragraph 2, 131, paragraph 3, or 136, paragraph 3, or who fail to recognize a refusal of approval of the prospectus, an update or a supplement to the prospectus or who fail to recognize a refusal of approval of notices, advertisements or other documents that relate to a public offer of securities of an advertising agency
3° those who knowingly publish, or publish, a prospectus, an update or a supplement to the prospectus or notices, advertisements or other documents relating to a public offer of securities of a collective investment organization or announcing or recommending it, which contain false, inaccurate or incomplete information that may induce the public in error, including on the risks inherent to the investment that are
4° those who make public a prospectus, an update or a supplement to the prospectus, or notices, advertisements or other documents relating to a public offer of securities of a collective investment agency or announcing or recommending it, indicating the approval of the CBFA while the latter was not given;
5° those who make public a prospectus, an update or a supplement to the prospectus or notices, advertisements or other documents relating to a public offer of securities of a collective investment agency or announcing or recommending it, different from those approved by the CBFA;
6° those who knowingly offered or disposed of titles as securities of a collective investment agency while they knew that the entity to which they offered or disposed of the securities was not a collective investment agency within the meaning of Part II of this Act, or when they knew that such securities did not meet the characteristics of the securities of a collective investment organization within the meaning of Part II of this Act;
7° those who knowingly offered publicly or ceded titles as titles of a public collective investment organization, while they knew that the collective investment organization of which they offered or disposed of the securities was not a public collective investment agency within the meaning of Book II, Part II, Title II, of this Act, or when they knew that these securities did not meet the characteristics of the public titles of a sense
Art. 207. Are punished by imprisonment from eight days to three months and a fine of 50 euros to 10,000 euros or only one of these penalties:
1° those who exercise the activity of a public collective investment organization referred to in Article 4, paragraph 1^er, 1°, a), without being registered in accordance with section 28, or while registration as a public collective investment organization or registration as a public investment company has been terminated or revoked;
2° those who publicly offer titles of a foreign collective investment agency while the foreign collective investment agency is not registered in accordance with section 127 or while the registration as a foreign collective investment agency has been terminated or revoked or unaware of a suspension or prohibition measure referred to in sections 132, or 134, paragraph 3;
3° those who used the name "collective investment organization", "collective investment fund" or "investment corporation" to qualify an entity that is not listed as a collective investment organization referred to in sections 31, 107, 108, 122, 123, or 129;
4° the investment company, the management company of designated collective investment bodies, the enterprises referred to in Article 41, § 1^eras well as the directors, managers and directors of the above-mentioned companies and undertakings who knowingly violated the provisions of Part II of this Act or the orders and regulations made for its execution or knowingly carried out transactions relating to the portfolio of the collective investment agency that are contrary to the provisions of this Act or the orders and regulations made for its execution;
5° those who knowingly neglected to make the publications imposed pursuant to Part II of this Act;
6° those who have knowingly made transfers of securities issued by collective investment organizations in breach of Part II of this Act and of the decrees and regulations made for its execution;
7° those who, as an independent commissioner or expert, have certified, approved or confirmed accounts, annual accounts, or semi-annual reports, of the quarterly financial statements referred to in section 76, § 1^er, or periodic information referred to in section 81, or any other information referred to in section 80, while the provisions of Part II of this Act or of the orders and regulations made for its execution, have not been complied with, either knowing that they had not been complied with, or having failed to perform the normal diligence to ensure that they had been complied with;
8° those who knowingly publish, or publish, annual, semi-annual or quarterly financial statements that contain false, inaccurate or incomplete information that may mislead the public, or have used these documents to attract investors;
9° the investment companies, the management companies of designated collective investment organizations, and their directors, managers and directors, which contravene section 81, paragraph 1^er, 1^re and 3^e sentences;
10° the investment companies, the management companies of designated collective investment organizations, and their directors, managers and directors, which contravene the orders or regulations referred to in sections 77 and 81, paragraph 1^er, 2^e sentence;
11° those who perform acts or operations without having obtained the authorization of the Special Commissioner provided for in section 92, § 2, or against a decision of suspension made in accordance with section 92, § 1^er2(3);
12° the investment companies, the management companies of designated collective investment organizations, and their directors, managers and directors, who do not comply with the provisions of Article 83, § 1^erParagraph 3 and § 2.
