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2 AOUT 2002. - Financial Sector Supervision and Financial Services Act (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
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
Art. 2. For the purposes of this Act, it shall be understood by:
1° "financial instrument": any value or right belonging to any of the following categories:
(a) shares and other values assimilable to shares;
(b) bonds and other negotiable receivables in the capital market;
(c) any other values normally negotiated to acquire the values referred to in (a) or (b) by way of subscription or exchange or resulting in a cash settlement, excluding means of payment;
(d) the shares of collective investment organizations;
(e) instruments usually negotiated in the monetary market;
(f) term financial contracts ("shorts"), including equivalent instruments resulting in a cash settlement;
(g) futures contracts on interest rates ("forward rate agreements");
(h) exchange contracts ("swaps") on interest or currency rates and exchange contracts on shares or equity indices ("equity swaps");
(i) options on currency and interest rates and other options to purchase or sell any financial instrument referred to in (a) at (h), including equivalent instruments resulting in a cash settlement;
(j) for the purposes of articles 25, 32, 39 and 40 and other provisions that the King may specify on the advice of the CBF, derivatives on commodities;
(k) any other values or rights designated by the King on the advice of the CBF, if any, for the purposes of the provisions specified by it;
2° "related financial instrument": any financial instrument that has one of the following links with a specified financial instrument:
(a) is convertible to or may be exchanged for the financial instrument concerned;
(b) gives the licensee the right to acquire or subscribe to the financial instrument concerned;
(c) is issued or guaranteed by the issuer or a guarantor of the financial instrument concerned, where there is a significant correlation between the two instruments;
(d) is a certificate representing the financial instrument concerned or in the form of the counterparty;
(e) produces a performance that, under the emission conditions, is specifically related to the evolution of the course of the financial instrument concerned;
3° "regulated market": any Belgian or foreign regulated market;
4° "Belgian organized market": any secondary market of financial instruments, open to the public or not, which is organized by a market company whose head office is established in Belgium;
5° "Belgian regulated market": any Belgian organized market that is recognized as a regulated market under Article 3;
6° "Foreign regulated market": any secondary market of financial instruments which is organized by a market company whose State of origin is a member State of the European Economic Area other than Belgium and which is recognized by that Member State as a regulated market under Article 1^er, 13), Council Directive 93/22/EEC of 10 May 1993 on investment services in the field of securities;
7° "market company": any company or entity that organizes one or more secondary markets of financial instruments;
8° "investment service": any service referred to in section 46, 1°, of the Act of 6 April 1995 on secondary markets, the status of investment enterprises and their control, intermediaries and investment advisers, as well as any other service provided to third parties and related to financial instruments that the King designates, on the advice of the CBF, if any, for the purposes of the provisions that he indicates;
9° "financial intermediary": any person who has the usual activity of providing professional investment services;
10° "qualified intermediary": any financial intermediary belonging to one of the following categories:
(a) Belgian credit institutions listed in section 13 of the Act of 22 March 1993 relating to the status and control of credit institutions;
(b) credit institutions whose State of origin is another Member State of the European Economic Area and which are authorized to provide investment services in Belgium in accordance with Article 65 or 66 of the same Law;
(c) credit institutions of which the State of origin is a third State and which are authorized to provide investment services in Belgium in accordance with Article 79 of the same Law;
(d) the investment companies of Belgian law accredited as a stock exchange company, a wealth management company, a financial instrument brokerage company or a financial instrument company, pursuant to Article 47 of the Act of 6 April 1995 referred to above;
(e) investment companies whose state of origin is another Member State of the European Economic Area and which are authorized to provide investment services in Belgium under Article 110 of the same Law, including natural persons whose State of origin admits the provision of investment services as a natural person;
(f) investment companies whose state of origin is a third State and which are authorized to provide investment services in Belgium under Article 111 of the same Law;
(g) investment advisors approved under section 123 of the Act;
(h) the European Central Bank, the BNB and other central banks of the member states of the European Economic Area, without prejudice to the application of Article 108 of the Treaty establishing the European Community;
(i) other financial intermediaries designated by the King on the advice of the CBF, if any, for the purposes of the provisions specified by it;
11° "State of origin": in the case of a natural person, the State in which the central administration of its enterprise is located, and in the case of a legal person, the State in which its registered office is located, or, if it has no registered office according to the law of which it belongs, the State in which its central administration is located;
12° "third state": any State that is not a member of the European Economic Area;
13° "professional investor": any person belonging to any of the categories of persons designated by the King, on the advice of the CBF, as being supposed to have the knowledge and experience required in investing in financial instruments to make their own investment decisions and measure the risks associated with them;
14° "special information": any information that has not been made public, that has a specific character and that concerns, directly or indirectly, one or more issuers of financial instruments, or one or more financial instruments, and that, if made public, would be likely to influence the course of the relevant financial instruments or that of related financial instruments, being understood that, for derivatives on commodities, there is
15° Close links: any link referred to in articles 11 to 14 of the Code of Societies, which exists between legal persons or between a natural person and a legal person;
16° "disbursement agency": establishment ensuring the conversion to a net debt, by means of the innovation or compensation of reciprocal receivables resulting from transactions on financial instruments or term transactions on currency;
17° "liquidation agency": establishment that ensures the liquidation of orders for the transfer of financial instruments, rights relating to these financial instruments or foreign currency transactions, with or without cash settlement;
18° "open consultation": the procedure by which the content of an order or regulation that the King, the Minister, the CBF or the OCA intends to take is pre-exposed by the authority concerned in an advisory note that is published on the website of the Ministry of Finance, the CBF or the OCA, as the case may be, with an invitation to interested parties to submit their comments within the time limit set out in the note;
19° "Minister": subject to specific provisions, the Minister of Finance and, with respect to chapters IV and VII: the Minister having the Economy in his powers;
20° "BNB" : the National Bank of Belgium;
21° "CBF": the Banking and Financial Commission, in German "Kommission für das Bank und-Finanz-wesen";
22° "OCA" : the Office of Insurance Control.
CHAPTER II. - Secondary markets for financial instruments
Section 1. - Regulated markets
Art. 3. § 1^er. The Minister may, on the advice of the CBF, recognize as a regulated market, any Belgian organized market that meets the conditions set out in section 4.
List of regulated markets recognized under paragraph 1^er and any changes to this list are published to the Belgian Monitor by the Minister.
§ 2. Unless the Minister decides otherwise at the time of market recognition as a regulated market or by a subsequent order, the registration of financial instruments to a Belgian regulated market is an official rating for the purposes of the legislative or regulatory provisions referred to therein. Where applicable, the Minister's decision to the contrary is mentioned in the list published in accordance with § 1^erParagraph 2.
§ 3. The Minister may, on the advice of the CBF, withdraw the regulated market quality to a Belgian organized market either at the request of the market company that organizes it or by initiative where the market no longer meets the conditions set out in section 4.
In cases referred to in paragraph 1^er, the market company that organizes the market in question takes all appropriate measures to ensure an orderly transition in accordance with the interests of investors. To this end, it develops a transition plan that it submits to the prior approval of the CBF. If the market company fails to develop such a transition plan, the CBF may impose it on its own.
Art. 4. For a market of financial instruments to be recognized as a Belgian regulated market and to remain recognized as such, the market company that organizes it must:
1° to ensure regular market negotiations;
2° establish market rules in accordance with Article 5, ensure that these rules contractually bind market members, monitor compliance with these rules and punish violation of them;
3° have adequate computer systems to ensure the efficient operation of the market, to allow compliance with the transparency obligations referred to in Article 9 and to facilitate the detection of market abuse;
4° ensure transparency of transactions on financial instruments admitted to market negotiations in accordance with Article 9;
5° to use, with a view to the compensation and liquidation of transactions on financial instruments, clearing and liquidation systems that offer sufficient guarantees for the protection of the interests of participants and investors and the proper functioning of the market;
6° provide for appropriate structural measures and contingency plans in the event of market failure.
Art. 5. § 1^er. The market rules of a Belgian regulated market must define:
1° the conditions and procedures for the admission, suspension and exclusion of market members, in accordance with Article 6 and the provisions of the contract;
2° the obligations and prohibitions applicable to market members;
3° the conditions and procedures for the admission of financial instruments to market negotiations, as well as the conditions and procedures for the suspension and delisting of these instruments, in accordance with Article 7 and the provisions of the latter;
4° the obligations of the issuers resulting from the admission of their instruments to the market negotiations;
5° the organization of negotiations on the market, in accordance with Article 8, including, where applicable, the terms and conditions for the application of the rules laid down under Article 26, 12°, b);
6° the rules and procedures relating to the declaration and advertising of transactions, in accordance with the provisions of Article 9;
7° the rules and procedures for monitoring compliance with market rules and the penalties and procedures applicable in the event of a breach of market rules.
§ 2. Market rules may not include provisions that restrict competition between market members or between the market and other organized financial instruments markets.
§ 3. Initial market rules and any amendments to these rules are subject to the Minister's approval, on the advice of the CBF.
The market company ensures the publication and updating of market rules on its website and in printed form. The Minister's approval of initial rules and subsequent amendments is the subject of a notice issued to the Belgian Monitor.
If the market company fails to adapt the contract rules to the amendments to the applicable legislative or regulatory provisions, the Minister may, on the advice of the CBF, make the necessary amendments to the market rules and ensure that they are published.
§ 4. The CBF verifies the conformity of the market rules and regulations with the applicable legislation and regulations. The Minister may subordinate its approval of market rules or amendments to them pursuant to § 3, paragraph 1^er, provided that the instructions or circulars implementing the provisions of the market rules that it designates and any changes to these instructions or circulars are pre-submitted to such verification by the CBF.
Art. 6. § 1^er. Can be admitted as members of a Belgian regulated market:
1° qualified intermediaries;
2° persons belonging to one of the following categories, under the conditions defined in one or more CBF regulations:
(a) financial intermediaries, other than qualified intermediaries, which are subject in their State of origin to a control regime deemed appropriate by the CBF;
(b) Belgian and foreign companies trading exclusively on their own account;
(c) companies whose investment services consist exclusively of transactions only for their own account on a market of term financial instruments or options, or who negotiate or price for other members of the same market and whose operations are covered by the guarantee of a compensatory member of the latter;
(d) placement instruments involving commodities;
e) members of other secondary markets of financial instruments with which there is a cross-access agreement of members.
§ 2. The market rules of a Belgian regulated market must provide that, to be admitted as a market member, the applicant must meet the following conditions:
1° to present the qualities necessary to ensure the protection of investor interests and to preserve the proper functioning, integrity and transparency of the market;
2° have adequate human resources, technical and computer resources to ensure the smooth running of its activities in the market;
3° have sufficient experience in negotiating the types of financial instruments negotiated on the market.
§ 3. A market company may not refuse the admission of a person referred to in § 1^er as a member of a Belgian regulated market that it organizes only on the basis of objective and non-discriminatory criteria and with the agreement of the CBF.
§ 4. The market rules of a Belgian regulated market must settle the exclusion of members who commit serious breaches of these rules, according to an adversarial procedure and by communication to the CBF before any effective exclusion.
Art. 7. § 1^er. The King, on the advice of the CBF and after consultation with the market companies referred to in Article 16, may specify the minimum conditions for admission of the different categories of financial instruments to the negotiations on Belgian regulated markets.
It may authorize market companies to derogate from the admission requirements it specifies, provided that such exemptions are generally applicable to all issuers in similar circumstances.
§ 2. Without prejudice to the CBF's authority to approve the admission prospectus under title II of Royal Decree No. 185 of 9 July 1935 on the control of banks and the regime of securities and values emissions, the admission of financial instruments to negotiations on a Belgian regulated market is decided by the market company that organizes this market. In cases where Directive 2001/34/EC of the European Parliament and of the Council of 28 May 2001 concerning the admission of securities to the official rating and the information to be published on these values applies, the market company is the competent authority referred to in Article 11, § 1^erthe same directive. The CBF may object to the admission of a financial instrument on the grounds of protecting the interests of investors.
A financial instrument may only be admitted to negotiations on a Belgian regulated market at the request of the issuer or after its notice of admission has been requested.
The contracting company may require the admission of a financial instrument to any particular condition that it considers appropriate for the protection of the interests of investors and that it would have communicated beforehand to the issuer of that instrument or to the person requesting the admission, as the case may be.
§ 3. The market company may, on initiative or at the request of the issuer, suspend the negotiation of a financial instrument admitted to the negotiations on the Belgian regulated market that it organizes when the good functioning of the market of this instrument temporarily may not be assured or in order to permit the publication of information concerning this instrument in satisfactory conditions. It must do so when, after consultation with it, the CBF asks it in the interest of investor protection.
§ 4. The market company declares the deletion of a financial instrument admitted to the Belgian regulated market negotiations that it organizes when it concludes that due to special circumstances, the normal and regular market of this instrument can no longer be maintained. It informs the CBF that, after consultation with it, can oppose it in the interest of investor protection.
§ 5. The market company shall take the necessary measures to ensure that its commercial objectives do not challenge the independence of judgment which must preside over the exercise of the missions referred to in §§ 2 to 4.
§ 6. Employees of the contracting company who cooperate in the execution of the missions referred to in §§ 2 to 4 shall be held in professional secrecy and may not disclose the confidential information they have been aware of because of the execution of these missions. However, this prohibition does not hinder the communication of this information:
1° to the CBF, to persons performing functions similar to those referred to in §§ 2 to 4 with other regulated markets and, in general, to Belgian or foreign authorities or bodies responsible for the monitoring of the markets of financial instruments for matters falling within their competence, provided that the information so exchanged is covered by an equivalent duty of professional secrecy in the head of the authorities or bodies receiving them;
2° during testimony in criminal matters;
3° to report criminal offences to the judicial authorities;
4° in the context of administrative or judicial remedies against decisions referred to in §§ 2 to 4.
§ 7. The financial instruments issued by a market company or by a legal entity with which such a company has close ties cannot be admitted to negotiations on a Belgian regulated market organized by that company only through the prior agreement of the CBF and the conditions that it can define in order to avoid conflicts of interest. The suspension and deletion of such financial instruments shall be pronounced by the CBF in accordance with the applicable market rules.
Art. 8. In order to ensure the proper functioning, integrity and transparency of the market, the market rules of a Belgian regulated market must:
1° to organize negotiations in a manner that promotes efficient and transparent pricing in the interest of all investors;
2° provide appropriate enforcement measures for the determination of key reference courses, including day-to-day closing courses, and for the design of derivative instruments and indices, to reduce the sensitivity of these courses, instruments and indices to course manipulations and other market abuses;
3° provide appropriate procedures for the filtering of orders, including adequate control procedures for electronic order routing;
4° provide appropriate measures for freezing orders or interruption of negotiations in the event of excessive volatility of courses.
Art. 9. The King, on the advice of the CBF, defines:
1° the obligations of financial intermediaries with respect to the retention of transaction data, whether on the market or not, relating to financial instruments admitted to negotiations on a regulated market, with a view to making such data available to the CBF or to the authorities or bodies responsible for the monitoring of financial markets;
2° the cases in which financial intermediaries report to the organizations it designates the transactions made on the market or not, relating to financial instruments admitted to the negotiations on a regulated market, as well as the deadlines and terms of such declarations;
3° the minimum requirements:
(a) the publication of market information, both prior to and after negotiations, which are applicable to transactions on financial instruments in Belgian regulated markets;
(b) the publication of information applicable to non-market transactions on financial instruments.
Art. 10. § 1^er. The King, on the advice of the CBF, defines:
1° the obligations of the issuers of financial instruments admitted, at their request, to the negotiations on a Belgian regulated market for information to be provided to the public:
(a) Periodically on their activities and results;
(b) immediately, in the event of the occurrence of significant developments in their sphere of activity that are not in the public domain and that are likely, because of their impact on their heritage or financial situation or the general course of business, to significantly influence the course of the financial instruments in question;
(c) in the event of a significant change in the structure of significant capital participations;
2° the accounting standards requirements applied by the issuers referred to in 1° for financial information provided to the public;
3° the terms and times of publication of the information referred to in the 1°, as well as the conditions under which the issuers referred to in the same point may make this publication by posting on their website or on the market company that organizes the market in question;
4° the conditions under which, in the event of a failure of a transmitter referred to in 1°, the CBF itself may, at the expense of the issuer, issue certain information that it considers essential in the interest of investor protection;
5° the other obligations of the issuers referred to in 1° with respect to the holders of financial instruments, specifically because of the admission of these instruments to the negotiations on a regulated market, in particular with a view to ensuring equal treatment of holders under identical conditions and allowing them to exercise the rights conferred by the financial instruments in question;
6° the public information obligations of those who have requested the admission of financial instruments to the negotiations on a Belgian regulated market without being the issuers.
§ 2. The provisions of § 1^er, 2°, shall not prejudice the regulatory powers vested in the Ministers who have in their responsibilities the Economy, Justice and Average Classes or the competence of the Commission of Accounting Standards.
§ 3. The CBF can:
1° authorize a transmitter to defer the publication of certain information referred to in § 1^er, 1°, if it considers their disclosure:
(a) would be contrary to public order; or
(b) would affect the legitimate interests of the issuer or, where appropriate, the issuer of the underlying financial instrument, provided that the lack of publication is not likely to mislead the public and that the issuer is in a position to ensure the confidentiality of the information in question;
2° in special cases duly motivated, grant further exemptions to the provisions of § 1^er, 1° to 3°, 5° and 6°, if it considers that the provisions in question are inappropriate to the activities or situation of the issuer and provided that the issuer or, if any, a person referred to in § 1^er, 6°, provide alternative information or implement other measures that ensure an equivalent level of protection of investor interests and market transparency.
