25 FEBRUARY 2003. - An Act to amend the Act of 22 March 1993 relating to the Status and Control of Credit Institutions (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provisions
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. This Act transposes Directive 2000/28/EC of the European Parliament and of the Council of 18 September 2000 amending Directive 2000/12/EC on access to the activity of credit institutions and its exercise, as well as Directive 2000/46/EC of the European Parliament and the Council of 18 September 2000 on access to the activity of electronic currency institutions and its exercise and the prudential supervision of these institutions.
CHAPTER II. - Provisions relating to electronic currency institutions
Art. 3. Article 1^er of the Act of 22 March 1993 on the Status and Control of Credit Institutions are amended as follows:
1° Paragraph 2 is replaced by the following provision:
"Belgian or foreign companies are defined as a credit institution:
1° whose activity consists of receiving money deposits or other repayable funds from the public and granting credits for their own account, or
2° whose activity consists in issuing payment instruments in the form of electronic currency. »
2° The item is supplemented by the following paragraph:
"For the purposes of this Act, credit institutions with the sole activity referred to in paragraph 2, 2°, are referred to as electronic currency institutions. »
Art. 4. In Article 2, of the same law, as amended by the law of 30 October 1998, whose current text will form § 1^er, it is added a § 2, which reads as follows:
Ҥ2. The Banking and Financial Commission may exempt from the application of all or part of this Act and its enforcement orders electronic currency institutions:
1° whose electronic currency issuance activity generates a total amount of financial commitments related to the electronic currency in circulation not normally exceed 5 million euros and never six million euros, or
2° whose electronic currency they issue is accepted as a payment instrument only by companies with which there is a control link with the issuing electronic currency establishment and if, with respect to their subsidiaries, they exercise operational or accessory functions in relation to the issuance of electronic currency, or
3° whose electronic currency they issue is accepted as a payment instrument only by a limited number of companies, which are clearly distinguished by the fact that they are in the same premises or in a restricted local area or that they are in a close financial or commercial relationship with the establishment of an electronic currency issuer, in particular in the form of a common marketing or distribution device.
Electronic currency institutions with an exemption granted under this subsection:
1° does not benefit from the mutual recognition regime provided for in sections 65 to 66bis of this Act;
2° shall provide, in the contract governing the issuance of electronic currency, that the electronic carrier storing the electronic currency cannot have a capacity exceeding 150 euros;
3° periodically provide the National Bank of Belgium and the Banking and Financial Commission with a report on their activities. It is established in accordance with the rules laid down by the Bank and Financial Commission, on the advice of the National Bank of Belgium, which determines its frequency and includes the total amount of their financial commitments related to electronic currency. »
Art. 5. Article 3, § 1^erthe Act, amended by the Acts of 20 March 1996 and 9 March 1999, is supplemented as follows:
"7° per electronic currency: a monetary value representing a debt on the issuer, which is stored on an electronic medium, is issued against the remittance and is accepted as a payment instrument by persons other than the issuer. »
Art. 6. In section 4 of the Act, amended by the Acts of 6 April 1995, 30 October 1998 and 22 May 2001, the following amendments are made:
1° In paragraph 1^er, the words "other than electronic currency institutions" are inserted between the words "credit institutions" and "established in Belgium" and between the words "credit institutions" and "constituted according to the law of a Member State".
2° Section 4 is supplemented by the following paragraph:
"The funds donated to electronic currency institutions in exchange for electronic currency are not considered deposits or other repayable funds provided that they are immediately exchanged for electronic currency. »
Art. 7. It is inserted in Title I^er of the same law, a Chapter IIIbis,
« Chapter IIIbis - From electronic currency issuance
Art. 5bis. Apart from the central banks of the European System of Central Banks, only the credit institutions established in Belgium and the credit institutions constituted under the law of another Member State of the European Community and which benefit from the regime set out in Articles 66 et seq. of this Law may exercise the activity of issuing electronic currency.
Art. 5ter. Funds against electronic currency cannot be less than the monetary value of the debt on the issuer.
Art. 5quater. The unused electronic currency is, during its validity period, refundable by transfer or in fiduciary currency by the issuing institution at the request of the holder of the electronic currency.
The contract governing the issuance of electronic currency must clearly specify the terms and conditions of this refund without the latter being able to provide for other costs than those strictly necessary for the refund transaction. The contract may provide for the reimbursement a minimum amount, which may not exceed 10 euros. Any clause in the contract limiting the right to reimbursement is void. »
Art. 8. Article 6 of the same law, amended by the Royal Decree of 6 July 1994 and by the laws of 20 March 1996 and 30 October 1998, the current text of which will form § 1^erthe following modifications are made:
1° In § 1^erParagraph 1^erthe words "electronic currency establishment" are inserted between the words "credit institution" and "bank";
2° A § 2 is added:
“§2. By derogation from § 1^erParagraph 1^er, electronic currency institutions cannot make public use in Belgium of the terms "bank", "bank", "saving bank", "saving fund" or "brand of securities.
Electronic currency institutions exempted under Article 2, § 2 do not benefit from § 1^erParagraph 1^er "
Art. 9. In section 41, paragraph 1^er of the same law, the words "other than electronic currency institutions" are inserted between the words "Belgian law credit institutions" and "and which are authorized".
Art. 10. In section 43 of the Act, the following amendments are made:
1° Paragraph 1^er, is completed as follows:
“(d) concerning investments that may be made by electronic currency institutions. »
2° In paragraphs 2 and 3, the words " referred to in (a) to (c) " are replaced by the words " referred to in (a) to (d)).