Art. 208. § 1^er. Are punished by imprisonment from one month to one year and a fine of 50 euros to 10,000 euros or only one of these penalties:
1° those who exercise the activity of a collective investment organization management corporation referred to in section 138, without being approved in accordance with sections 140 or 204, or while the registration as a collective investment organization management company has been terminated or revoked;
2° those who have used the name "corporation management corporation" in violation of section 147 of this Act;
3° those who knowingly refrain from making the declarations provided for in Article 159, §§ 1^er, 4 and 6, those who pass over to the opposition referred to in Article 159, § 3, those who in the cases provided for in Articles 159, § 7 and 197, § 3, paragraph 3, refrain from surrendering their titles to the institution or person designated by the CBFA in accordance with Article 159, § 7, paragraph 2, or who pass over to the suspension referred to in Article 159, § 7, paragraph 1^er1°;
4° collective investment management companies, their directors and directors that contravene sections 162, 170, 171, 185, paragraph 1^er, 1st and 3rd sentences, 189, § 2, 4, 1^re sentence, and § 5, paragraph 1^er and 2;
5° the collective investment management companies that, abroad, open a branch, subsidiary or perform management functions of collective investment organizations or investment services without having made notifications under sections 175, 179 or 180 or that do not comply with sections 178 and 183;
6° the collective investment management companies, their directors and directors who contravene the orders or regulations referred to in Articles 185, paragraph 1^er, second sentence, and paragraph 2, 189, § 2, paragraphs 4 and 10, § 4, § 5, paragraph 3, and § 6;
7° those who perform acts or operations without obtaining the authorization of the Special Commissioner provided for in section 197, § 1^er, paragraph 2, 1°, or against a decision of suspension made in accordance with Article 197, § 1^er, paragraph 2, 2°;
8° collective investment management companies, their directors and directors who do not comply with the provisions of section 190, paragraphs 1^er to 3;
9° those who, as an independent commissioner or expert, have attested, approved or confirmed accounts, annual accounts, consolidated accounts of collective investment management companies or periodic reports or any other information while the provisions of Part III of this Act or the orders and regulations made for its execution have not been complied with, or knowing that they have not been satisfied, or having not been satisfied with, or having not been satisfied
10° collective investment management companies, their directors and directors who, in the provision of the investment service referred to in Article 3, 10°, (b), and for fraudulent purposes, disseminate information that they know inaccurate or incomplete.
§ 2. shall be punished by imprisonment from eight days to three months and a fine of 50 euros to 10,000 euros or only one of these penalties, the management societies of collective investment bodies that do not comply with the provisions of the regulations made under articles 158 and 184.
Art. 209. It is punishable by imprisonment from three months to two years and a fine of 1,000 euros to 10,000. euros, offences under articles 39 and 152.
Art. 210. Any information of the head of offence under this Act or any of the legislation referred to in sections 39 and 152 against collective investment organizations, management companies of collective investment bodies, directors, directors or agents of collective investment bodies or management companies of collective investment bodies, or commissioners of a collective investment organization or a management corporation of a body
Any criminal action by the head of the offences referred to in paragraph 1^er must be brought to the attention of CBFA at the diligence of the Public Prosecutor's Office.
Art. 211. 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.