§ 4. On the advice of the CBF, the King may, under the conditions it defines, make some of the provisions arrested under § 1^er applicable to companies and bodies of Belgian law whose financial instruments are admitted to negotiations on a foreign financial instrument market without being admitted to a Belgian regulated market.
Art. 11. § 1^er. The King, on the advice of the CBF, may prescribe that the financial intermediaries established in Belgium or providing investment services must execute on a regulated market the transactions they are charged by investors established in Belgium or who usually reside therein as:
1° these transactions relate to financial instruments admitted to negotiations on a Belgian regulated market;
2° these transactions do not fall within one of the exceptions to compulsory professional intermediation provided for in Article 24, paragraph 2;
3° the investor concerned has not previously explicitly waived the execution of these transactions in a regulated market.
§ 2. The King may, on the advice of the CBF, prescribe that, if a transaction has not been carried out on a regulated market, while it should have been, the investor may, notwithstanding any agreement to the contrary, refuse the transaction entered into and obtain from the intermediary, without compensation, the return of any sum or financial instrument that he has provided to him in connection with the transaction. The refusal must be notified to the intermediary by registered letter to the position within the month of the date the notice was sent to the investor or, if not such notice, within thirty days of the date the investor was aware of the transaction.
Art. 12. § 1^er. Any agreement establishing cross-access between a Belgian regulated market and one or more other secondary markets for financial instruments must be notified before the CBF. The CBF verifies compliance with Article 6 and the provisions established pursuant to Article 6. The agreement can only be implemented if the CBF has not communicated a written objection to the relevant market companies within 30 days of the notification of the agreement.
§ 2. The interconnection of a Belgian regulated market with any centralized trading platform or computer system in place with one or more other secondary markets of financial instruments must be subject to the Minister's authorization, on the advice of the CBF. The Minister may subject the Minister to any appropriate condition to avoid regulatory or other specific risks that may affect the interests of investors or the proper functioning, integrity or transparency of the market.
Art. 13. § 1^er. When an exceptional event disrupts the regular operation of a Belgian regulated market, the CBF may, after consultation with the relevant market company, suspend all or part of the negotiations on this market for a period not exceeding two consecutive trading days.
§ 2. In the event of a sudden financial crisis, the King may, on the advice of the BNB and the CBF, take all necessary safeguard measures with respect to Belgian regulated markets, including temporary exemptions to the provisions of this chapter.
Orders made under paragraph 1^ercease to produce their effects if they have not been confirmed by law within 12 months of their effective date.
Section 2. - Markets of financial instruments issued or guaranteed by the Belgian state or public authorities
Art. 14. § 1^er. With regard to the financial instruments issued or guaranteed by the State or the Belgian public authorities it designates, the King may, on the advice of the BNB and the CBF:
1° Stop, for the instruments negotiated on a Belgian regulated market, specific rules relating to the admission of these instruments to the negotiations, their suspension or their removal and the mode of liquidation of transactions relating to these instruments;
2° authorize the State, the communities, the regions, the French Community Commission and the Fonds des Rentes to make transactions directly related to these instruments in a Belgian regulated market without their membership;
3° regulate the organisation, operation, monitoring and police of Belgian organized markets specialized in these instruments;
4° organize a specific control regime for the Belgian organized markets of these instruments, if any, by derogating from the provisions of Section 8;
5° reorganize the Rent Fund, transfer some of its skills to the BNB or the CBF and, for these purposes, amend, supplement, replace or repeal the provisions of the Decree-Law of May 18, 1945 establishing a Rent Fund.
§ 2. Orders made under paragraph 1^er5°, cease to produce their effects if they have not been confirmed by law within 12 months of their effective date.
Section 3. - Other markets
Art. 15. The King, on the advice of the CBF, may establish rules relating to the organization, operation and control of secondary markets of financial instruments other than regulated markets, and alternative trading systems of financial instruments that implement methods of confrontation and enforcement comparable to those applied by such secondary markets, to the extent that these markets or trading systems are organized in Belgium.
The rules referred to in paragraph 1^er may include:
1° access to the market or system according to transparent criteria;
2° the existence of transparent and non-discretionary negotiation rules that allow users to obtain the best available price in the market or system at any given time and for the type and size of the order concerned;
3° the implementation of adequate mechanisms and procedures to prevent and detect market manipulations;
4° the publication of information relating to supply and demand and transactions. The above rules take into account the various risk profiles of the markets and systems in question due to their structure, the expertise of their users and the types of financial instruments negotiated therein.
The same rules may provide that the markets or systems referred to in paragraph 1^er may only be organized by registered market enterprises under section 16 or credit or investment institutions referred to in section 2, 10°, (a), (b), (d) or (e), whose approval specifically covers the organization of such markets or systems. In the case of credit institutions and investment companies of Belgian law, these same rules may subject them to similar requirements to those referred to in Article 17, § 1^er, 5° and 6°, and to the extent that they provide other investment services or negotiate financial instruments on their own account, specific rules to avoid conflicts of interest due to these other activities.
Section 4. - Market enterprises
Art. 16. Any market company established in Belgium and wishing to organize one or more regulated markets is required to be approved beforehand by the Minister.
The Minister shall grant the approval, on the advice of the CBF, to the undertakings that make the request and that meet the conditions set out in Article 17, § 1^er. The Minister may subject the approval to the additional conditions that it considers necessary to ensure the protection of investor interests and to preserve the proper functioning, integrity and transparency of the markets organized by the market company.
Art. 17. § 1^er. To be approved as a market company, a company must meet the following conditions:
1° the company must be incorporated in the form of a commercial corporation;
2° the company's social purpose shall be limited to the organization of one or more secondary markets of financial instruments and, where applicable, to activities that are not likely to adversely affect the interests of investors or the proper functioning, integrity or transparency of the markets organized by the company;
3° natural or legal persons who, directly or indirectly, hold at least 10 per cent of their capital or voting rights shall have the necessary qualities to ensure sound and prudent management of the company;
4th persons who provide the effective direction of the company and the group of which it makes, if any, party have the necessary professional honesty and the appropriate experience to perform these functions;
5° the company must have sufficient financial resources for the organization of these markets, and the financial situation of the group of which it makes, if any, a party must be sufficiently solid in order not to present risks that could adversely affect the interests of investors or the proper functioning of these markets;
6° the company must have an appropriate management structure, administrative and accounting organization and internal control to ensure the proper functioning, integrity and transparency of the markets it organizes;
7° the company must implement adequate mechanisms and procedures to prevent and detect market manipulations;
8° the control of the company's accounts must be ensured by one or more corporate reviewers on the CBF-approved reviewers list;
9° the structure of the group where the company does, if any, part cannot interfere with the exercise of control by the CBF.
§ 2. Under Article 16, registered market enterprises shall, in the course of their activities, always meet the conditions of registration referred to in § 1^er and, where applicable, those imposed under Article 16, paragraph 2. The CBF monitors compliance with these conditions.
§ 3. The Minister may, on the advice of the CBF, withdraw the approval as a market company either at the request of the company concerned or as an initiative where the company no longer meets the conditions of approval referred to in § 1^er or, where applicable, to those imposed under section 16, paragraph 2, or in the event of a serious breach of the undertaking's obligations under this Act or its enforcement orders.
Art. 18. The King, on the advice of the CBF, defines:
1° the procedure for granting the approval referred to in section 16, including the form of the application, the instruction of the file by the CBF, the time limits in which the Minister must decide and notify the applicant and the remuneration to be paid to the CBF for the analysis of the record;
2° the procedure for withdrawal of the approval and the consequences of this withdrawal for the regulated markets organized by the relevant market company;
3° the fate of the approval in case of change of control, merger, split or other restructuring of the market enterprise.
Art. 19. § 1^er. Any natural or legal person who intends to acquire securities or shares of a market enterprise referred to in section 16 in such a way that it would hold, directly or indirectly, at least 10 per cent of its capital or voting rights, must notify the CBF beforehand. The same is true when a natural or legal person plans to increase his or her participation in such a business so that the quotity of the capital or voting rights it holds should reach or exceed 10 per cent or any 5 per cent multiple.
Articles 1^er, §§ 3 and 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 procurement offers and their enforcement orders are applicable.
§ 2. The CBF may, within thirty days of receipt of the notice referred to in § 1^erParagraph 1^er, opposing the completion of the acquisition if it has reasons to consider that the person in question or, where applicable, persons referred to in section 2 of the above-mentioned Act of 2 March 1989 do not have the necessary qualities to ensure the sound and prudent management of the market enterprise in question. If there is no opposition, the acquisition must take place within six months of the notice referred to in § 1^erParagraph 1^erfailing which it must be declared to the CBF again in accordance with § 1^er and the latter may again oppose it under this paragraph.
§ 3. Where an acquisition referred to in § 1^er took place without having been declared to the CBF in accordance with the same paragraph or before the CBF has pronounced itself under § 2 or, where applicable, before the expiry of the thirty-day period referred to in the same paragraph, the CBF may suspend, until the situation is regularized, the exercise of the voting rights attached to the shares or shares of the market enterprise in question which have thus been acquired irregularly, directly or indirectly.
Where an acquisition referred to in § 1^er has taken place in spite of the opposition of the CBF under § 2 or, in general, where the CBF has reasons to consider that the influence of a natural or legal person who, directly or indirectly, holds at least 10 per cent of the capital or voting rights of a market enterprise referred to in Article 16 or, where applicable, by persons referred to in Article 2 of the Act of 2 March 1989 referred to above is healthy
(1) suspend the exercise of the voting rights attached to the shares or shares of the said market enterprise held directly or indirectly by the persons in question;
2° enjoin these persons to give in, within the time it sets, all or part of the shares or shares in question to other persons with whom they do not have close ties.
In the absence of an assignment within the time limit referred to in paragraph 2, 2°, the CBF may order the sequester of the shares or shares in question. In this case, Article 67, § 7, paragraphs 2 and 3, of the Act of 6 April 1995 referred to above is applicable.
Art. 20. In order to ensure compliance with the condition provided for in Article 17, § 1^er5°, the CBF may by regulation:
1° fixing the financial ratios that market enterprises referred to in Article 16 must respect on a consolidated basis and on an unconsolidated basis;
2° define the financial information that market enterprises are required to communicate periodically to it.
Section 5. - Exchange agents
Art. 21. A foreign exchange officer's approval board is established. The Accreditation Council confers the title of a currency agent or an honorary currency agent to persons who apply for it and who meet and continue to fulfil the conditions set by the King. The King regulates the composition, operation, financing and control of that council.
The CBF provides the confidential information it would have known about the natural persons referred to in paragraph 1^er to the foreign exchange agents' approval board.
Section 6. - Compensation and liquidation bodies
Art. 22. § 1^er. Can, as a compensation agency, provide clearing services for transactions in a Belgian regulated market or provide such services, from Belgian territory, for transactions in a foreign regulated market:
1° organizations whose head office is established in Belgium and which are approved as a credit institution;
2° branches established in Belgium of foreign credit institutions;
3° non-established bodies in Belgium that are subject in their State of origin to a status and control deemed equivalent by the CBF and BNB.
§ 2. Compensation organizations whose head office is established in Belgium and which are not approved as a credit institution wishing to offer compensation services for transactions made in a Belgian or foreign regulated market are required to be approved beforehand by the Minister. The branches established in Belgium of a foreign compensation agency that is not approved as a credit institution wishing to offer compensation services for transactions made in a regulatedbelge or foreign market are also required to be approved beforehand by the Minister.
§ 3. The initial compensation rules applicable under §§ 1^er and 2 and amendments to these rules are subject to prior approval by the Minister, on the advice of the CBF and the BNB. The Minister's approval, the initial rules and amendments to these rules are subject to a notice issued to the Belgian Monitor.
§ 4. The CBF is responsible for the prudential control of compensation organizations.
§ 5. The King, on the advice of the BNB and the CBF, defines:
1° the conditions and procedures for granting the approval and approval referred to in §§ 2 and 3, the cases in which such approval may be revised or withdrawn and the applicable procedures, as well as the fate of the approval in the event of a change of control, merger, split or other restructuring of the compensation organization;
2° without prejudice to articles 33 et seq., the rules relating to the control exercised by the CBF on compensation bodies other than credit institutions referred to in § 1^er1°;
3° the minimum requirements for organization, operation, financial situation, internal control and risk management for compensation organizations other than credit institutions referred to in § 1^er, 1°, as well as the rules of incompatibility with other activities;
§ 6. The provisions of this article and the decrees taken for its execution shall not affect the competence of the BNB referred to in Article 8 of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium.
§ 7. By means of the Minister's approval, the CBF may agree with the BNB, as part of the duties of the latter referred to in section 8 of the above-mentioned Act of 22 February 1998, as well as with the competent foreign control authorities, on the basis of reciprocity, of the terms of their cooperation in the matter of control and their mutual exchange of information.
§ 8. This article does not apply to BNB, other central banks members of the European Central Bank System and the European Central Bank.
§ 9. The King may extend the application of this article to compensation for transactions in other organized markets.
Art. 23. § 1^er. Can, as a liquidation agency, provide liquidation services for transactions in a Belgian regulated market or provide such services, from Belgian territory, for transactions in a foreign regulated market:
1° organizations whose head office is established in Belgium and which are approved as a credit institution;
2° branches established in Belgium of foreign credit institutions;
3° the bodies approved as a central depositary under Royal Decree No. 62 of 10 November 1967 promoting the circulation of securities;
(4) the bodies designated by the King to ensure the liquidation of dematerialized securities transactions under section 468 of the Corporations Code;
5° non-established bodies in Belgium that are subject in their State of origin to a status and control deemed equivalent by the CBF and BNB.
§ 2. The CBF is responsible for the prudential control of the liquidation bodies approved as a central depositary under Royal Decree No. 62 of 10 November 1967, as well as those designated by the King to ensure the liquidation of dematerialized securities transactions under Article 468 of the Code of Companies. The King, on the advice of the CBF and the BNB, defines:
1° without prejudice to articles 33 et seq., the rules relating to prudential control, including corrective measures, exercised by the CBF on the bodies referred to in § 1^er other than credit institutions established in Belgium;
2° the minimum requirements for organization, operation, financial situation, internal control and risk management that are applicable to the organizations referred to in § 1^er other than credit institutions established in Belgium;
§ 3. Pursuant to Article 8 of the Act of 22 February 1998 referred to above, the BNB supervises the liquidation systems managed by the liquidation bodies referred to in § 1^er. The King may, on the advice of the CBF and the BNB:
1° standards for the monitoring of liquidation systems;
2° the obligation to communicate in the head of the liquidation agency with respect to the information requested by the BNB;
3° of coercive measures if the liquidation body no longer meets the standards imposed or if the communication requirement is not met.
§ 4. By means of the Minister's approval, the CBF may agree with the BNB, as part of the duties of the latter referred to in section 8 of the above-mentioned Act of 22 February 1998, as well as with the competent foreign control authorities, on the basis of reciprocity, of the terms of their cooperation in the matter of control and their mutual exchange of information.
§ 5. This article does not apply to BNB, other central banks members of the European Central Bank System and the European Central Bank.
§ 6. The King may extend the application of this Article to the liquidation of transactions in other organized markets.
Section 7.
Transactions on financial instruments and related rules of conduct
Art. 24. Investors established in Belgium are required to carry out their transactions on financial instruments issued by Belgian companies and agencies and admitted to negotiations on a Belgian regulated market to the intervention of a qualified intermediary.
Paragraph 1^er does not apply:
1° to occasional operations between individuals;
2° to the assignments of financial instruments conferring at least 10 percent of the voting rights of the undertaking or agency in question;
3° to transfers of financial instruments conferring voting rights between companies between which there are close links;
4° to transactions between compartments of the same collective investment agency referred to in Book III of the Act of 4 December 1990 on financial transactions and financial markets.
The King, on the advice of the CBF, may exclude professional investors from the scope of paragraph 1^erif applicable to the conditions and within the limits that He defines.
Art. 25. § 1^er. No one shall:
1° that has privileged information:
(a) to use this information by acquiring or transferring, or by attempting to acquire or assign, on its own behalf or on behalf of others, directly or indirectly, the financial instruments on which the information or related financial instruments relate;
(b) to provide such information to another person, except in the normal course of carrying out his or her work, profession or duties;
(c) recommend to a third party to acquire or give in, or to have another person acquire or give in, on the basis of privileged information, the financial instruments on which the information or related financial instruments is related;
2° to make transactions or to place orders:
(a) that give or are likely to give false or misleading indications on the offer, demand or course of one or more financial instruments; or
(b) that determine, by the action of one or more persons acting in concert, the course of one or more financial instruments at an abnormal or artificial level,
unless the person who has made the transactions or orders determines that the reasons for the transaction are legitimate and that the transactions or orders in question are consistent with the normal practices of the market in question, as recognized by the CBF;
3° to carry out transactions or to pass orders that use fictitious processes or any other form of deception or artifice;
4° to disseminate information or rumours, through the media, via the Internet or by any other means, that give or are likely to give false or misleading indications on financial instruments, while she knew or should have known that the information was false or misleading;
5° to commit other acts, defined by the King on the advice of the CBF, which hinder or disrupt or are likely to interfere or disrupt the proper functioning, integrity and transparency of the market;
6° to participate in any agreement to commit acts referred to in 1° to 5°;
7° to incite one or more other persons to commit acts which, if committed itself, would be prohibited under the 1st to 5th.
§ 2. In the case of a corporation or other legal entity, the prohibitions provided for in § 1^er also applies to natural persons who participate in the decision to make a transaction or to place an order on behalf of the corporation in question.