Art. 11. In the same law, a Title IIbis is inserted, as follows:
« Title IIbis Electronic currency institutions of Belgian law
Art. 64bis . With the exception of sections 28 and 32, the provisions of Part II apply to electronic currency institutions, with the following details:
1° Article 13: Electronic currency institutions are mentioned in a special section of the list and their approval is not notified to the Commission of the European Communities;
2° Article 16: capital is 1.000.000 euros;
3° Article 20: the management structure, the administrative and accounting organization and the internal control shall be consistent with the financial and non-financial risks to which electronic currency institutions are exposed, including technical and procedural risks, as well as the risks associated with the activities carried out in cooperation with any business performing operational functions or other incidental functions related to their activities;
4° sections 34 to 39: the exercise of an activity abroad by a branch or by way of free service takes into account the limitation of the activities provided for in section 64ter and that the mutual recognition regime provided for in sections 34 and 38 is limited to the activity of issuing electronic currency.
Art. 64ter . Commercial activities of electronic currency institutions other than electronic currency issuance are limited:
1° to the provision of financial and non-financial services closely related to the issuance of electronic currency, such as electronic currency management, the exercise of operational functions and other incidental functions in relation to its issuance, and the issuance and management of other payment instruments, excluding the granting of any form of credit, and
2° to the storage of data on electronic media on behalf of other companies or public institutions.
Art. 64quater. Electronic currency institutions may not hold any participation in another business unless the company has operational functions or other incidental functions related to the electronic currency issued or distributed by the establishment concerned.
Art. 64quinquies. § 1^er Electronic currency institutions are required to make investments of at least equal to their financial commitments related to the issuance of electronic currency in circulation. These investments respect the conditions and limitations imposed under section 43.
§ 2. For the sole purpose of the total elimination of market risks associated with the issuance of electronic currency and the investments that they may make, electronic currency institutions may use sufficiently liquid off-balance elements related to interest rates or exchange rates, in the form of derivative instruments negotiated on an organized market and that are subject to requirements for daily margins or initial exchange rate contracts of a maximum period of 14 days. »
Art. 12. An article 66bis, as follows, is inserted in the same law:
"Art. 66bis . Electronic currency institutions under the law of another Member State of the European Community may only benefit from the application of sections 65 and 66 of this Act with respect to their electronic currency issuance activity. »
Art. 13. It is inserted in Part IV of the Act, a Chapter V, which reads as follows:
“Chapter V. Electronic currency institutions
Art. 84bis . When the credit institution is exclusively an electronic currency institution, the articles 64bis, 1° to 3°, 64ter to 64quinquies are also applicable. »
Art. 14. In Article 104, § 1^er, 1°, of the same law, the words "in section 4" are replaced by the words "in section 4 or 5bis."
Art. 15. In section 110bis of the Act, introduced by section 4 of the Act of 23 December 1994 and amended by sections 20 and 21 of the Act of 17 December 1998, the following amendments are made:
1st article 110bis becomes article 110bis ²;
2° the following paragraph is inserted between paragraphs 1^er and 2 of § 2:
"For the purposes of this Title, the electronic currency not yet used as well as that used, but for which a final payment has not yet occurred, is assimilated to a deposit of funds. »
Art. 16. A l'article 110bis ¹ the same law, introduced by section 4 of the Act of 23 December 1994, the words "Sections 110bis to 110quinquies" are replaced by the words "Sections 110 to 110quater".
Art. 17. An article 152quater, as follows, is inserted in the same law:
Art. 152quater. Electronic currency institutions that began their electronic currency issuance activity before April 27, 2002 are presumed to be approved. »
CHAPTER III. - Other provisions
Art. 18. Section 64, 1°, of the Act is replaced by the following provision:
"1° their activity consists in collecting refundable funds in euros other than deposits in view and placing the product in euros with other credit institutions established in Belgium or under the law of a Member State of the European Community or in securities in euros recognizing the receipt of refundable funds and issued or guaranteed by the Communities, the Regions, the international organizations of which Belgium is a member, the Member States of the European Community and the institutions of the European Community
Their activity may also consist of credit and insurance intermediation services subject to compliance with the specific laws applicable to these materials as well as in the provision of investment services consisting of the placement of financial instruments, excluding any firm taking. »
Art. 19. Article 157, § 1^er, third paragraph, of the Act, as amended by the Act of 30 October 1998, is replaced by the following paragraph:
"For the purposes of this paragraph, credit institutions are assimilated:
1° the State, the Communities, the Regions, the provinces, the municipalities, other public authorities, public institutions, public bodies of interest and similar persons referred to in Article 1^erParagraph 1^erthe Act of 2 January 1991 on the public debt market and monetary policy instruments, as they act in the context of public debt management;
2° the National Bank of Belgium;
3° other central banks of the European System of Central Banks;
4° the European Central Bank. »
Art. 20. This Act comes into force on the day of its publication in the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with the seal to the State and published by the Belgian Monitor.
Given in Brussels on 25 February 2003.
ALBERT
By the King:
Minister of Finance,
D. REYNDERS
Seal of the state seal:
For the Minister of Justice, absent:
The Minister of the Interior,
A. DUQUESNE
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Notes
(1) Session 2002-2003.
House of Representatives
Documents. - Bill No. 50-2122/1. Report, nr. 50-2122/2. - Text adopted in plenary and transmitted to the Senate, No. 50-2122/3.
Annales parlementaire . - Discussion and adoption. Session of January 23, 2003.
Senate
Documents. - Project not referred to by the Senate, No. 2-1441.
Annales parlementaire . - Adoption. Session of February 11, 2003.