PART V. - PROVISIONS
MODIFICATIVES AND OTHERS
Art. 212. Article 15, § 2, of the Act of 2 March 1989 on the advertisement of important participations in publicly traded companies and regulating public tenders, is supplemented as follows:
"10° to regulate the public offer of acquisition and the public offer of acquisition of real estate certificates, and, in particular, to determine what is to be heard by real estate certificates, to determine the conditions to which the launch of an offer, counter-offering or offer of recovery is conditional, to determine the obligations that apply, at the time of the launch of an offer, »
Art. 213. Article 19, paragraph 2, 2°, of the Act of 22 March 1993. relating to the status and control of credit institutions, as amended by the Act of 6 April 1995, is supplemented as follows:
“(q) to sections 38 to 43 of the Act of 2 August 2002;
(r) Article 25 of the Act of 22 April 2003 on public offers of securities;
(s) sections 205 to 211 of the... Act on certain forms of collective investment portfolio management. »
Art. 214. In section 27 of the above-mentioned Act of 22 March 1993, replaced by the Act of 3 May 2002, the following amendments are made:
1° in § 3, paragraph 2, first sentence, the words "if they" are replaced by the words "if they";
2° in § 3, paragraph 3, the words "of a statutory investment agency or a management company of a contractually-formed investment organization within the meaning of the Act of 4 December 1990 on financial transactions and financial markets" are replaced by the words "of a statutory-formed collective investment organization or a collective investment management company of a common investment fund, in the sense of the law
Art. 215. In article 32, § 4, of the Act of 22 March 1993 referred to above, a 3°bis is inserted as follows:
"3°bis. companies that manage collective investment organizations, whether Belgian or foreign, covered by the law of... on certain forms of collective investment portfolio management; "
Art. 216. Section 46 of the Act of 6 April 1995 relating to the status of investment companies and their control, to intermediaries and investment advisers, as amended by the Act of 9 March 1999, is supplemented as follows:
"10° per collective investment organization management company: any company referred to in section 138 of the law of the... relating to certain forms of collective investment portfolio management. »
Art. 217. Article 61, paragraph 2, 2°, of the Act of 6 April 1995. The following is completed:
“(r) to sections 38 to 43 of the Act of 2 August 2002;
(s) Article 25 of the Act of 22 April 2003 on public offers of securities;
(t) Sections 205 to 211 of the Law on Certain Forms of Collective Management of Investment Portfolios. »
Art. 218. In section 70 of the Act of 6 April 1995 referred to above, replaced by the Act of 3 May 2002, the following amendments are made:
1° in § 3, paragraph 2, first sentence, the words "if they" are replaced by the words "if they";
2° in § 3, paragraph 3, the words "of a statutory investment agency or a management company of a contractually-formed investment organization within the meaning of the Act of 4 December 1990 on financial transactions and financial markets" are replaced by the words "of a statutory-formed collective investment organization or a collective investment management company of a common investment fund, in the sense of the law
Art. 219. The following amendments are made to section 112 of the Act of April 6, 1995, which was replaced by the Act of December 17, 1998:
1° to paragraph 1^er, 1st sentence, the words "and collective investment management companies established in Belgium" are inserted between the "and determined by the King" and "must participate";
2° to paragraph 1^er, 1^re sentence, the words "in the event of a failure of such an institution or investment company" are replaced by the words "in the event of a failure of such an institution, such an investment company or such a collective investment organization management company";
3° in paragraph 2, the words "to the different categories of credit institutions and investment companies" are replaced by the words "to the different categories of credit institutions and investment companies and to the management of collective investment organizations";
4° to paragraph 3, 1^re sentence, the words "and collective investment management companies" are inserted between the words "and investment companies" and "under the law of another Member State".
Art. 220. The following amendments are made to section 113 of the Act of 6 April 1995 as amended by the Act of 17 December 1998:
1° to § 1^erParagraph 1^er, the words "or a Belgian law collective investment organization management company" are added at the end of the first sentence;
2° to § 1^er, paragraph 2, the words "or a collective investment organization management company" are added at the end of the third sentence;
3° to § 2, paragraph 1^er, the words "or society" are inserted twice between the words "or company" and "is indebted";
4° in § 2, paragraph 3, the words "and by the management societies of collective investment organizations" are inserted between the words "and investment companies" and "on the cover of their assets".
Art. 221. In section 114 of the Act of 6 April 1995 referred to above, the following amendments are made to the Act of 17 December 1998:
1° to paragraph 1^er, the words "and collective investment management companies" are inserted between the words "and investment companies" and "under the law of another Member State";
2° to paragraph 2, 1^re sentence, the words "or the collective investment management company" are inserted between the words "or the investment company" and "the branch of the investment company".
Art. 222. In section 115 of the Act of 6 April 1995 mentioned above, replaced by the Act of 17 December 1998, the words "and by the management societies of collective investment bodies" are inserted between the words "and investment companies" and "that adhere to them".
Art. 223. In section 116 of the Act of 6 April 1995 mentioned above, replaced by the Act of 17 December 1998, the words "and collective investment management companies" are inserted after the words "and investment companies".