The prohibition under § 1^er, 1°, a), does not apply to transactions made to ensure the performance of an obligation to acquire or dispose of financial instruments when this obligation has become due and is the result of an agreement entered into before the individual has the privileged information in question.
Prohibitions under § 1^er shall not apply to transactions carried out for reasons that fall within the scope of monetary, exchange or public debt management policy by a Member State of the European Economic Area, by the European System of Central Banks, by the BNB or any other national central bank of the other Member States of the European Economic Area, by the Fonds des Rentes, by the Fund of Amortization of the Public Debt, by the communities, the provinces, the French Community Commission
§ 3. Prohibitions under § 1^er applies to acts referred to in the same paragraph:
1° that concern financial instruments that are admitted to negotiations on a Belgian regulated market or on any other alternative trading market or system referred to in Article 15 and designated by the King on the advice of the CBF, or that are the subject of a request for admission to negotiations on such a market or system, whether the acts in question are carried out in Belgium or abroad;
2° that relate to financial instruments that are admitted to negotiations on a foreign regulated market or on any other market or alternative trading system organized abroad and designated by the King on the advice of the CBF, or that are the subject of an application for admission to negotiations on such a market or system, provided that the acts in question are carried out in Belgium, whether the transactions in question are carried out on or outside the market.
Art. 26. When providing investment services or carrying out financial instruments, financial intermediaries comply with the following rules of conduct:
1° act loyally and fairly and with the skill, care and diligence that are necessary, to the best of the interests of their customers and the integrity of the market;
2° informs themselves of the experience of their clients in dealing with the financial instruments concerned, their objectives, their financial situation and the restrictions they may be subjected to for their operations on financial instruments;
3° provide their customers with the necessary information, in a clear and accessible manner, taking into account their knowledge, experience and objectives:
(a) to enable these customers to assess the nature and cost of their proposed investment services;
(b) where intermediaries provide investment advice to their clients or seek to promote certain financial instruments, so that these clients are able to make informed investment decisions;
4° take all reasonable measures to avoid conflicts of interest between themselves and their clients, and when such conflicts are inevitable, manage these conflicts so that their customers are treated fairly;
5° inform their customers, in an appropriate manner, of any form of perceived benefit in relation to the services provided or to provide to these customers;
6° do not propose or encourage acts or behaviours that would lead their customers not to comply with their legal obligations;
7° do not provide investment advice when their services to the customer are limited to the simple transmission or execution of orders;
8° Treat and execute the orders of their customers to the best of their interests and in accordance with their specific instructions, in order to obtain the best possible result in respect of the price, costs and speed and probability of execution, taking into account the timing, nature and size of the order in question and the state of the markets concerned;
9° in the case of general orders on behalf of several recipients, distribute the financial instruments according to fair criteria established beforehand and, where applicable, preferring the orders of their clients against their own orders;
10° establish and maintain documentation for all orders received from their customers, in accordance with the rules agreed by the King on the advice of the CBF;
11° to be considered by their customers for transactions on financial instruments to be carried out on a regulated market only through that market and, for transactions to be performed outside such a market, only for prior communication to these customers;
12° does not compensate for orders relating to financial instruments admitted to negotiations on a Belgian regulated market, on the understanding that:
(a) this prohibition does not apply to the simultaneous introduction in a regulated market of an order to purchase and an order to the sale of the same financial instrument at the same price;
(b) the King, on the advice of the CBF, may authorize qualified intermediaries to internalize orders of their customers under conditions that ensure respect for the principle of better execution for customers, appropriate management of potential conflicts of interest and adequate advertising of transactions performed;
13° establish and provide customers with written or electronic confirmation of any transaction on financial instruments carried out, in the forms and deadlines defined by the King on the advice of the CBF;
14° periodically inform their customers of their open positions in derivative financial instruments;
15° liquidate between them by scriptural means transactions involving fungible financial instruments admitted to negotiations on a Belgian regulated market;
16° in the case of qualified intermediaries established in Belgium, other than those referred to in Article 2, 10°, (h), to maintain on separate accounts with the compensation agency or the liquidation agency the financial instruments they hold on their own account or on behalf of third parties, the same rule being applicable to the financial instruments that these intermediaries may hold with other financial intermediaries;
17° respecting the other rules of conduct that the King, on the advice of the CBF and after open consultation, may establish in order to ensure the protection of investor interests and the proper functioning, integrity and transparency of the market.
Art. 27. § 1^er. Qualified intermediaries established in Belgium adopt an internal code of conduct with appropriate rules and procedures to ensure compliance with sections 25 and 26 by their agents and employees, including:
1° of the procedures known as "China missiles" 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 Article 26, 8°.
§ 2. Qualified intermediaries 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 intermediary.
They include:
1° to ensure the implementation of the code of conduct referred to in § 1^er and the monitoring of compliance;
2° inform the intermediary staff of 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.
Art. 28. § 1^er. The King, on the advice of the CBF and after open consultation, may:
1° agree on different terms and conditions of application of the provisions of Article 26 as the investment services are provided to professional investors or other investors;
2° agree on different terms and conditions of application of the same provisions as the investment services provided are limited to the simple transmission or execution of orders;
3° specifying the application of the provisions of Articles 26 and 27 to the provision of investment services in a cross-border manner or via the Internet, and limiting the application of these provisions to those aimed at ensuring the integrity of markets with respect to foreign qualified intermediaries that provide investment services or carry out transactions on financial instruments in Belgium without being established and which are subject in their State of origin to rules of conduct to ensure that
4° define to what extent the same provisions apply to qualified intermediaries when they negotiate financial instruments on their own behalf with professional counterparties designated by the King;
5° provide for minimum rules to be included in the code of conduct referred to in Article 27, § 1^er.
§ 2. When setting out the date of entry into force of the provisions of Articles 26 and 27 pursuant to Article 148 or establishing enforcement measures, the King shall take into account the status of harmonization of the rules of conduct in question within the European Community.
Art. 29. The King, on the advice of the CBF and after open consultation, may:
1° to establish rules of conduct that offerers must respect in the information and implementation of offers for sale or public subscription of financial instruments in Belgium, accompanied or not of the admission of these instruments to negotiations on a Belgian regulated market;
2° to establish rules of conduct to be observed by financial intermediaries when they intervene in operations under 1° as a leader or member of a firm or investment union;
3° prescribing that companies and organizations of Belgian law whose financial instruments are admitted to the negotiations or are the subject of an application for admission to the negotiations, on a regulated market or on any other market of financial instruments, Belgian or foreign, designated by the King pursuant to Article 25, § 3, establish a code of ethics relating to the transactions that their agents and employees could carry out for their own account on the financial instruments in question or on related instruments
Art. 30. The CBF can:
1° in individual cases, and with adequate, fair and non-nominative advertising of the policy of derogation followed, grant exemptions to the provisions of sections 26 and 27 or to the provisions set out in sections 26, 28 and 29, if it considers that the provisions in question are not suitable for the activities or situation of the financial intermediary, issuer or offeror concerned and provided that the intermediary, issuer or offerer implements
2° by regulation, define, on the basis of best practices of international financial markets, the conditions under which common practices in the market, in particular in the area of stabilization of courses, transactions to ensure the liquidity of a financial instrument, communications with financial analysts, securities buyback programs and information review for the acquisition of shares in listed companies, are constitutive or not of provisions 26
3° by regulation, define under what conditions an order or transaction concerning a regulated market is in accordance with the normal practices of that market for the purposes of Article 25, § 1^erTwo.
Art. 31. § 1^er. Qualified intermediaries have a privilege on financial instruments, funds and currencies:
1° that have been handed over to them by their customers in order to establish the coverage to ensure the execution of transactions on financial instruments, the subscription of financial instruments or term foreign currency transactions;
2° that they hold as a result of the execution of transactions on financial instruments or term transactions on foreign currency or as a result of the liquidation of which they are responsible for transactions on financial instruments, subscriptions of financial instruments or term transactions on foreign currency that are carried out directly by their customers. This privilege guarantees any receivable of the qualified intermediary born in connection with such transactions, transactions or liquidations referred to in paragraph 1^erincluding claims arising from loans or advances.
§ 2. Compensation or liquidation organizations have a privilege on the financial instruments, funds, currencies and other rights that they hold as having a participant's own in the compensation or liquidation system that they manage. This privilege guarantees any debt of the organization on the participant born on the occasion of the compensation or liquidation of subscriptions of financial instruments or transactions on financial instruments or of term transactions on foreign currency, including claims arising out of loans or advances. The same organizations also have a privilege on the financial instruments, funds, currencies and other rights they hold as having clients of a participant in the compensation or liquidation system that they manage. This privilege exclusively guarantees the organization's receivables on the participant born on the occasion of the compensation or liquidation of subscriptions of financial instruments or transactions on financial instruments or of currency-term transactions carried out by the participant on behalf of customers, including claims arising out of loans or advances.
§ 3. The submission of financial instruments to a fungibility regime does not impede the exercise of the privileges referred to in §§ 1^er and 2.
§ 4. Without prejudice to the more specific provisions of the regulated markets provided for by or under the law, qualified intermediaries and compensation or liquidation bodies are permitted, in the event of default of payment of claims guaranteed by the privilege provided for in paragraphs 1 and 2, to proceed in full law, without standing and without prior judicial decision:
1° to the realization of financial instruments and term foreign currency transactions that are the subject of this privilege;
2° to compensation for any debt on their customers or participants with the cash or currency in account that are subject to the same privilege;
3° to the exercise, in place of the holder, of the other rights referred to in § 2.
Achievement of financial instruments and term foreign currency transactions referred to in paragraph 1^er, 1°, must take place at the best price and as soon as possible, taking into account the volume of transactions or transactions. The right of realization referred to in paragraph 1^er, 1°, also allows to close the open positions following the sale or purchase of an option and a future contract or following the execution of a term transaction on currency.
Proceeds from the realization of financial instruments and foreign currency futures operations referred to in paragraph 1^er, 1°, and the product from the exercise of the other rights referred to in paragraph 1^er, 3°, shall be charged, in accordance with section 1254 of the Civil Code, on the principal receivable, interest and expenses of the qualified intermediary or of the compensation or liquidation organization exercising the privilege, after the exercise of the compensation referred to in paragraph 1^erTwo. Any balance in favour of the client or participant will be returned as soon as possible to the claimant, subject to any other right than the qualified intermediary or the compensation or liquidation agency may claim on that balance.
The exercise of the rights conferred on qualified intermediaries and compensation or liquidation bodies under this paragraph shall not be suspended by bankruptcy, judicial concordat or collective settlement of the debts of the client or participant, or by any other situation of competition between creditors of the client.
§ 5. The placement by a financial intermediary of financial instruments on an account with an organization referred to in § 2 having the effect of submitting these instruments to the privilege of the latter requires the written agreement of the client of the financial intermediary, barely violating Article 148, § 3, of the Law of April 6, 1995 on secondary markets, the status of investment companies and their control, to intermediaries and investment advisers. This provision does not affect the rights that third parties have acquired in good faith on financial instruments.
Art. 32. Section 1965 of the Civil Code does not apply to transactions on financial instruments that are carried out on a regulated market or on any other market of financial instruments designated by the King on the advice of the CBF, to the intervention of a qualified intermediary or with such intermediary as counterparty, even if these transactions are liquidated by the payment of the price difference.
Section 8. - Control by CBF
Art. 33. The CBF monitors the application of the provisions of this chapter, without prejudice to the powers vested in the BNB by section 8 of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium and articles 22 and 23.
Art. 34. For the performance of its control mission referred to in section 33, the CBF shall, in respect of financial intermediaries, members of a Belgian regulated market, market enterprises, compensation or liquidation bodies and issuers of financial instruments, have the following powers of investigation:
1° it may be communicated any information and documents, including the relationship between the intermediary and a specified client;
2° it can conduct on-site inspections and expertise, read and copy on-site any document, file and record and have access to any computer system;
3° it may request the commissioners of these entities, at the expense of them, special reports on the subjects it determines;
4° it may require that financial intermediaries, market enterprises and compensation or liquidation organizations established in Belgium provide it with any useful information and documents relating to companies that are part of the same group and are established abroad.
Art. 35. In order to control the application of sections 25, 39 and 40, the CBF has the investigative powers provided for in section 34, 1° to 3°, also with respect to the constituents of the financial intermediaries concerned, persons who intervene successively in the transmission of orders or in the execution of the transactions in question and their constituents, and issuers of the financial instruments in question, being understood that the powers of investigation
Financial intermediaries may not carry out transactions on financial instruments on behalf or at the request of a person without informing the person that their intervention is subject to the authorization to disclose the identity of the person to the CBF.
Art. 36. § 1^er. The CBF may direct any natural or legal person established in Belgium to comply with the provisions of this chapter or its enforcement orders, within the time limit determined by the CBF.
Without prejudice to other measures provided by law, if the person to whom the person has sent an injunction pursuant to paragraph 1^er remains in default on the expiry of the time limit, the CBF may, the person who has been able to assert his or her means:
1° make public its position on the offence or failure in question;
2° impose the payment of a breach that cannot be, per calendar day, less than 250 euros or more than 50,000 euros, nor, in total, more than 2,500,000 euros;
3° to designate a special commissioner, whose authorization is required for the acts and decisions that the CBF determines, from a market company or from a compensation or liquidation organization whose head office is established in Belgium.
In urgent cases, the CBF may take the measures referred to in paragraph 2, 1 and 3, without prior injunction pursuant to paragraph 1^erthe person who was able to assert his or her means.
§ 2. Without prejudice to the other measures provided for by law, where, in accordance with sections 70 to 72, it finds an offence under this chapter or its enforcement orders, the CBF may impose an administrative fine to the offender which may not be less than 2,500 euros or greater, for the same fact or for the same set of facts, at 2.500,000 euros. When the offence has provided a property benefit to the offender, the maximum is double the amount of that benefit and, in the event of a recurrence, triple the amount.
Art. 37. Penalties and fines imposed under Article 36, §§ 1^er or 2, are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains.
Section 9. - Penal sanctions
Art. 38. Are guilty of fraud and punished by the penalties provided for in Article 496 of the Criminal Code, those who, abusing the weakness or ignorance of others, conduct transactions on financial instruments at a price or under conditions clearly out of proportion to the actual value of these instruments.
Art. 39. § 1^er. Are punished by imprisonment from one month to two years and a fine of 300 euros to 10,000 euros, those who, by any fraudulent means, have made or attempted to carry out transactions, past or attempted to pass orders, or broadcast or attempted to disseminate information or rumours, which:
1° give or are likely to give false or misleading indications on the offer, demand or course of a financial instrument;
2° influence or are likely to artificially or abnormally influence activity on the market, the course of a financial instrument, the volume of transactions on a financial instrument or the level of a market index.
§ 2. § 1^er applies to acts referred to in the same subsection:
1° that concern financial instruments that are admitted to negotiations on a Belgian regulated market or on any other alternative trading market or system referred to in Article 15 and designated by the King on the advice of the CBF, or that are the subject of a request for admission to negotiations on such a market or system, whether the acts in question are carried out in Belgium or abroad;
2° that relate to financial instruments that are admitted to negotiations on a foreign regulated market, or on any other market or alternative trading system organized abroad and designated by the King on the advice of the CBF, or that are the subject of a request for admission to negotiations on such a market or system, provided that the acts in question are carried out in Belgium, whether the transactions in question are carried out on or outside the market.
Art. 40. § 1^er. To people with special information:
1° because of their status as a member of a body of administration, management or oversight of the issuer of the financial instrument in question or of a company with close links to the financial instrument; or
2° because of their participation in the capital of the transmitter; or
3° because of their access to information because of their work, profession or functions,
and who know or cannot reasonably ignore the privileged nature of the information,
It is prohibited to use this information by acquiring or transferring, or by attempting to acquire or assign, on their own behalf or on behalf of others, either directly or indirectly, the financial instruments on which this information or related financial instruments is carried.
The prohibition under paragraph 1^er also applies:
1° to any person who has privileged information because of his criminal activities;
2° in the case of a corporation or other legal entity, to individuals who participate in the decision to make a transaction or to place an order on behalf of the legal person in question;
3° to investment companies, debt investment companies and collective investment management companies, members of the bodies of these companies and members of their staff, who have privileged information regarding a financial instrument held by the corporation or agency in question.
§ 2. Persons subject to the prohibition under § 1 are prohibited^er :
1° to communicate the privileged information to another person, except in the normal course of carrying out his or her work, profession or duties;
2° to recommend to a third party to acquire or give in, or to have another person acquire or give in, on the basis of privileged information, the financial instruments on which the information or related financial instruments relates.
§ 3. The prohibitions provided in §§ 1^er and 2 shall apply to any person, other than those referred to in those paragraphs, who, knowingly, has information that it knows or cannot reasonably be unaware that it is privileged and that it comes directly or indirectly from a person referred to in § 1^er or § 2.
§ 4. The prohibitions provided in §§ 1^er, 2 and 3 shall apply to the acts referred to in those paragraphs:
1° that concern financial instruments that are admitted to negotiations on a Belgian regulated market or on any other alternative trading market or system referred to in Article 15 and designated by the King on the advice of the CBF, or that are the subject of a request for admission to negotiations on such a market or system, whether the acts in question are carried out in Belgium or abroad;
2° that relate to financial instruments that are admitted to negotiations on a foreign regulated market or on any other market or alternative trading system organized abroad and designated by the King on the advice of the CBF, or that are the subject of an application for admission to negotiations on such a market or system, provided that the acts in question are carried out in Belgium, whether the transactions in question are carried out on or outside the market.