Art. 224. Article 45, § 1^er, 1°, of the Financial Sector Supervision and Financial Services Act of 2 August 2002 is replaced by the following provision:
"1° to ensure control of credit institutions, investment companies, collective investment management companies, investment advisors, and exchange offices; "
Art. 225. In section 2 of the Act of 22 April 2003 on public securities offers, the following amendments are made:
1° to paragraph 1^er, the 3°, a), is replaced by the following provision:
"3° (a) the shares of mutual investment funds within the meaning of Part II of the Act of... relating to certain forms of collective investment portfolio management";
2° to paragraph 1^er, on 3°, b), the words " referred to in section 106 of the aforementioned Act of 4 December 1990" are deleted;
3° Article 2 is supplemented by the following paragraphs:
"By real estate certificates, it is necessary to hear the rights of receivables on income, products and prices for the realization of one or more real property determined during the issuance of certificates.
The King may assimilate to real property certain categories of aircraft, ships or railway equipment, individually registered, determined when issuing certificates and intended to be assigned exclusively for professional purposes. "
Art. 226. Section 7 of the Act of April 22, 2003 is repealed.
Art. 227. Section 11 of the Act of 22 April 2003 referred to above is replaced by the following provision:
“Art. 11. Unless it is an operation referred to in Article 3, § 1^er, 2°, Chapters IV and V do not apply to public tenders of securities of collective investment organizations referred to in Part II of the Act of the... relating to certain forms of collective management of investment portfolios. »
Art. 228. The following amendments are made to section 12 of the Act of 22 April 2003:
1° the following paragraph is inserted between paragraph 1^er and paragraph 2:
"Can also intervene in Belgium as an intermediary for the Offeror or collective investment agency in the public tenders of securities of collective investment organizations referred to in Part II of the Law of the... relating to certain forms of collective management of investment portfolios:
(a) the collective investment management companies listed in section 145 of the above-mentioned Act;
(b) 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 the above-mentioned Act, provided that their intervention as an intermediary is in accordance with the statute to which they are subject under the decrees taken pursuant to Book III above;
(c) 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 the above-mentioned Law, provided that their intervention as an intermediary is in accordance with the statute to which they are subject under the decrees taken in accordance with Book IV above. »;
2° to paragraph 3, which becomes paragraph 4, the words "Paragraph 1^er, does not prejudice the possibility for the Offeror" are replaced by the words "Paragraphs 1^er and 2 do not prejudice the possibility for the Offeror or for the collective investment agency."
Art. 229. Before a decision is made on a request or a summons in concordat, on the opening of a bankruptcy proceeding or on a provisional divestiture within the meaning of section 8 of the Bankruptcy Act of 8 August 1997 in respect of a collective investment organization or a collective investment management company, the President of the Commercial Court shall apply to the CBFA for an opinion. The clerk shall forward this request without delay. He informs the King's attorney. The CBFA referral is written. It is accompanied by the necessary documents for its information.
CBFA renders its notice within fifteen days of receipt of the notice request. The CBFA may, in the case of a procedure for a collective investment agency or a collective investment management company that requires first coordination with foreign authorities, render its notice within a longer period of time without, however, the total time limit may exceed 30 days. When it considers it necessary to make use of this exceptional period, the CBFA shall notify the judicial authority to decide. The time limit available to the CBFA to render its notice suspends the period in which the judicial authority must decide. In the absence of a CBFA response within the time limit, the court may decide.
The CBFA notice is written. It is transmitted by any means to the Clerk, who gives it to the President of the Commercial Court and to the King's Prosecutor. The notice is placed on file.
Art. 230. The King may amend the terminology of the legal provisions in force and the references to the provisions of Book III of the Act of 4 December 1990 relating to financial transactions and financial markets that would be contained in these provisions to ensure their consistency with this Act.
PART VI. - TRANSITIONAL PROVISIONS
AND BENEFITS
Art. 231. Investment companies authorized to provide the only investment services referred to in Article 46, 1°, 1, (a) and (b) and 3, of the Act of 6 April 1995, as well as the auxiliary services referred to in Article 46, 2°, 6, of the Act of 6 April 1995, may apply for their approval as a collective investment organization management company in accordance with Book II of Part III of this Act.
In this case, these companies must give up their approval as an investment company.
Art. 232. § 1^er. The approved Belgian law management companies, on the date of entry into force of this Act, pursuant to Article 120, § 2, 1°, of the Act of 4 December 1990 on financial transactions and financial markets, retain their approval.
Under the scope of this approval, they carry out their activities within the limits and conditions set out in the aforementioned Act of 4 December 1990 and the decrees and regulations made for its implementation, excluding any provision of investment services, within the meaning of this Act, and any management activity for collective investment organizations that meet the requirements of Directive 85/611/EEC, as amended by Directives 2001/107/EC and 2001/108/EC.
§ 2. Management companies referred to in § 1^er must comply with the provisions of Part III of this Act by 13 February 2007.
To this end, they must file an accreditation file in accordance with section 141 of this Act.
The CBFA shall rule on the application for approval pursuant to sections 142 to 147 of this Act.
Only management companies that meet the requirements of Part III of this Act and, in particular, sections 176 and 181 may benefit from sections 6bis and 6ter of Directive 85/611/EEC on freedom of establishment and free service.
§ 3. Notwithstanding § 2, paragraph 1^erArticles 156, 164 to 167, 186, 187, 190 to 195, 197 and 200 to 202, of this Act are applicable to management companies operating under the conditions specified in § 1^er.
Art. 233. Collective placement agencies and, where appropriate, their compartments, which have opted for a class of authorized investments, other than those referred to in Article 122, § 1^erParagraph 1^er, 1°, and 2°, of the law of 4 December 1990 referred to above and which are registered, on the date of entry into force of this Act, to the list referred to in Article 120, § 1^erAct of 4 December 1990. The list referred to in section 31 of this Act shall be registered in full right.
Collective investment organizations referred to in paragraph 1^er, other than debt-investment organizations, have until 13 February 2007 at the latest to comply with sections 34 to 36, 38, 40, 41. and 43 of this Act and the decrees and regulations made for their execution.
Articles 22, paragraph 1^er, 34 to 36, 38, 40, 41 and 43 shall not apply to debt-investment organizations that are registered in the list referred to in section 31 of this Act on the expiry of a period of 9 months from the date of the coming into force of this Act, until such time as these or any of their compartments proceed to a new public issuance of securities after that period.
Art. 234. § 1^er. Collective placement organizations created before February 13, 2002, and, where applicable, their compartments created until the day this Act came into force, which opted for the class of authorized investments referred to in section 122, § 1^erParagraph 1^er, 1°, of the law of 4 December 1990 referred to above, and which are registered, on the date of entry into force of this Act, to the list referred to in Article 120, § 1^er, of the law of 4 December 1990 mentioned above, retain their registration.
Under the cover of this registration, they carry out their activities within the limits and conditions prescribed by the law of 4 December 1990 and by the decrees and regulations made for its execution which apply to the class of authorized investments referred to in Article 122, § 1^erParagraph 1^er, 1°, of the law of 4 December 1990 mentioned above.
As long as it is not satisfied with § 2, the registration of these collective investment bodies and, where applicable, of their compartments is maintained in the list referred to in Article 120, § 1^erthe Act of 4 December 1990 referred to above.
§ 2. Collective investment organizations referred to in § 1^er shall comply, if any, with the provisions of Part II of this Act, and with the orders and regulations made for their execution, and with the orders and regulations made pursuant to Article 7, paragraph 1^er, 1°, of this Act, no later than February 13, 2007.
Paragraph 1^er does not prejudice the possibility of collective investment organizations referred to in § 1^erto create, until they are registered in the list referred to in section 31 of this Act, new compartments in accordance with the limits and conditions laid down in the Act of 4 December 1990 and the decrees and regulations made for its execution that apply to the class of authorized investments referred to in section 122, § 1^erParagraph 1^er, 1°, of the law of 4 December 1990 mentioned above.
Notwithstanding paragraphs 1^er Articles 8, § 2, 2°, 12, paragraph 1^er, 13, § 1^er§ 2, paragraphs 2, 4, §§ 3 and 4, 15, § 4, 16, 28, second sentence, 52 to 62, 72, 76 and 80. to 96, of this Act shall apply to the collective investment bodies referred to in § 1^er and, where appropriate, in their compartments. They have a period of nine months from the coming into force of this Act to comply with sections 52, 56 and 76, § 1^erParagraph 1^er, last sentence and § 3, paragraph 3, of this Law.