§ 5. The prohibitions provided in §§ 1^er, 2 and 3 do not apply to transactions carried out for reasons that fall under monetary policy, currency or public debt management by a Member State of the European Economic Area, by the European System of Central Banks, by the BNB or any other national central bank of the other Member States of the European Economic Area, by the Fonds des Rentes, by the Caisse d'amortissement of the public areas, by the communities,
§ 6. shall be punished by imprisonment from three months to one year and a fine from 50 euros to 10,000 euros, persons who contravene the provisions of §§ 1^er, 2 or 3.
The offender may also be sentenced to pay a maximum of three times the amount of the property benefit derived directly or indirectly from the offence. This sum is recovered as a fine.
§ 7. The judicial authorities may request from the CBF any information or documents useful to the research or prosecution of an offence under §§ 1^er, 2 or 3.
They may, in any case, request the opinion of the CBF. This notice is given within 45 days, unless the judicial authority has requested an extension of this period. The lack of notice within this period, possibly extended, does not invalidate the procedure. A copy of the notice request and a copy of the notice received are attached to the record of the proceedings.
§ 8. The CBF provides with the other competent authorities of the European Economic Area, designated under Article 8, § 1^er, Council Directive 89/592/EEC of 13 November 1989 on the coordination of regulations relating to initiation operations, any cooperation necessary for the fulfilment of their missions. To this end, the CBF shall transmit to these authorities all the information required, including those concerning acts prohibited by the law of the requesting State under articles 5 and 6, second sentence, of the same directive, even if they are not prohibited by Belgian law.
The CBF may exchange confidential information and enter into cooperation agreements to combat initiated offences with the competent authorities of third States to ensure the most effective cooperation necessary for the fulfilment of its mission, provided that these authorities are subject to a professional secret equivalent to that provided for in Article 74.
Where the CBF is seized of a request for information from a foreign competent authority referred to in paragraphs 1^er and 2,
1° the judicial authorities interviewed shall collect and transmit to the CBF, at its request, any information and documents deemed useful for the development of its response, provided that information and documents relating to judicial proceedings cannot be disclosed without the express authorization of the Attorney General or the Auditor General;
2° the Financial Information Processing Unit shall transmit to the CBF, at its specially motivated request, any information and documents deemed useful for the development of its response, relating to information transmitted to the cell by the bodies and persons referred to in articles 2 and 2bis of the Law of 11 January 1993 on the Prevention of the Use of the Financial System for the Purpose of Money Laundering, pursuant to articles 12 to 15, § 1^erSame law.
The CBF may refuse to respond to a request for information where the communication of information may affect Belgian sovereignty, security or public order. The competent Attorney General or Auditor General of the Military Court and the CBF may also refuse to respond to a request for information when a judicial procedure is already initiated for the same facts and against the same persons in Belgium or when they have already been tried for the same facts in Belgium.
Without prejudice to its obligations in criminal proceedings, the CBF cannot use the information received from the authorities referred to in paragraph 1^er and 2 only for the purposes of its monitoring of compliance with this Article and in the context of administrative or judicial proceedings relating thereto. However, where the authority that provided information consents, the CBF may use it for other purposes or transmit it to the competent authorities of other States.
Art. 41. 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 in Belgium the activities of compensation or liquidation of financial instruments without being authorized under Articles 22 and 23 or when such authorization has been revoked;
2° those who contravene the provisions of Articles 13, § 2, 15, 22 and 23 and designated by the King in the decrees in question;
3° those who block CBF inspections and expertise under this chapter or knowingly give it inaccurate or incomplete information;
4° those who engage in regulated market activities or market enterprises in Belgium, without being recognized as such.
Art. 42. Offences under Article 7, § 6, are punishable by the penalties provided for in Article 458 of the Criminal Code.
Art. 43. The provisions of Book 1 of the Criminal Code, without exception of Chapter VII and Article 85, are applicable to offences referred to in Articles 38 to 42.
CHAPTER III. - Banking and Financial Commission
Section 1. - General provisions
Art. 44. The CBF is an autonomous body with a legal personality and its headquarters in the administrative district of Brussels-Capital.
Art. 45. § 1^er. The purpose of the CBF is to:
1° ensure control of credit institutions, investment companies, investment advisors and exchange offices;
2° to ensure control of collective investment organizations;
3° to ensure compliance with the rules for the protection of the investor's interests in transactions on financial instruments and to ensure the proper functioning, integrity and transparency of the financial instrument markets;
4° to contribute to compliance with the rules to protect savers and investors against the illicit supply or supply of financial products or services.
§ 2. In order to streamline the financial sector monitoring structures and maximize its effectiveness and without prejudice to the competences vested in the Minister with the Economy in his or her powers, the King may, by order deliberately in the Council of Ministers, take all necessary measures to:
1° to expand CBF missions by integrating all or part of the tasks referred to in Article 81;
2° to settle the transfer to the CBF of OCA personnel who are assigned to the missions transferred to the CBF, without prejudice to the rights of those persons with respect to job security, remuneration and pension;
3° to operate the transfer to the CBF of the assets, rights and obligations of the OCA that are assigned or relate to the missions transferred to the CBF;
4° to change the name of the CBF and to adapt the structure and composition of its organs according to the missions thus transferred to it.
Orders made under paragraph 1^er may amend, supplement, replace or repeal existing legal provisions. They cease to produce their effects if they have not been confirmed by law within 12 months of their effective date. Confirmation is retroactive to the effective date of the Orders. The powers granted to the King by this paragraph expire on 30 June 2003.
Art. 46. CBF does not know tax issues.
However, the CBF denounces to the judicial authorities the special mechanisms for the purpose or effect of promoting tax evasion in the head of third parties established by a credit institution or an investment company which it supervises, when it is aware that these particular mechanisms constitute, in the head of these institutions or companies itself, as a perpetrator, co-author or accomplice, a tax offence punishable by criminal sanctions.
Section 2. - Organs
Art. 47. The CBF bodies are the Supervisory Board, the Executive Committee, the Chair and the Secretary General.
Art. 48. § 1^er. The missions of the Supervisory Board are as follows:
1° to exchange views on the general issues relating to the competences of the CBF, the monitoring of the enterprises under the control of the CBF, the developments related to the monitoring of the Belgian, European and international financial markets, and in general any development concerning the financial system under the supervision of the CBF;
2° provide advice to the steering committee on the overall priorities for the CBF surveillance policy;
3° give advice to the steering committee on all matters relating to the preparation and implementation of its policy and on any proposals relating to the areas of oversight entrusted to the CBF;
4° ensure general monitoring of the operation of the CBF. On the proposal of the Executive Committee, the Board shall adopt the annual budget, annual accounts and annual report;
5° to propose to the King, on the proposal of the steering committee, the general rules for the financing of the business of the dependant CBF of the enterprises subject to its control and by retributions received for the examination of records relating to operations subject to its control;
6° give notice to the King before the appointments referred to in articles 49, § 6, 50, § 2 and 51, § 3. The president does not participate in this notice procedure.
7° The board may charge one or more of its members to conduct an investigation to ensure the proper operation of the CBF. For the fulfilment of their mission, designated members have the most extensive investigative powers. They may be assisted by one or more members of the CBF staff. They report the results of their investigation to the board.
§ 2. The Board is composed of the Chair and eight members who are not members of the Board's Management Committee or CBF staff. Five members are appointed by the King, on a joint proposal by the Minister and the Minister who has the Economy in his office, for a renewable period of six years. The other three members are appointed by the King among the BNB regents. During their term of office, the President and at least half of the members shall not hold, in a company subject to the permanent control of the CBF, any participation within the meaning of Article 13 of the Code of Companies or perform any function or mandate whatsoever in a company subject to the permanent control of the CBF or in a professional association representing the companies under the control of the CBF. In the event of a vacancy of a member's term, for any reason, it shall be replaced for the remainder of the term.
The council has as many members of French expression as Dutch expression, the president except.
§ 3. The Board shall meet whenever the Chair or two of its members deem it necessary and at least four times a year. The Chair sets the agenda for meetings. The board may decide only if the majority of its members are present. Decisions shall be adopted by a majority of the votes cast. In the event of a vote-sharing, the President's voice is preponderant.
§ 4. The King sets the amount of the tokens allocated to Council members.
Art. 49. § 1^er. The steering committee ensures the administration and management of the CBF and determines the direction of its policy. It appoints and revokes staff members and fixes their treatment and other benefits. It shall rule in all matters not expressly reserved by law to another body.
§ 2. The Management Committee sets out general policy directions and priorities for monitoring policy, sets out an annual monitoring action plan and determines the measures that may be taken in respect of each sector under the supervision of the CBF.
§ 3. On the advice of the supervisory board, the steering committee shall determine the regulations referred to in section 64. The steering committee shall establish, in circulars, recommendations or rules of conduct, any measures relating to the application of the legal or regulatory provisions of which the CBF controls the application.
§ 4. The various authorities exercising legislative or regulatory authority may request the CBF's advice on any proposed legislative or regulatory action that concerns supervisory missions to which the CBF is or would be responsible.
§ 5. The steering committee is aware of the general economic, systemic or structural developments and issues, which are likely to influence companies under the control of the CBF and any issues related to the application of legislation or regulations to companies under its control.
§ 6. The steering committee is composed, in addition to the president, of at least four members and not more than six members, one of whom bears the title of vice-president conferred by the King.
It has as many members of French expression as Dutch expression, the president possibly excepted.
He has as many members appointed by the King as members of the BNB Steering Committee as members who are not members of the BNB Steering Committee.
The members appointed by the King as members of the BNB steering committee are proposed by this steering committee for a renewable period of six years, on the understanding that the loss of membership of the BNB steering committee entails that of a member of the CBF steering committee. They sit in a personal capacity.
The other members are appointed by the King for a renewable period of six years and receive a salary and pension from the CBF, the amounts of which are fixed by the King.
In the event of a vacancy of a member's term, for any reason, it shall be replaced for the remainder of the term.
The members of the steering committee must be Belgian.
§ 7. The steering committee shall meet whenever the chair or two of its members deem it necessary and at least once a week.
The steering committee can only decide if the majority of its members are present. Decisions shall be taken by a majority of the votes cast. In case of sharing, the president's voice is preponderant.
In the event that a decision to be taken by the steering committee concerns the BNB, as the issuer of financial instruments admitted to negotiations on a Belgian regulated market, the members who were appointed by the King as members of the BNB steering committee do not participate in the deliberation.
Minutes of the deliberations of the steering committee are held. Minutes are signed by all members present.
§ 8. The steering committee may arrange chambers for the various sectors within the jurisdiction of the CBF.
The rooms are composed of members of the Board of Directors and members of the CBF staff and all members of French expression as well as members of Dutch expression.
Except for the adoption of regulations and administrative sanctions, the steering committee may, as part of the processing of individual files or not, delegate to the boards the power to make any decision:
1° that cannot suffer any delay;
2° including, without prejudice to routine measures for the preparation and processing of records and controls, a request for information based on legal or regulatory provisions;
3° in subjects subject to a practice regularly followed by the steering committee and not calling for a review;
4° on complementary aspects of specific issues that have been the subject of a policy decision of the steering committee;
5° in substances of minor importance or detail;
6° in matters relating, within the limits that the steering committee determines, to the management of personnel, with the exception of the appointment and promotion of executive personnel, as well as to the financial, administrative, computer and real estate management of the CBF.
Any delegation pursuant to paragraph 1^er may at any time be reviewed or revoked by the steering committee. The CBF rules of procedure specify the cases in which a delegation of authority can be consented and regulates the advertising to be given to these delegations.
Materials for several areas of monitoring are treated jointly by the chambers concerned, at the request of a member of one of them.
Decisions made on the basis of delegations made pursuant to this paragraph shall be made available to the steering committee at the latest at its next ordinary meeting.
Art. 50. § 1^er. The president runs the CBF. He chairs the steering committee and the supervisory board. In the event of an incapacity, the Vice-President shall be replaced.
§ 2. The President is appointed by the King, on a joint proposal by the Minister and the Minister who has the Economy in his office, for a renewable period of six years.
The King fixes the treatment of the president and his pension.
Art. 51. § 1^er. The Secretary General is responsible for the general administrative organization and the administrative direction of the CBF services, in accordance with the rules set out in the CBF rules of procedure and under the collegial authority of the steering committee. It coordinates, under the collegial authority of the steering committee, the cooperation of the CBF with other public institutions and bodies, particularly within the framework of Chapter V of this Act.
§ 2. The Secretary-General attends meetings of the steering committee and chambers with an advisory voice. It organizes the secretariat of the CBF bodies and, where applicable, the chambers referred to in Article 49, § 8.
§ 3. The Secretary General is appointed by the King for a renewable term of six years. His status, treatment and pension are fixed by the King.
§ 4. The Executive Committee shall make available to the Secretary-General the necessary means, whether in terms of personnel, delegations or material means, for the exercise of the tasks referred to in this section.
Art. 52. The mandates of the members of the Supervisory Board and the Executive Committee, the Chair and the Secretary General shall expire when they are at the age of sixty-five years.
Art. 53. § 1^er. Members of the Legislative Chambers, the European Parliament, councils of communities and regions, persons who have the status of minister or secretary of state or member of a community or region government, and members of the cabinets of a member of the federal government or of a community or regional government may not serve as president, secretary general or member of the CBF steering committee. These latter functions shall be terminated in full right when their holder is sworn in for the performance of the duties mentioned in the first place or perform such functions.
§ 2. The Chairperson, the members of the steering committee and the Secretary-General may not exercise any functions in a commercial or commercial corporation or in a public body with an industrial, commercial or financial activity, either personally or through a legal person. However, they may, with the approval of the Minister:
1° perform functions in international financial institutions established in accordance with agreements to which Belgium is a party;
2° be members of Belgian public consultative institutions or organizations.
§ 3. The prohibitions provided for in § 2 remain for two years after the discharge of the charge. During this period and in the absence of any other full-year function, the Chair, the Executive Committee members who are not members of the BNB Steering Committee and the Secretary General receive an annual remuneration equal to half of the annual salary received as part of their mandate.
§ 4. The Supervisory Board, on the advice of the steering committee, may derogate from the prohibition for the period concerned after the discharge of the charge when it finds that there is no significant influence on the planned activity on the independence of the person in question.
Section 3. - Organization
Art. 54. CBF services are organized in departments, according to an organization chart proposed by the steering committee and approved by the supervisory board.
The flowchart provides for the development of appropriate procedures and services, including information and consumer interests, for the purpose of processing cases that fall within the competences of the CBF in accordance with section 45.
Art. 55. The CBF can recruit and occupy its staff in the ties of a labour contract governed by the Act of 3 July 1978 on contracts of employment.
Staff members of the BNB, the Fonds des Rentes and the OCA may be detached from the CBF, and staff members of the CBF may be detached from the aforementioned institutions, under the conditions defined by the King and settled in a protocol between the institutions concerned.
Art. 56. The CBF's operating costs are borne by the companies under its control or whose operations are subject to its control, within and under the terms and conditions established by the King. These costs include the costs of the CBF's advice, expertise and missions.
The CBF may charge the administration of the Cadaster, Recording and Areas of Recovery of Unpaid Remuneration.
Art. 57. The CBF maintains its accounting and prepares annual accounts in accordance with the provisions of Chapter I^er of the Act of 17 July 1975 on Business Accounting in the same manner as the public bodies referred to in Article 1^erParagraph 1^er3° of this law.
Control of the accounts of the CBF is ensured by one or more corporate reviewers, appointed for a renewable period of three years by the supervisory board and provided that they are not listed on the CBF-approved reviewers list and that they are not based on a company subject to its control.
The reviewers shall verify and certify any elements specified in the regulations relating to the coverage of the CBF's operating costs as referred to in section 56 of this Act.
The mission of these reviewers with respect to the board of business as well as the presentation, appointment, renewal, revocation and resignment of such reviewers shall be governed by sections 151 to 160 of the Code of Companies and by the provisions established under section 164 of the same Code.
Art. 58. The CBF is assimilated to the State for the application of the laws and regulations relating to the taxes, taxes, duties and remuneration of the State, the provinces, the communes and the towns of municipalities.
Section 4. - Operation
Art. 59. The Supervisory Board shall, on the proposal of the steering committee, determine the CBF's rules of procedure and submit it to the King's approval. This regulation contains the essential rules relating to the operation of organs and the organization and operation of the CBF chambers, departments and services and advisory committees established by the CBF in accordance with Article 69.
Art. 60. In the event of an emergency identified by the President, the steering committee may, except for the adoption of regulations and administrative sanctions, decide by written procedure or using a voice telecommunications system, as specified in the CBF's rules of procedure.
Art. 61. With respect to third parties and in court, the CBF is represented by the Chair and, in its absence, by the Vice-Chair or two members of the Executive Committee acting jointly.
The steering committee may delegate specific and limited representation powers to one or more of its members, assisted or not by a CBF staff member. These delegations are published on the CBF website or in any other appropriate manner.
Art. 62. The Chairperson, the members of the steering committee and the Secretary-General may not deliberate in a case in which they have a personal interest of a heritage or family nature that may influence their opinion. The scope of this prohibition is specified in the CBF rules of procedure.
The persons referred to in the previous paragraph and the staff of the CBF are required to comply with the code of conduct established by the Supervisory Board, on the proposal of the Steering Committee.
The President, in consultation with the Supervisory Board, shall take appropriate measures to ensure compliance with the obligations and prohibitions under this section.
Art. 63. § 1^er. In cases provided for by law governing the mission in question or by the King, the CBF may give, in writing, a prior agreement on the facts or facts identified by this law or by the King. The CBF may agree on the conditions it considers appropriate.
§ 2. The agreement referred to in § 1^er links the CBF except:
1° where it appears that the operations it seeks were described in an incomplete or inaccurate manner in the application for agreement;
2° where these operations are not carried out in the manner presented to the CBF;
3° where the effects of these transactions are altered by one or more other subsequent operations, which results in that the transactions covered by the agreement no longer meet the description given at the time of the application for agreement;
4° where applicable, when it is not or more satisfied with the conditions of the agreement.
§ 3. The King, on the advice of the CBF, regulates the terms and conditions of application of this article.
Art. 64. In areas under its jurisdiction, the CBF may make regulations supplementing the relevant legal or regulatory provisions on technical matters. The regulations are arrested in accordance with Article 49 § 3.
In accordance with the open consultation procedure, the CBF may set out the content of any regulations it plans to take in an advisory note and publish it on its website to collect any comments from interested parties.
The CBF regulations only emerge after their approval by the King and their publication at the Belgian Monitor. The King may make amendments to these regulations or substitute for the failure of the CBF to establish these regulations.
Art. 65. The CBF publishes an annual report on its activities and transmits it to the Speakers of the House of Representatives and the Senate.
The President of the CBF may be heard by the relevant committees of the House of Representatives and the Senate, at the request of the House of Representatives or its own initiative.
Art. 66. The CBF organizes and maintains a website, which contains all regulations, acts and decisions that must be published, as well as any other data that it appears appropriate for the CBF to disseminate in the interest of its legal missions.
Without prejudice to the manner of publication prescribed by applicable legal or regulatory provisions, the CBF determines other possible modes of publication of regulations, decisions, notices, reports and other acts that it makes public.
Art. 67. All notifications to be made by registered letter or with acknowledgement of receipt by the CBF or by the Minister under the laws and regulations under which the CBF controls the application may be made by bailiff or by any other process determined by the King.
Art. 68. The CBF carries out its duties exclusively in the general interest. The CBF, members of its bodies and members of its staff do not exercise any civil liability because of their decisions, actions or behaviours in the exercise of the CBF's legal duties, except in the event of a dol or heavy misconduct.
Art. 69. The Supervisory Board may, on the proposal of the steering committee, establish advisory committees, whose functions are defined by the Board.
Advisory Committees' opinions are addressed to the CBF. The steering committee may proceed with their publication.
Section 5. - Rules of procedure for taxation
Administrative sanctions
Art. 70. § 1^er. When the CBF finds, in the course of its legal missions, that there are serious indications of the existence of a practice that could result in administrative sanctions, or when it is seized with such a practice on complaint, the steering committee directs the secretary general to instruct the case. For these purposes, the Secretary General bears the title of auditor.
§ 2. The auditor investigates the dependant and discharge cases and transmits its findings to the steering committee.
For the purpose of carrying out its mission, the auditor may exercise all investigative powers entrusted to the CBF by the legal and regulatory provisions governing the subject matter. For this purpose, he designates for each case a rapporteur among the staff of the CBF.
Art. 71. § 1^er. At the end of his instruction and before transmitting his findings to the steering committee, the auditor shall inform the author or the authors of the practice in question of the existence of an instruction, specifying the nature of the practice under investigation, and summons them to allow them to present their observations.
§ 2. When communicating its findings to the steering committee, the auditor shall inform the auditor(s) of the practice in question. They may be aware of the file that was constituted at the CBF headquarters, on the days and hours indicated by the auditor.
Within eight days of the date on which the auditor informed, pursuant to paragraph 1^er, the author(s) of the practice in question may ask to be heard by the steering committee.
Art. 72. § 1^er. Upon receipt of the auditor's conclusions and after hearing the person(s) subject to the instruction, the steering committee may, by reason of decision:
1° see the existence of an unlawful practice and impose one of the administrative sanctions provided for by the legal and regulatory provisions governing the subject matter;
2° that there is no administrative penalty;
3° provide for the publication of the decision or an extract from it.
§ 2. The auditor may not participate in the deliberations of the steering committee or otherwise intervene in the decision-making process when the steering committee is called upon to decide on the imposition of administrative sanctions.
§ 3. The decision of the steering committee is notified by registered letter to the persons under investigation. The notice letter indicates the remedies, the competent authorities to hear them, and the forms and deadlines to be followed, in the absence of which the limitation period for the appeal does not take place.
§ 4. In the event of a serious danger to the public, the steering committee may derogate from the procedural rules set out in articles 70 to 72, § 2, for the purposes of adopting the measures referred to in Article 57, § 1^erthe Act of 22 March 1993 on the Status and Control of Credit Institutions and Article 104, § 1^er, of the Law of 6 April 1995 on secondary markets, the status of investment companies and their control, to intermediaries and investment advisers.
Art. 73. Any administrative fine imposed by the CBF to a person and become final before the criminal judge has finally ruled on the same facts or related facts, imputes the amount of any criminal fine that would be imposed on the same person.
Section 6. - Professional secret, information exchange
and cooperation with other authorities
Art. 74. The CBF, the Chair, the Executive Committee members, the Supervisory Board members, the Secretary General and the staff of the CBF, as well as the persons who have previously exercised the above-mentioned functions, shall be held in professional secrecy and may not disclose to any person or authority the confidential information that they have been aware of as a result of their duties.
Notwithstanding paragraph 1^er, CBF may disclose confidential information:
1° in cases where the communication of such information is provided or authorized by or under this Act and the laws governing the missions entrusted to the CBF;
2° during testimony in criminal matters;
3° to denounce criminal offences to the judicial authorities, provided that section 29 of the Code of Criminal Investigation does not apply to persons referred to in paragraph 1^er;
4° in the context of administrative or judicial remedies against acts or decisions of the CBF and in any other proceeding to which the CBF is a party;
5° in summary or aggregate form so that individual natural or legal persons cannot be identified.
Art. 75. § 1^er. By derogation from section 74, paragraph 1^er, CBF may disclose confidential information:
1° to the European Central Bank, the BNB and other central banks and similar bodies as monetary authorities, as well as other public authorities responsible for monitoring payment systems;
2° to the Rent Fund;
3° within the limits of the European directives, to the competent authorities of others Member States of the European Economic Area that exercise one or more competences comparable to those referred to in Article 45;
4° in compliance with European directives, to the competent authorities of third States who exercise one or more competences comparable to those referred to in Article 45 and with which the CBF has entered into a cooperation agreement providing for the exchange of information;
5° to the OCA, to the competent authorities of others Member States of the European Economic Area that exercise one or more competences comparable to those referred to in Article 81 and the competent authorities of third States that exercise one or more competences comparable to those referred to in Article 81 and with which the CBF has entered into a cooperation agreement providing for the exchange of information;
6° to Belgian agencies or another Member State of the European Economic Area managing a deposit or investor protection system;
7° to financial instrument compensation or liquidation agencies that are authorized to provide compensation or liquidation services on financial instruments carried out on a Belgian organized market, to the extent that the CBF considers that the communication of the information in question is necessary in order to guarantee the regular functioning of these organizations in relation to the possible breaches of interveners in the market concerned;
8° within the limits of European directives, to market companies for the proper functioning, control and monitoring of the markets they organize;
9° in civil or commercial proceedings, to the authorities and legal agents involved in bankruptcy or judicial concordat proceedings or similar collective procedures concerning enterprises under the control of the CBF or whose operations are subject to its control, except for confidential information concerning the participation of third parties in rescue attempts prior to these proceedings;
10° to commissioners and revisers of companies and other legal auditors of the accounts of the companies subject to the control of the CBF, other Belgian financial institutions or similar foreign companies;
11° to the sequesters, for the exercise of their mission under the laws governing the missions entrusted to the CBF;
12° to the authorities responsible for the supervision of persons responsible for the legal control of the annual accounts of enterprises subject to the control of the CBF;
13° to the Ministry of Economic Affairs for the Control of Consumer Credit, to the competent authorities of others Member States of the European Economic Area that exercise comparable jurisdiction, as well as the competent authorities of third States that exercise comparable jurisdiction and with which the CBF has entered into a cooperation agreement providing for the exchange of information;
14° within the limits of the European directives, to the rapporteurs and agents of the Competition Service responsible for the instruction referred to in the Law of 5 August 1991 on the protection of economic competition;
15° within the limits of the European directives, to the approval board of exchange agents referred to in Article 21;
16° within the limits of the European directives, to the administration of the Treasury, under the legal and regulatory provisions taken for the implementation of the measures of financial embargoes.
§ 2. CBF may not disclose confidential information under § 1^er provided that they are intended for the performance of the duties of the authorities or organizations that are the recipients of the assignments and that the information is in their leader covered by a duty of professional secrecy equivalent to that provided for in section 74. In addition, information from an authority of another Member State of the European Economic Area cannot be disclosed in the cases referred to in paragraphs 7°, 9° and 12° of § 1^er and to third State authorities or bodies in the cases referred to in 4°, 5°, 6° and 13° of § 1^er only with the explicit agreement of that authority and, if any, for the purposes for which that authority has signed its agreement.
§ 3. CBF may make use of confidential information referred to in Article 74, paragraph 1^eror received from the authorities and organizations referred to in § 1^er for the accomplishment of all of its Article 45.
§ 4. Without prejudice to the stricter provisions of the specific laws governing them, the Belgian authorities and bodies referred to in § 1^er shall be held in professional secrecy under section 74 with respect to the confidential information they receive from the CBF pursuant to § 1^er.
Art. 76. Section 74 applies to registered commissioners, business reviewers and experts as to the information they were aware of due to the missions entrusted to the CBF or as part of the audits, expertise or reports that the CBF, as part of its duties under section 45, has instructed them to perform or produce.
Paragraph 1^er and section 27, paragraph 2, of the Act of 22 July 1953 creating an Institute of Business Reviewers are not applicable to communications of information to the CBF that are provided or authorized by legal or regulatory provisions governing the CBF's missions.
Art. 77. § 1^er. Without prejudice to articles 74 to 76 and the provisions of specific laws, the CBF shall cooperate, in matters within its jurisdiction, with the competent foreign authorities exercising one or more competences comparable to those referred to in articles 45 and 81.
§ 2. Without prejudice to Belgium ' s obligations under European Community law, the CBF may, on the basis of reciprocity, conclude with the competent authorities referred to in § 1^er agreements to establish the modalities of such cooperation, including the possible distribution of control tasks, the designation of a competent authority as a monitoring coordinator and the modalities of monitoring by on-site inspections or otherwise, the applicable cooperation procedures and the modalities of the collection and exchange of information.
§ 3. Without prejudice to Belgium ' s obligations under the law of the European Communities, CBF may, within the framework of the control exercised in accordance with the provisions of Chapter II, enter into cooperation agreements with the competent authorities referred to in § 1^erincluding:
1° agree on minimum common criteria for access to financial intermediaries, other than those referred to in section 2, 10°, (a), (b), (d), (e) and (g), to regulated financial activities and markets;
2° define a common approach to the content, form and distribution of flyers or other information materials required for the admission of financial instruments to negotiations on regulated markets or for public tenders for subscription, sale, purchase or exchange of financial instruments;
3° organize the monitoring of cross-border market abuses, as well as financial abuses committed via the Internet.
Section 7. - Investigation powers and criminal provisions
Art. 78. Without prejudice to the powers of investigation entrusted to it by the legal and regulatory provisions governing its missions, the CBF may, in order to verify whether an operation or activity is subject to the laws and regulations it is responsible for controlling the application, require any necessary information from those who perform the operation or exercise the activity in question and from any third party who allow it to be carried out or exercised.
The CBF has the same investigative authority to verify, within the framework of a cooperation agreement with a foreign authority and as to the concrete points indicated in the written request of that authority, whether an operation or activity carried out or carried out in Belgium is subject to the laws and regulations that the foreign authority is responsible for controlling the application.
The person or company shall transmit this information within the time and form determined by the CBF.
The CBF may conduct or conduct, in the books and documents of the concerned, audits of the accuracy of the information provided to it.
Art. 79. § 1^er. Are punished by imprisonment from one month to one year and a fine of EUR 250 to EUR 2.500,000 or one of these penalties only:
1° those who block CBF inspections and expertise under this chapter or knowingly give it inaccurate or incomplete information;
2° those knowingly, by assertion or otherwise, suggest or suggest that the operation(s) they undertake or intend to perform is carried out under the conditions provided for by the laws and regulations under which the CBF controls the application, while those laws and regulations are not applicable to them or have not been complied with.
§ 2. Offences of articles 74, 75, § 4, and 76, paragraph 1^er, shall be punished by the penalties provided for in article 458 of the Criminal Code.
§ 3. The provisions of Book 1 of the Criminal Code, without exception of Chapter VII and Article 85, are applicable to offences referred to in §§ 1^er and 2.
CHAPTER IV. - Office of Insurance Control
Section 1. - General provisions
Art. 80. The OCA is a public institution with legal personality, subject to the Minister's guardianship. Its headquarters is located in the administrative district of Brussels-Capital.
The OCA is subject to the Act of 16 March 1954 on the Control of Certain Public Interest Organizations. It is classified in category C referred to in section 1^er of the Act of 16 March 1954 referred to above.
Art. 81. § 1^er. The OCA shall, in accordance with this Act and the specific laws applicable to it:
1° the control of companies subject to the provisions of Royal Decree No. 43 of 15 December 1934 concerning the control of capitalization enterprises;
2° the control of companies and institutions, as well as of the operations under the Act of 9 July 1975 relating to the control of insurance companies;
3° the monitoring of compliance with the provisions of the Act of 25 June 1992 on the land insurance contract;
4° control of companies and transactions covered by the Act of 4 August 1992 relating to mortgage credit;
5° the monitoring of compliance with the provisions of the Act of 27 March 1995 on intermediation in insurance and the distribution of insurance;
6° the supervision of mutual bond companies pursuant to Article 57 of the Program Law of 10 February 1998 for the promotion of the independent enterprise;
7° the monitoring of compliance with the provisions of the supplementary pension law.
§ 2. For the purposes of this chapter, "enterprises" means all companies, institutions and individuals that are subject to the control of the OCA.
Art. 82. The OCA does not know tax issues.
However, the OCA denounces to the judicial authorities the special mechanisms for the purpose or effect of promoting tax evasion in the head of third parties established by a company or institution under its control, when it is aware that these particular mechanisms constitute, in the head of these companies or institutions itself, as a perpetrator, co-author or accomplice, a tax offence punishable by criminal sanctions.
Section 2. - Organs
Art. 83. The OCA bodies are the Supervisory Board, the Executive Committee, the Chair and the Secretary General.
Art. 84. § 1^er. The Supervisory Board shall exchange views on the general issues relating to the competences of the OCA, the monitoring of companies subject to the control of the OCA, the developments related to the monitoring of the Belgian, European and international financial markets, the general priorities and the measures to be taken in respect of the OCA's surveillance policy and in general any development concerning the financial sectors subject to the oversight of the OCA.
The Board may advise the steering committee on all matters relating to the preparation and implementation of its policy and on any proposals relating to the areas of oversight entrusted to the OCA.
The board may charge one or more of its members to conduct an investigation to ensure the proper operation of the OCA. For the fulfilment of their mission, designated members have the most extensive investigative powers. They may be assisted by one or more OCA staff. They report the results of their investigation to the board.
§ 2. Without prejudice to the provisions of the Act of 16 March 1954 relating to the control of certain public bodies, the board is responsible for the overall oversight of the operation of the OCA. On the proposal of the Executive Committee, the Board shall adopt the annual budget, annual accounts and annual report.
§ 3. The council proposes to the King, on the proposal of the steering committee, the general rules for financing the activity of the OCA to the companies and institutions subject to its control.
§ 4. The members of the Supervisory Board (excluding the presence of the President in office) give notice to the King before the appointments referred to in Articles 85, § 6, 86, § 2 and 87, § 3.
§ 5. The Board shall meet whenever the Chair or two of its members deem it necessary and at least four times a year. The Chair sets the agenda for meetings. The board may decide only if the majority of its members are present. Decisions shall be adopted by a majority of the votes cast.
§ 6. The Board is composed of the Chair and not less than seven members and not more than eight members, who are not members of the OCA Management Committee or staff. Three members are appointed by the King among the BNB regents. At least four members and not more than five members, as the case may be, are appointed by the King, on a joint proposal by the Minister and the Minister of Finance, for a renewable period of six years. In the event of a vacancy of a member's term, for any reason, it shall be replaced for the remainder of the term.
During their term of office, the President and at least half of the members shall not hold, in a company subject to the permanent control of the OCA, any participation within the meaning of Article 13 of the Code of Companies or exercise any function or mandate whatsoever in a company subject to the permanent control of the OCA or in a professional association representing the companies subject to the control of the OCA.
The council has as many members of French expression as Dutch expression, the president possibly excepted.
The King sets the amount of the tokens allocated to Council members.
Art. 85. § 1^er. The steering committee ensures the administration and management of the OCA and determines the direction of its policy. He appoints staff members and sets out their financial status, which takes effect only after being approved by the Minister. It shall rule in all matters not expressly reserved by law to another body.
§ 2. The Management Committee sets out general policy directions and priorities for monitoring policy, sets out an annual monitoring action plan, and determines the measures that may be taken with respect to each of the areas under OCA surveillance.
§ 3. On the advice of the supervisory board, the steering committee shall determine the regulations referred to in section 100. The steering committee shall, in communications, establish any measures to clarify the application of the legal or regulatory provisions under the control of the AOC.
§ 4. The various authorities exercising legislative or regulatory authority may require the OCA's advice on any proposed legislative or regulatory action that concerns monitoring missions that the OCA is or would be responsible.
§ 5. The steering committee is aware of the general economic, systemic or structural developments and issues, which are likely to influence companies under the control of the OCA and any issues related to the application of legislation or regulations to companies under its control.