§ 3. Collective placement organizations that comply with § 2, where applicable, for all of their compartments, shall be registered in the list referred to in section 31, of this Act, in accordance with sections 29 and 30 of this Act.
Only collective investment organizations that meet § 2, where applicable, for all their compartments, may publicly offer their shares in the other Member States of the European Economic Area in accordance with Article 1^er§ 6 of Directive 85/611/EEC.
Art. 235. § 1^er. Collective placement agencies created after February 13, 2002 and before February 13, 2004, and, where applicable, their compartments, which opted for the class of authorized investments referred to in Article 122, § 1^erParagraph 1^er1°, of the law of 4 December 1990. and which are registered on the date of entry into force of this Act to the list referred to in Article 120, § 1^er, of the law of 4 December 1990 mentioned above, retain their registration.
Under the cover of this registration, they carry out their activities within the limits and conditions prescribed by the law of 4 December 1990 and by the decrees and regulations made for its execution which apply to the class of authorized investments referred to in Article 122, § 1^erParagraph 1^er, 1°, of the law of 4 December 1990 mentioned above.
As long as it is not satisfied with § 2, the registration of these collective investment bodies and, where applicable, of their compartments is maintained in the list referred to in Article 120, § 1^erthe Act of 4 December 1990 referred to above.
§ 2. Collective investment organizations referred to in § 1^er shall comply, if any, with the provisions of Part II of this Act, and with the orders and regulations made for their execution, and with the orders and regulations made pursuant to Article 7, paragraph 1^er, 1°, of this Act, no later than nine months after the coming into force of this Act.
Notwithstanding paragraph 1^erArticles 8, § 2, 2°, 13, § 1^er§ 2, paragraphs 2, 4, §§ 3 and 4, 15, § 4, 16, 28, second sentence, 72 and 80 to 96, of this Act shall apply to the collective placement bodies referred to in § 1^er and, where appropriate, in their compartments.
§ 3. Collective placement organizations that comply with § 2, where applicable, for all of their compartments, shall be registered in the list referred to in section 31, of this Act, in accordance with sections 29 and 30 of this Act.
Only collective investment organizations that meet § 2, where applicable, for all their compartments, may publicly offer their shares in the other Member States of the European Economic Area in accordance with Article 1^erParagraph 6 of Directive 85/611/EEC.
Art. 236. § 1^er. Collective placement agencies, and, where appropriate, their compartments, which have opted for the class of authorized investments referred to in Article 122, § 1^erParagraph 1^er, 2°, of the law of 4 December 1990 referred to above, and which are registered, on the date of entry into force of this Act, to the list referred to in Article 120, § 1^er, of the law of 4 December 1990 mentioned above, retain their registration.
Under the cover of this registration, they carry out their activities within the limits and conditions prescribed by the law of 4 December 1990 and by the decrees and regulations made for its execution which apply to the class of authorized investments referred to in Article 122, § 1^erParagraph 1^er, 2°, of the law of 4 December 1990 mentioned above.
As long as it is not satisfied with § 2, the registration of these collective investment bodies and, where applicable, of their compartments is maintained in the list referred to in Article 120, § 1^erthe Act of 4 December 1990 referred to above.
§ 2. Collective investment organizations referred to in § 1^er, shall comply, where appropriate, with the provisions of Part II of this Act, and with the orders and regulations made for their execution, and with the orders and regulations made pursuant to Article 7, paragraph 1^er, 1° or 2°, of this Act, no later than February 13, 2007.
The fixed-term compartments created up to the registration of the collective investment organization to the list referred to in section 31 of this Act are not subject to compliance with paragraph 1^er. They shall remain subject to the limits and conditions set out in the aforementioned Act of 4 December 1990 and by the decrees and regulations made for its execution which apply to the class of authorized investments referred to in Article 122, § 1^erParagraph 1^er, 2°, of the law of 4 December 1990 mentioned above.
Paragraph 1^er does not prejudice the possibility of collective investment organizations referred to in § 1^erto create, until they are registered in the list referred to in section 31 of this Act, new compartments in accordance with the limits and conditions laid down in the Act of 4 December 1990 and the decrees and regulations made for its execution that apply to the class of authorized investments referred to in section 122, § 1^erParagraph 1^er, 2°, of the law of 4 December 1990 mentioned above.