§ 6. The steering committee is composed, in addition to the president, of at least two members and not more than four members, one of whom bears the title of vice-president conferred by the King.
It has as many members of French expression as Dutch expression, the president possibly excepted.
He has as many members appointed by the King as members of the BNB Steering Committee as members who are not members of the BNB Steering Committee.
The members appointed by the King as members of the BNB steering committee are proposed by this steering committee for a renewable period of six years, on the understanding that the loss of membership of the BNB steering committee entails that of a member of the OCA steering committee. They sit in a personal capacity.
The other members are appointed by the King, including one on a joint proposal by the Minister and the Minister with the Pensions in his or her responsibilities, for a renewable period of six years and shall be paid to the OCA a salary and a pension to be determined by the King.
In the event of a vacancy of a member's term, for any reason, it shall be replaced for the remainder of the term.
The members of the steering committee must be Belgian.
The steering committee shall designate a representative from within or among OCA staff, who shall sit with an advisory voice on the management committee and certain technical committees of the Industrial Accidents Fund. Similarly, the Industrial Accidents Fund Management Committee shall designate a representative who shall sit with an advisory vote on the OCA Steering Committee and, where applicable, in the chambers referred to in § 8.
§ 7. The steering committee shall meet whenever the chair or one of its members considers it necessary and at least once a week.
The steering committee can only decide if the majority of its members are present. Decisions shall be taken by a majority of the votes cast. In case of sharing, the president's voice is preponderant.
In the event that a decision to be taken by the steering committee concerns the BNB as an enterprise referred to in Article 81, § 2, the members who were appointed by the King as members of the BNB steering committee do not participate in the deliberation.
Minutes of the deliberations of the steering committee are held. Minutes are signed by all members present.
§ 8. The steering committee may organize chambers for the various sectors within the competence of the OCA.
The rooms are composed of members of the management committee and members of the OCA staff and all French-speaking members as well as Dutch-speaking members.
Except for the adoption of regulations and administrative sanctions, the steering committee may, as part of the processing of individual files or not, delegate to the boards the power to make any decision:
1° that cannot suffer any delay;
2° including, without prejudice to routine measures for the preparation and processing of records and controls, a request for information based on legal or regulatory provisions;
3° in subjects subject to a practice regularly followed by the steering committee and not calling for a review;
4° on complementary aspects of specific issues that have been the subject of a policy decision of the steering committee;
5° in substances of minor importance or detail;
6° in matters relating, within the limits that the steering committee determines, to the management of personnel, with the exception of the appointment and promotion of executive personnel, as well as to the financial, administrative, computer and real estate management of the OCA.
Any delegation pursuant to paragraph 1^er may at any time be reviewed or revoked by the steering committee. The OCA rules of procedure specify the cases in which a delegation of authority can be consented and regulate the advertising to be given to these delegations.
Materials for several monitoring areas are dealt with by the steering committee.
Decisions made on the basis of delegations made pursuant to this paragraph shall be made available to the steering committee at the latest at its next ordinary meeting.
Art. 86. § 1^er. The president runs the OCA. He chairs the steering committee and the supervisory board. In the event of an incapacity, the Vice-President shall be replaced.
§ 2. The President is appointed by the King, on a joint proposal by the Minister and the Minister of Finance, for a renewable period of six years.
The King fixes the treatment of the president and his pension.
Art. 87. § 1^er. The Secretary General is responsible for the general administrative organization and the administrative direction of the OCA services, in accordance with the rules set out in the OCA rules of procedure and under the collegial authority of the steering committee. It coordinates, under the collegial authority of the steering committee, the cooperation of the OCA with other public institutions and bodies, particularly within the framework of Chapter V of this Act.
§ 2. The Secretary-General attends meetings of the steering committee and chambers with an advisory voice. It organizes the secretariat of the OCA bodies and, if applicable, of the chambers referred to in Article 85, § 8.
§ 3. The Secretary General is appointed by the King for a renewable term of six years. His status, treatment and pension are fixed by the King.
§ 4. The Executive Committee shall make available to the Secretary-General the necessary means, whether in terms of personnel, delegations or material means, for the exercise of the tasks referred to in this section.
Art. 88. The mandates of the members of the Supervisory Board and the Executive Committee, the Chair and the Secretary General shall expire when they are at the age of sixty-five years.
Art. 89. § 1^er. Members of the Legislative Chambers, the European Parliament, councils of communities and regions, persons who have the status of minister or secretary of state or member of a community or region government, and members of the offices of a member of the federal government or a community or regional government may not serve as president, secretary general or member of the OCA steering committee. These latter functions shall be terminated in full right when their holder is sworn in for the performance of the duties mentioned in the first place or perform such functions.
§ 2. The President, the members of the steering committee and the Secretary General shall not exercise any functions in a business or institution under the control of the AOC or in a commercial or commercial corporation or in a public body with an industrial, commercial or financial activity, either personally or through a legal person. However, they may, with the approval of the Minister:
1° perform functions in international financial institutions established in accordance with agreements to which Belgium is a party;
2° be members of Belgian public consultative institutions or organizations.
§ 3. The prohibitions provided for in § 2 remain for two years after the discharge of the charge. During this period and in the absence of any other full-year function, the Chair, the Executive Committee members who are not members of the BNB Steering Committee and the Secretary General receive an annual remuneration equal to half of the annual salary received as part of their mandate.
§ 4. The Supervisory Board, on the advice of the steering committee, may derogate from the prohibition for the period concerned after the discharge of the charge when it finds that there is no significant influence on the planned activity on the independence of the person in question.
Section 3. - Organization
Art. 90. The OCA services are organized in departments, according to an organization chart proposed by the steering committee and approved by the supervisory board.
The flowchart provides for the development of appropriate procedures and services, including information and consumer interests, for the purpose of processing records that fall within the competence of the OCA in accordance with section 81.
Art. 91. The organic framework and administrative status of OCA staff are fixed by the King.
Staff of the BNB, the Rent Fund and the CBF may be detached from the OCA, and staff members of the OCA may be detached from the above-mentioned institutions, under the conditions defined by the King and settled in a protocol between the institutions concerned.
Art. 92. The OCA's operating costs are borne by the companies under its control or whose operations are subject to its control, within and under the terms and conditions established by the King.
Art. 93. The OCA may charge the administration of the Cadaster, Recording and Areas of Recovery of Unpaid Remuneration.
Art. 94. The OCA is assimilated to the State for the application of the laws and regulations relating to the taxes, taxes, duties and remuneration of the State, the provinces and the municipalities.
Section 4. - Operation
Art. 95. The Supervisory Board shall, on the proposal of the steering committee, determine the OCA's rules of procedure and submit it to the Minister for approval. This regulation contains the essential rules relating to the operation of organs and the organization and operation of the OCA chambers, departments and services.
Art. 96. In the event of an emergency identified by the President, the steering committee may, except for the adoption of regulations and administrative sanctions, decide by way of written consultation or by using a voice telecommunications system, as specified in the OCA's rules of procedure.
Art. 97. With respect to third parties and in court, the OCA is represented by the chair or, in his absence, by a member of the steering committee, designated by the chair.
The steering committee may delegate specific and limited representation powers to one or more of its members, assisted or not by an OCA staff member. These delegations are published on the OCA website or in any other appropriate manner.
Art. 98. The Chairperson, the members of the steering committee and the Secretary-General may not deliberate in a case in which they have a personal interest of a heritage or family nature that may influence their opinion. The scope of this prohibition is specified in the OCA rules of procedure.
The persons referred to in the previous paragraph and members of the OCA staff are required to comply with the code of conduct established by the Supervisory Board on the proposal of the Steering Committee.
The President, in consultation with the Supervisory Board, shall take appropriate measures to ensure compliance with the obligations and prohibitions under this section.
Art. 99. § 1^er. In cases provided for by law governing the mission in question or by the King, the OCA may give, in writing, a prior agreement on the facts or facts identified by that law or by the King. The OCA may agree with the conditions it considers appropriate.
§ 2. The agreement referred to in § 1^er links the OCA except:
1° where it appears that the operations it seeks were described in an incomplete or inaccurate manner in the application for agreement;
2° where these operations are not carried out in the manner presented to the OCA;
3° where the effects of these transactions are altered by one or more other subsequent operations, which results in that the transactions covered by the agreement no longer meet the description given at the time of the application for agreement;
4° where applicable, when it is not or more satisfied with the conditions of the agreement.
§ 3. The King, on the advice of the OCA, regulates the terms and conditions of application of this article.
Art. 100. In areas within its competence, the OCA may make regulations supplementing the relevant legal or regulatory provisions on technical matters. The regulations are arrested in accordance with Article 85, § 3. These regulations are subject, as the case may be, to the opinion of the Insurance Board referred to in section 41 of the Act of 9 July 1975 relating to the control of insurance companies or to the advice of the Complementary Pension Board referred to in section 52 of the Supplementary Pension Act.
The OCA regulations only come out after their approval by the King and their publication at the Belgian Monitor. The King may make amendments to these regulations or substitute for the failure of the OCA to establish these regulations.
Art. 101. The OCA publishes an annual report on its activities and the situation of companies and institutions under its supervision. He forwards it to the Speakers of the House of Representatives and the Senate.
The Chair of the OCA may be heard by the relevant committees of the House of Representatives and the Senate, at the request of the House of Representatives or its own initiative.
Art. 102. The OCA organizes and maintains a website, which contains all the regulations, acts and decisions that must be published, as well as any other data that it appears appropriate for the OCA to disseminate in the interest of its legal missions.
Without prejudice to the manner of publication prescribed by the applicable legal or regulatory provisions, the OCA shall determine the other possible modes of publication of the regulations, decisions, notices, reports and other acts that it makes public.
Art. 103. All notifications to be made by registered letter or with acknowledgement of receipt by the OCA or by the Minister under the laws and regulations under which the OCA controls the application may be made by bailiff or by any other process determined by the King.
Art. 104. The OCA carries out its missions exclusively in the general interest. The OCA, members of its bodies and members of its staff are not liable for any civil liability due to their decisions, actions or behaviours in the exercise of the OCA's legal missions except in the event of a dol or heavy misconduct.
Section 5. - Rules of procedure for the imposition of administrative sanctions
Art. 105. § 1^er. When the OCA finds, in the course of its legal missions, that there are serious indications of the existence of a practice that could result in administrative sanctions, or when it is seized with such a practice on complaint, the Executive Committee shall charge the Secretary General to instruct the case. For these purposes, the Secretary General bears the title of auditor.
§ 2. The auditor instructed the dependant and discharge files and forwarded its findings to the steering committee.
For the purpose of carrying out its mission, the auditor may exercise all investigative powers entrusted to the OCA by the legal and regulatory provisions governing the subject matter. For this purpose, he designates for each case a rapporteur among the OCA staff.
Art. 106. § 1^er. At the end of his instruction and before forwarding his findings to the steering committee, the listener informs the author or the authors of the practice in question of the existence of an instruction, specifying the nature of the practice under investigation, and summonses them to allow them to present their observations.
§ 2. When communicating its findings to the steering committee, the auditor shall inform the auditor(s) of the practice in question. They may be aware of the file that was constituted at the OCA headquarters, on the days and hours indicated by the auditor.
Within eight days of the date on which the auditor informed pursuant to paragraph 1^er, the author(s) of the practice in question may ask to be heard by the steering committee.
Art. 107. § 1^er. Upon receipt of the auditor's conclusions and after hearing the person(s) subject to the instruction, the steering committee may, by reason of decision:
1° see the existence of an unlawful practice and impose one of the administrative sanctions provided for by the legal and regulatory provisions governing the subject matter;
2° that there is no administrative penalty;
3° provide for the publication of the decision or an extract from it.
§ 2. The auditor may not participate in the deliberations of the steering committee or otherwise intervene in the decision-making process when the steering committee is called upon to decide on the imposition of administrative sanctions.
§ 3. The decision of the steering committee is notified by registered letter to the persons under investigation. The notice letter indicates the remedies, the competent authorities to hear them, and the forms and deadlines to be followed, in the absence of which the limitation period for the appeal does not take place.
§ 4. In the event of a serious danger to the public, the steering committee may waive the procedural rules set out in sections 105, 106 and 107, §§ 1 and 2, for the purpose of adopting the measures referred to in Article 26 of the Act of 9 July 1975 relating to the control of insurance companies.
Art. 108. Any administrative fine imposed by the OCA to a person and become final before the criminal judge has finally ruled on the same facts or related facts, imputes the amount of any criminal fine that would be imposed on the same person.
Section 6. - Professional secret, information exchange and cooperation with other authorities
Art. 109. The President, the members of the steering committee, as well as the persons authorized under a legal or regulatory provision to attend the meetings of the board, the members of the supervisory board, the Secretary General and the staff of the OCA, as well as the persons who have previously exercised the above-mentioned functions are subject to professional secrecy and may not disclose to any person or authority the confidential information they have been informed of in respect of their duties, other than the case
Art. 110. Article 109 does not prejudice:
1° to the communication, in a summary or aggregate form, of confidential information relating to insurance companies provided that the individual elements relating to the insurance companies concerned cannot be identified;
2° to the transmission of confidential information in the course of legal proceedings initiated after an insurance company has been declared bankrupt or has been granted a concordat; Such transmission is, however, prohibited if it concerns confidential information relating to third parties that have been involved in attempts to rescue the insurance company prior to the bankruptcy declaration or to obtain the concordat.
Art. 111. § 1^er. By derogation from section 109, the OCA is entitled to:
1° to provide confidential information to the competent authorities of the other Member States in the cases provided for by the directives issued by the European Union for the controlled companies or the competent authorities of other States with which the European Union has concluded agreements that make these directives applicable;
2° to communicate, on the basis of reciprocity, confidential information to the competent authorities of other States than those referred to in 1°, with which it has entered into cooperation agreements that provide for the exchange of information, provided that the authority receiving this information is subject to a professional secret at least equivalent to that derived from Articles 109 to 112.
§ 2. The OCA shall not disclose the confidential information referred to in paragraph 1^er that after having found that the State to which it communicates this information, has imposed on its supervisory bodies the obligation to use it only for the purpose of exercising their functions:
1° for the examination of conditions of access to insurance activity and to facilitate the control of the conditions of exercise of the activity, in particular with regard to the monitoring of technical provisions, the margin of solvency, the administrative and accounting organization and the internal control, and in respect of the complementary monitoring of controlled companies that are part of an insurance group, or
2° for the instruction and application of administrative relief measures or administrative or penal sanctions in respect of the controlled company, its directors or shareholders, or
3° for the instruction and decision-making of administrative guardianship in respect of the decisions of the competent authority, or
4° for the investigation and conduct of judicial proceedings in cases provided for by the express provisions of the Community directives in the field of controlled enterprises.
§ 3. The same limitations apply to the use by the OCA of confidential information received from competent authorities referred to in paragraph 1^er.
Art. 112. § 1^er. By derogation from section 109, the OCA has the right to disclose confidential information about insurance companies:
1° to the Belgian authorities for the control and supervision of credit institutions and other financial institutions, including securities collective investment organizations, stock exchange companies, wealth management companies, investment consulting companies, foreign exchange and deposit brokering companies, natural or legal persons engaged in the purchase or sale transactions in the foreign currency account, as well as to the Belgian authorities responsible for the financial surveillance markets;
2° to authorities under another Member State that are invested in the public monitoring mission of credit institutions and other financial institutions or the monitoring of financial markets;
3° to the Belgian authorities responsible for the control of labour accident legislation;
4° to bodies involved in the liquidation and bankruptcy of insurance companies or other similar procedures;
5° to the bodies responsible for the management of mandatory procedures for the liquidation of insurance companies or guarantee funds;
6° to persons responsible for the legal control of the accounts of insurance companies and other financial institutions.
ACO may not disclose confidential information pursuant to paragraph 1^er only if the recipient is to be used for the performance of his or her duties and is subject to a professional secret equivalent to that referred to in section 109.
§ 2. By derogation from section 109, the OCA has the right to disclose confidential information:
1° to the authorities responsible for monitoring the bodies involved in the liquidation and bankruptcy of insurance companies and other similar procedures;
2° to the supervisory authorities responsible for the legal control of the accounts of insurance companies and other financial institutions;
3° to independent actuaries of insurance companies exercising under the law that is applicable to them a task of control over them and to the bodies responsible for the supervision of these actuaries.
ACO may not disclose confidential information pursuant to paragraph 1^er if the following conditions are met:
1° the consignee shall use it only for the performance of the monitoring mission or the control task as described in paragraph 1^er;
2° the information transmitted shall be subject to a professional secret equivalent to that provided for in Article 109;
3° where the information comes from another Member State, it cannot be disclosed without the explicit consent of the authorities, organs or persons who transmitted it and, if necessary, exclusively for the purposes for which these authorities, organs or persons have signed their agreement.
§ 3. By derogation from section 109, the OCA has the right to disclose confidential information:
1° to central banks and other organizations with similar vocations as monetary authorities;
2° to other public authorities responsible for monitoring payment systems.
3° to the administration of the Treasury, under the legal and regulatory provisions for the implementation of the financial embargo measures.
ACO may not disclose confidential information pursuant to paragraph 1^er that if the consignee will use it only for the fulfilment of his or her mission and as long as it is subject to a professional secret equivalent to that referred to in section 109.
When the AOC receives confidential information from the authorities or bodies referred to in this paragraph, it may only use it for the purpose of performing the functions referred to in Article 111, § 2. The information it receives in this context is subject to professional secrecy referred to in section 109.
§ 4. The Belgian authorities, organs or persons referred to in §§ 1^er, 2 and 3 which are not themselves subject to a professional secret at least equivalent to that of section 109 and which receive confidential information from the OCA, are subject to the professional secret established in section 109.
Art. 113. Authorized commissioners and experts mandated by the OCA shall, in the course of their duties under this Act, be subject to section 109.
This section is not applicable to communications to be made under this Act or to legislation referred to in section 81 to the OCA or to communications to be made under the legislation to other authorized commissioners or experts.
Art. 114. Without prejudice to the provisions of the specific laws authorizing the OCA to collaborate with Belgian and foreign authorities and agencies in areas governed by these laws, the OCA may enter into cooperation agreements with Belgian and foreign authorities and agencies that exercise one or more competences comparable to those referred to in Article 81 with a view to:
1° resolve the exchange of information between OCA and these authorities and agencies;
2° define modalities of cooperation in the exercise of their respective control missions, including by a division of control tasks and the designation of one of the authorities or one of the organizations as the monitoring coordinator;
3° define a common approach to the content, form and distribution of prospectus or other information material in the provision of insurance, supplementary pensions or mortgage credits;
4° organize the monitoring of cross-border market abuses and financial abuses committed via the Internet;
5° provide for cooperation procedures in any other matter within the competence of the OCA.
Section 7. - Investigation powers and criminal provisions
Art. 115. Without prejudice to the powers of investigation entrusted to it by the legal and regulatory provisions governing its missions, the OCA may, in order to verify whether an operation or activity is subject to the laws and regulations that it is responsible for controlling the application, require any necessary information from those who perform the operation or exercise the activity in question and from any third party who allow it to be carried out or exercised.
The OCA has the same investigative authority to verify, within the framework of a cooperation agreement with a foreign authority and as to the concrete points indicated in the written request of that authority, whether an operation or activity carried out or carried out in Belgium is subject to the laws and regulations that the foreign authority is responsible for controlling the application.
The person, institution or company shall transmit this information within the time and form determined by the OCA.
The OCA may conduct or conduct, in the books and documents of the interested parties, audits of the accuracy of the information provided to it.
Art. 116. § 1^er. Are punished by imprisonment from one month to one year and a fine of EUR 250 to EUR 2.500,000 or one of these penalties only:
1° those who obstruct OCA inspections and expertise under this chapter or knowingly give it inaccurate or incomplete information;
2° those knowingly, by assertion or otherwise, suggest or suggest that the operation(s) they perform or intend to perform is carried out under the conditions provided for by the laws and regulations that the OCA controls the application, while those laws and regulations are not applicable to them or have not been complied with.
§ 2. Offences under sections 109 to 113 are punishable by penalties under section 458 of the Criminal Code.
§ 3. The provisions of Book 1 of the Criminal Code, without exception of Chapter VII and Article 85, are applicable to offences referred to in §§ 1^er and 2.
CHAPTER V. - Coordination of financial sector monitoring
Art. 117. § 1^er. The CBF, the OCA and the BNB are working closely on all issues of common interest and in particular on international cooperation in the prudential field, cross-sectoral aspects of prudential policies related to the different providers of financial services, macroprudential analysis, legal studies and any other activity designated by the Financial Stability Committee referred to in § 3.
§ 2. It is established a "monitoring board of the Autorité des Services financiers", composed of members of the supervisory boards of the CBF and the OCA and members of the BNB Regency Council, which are also not members of the BNB Management Committee, the excepted Governor. The Supervisory Board of the Financial Services Authority is chaired by the Governor of the BNB. The presidents of the CBF and the OCA provide the vice-president. The Supervisory Board of the Autorité des Services financiers is empowered to issue, at the request of the Ministers concerned or on its own initiative, any advice on all matters relating to the organization, operation, coordination of the functioning of the financial markets and financial institutions of both the private sector and the public sector. It organizes the dialogue and dialogue between the CBF, the OCA and the BNB.
§ 3. Issues of common interest to CBF, OCA and BNB are discussed in a Financial Stability Committee composed of members of the CBF, OCA and BNB Steering Committees. The Financial Stability Committee is chaired by the Governor of the BNB. The presidents of the CBF and the OCA provide the vice-president.
Issues of common interest include:
1° the stability of the financial system as a whole;
2° the interactions between prudential control and systemic risk control of payment and settlement systems;
3° Coordination of crisis management;
4° deposit guarantee and investor protection;
5° review of legislation, regulatory orders or circulars of interest to at least two of the three institutions;
6° the designation and management of joint activities to meet the obligation of cooperation referred to in paragraph 1^erincluding the management of staff assigned to these activities;
7° the activities and work carried out by an administrative entity under the management committee of one of the three institutions in whole or in part on behalf of another institution;
8° the coordination of oversight of enterprises, institutions and operations within the competence of at least two of the three institutions;
9° participation in one or more cooperation organizations referred to in § 5.
The deliberations within the Financial Stability Committee on issues referred to in items 1 to 5° do not prejudice the competence of the BNB, the CBF and the OCA in the areas covered by these deliberations. Regardless of the nature of the decision to be taken, this decision is taken by the appropriate steering committee(s). The decisions of the Financial Stability Committee concerning the issues referred to in items 6 to 9 are adopted in accordance with the following procedure, to be specified by the King:
1° each deliberation of the Financial Stability Committee implies a double majority within the entire Financial Stability Committee and within each management committee of the institutions that are part of the Financial Stability Committee;
2° for the calculation of the majority to be reached in the Boards of Directors of the CBF and the OCA, the members of these Boards of Directors who also sit on the BNB Steering Committee will never be able to express together a number of votes greater than those expressed by the other members of the Steering Committee; in the event that they are majority in number, their voice will be reduced proportionally so that they have the maximum number of votes cast by all other members together.
§ 4. The Financial Stability Committee may, on the initiative of the appropriate minister(s), be responsible for the execution of general interest missions, subject to their compatibility with the missions of the institutions or organizations represented in the Financial Stability Committee.
The prior authorization of the competent minister(s) is required if the mission in question is part of a mission that has been entrusted by law to an institution or agency represented in the Financial Stability Committee.
§ 5. The CBF and OCA management committees, on the advice of their supervisory board, stop the modalities for the implementation of the participation of the CBF and the OCA to one or more co-operative bodies, including other Belgian or foreign institutions and agencies responsible for the monitoring of financial companies or financial markets, may be part of the committee.
The missions to this or these cooperation organizations may involve, inter alia, the following tasks:
1° the development of draft laws and regulations relating to the supervision of financial enterprises or markets and which fall within the competence of the institutions and organizations that are part of the cooperation agency concerned;
2° the development, at the request of the Minister or Minister with the Economy in his or her powers, of notices and information relating to the above-mentioned materials;
3° the management and updating of a data bank of the legal and regulatory provisions relating to the above-mentioned materials or having a direct or indirect interest in the exercise of the competences vested in the institutions and organizations that are part of the cooperation agency concerned;
4° the management of the monitoring of international treaties, regulations and guidelines relating to the aforementioned subjects;
5° the completion of preparatory work, studies or research related to the aforementioned materials;
6° participation in international meetings on one or more of the aforementioned subjects.
A representative of each competent minister is invited to participate, without a deliberate vote, in the meetings of the governing bodies of the cooperation bodies. The King sets the amount of emoluments allocated to representatives of ministers.
Without prejudice to the provisions of the Code of Societies, the legal form, the composition of the administrative body and the rules of procedure of the co-operation body are arrested by the King.
Orders made under paragraph 4 cease to produce their effects if they have not been confirmed by law within 12 months of their effective date. Confirmation is retroactive to the effective date of the Orders.
Institutions and organizations that are part of the co-operation body define areas in which such cooperation can be implemented. They may affect this organization for the duration they determine, the personnel, the material means and the information they designate. The costs resulting from this cooperation are fully borne by participating institutions and agencies.
Institutions and organizations that are part of the co-operation organization receive an annual report of the activities undertaken by the co-operation organization.
Art. 118. Institutions referred to in Article 117, § 1^er, define, in a protocol to be concluded within a period not exceeding six months from the date of the first appointment of all members of the bodies referred to in Articles 49 and 85 and to approve by the King, the modalities for the sharing of the various activities shared with a view to fulfilling the obligation of cooperation referred to in Article 117, § 1^er. The content and funding of these activities are regulated in the same protocol. If the aforementioned institutions fail to conclude the protocol within the time limit referred to in the first sentence, or to amend it in the future, the King is empowered to determine the rules referred to in this article.
Art. 119. § 1^er. The King, on the proposal of the Minister and the Minister with the Economy in his powers, provides, at the end of a transitional period that He determines, that the functions referred to in Articles 51 and 87 are performed by the same person.
§ 2. The King, on the proposal of the Minister and Minister with the Economy in his office, may provide that the functions of chair of the Boards of Directors and Supervisory Boards of the CBF and the OCA are not exercised by the same persons.
CHAPTER VI. - Courts of appeal against decisions taken by the Minister, the CBF and the market enterprises and CBF intervention before the criminal courts
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CHAPTER VII. - Courts of appeal against decisions taken by the OCA and intervention by the OCA to the repressive courts
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Art. 128. [... ]
CHAPTER VIII. - Modificative, abrogatory and various provisions
Art. 129. Article 1^er, h), of Royal Decree No. 22 of 24 October 1934 on the prohibition of judicial proceedings against certain convicts and failed to perform certain functions, occupations or activities, replaced by the Act of 4 December 1990, is replaced by the following text:
"(h) contravention of the prohibitions provided for in Article 40, §§ 1^er2 and 3 of the Act of 2 August 2002 on financial sector monitoring and financial services".
Art. 130. § 1^er. Article 29ter , § 3, of Royal Decree No. 185 of 9 July 1935 on the control of banks and the regime of the emissions of securities and values, inserted by the law of 9 March 1989, is replaced by the following provision:
“§3. Persons who have given the notice under section 26 may appeal against the refusal of the Banking and Financial Commission. Approval decisions are not subject to appeal. »
§ 2. Title III of the same Royal Decree, replaced by the Act of 4 December 1990, is repealed.
Art. 131. Royal Decree No. 72 of 30 November 1939 regulating the stock exchanges and futures markets on goods and commodities, the profession of brokers and intermediaries dealing with these markets and the regime of the game exception is repealed.
Art. 132. In Article 2 of the Decree-Law of 18 May 1945, establishing a Fund for Rent, as amended by the laws of 19 June 1959, 22 July 1991 and 23 December 1994, the following amendments are made:
1° to paragraph 1^er4° is repealed;
2° in paragraph 5, the words "and 4°" are deleted;
3° in paragraph 5, the last sentence is replaced by the following sentence:
"The Fund may also conduct on-site inspections with institutions subject to its control or request the authorities to conduct on-site investigations. » ;
4° the following paragraph is inserted between paragraphs 5 and 6:
"As part of the missions referred to in paragraph 1^er, 3°, the Fund may issue a warning or a reprimand, and/or impose an administrative fine vis-à-vis establishments subject to its control, and/or suspend, for all or part of their activities on the market, for a period that may not exceed six months or exclude them, for all or part of their activities on the market, when they violate the regulations that the Fund has to monitor. The administrative fine imposed is unique or is expressed per calendar day. In the latter case, it cannot be less than 2,500 euros or more than 50,000 euros. In total, for the same fact or set of facts, fines cannot be greater than 2.500,000 euros. By exception to the foregoing, where the offence has provided the offender with a heritage benefit, the fine may not be less than the amount of that heritage benefit, nor more than twice that amount or in the event of a recurrence, in the threefold amount. Fines are recovered for the benefit of the Treasury by the administration of the Cadaster, the Recording and the Domains. » .
Art. 133. § 1^er. Article 1^er of Royal Decree No. 62 of 10 November 1967 promoting the movement of securities, as amended by the laws of 7 April 1995 and 10 March 1999, is replaced by the following provision:
"For the purposes of this Order, and without prejudice to section 23 of the Act of 2 August 2002 on the supervision of the financial sector and financial services, it shall be understood by:
1° " liquidation body": the body or bodies approved by the King as the central depositary of financial instruments, as defined in Article 1^erbis, and BNB;
2° "affiliated": organizations authorized under the rules governing the liquidation system of the liquidation agency, to hold securities with the liquidation agency. »
§ 2. Article 1^erter of the same order, inserted by the law of 15 July 1998, is renumbered article 1^er bis and is replaced by the following provision:
“Art. 1^erbis. The BNB, the central depositary and its affiliates may receive in deposit under the provisions of this Order any financial instruments referred to in Article 2, 1°, of the above-mentioned Act of 2 August 2002, whether they are materialized or dematerialized, to the bearer, in order or nominative, whatever the form in which these securities are issued according to the law which governs them.
However, the provisions of this Order, except section 9bis, paragraphs 2 to 4, do not apply:
1° to dematerialized securities covered by the Act of 2 January 1991 on the market for public debt securities and monetary policy instruments;
2° to cash and deposit certificates issued in dematerialized form, subject to the Act of 22 July 1991 on cash and deposit certificates;
3° to dematerialized securities covered by the Code of Companies.
The term "financial instruments" is defined in paragraphs 1 below.^er and 2, deposited on a fungible basis in accordance with this Order with the liquidation agency or its affiliates, including the right of co-ownership, of an intangible nature, that this fungibility deposit confers on all depositors on the universality of securities of the same species deposited with the liquidation agency or its affiliates. »
§ 3. Paragraphs 2 and 3 of section 2 of the same order, as amended by the laws of 7 April 1995 and 15 July 1998, are repealed.
§ 4. In section 5 of the same order, replaced by the Act of 7 April 1995 and amended by the Act of 15 July 1998, the following amendments are made:
1° § 1^er is completed by the following paragraph:
"The pledge component is presumed to own the financial instruments given in pledges. The validity of the pledge is not affected by the lack of ownership rights of the pledge grantor on the financial instruments issued as pledges, without prejudice to the liability of the pledge grantor for the real owner of the financial instruments issued as pledges. If the gage grantor has notified the gagiste creditor, in advance and in writing, that he is not the owner of the financial instruments given in pledges, the validity of the gage is subject to the owner's authorization to give them in pledge. » ;
2° § 2 is replaced by the following provision:
“§2. Without prejudice to other means of enforcement provided by law and unless otherwise stipulated by the parties, the creditor shall, in the event of default of payment, be entitled, notwithstanding bankruptcy, concordat or any other situation of competition between creditors of the debtor, to carry out the pledge made on financial instruments submitted to this Order by realizing the financial instruments as soon as possible. The proceeds of the realization of these financial instruments are charged to the principal, interest and costs receivable of the creditor. The potential balance is for the secured debtor. »
§ 5. In section 7 of the same order, as amended by the Act of 15 July 1998, the following amendments are made:
1° in paragraph 2, the words "or an affiliate" are added after the words "to the liquidation agency";
2° to paragraph 3, the words "or affiliate" are added after the words "the liquidation body" both in the first sentence and in the second sentence.
§ 6. Paragraph 1^er of Article 9bis of the same order, inserted by the law of July 15, 1998, the words "real, intangible rights" are replaced by the words "property rights referred to in Article 1^erbis.
§ 7. In section 10 of the same order, replaced by the Act of 7 April 1995 and amended by the Act of 15 July 1998, the following amendments are made:
1° to paragraph 1^er, the words "real, intangible rights" are replaced by the words "property rights referred to in Article 1^erbis
2° Paragraph 5 is replaced by the following provision:
"When an intermediary has registered financial instruments on behalf of others on his or her behalf or on behalf of a third person, the owner on whose behalf that registration has been taken may only take action in claim from the intermediary or the third party on whose behalf the fungible financial instruments have been registered, except in the event of bankruptcy, judicial concordat or any other competitive situation between the third parties of that intermediary. In this case, the claim action may be carried out directly by the owner to the affiliate or liquidation body on the registered party on behalf of the intermediary or third person designated as the account holder. This claim follows the rules defined in the preceding paragraphs. »
§ 8. Article 10bis , paragraph 1^erthe same order, inserted by the law of 7 April 1995 and amended by the law of 15 July 1998, is supplemented as follows:
"The sums thus paid are elusive by the creditors of the liquidation agency. »
§ 9. By order deliberately in the Council of Ministers, the King may, on the advice of the CBF, coordinate the provisions of the same order and the provisions that would have expressly or implicitly amended them at the time of coordination.
To this end, He may, inter alia:
1° amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology without prejudice to the principles set out in these provisions.
The coordination will bear the title determined by the King.
Art. 134. Royal Decree No. 64 of 10 November 1967 organizing the status of portfolio companies is repealed.
Art. 135. § 1^er. Article 2, § 6, of the Act of 9 July 1975 on the Control of Insurance Companies, inserted by the Royal Decree of 12 August 1994 and amended by the Royal Decrees of 6 May 1997 and 14 March 2001, is supplemented as follows:
"13° "the Office for the Control of Insurance", the public institution referred to in section 80 of the Act of 2 August 2002 on the supervision of the financial sector and financial services".
§ 2. Article 3, § 1^er, of the same law, replaced by the Royal Decree of 8 January 1993 and amended by the Royal Decree of 12 August 1994, the words "by the King" are replaced by the words "by the Office of Control of Insurance".
§ 3. Section 4, paragraph 8, of the Act, replaced by the Royal Decree of 22 February 1991, is replaced by the following provision:
"The decisions granting approval are published by extract to the Belgian Monitor. »
§ 4. Article 5, paragraph 1^er, of the same law, is replaced by the following provision:
"A request for approval shall be addressed in the forms and conditions fixed by the King to the Office for the Control of Insurance. »
§ 5. Sections 21bis to 21septies and 21nonies of the Act, inserted by the Royal Decree of 12 August 1994, are repealed.