Notwithstanding paragraphs 1^er Articles 8, § 2, 2°, 12, paragraph 1^er, 13, § 1^er§ 2, paragraph 2, paragraph 4, §§ 3 and 4, 15, § 4, 16, 28, second sentence, 52 to 62, 72, 76 and 80 to 96, of this Law shall apply to the collective investment bodies referred to in § 1^er and, where appropriate, in their compartments. They have a period of nine months from the coming into force of this Act to comply with sections 52, 56, and 76, § 1^erParagraph 1^er, last sentence and § 3, paragraph 3, of this Law.
The prospectus for fixed-term compartments registered, on the date of entry into force of this Act, to the list referred to in section 120, § 1^erParagraph 1^er, 2°, of the Act of 4 December 1990 referred to above, shall not be adapted to the provisions of sections 52 to 56 of this Act when the collective investment agency has suspended the right of free entry to these compartments under this provision.
§ 3. Collective placement organizations that comply with § 2, if any, for all of their compartments, other than the fixed-term compartments referred to in § 2, paragraph 2, shall be registered in the list referred to in Article 31, of this Law, in accordance with Articles 29 and 30 of this Law.
Art. 237. The general assembly of the participants of a joint investment fund shall appoint a Commissioner in accordance with section 13, paragraph 2, paragraph 2, paragraph 4, of this Act, within three months of the coming into force of this Act.
Art. 238. The collective investment bodies in receivables shall have a period of 12 months from the entry into force of this Act to comply with Article 25, § 3, paragraph 2 and Article 106 of this Act, in that the latter provision provides for the application of Article 25, § 3, paragraph 2.
Art. 239. Collective placement agencies, and, where appropriate, their compartments, registered on the date of entry into force of this Act, on the list referred to in sections 136bis, § 3, and 136ter, § 2, of the Act of 4 December 1990 referred to above, shall be entitled to the list referred to, respectively, in sections 108 and 123 of this Act.
Sections 233 and 236 of this Act apply to foreign collective investment bodies, and, where applicable, to their compartments, registered, on the date of entry into force of this Act, to the list referred to in Article 137 of the Act of 4 December 1990 referred to above, with the exception of collective placement bodies that fall under the law of another Member State of the European Economic Area and that meet the conditions of the ERC/6 directive.
Art. 240. The King sets the effective date of sections 97 to 102, 107, 110, paragraph 1^er112, 113 to 118, 122 and 126, by order deliberately in Council of Ministers.
Art. 241. Sections 69 to 71 and 169 to 173 come into force on the day that sections 26 and 27 of the Act of 2 August 2002. Until that date, collective investment organizations and collective investment management companies are, in their relations with, respectively, holders of securities and managed collective investment organizations as well as clients, held in compliance with section 36 of the Act of 6 April 1995.
Art. 242. Subject to the application of Article 236, § 2, paragraph 2, of this Law, Articles 2, 105 to 142 bis, 150 to 156 of the Act of 4 December 1990 referred to above are repealed with effect on 14 February 2007.
Derogation from paragraph 1^erArticles 115, § 6, 119bis to 119undecies, 122, § 1^erParagraph 1^er3° to 7°, § 1^erbis, § 1^erter, § 2, 129, § 1^er, 131 to 136, 136bis, 136ter, 137 to 142bis and 142decies, of the Act of 4 December 1990 referred to above are repealed on the date of entry into force of this Act.
Art. 243. This Act comes into force on the day of its publication in the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 20 July 2004.
ALBERT
By the King:
The Minister of Justice,
Ms. L. ONKELINX
The Minister of the Interior,
P. DEWAEL
Minister of Finance,
D. REYNDERS
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Notes
(1) Session 2003-2004.
House of Representatives:
Documents. - Bill, 51- 909 - No. 1. - Bill No. 2. - Report - n^bones 3 and 4 - Amendments - No. 5. - Supplementary report - No. 6. Articles adopted by the commission - No. 7. - Text adopted - No. 8. - Amended project - No. 9. - Report No. 10. - Text adopted.
Senate:
Documents. - 3-609 - No. 1. - Right to evocation exercise - n^bones 2 and 3 - Amendments - No. 4. - Report No. 5. - Amended text adopted - No. 6. - Text adopted.