§ 6. Sections 29 to 35 and 37 of the Act are repealed.
§ 7. Section 42, paragraphs 3 and 4, of the Act are replaced by the following provisions:
"The Insurance Control Board notes the waiver and sets the date of its effects.
The renunciation is published in the Belgian Monitor. »
§ 8. Article 43, § 1^er, 1°, and § 2, 1° and 2°, of the same law, the words "by royal decree motivated, on the proposal of the Office for the Control of Insurance" are each replaced by the words "by reasoned decision of the Office for the Control of Insurance".
§ 9. Article 43, § 3, paragraph 1^er, the same law is replaced by the following provision:
"A decision to revoke the accreditation is notified to the company and published by extract to the Belgian Monitor. »
§ 10. Article 82, § 1^er, paragraph 3, of the Act, replaced by the Act of 19 July 1991 and amended by the Royal Decree of 12 August 1994, is replaced by the following provision:
"Without prejudice to the right to quote before the competent judge, the recovery of administrative fines may take place by way of constraint to the diligence of the administration of the Cadaster, the Recording and the Domains and according to the procedure organized by the Code of Registration, Mortgage and Registry Rights. » .
§ 11. In section 83 of the Act, replaced by the Royal Decree of 12 August 1994, the words "the agents of an insurance company" are replaced by the words "the agents of a business".
Art. 136. § 1^er. Article 1^er of the Act of 2 March 1989 on the advertisement of significant stakes in publicly traded companies and regulating public tenders, as amended by the Act of 18 July 1991, are amended as follows:
1° § 2 is replaced by the following provision:
“§2. Belgian legal societies whose voting rights securities are in whole or in part admitted to negotiations on a regulated market within the meaning of Article 2, 3°, of the Act of 2 August 2002 on the supervision of the financial sector and financial services";
2° in § 5, the words "to the official rank of a stock exchange located in a Member State of the European Economic Community" are replaced by the words "to negotiations on a regulated market under § 2".
§ 2. In Article 15, § 3, of the same law, the word "seule" is inserted between the words "est" and "loaded".
§ 3. Section 16 of the Act is replaced by the following provision:
“Art. 16. § 1^er. The Banking and Financial Commission may take any action and issue any injunction to ensure the correct application of the orders made under Article 15, §§ 1^er and 2.
It may include:
1° where it finds an operation, practice or omission contrary to the provisions provided for in section 15, enjoin any person who is responsible for complying with these provisions, ending the observed irregularity or removing its effects;
2° prohibit the person who is responsible for making use of the rights or benefiting from the benefits that it may withdraw from the irregularity.
§ 2. The Banking and Financial Commission shall notify its decision in the most appropriate manner to the person responsible.
Any decision made pursuant to this provision shall be enforceable as soon as it has been notified.
§ 3. The Banking and Financial Commission may make its decision public.
§ 4. A person who, at the expiry of the time limit set by the Banking and Financial Commission, fails to comply with the injunction addressed to him in accordance with § 1^er, the Banking and Financial Commission may inflict a breach that cannot be, per calendar day, greater than 50,000 euros, nor, by offence, greater than 2.500,000 euros. In addition, without prejudice to other measures taken pursuant to the law, the Banking and Financial Commission may, when it finds an offence to the provisions of the orders made under Article 15, §§ 1^er and 2, apply an administrative fine to the person responsible, which cannot be less than 2,500 euros or higher, for the same fact or set of facts, to 2,500,000 euros. The fine or cover is recovered for the benefit of the treasury by the administration of the Cadaster, the Recording and the Domains. » .
§ 4. Section 17 of the Act is repealed.
§ 5. Article 18, paragraph 1^er, from the same law, the words "or section 17" are deleted.
Art. 137. § 1^er. The Financial Operations and Financial Markets Act of 4 December 1990 is repealed:
Article 34, amended by the law of 14 May 1992;
2° § 2 of Article 121, including § 1^er becomes the single paragraph;
3rd paragraph 4 of Article 138;
4° § 2 of Article 139, including § 1^er becomes the single paragraph;
5° paragraph 2 of Article 141, § 2;
Paragraph 2 of Article 141, § 3;
7° Articles 142ter to 142nonies, inserted by the law of 9 March 1999;
8° Articles 181 to 185;
9° section 186, replaced by the law of 30 January 1996;
10° Article 187, amended by the Act of 10 March 1999;
11° Article 188, replaced by the Act of 10 March 1999;
12° Article 189;
13° Article 190, amended by the Act of 10 March 1999;
14° Article 191, amended by the Act of 30 October 1998.
§ 2. The following amendments are made to section 134 of the Act:
1° § 2 is repealed so that § 1^er becomes the single paragraph;
2° to paragraph 3 of the text as amended, the words "foreseeed in § 2" are replaced by the words "against this decision".
§ 3. Article 225, § 1^erthe same Act, as amended by the Act of 6 April 1995, is supplemented as follows:
"11° the Act of March 2, 1989 on the advertising of important participations in publicly traded companies and regulating public procurement offers;
12th Article 26 of the Act of 9 March 1999 on the transposition of Directive 95/26/EC of the European Parliament and of the Council of 29 June 1995 on financial institutions;
13° the Act of 28 April 1999 to transpose Directive 98/26/EC of 19 May 1998 concerning the finality of the regulation in the payment and settlement systems of securities transactions;
14° the Act of 2 August 2002 on financial sector surveillance and financial services".
Art. 138. In article 4, paragraph 1^er, from the law of 2 January 1991 on the market of public debt securities and instruments of monetary policy the words "detained, on the one hand for investors, on the other hand for own account, on separate accounts" are replaced by the words "detained for investors or for account specific to accounts".
Art. 139. § 1^er. The Act of 22 March 1993 on the Status and Control of Credit Institutions is repealed:
1st Article 12;
2° Article 34, paragraph 5;
Paragraph 7 and the last paragraph of Article 49, § 2;
Paragraph 2 of Article 56;
5° paragraphs 2, 3 and 4 of Article 57, § 2;
6° Article 95;
7° Articles 96 and 97, amended by the Act of 9 March 1999;
8° Article 98;
9° section 99, replaced by the Act of 9 March 1999 and amended by the Act of 26 April 1999;
10° articles 100 and 101.
§ 2. The following amendments are made to section 103 of the Act:
1° Paragraph 3 is replaced by the following provision:
"If the establishment remains in default on the expiry of the period, the Banking and Financial Commission may, the company heard or at least summoned, inflict a breach on it at a maximum of 2.500,000 euros per offence or a maximum of 50,000 euros per day of delay. »
2° Paragraph 4 is repealed;
3° it is added to the amended text, which will form § 1^era § 2, which reads as follows:
“§2. Without prejudice to other measures provided for in this Act and without prejudice to the measures provided for by other laws or other regulations, the Banking and Financial Commission may, when it finds an offence to the provisions of this Act or the measures taken pursuant to it, impose an administrative fine on a Belgian or foreign credit institution established in Belgium that may not be less than 2.500 euros or greater for the same fact or for the same set of euros. »;
4° it is added a § 3, written as follows:
“§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".
Art. 140. § 1^er. In the title of the Act of 6 April 1995 on secondary markets, the status of investment companies and their control, to financial intermediaries and investment advisors, the words "to secondary markets" are deleted.
§ 2. Article 1^er the Act, amended by the Act of 10 March 1999, is replaced by the following provision:
“Article 1^er. For the purposes of this Act, the terms "financial instruments", "regulated market" and "Belgian regulated market" have the meanings defined in section 2 of the Act of 2 August 2002 on financial sector surveillance and financial services. »
§ 3. Are repealed in the same Act:
1° the first book with the exception of Article 1^eramended by this Act;
2° Article 52;
3rd paragraph 5 of section 83;
4th paragraphs 2, 3 and 4 of Article 104, § 2;
5° Article 130;
Articles 140 to 143;
7° Article 144, replaced by the Act of 9 March 1999;
8° Article 145, amended by the Act of 9 March 1999;
9° Article 146, amended by the Royal Decree of 22 December 1995;
10° Article 173.
§ 4. An article 45bis, as follows, is inserted in the same law:
"Art. 45bis. The King may, on the advice of the Banking and Financial Commission, establish rules relating to the status and control of the enterprises referred to in Article 45, 10°".
§ 5. The following amendments are made to section 109 of the Act:
1° paragraph 2 is replaced by the following provision:
"If the investment company remains in default on the expiry of the period, the Banking and Financial Commission may, the company 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° Paragraph 3 is repealed;
3° it is added to the amended text which will form § 1^er, a § 2, as follows:
Ҥ2. 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 Banking and Financial Commission may, when it finds an offence to the provisions of this Act or to the measures taken pursuant to these Acts, impose on a Belgian or foreign investment company established in Belgium, an administrative fine which may not be less than 5,000 euros, or greater, for the same fact or for the same set of euros,
4° a § 3 is added as follows:
“§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. »
§ 6. Section 139, paragraph 6, of the Act is replaced by the following provision:
"The King rules the registration procedure as well as the suspension and revocation of the registration. »
§ 7. In section 148 of the Act, as amended by the Acts of 12 December 1996 and 10 August 1998, the following amendments are made:
1° §§ 1^er and 2 are repealed;
2° to § 3 the words "seen to Article 2" are replaced by the words "financial referred to in Article 2, 9°, of the law of August 2, 2002 referred to above";
3° in § 4, 10°bis, inserted by the law of 12 December 1996, is repealed.
Art. 141. § 1^er. The words "and, as a substitute, by the provisions on anonymous companies" in article 2, paragraph 2, of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium are interpreted in that the provisions on anonymous companies only apply to the National Bank of Belgium:
1° for substances not regulated by the provisions of Title VII of Part III of the Treaty establishing the European Community and the Protocol on the Regulations of the European System of Central Banks and the European Central Bank, or by the Act of 22 February 1998 referred to above or the statutes of the National Bank of Belgium; and
2° provided that they do not conflict with the provisions referred to in 1°. »
§ 2. An article 9bis, as follows, is inserted in the same law:
"Art. 9bis. Within the framework established by Article 105(2) of the Treaty establishing the European Community and Articles 30 and 31 of the Protocol on the Statutes of the European System of Central Banks and the European Central Bank, the Bank holds and manages the official exchange reserves of the Belgian State. These assets constitute a heritage assigned to the missions and operations under this chapter and to other public missions entrusted by the State to the Bank. The Bank shall record these assets and related goods and expenses in its accounts in accordance with the rules set out in section 33. »
§ 3. In section 12 of the Act, the following paragraph is inserted before the current single paragraph:
"The Bank contributes to the stability of the financial system. »
§ 4. Article 14, paragraph 1^erin the same law, the words "and controlled by the Bank; management is provided by one or more members of the Executive Committee" are replaced by the words "in which the Bank holds significant participation and in which one or more members of its Steering Committee participate".
§ 5. In Article 16 of the same Law, the words "whose Bank holds exclusive control" are inserted between the words "seen to Article 14" and "submitted".
§ 6. Section 19 of the Act is supplemented by the following provision:
« 6. Pursuant to sections 49, § 6, paragraph 3, and 85, § 6, paragraph 3, of the Financial Sector Supervision and Financial Services Act of 2 August 2002, as the case may be, two or three members of the Management Committee shall, in their personal capacity, serve on the Executive Committee of the Banking and Financial Commission, and one or two members of the Board of Insurance Supervision. » .
§ 7. Section 20 of the Act is supplemented by the following provision:
« 5. As a personal matter, three regents sit on the Supervisory Board of the Banking and Financial Board and the Board of Insurance Supervisory Board. »
§ 8. The following amendments are made to section 26 of the Act:
1° § 1^er is completed by the following paragraph:
"The Conseil de régence sets the conditions that relate to the discharge of charge. It may, on the advice of the Steering Committee, derogate from the prohibition for the period concerned after the discharge of the charge when it finds the lack of significant influence of the activity envisaged on the independence of the person in question. » ;
2° the article is supplemented by a § 3, written as follows:
“§3. The members of the Executive Committee and the Bank ' s staff are required to comply with the Code of Ethics issued by the Board of Directors on a proposal by the Executive Committee. The persons responsible for monitoring compliance with this code are held in professional secrecy under section 458 of the Criminal Code. »
§ 9. Article 31, paragraph 2, of the Act is construed in that the right of issue referred to in it includes the right of issue that the Bank may exercise under Article 106(1) of the Treaty establishing the European Community.
§ 10. Section 33 of the Act, repealed by the Act of 3 May 1999, is reinstated in the following wording:
“Art. 33. The accounts and, where appropriate, the Bank ' s consolidated accounts are established:
1° in accordance with this Act and the mandatory rules established pursuant to Article 26.4 of the Protocol on the Statutes of the European Central Bank System and the European Central Bank;
2° for surplus, according to the rules established by the Board of Regency.
Sections 2 to 4, 6 to 9 and 16 of the Act of 17 July 1975 relating to the accounting of enterprises and their enforcement orders are applicable to the Bank except for the orders made pursuant to Articles 4, 6, and 9, § 2.
Art. 142. Sections 5 and 6 of the Act of 15 July 1998 amending various legal provisions relating to financial instruments and securities compensation systems are repealed.
Art. 143. § 1^er. Section 4 of the Corporate Code is replaced by the following provision:
“Art. 4. Listed companies are companies whose securities are admitted to negotiations on a regulated market within the meaning of Article 2, 3°, of the Act of August 2, 2002 on financial sector surveillance and financial services. »
§ 2. In article 469, paragraph 1^er, from the same Code, the word "distinct" is deleted.
§ 3. The following amendments are made to Article 620 § 2 of the same Code:
1° in paragraph 1^er, replaced by the law of January 23, 2001, the words "to the market authority or, with respect to regulated markets, to the market authorities designated by the King" are replaced by the words "to the Banking and Financial Commission";
2° Paragraph 2 is replaced by the following provision:
"The Banking and Financial Board shall verify the conformity of redemption transactions with the decision of the General Assembly or, where appropriate, the Board of Directors; it makes its opinion public if it considers that these transactions are not in compliance with it. »
§ 4. Section 653 of the same Code is repealed.
§ 5. On the advice of the CBF, the King may, under the conditions it defines, make some of the provisions of the same Code that apply to companies whose securities are admitted to negotiations on a Belgian regulated market, applicable to Belgian legal societies whose securities are admitted to negotiations on a foreign financial instrument market without being admitted to a Belgian regulated market.
Art. 144. § 1^er. Anonymous company Euronext Brussels and anonymous company Nasdaq Europe are fully licensed as market companies whose state of origin is Belgium. They are required, within six months of the entry into force of Article 140, § 3, 1°, to adapt their statutes and the rules of the markets they organize in order to align them with the provisions of Chapter II of this Act and its enforcement orders.
§ 2. The Fonds des Rentes, a self-contained public institution, established by the Decree-Law of May 18, 1945, is fully recognized as a market company whose origin is Belgium. Articles 16 to 20 included are not applicable to the Rent Fund.
Art. 145. The opposability of the receivables contract in respect of third parties other than the assigned debtor is determined in accordance with the law applicable to the assignment contract.
Art. 146. By order deliberately in the Council of Ministers, the King may, on the advice of the CBF and, with respect to articles 22 and 23, of the BNB, take the necessary measures to ensure the transfer of the mandatory provisions resulting from international treaties or international acts taken under them, in matters regulated by the provisions of this Act other than those referred to in chapters IV and VII. By deliberately decreed in the Council of Ministers, the King may, on the advice of the OCA, take the necessary measures to ensure the transfer of the mandatory provisions resulting from international treaties or international acts taken under them in the matters regulated by chapters IV and VII. Orders under subparagraphs 1^er and 2 may amend, supplement, replace or repeal existing legal provisions.
The draft decisions referred to in this article shall be submitted to the opinion of the Law Section of the Council of State. This notice is published at the same time as the report to the King and the royal decree in question.
Art. 147. § 1^er. The King may amend the terminology of the legal provisions in force and the references that would be contained in these provisions to ensure their consistency with this Act.
§ 2. The King may coordinate the provisions of Chapters IV and VII and the provisions referred to in Article 81, § 1^er, as well as the provisions that would have expressly or implicitly modified them at the time coordination is established.
To this end, He may, inter alia:
1° amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology without prejudice to the principles set out in these provisions.
The coordination will bear the title determined by the King.
Art. 148. Unless this Act otherwise provides, the King shall take the orders that He is called upon to enforce this Act on the initiative:
- the Minister of Finance for the provisions of Chapter V relating to the BNB and the CBF and the Minister with the Economy in his powers for the provisions of Chapter V relating to the OCA;
- the Minister having the Economy in his powers for chapters IV and VII, as well as for articles 139, 142, § 2, and 143, § 2;
- Minister of Finance for other provisions.
Art. 149. The King shall determine the effective date of each of the provisions of this Act.
Promulgate this law, order that it be coated with the Seal of the State and published by the Belgian Monitor.
Given in Punat on 2 August 2002.
ALBERT
By the King:
Minister of Justice,
Mr. WERWILGHEN
Minister of Finance,
D. REYNDERS
Minister of Economy,
Ch. PICQUE
Seal of the state seal:
Minister of Justice,
Mr. VERWILGHEN
____
Note
(1) Documents of the House of Representatives:
50-1842 - 2001/2002:
Number 1: Bill.
No. 2: Annex.
No. 3: Amendments.
Number 4: Report.
No. 5: Text adopted by the commission.
No. 6: Text adopted in plenary and transmitted to the Senate.
Full report: 10 July 2002.
Documents of the Senate:
2-1241 - 2001-2002:
Number 1: Project referred to by the Senate.
Number two: Report.
No. 3: Amendments filed after approval of the report.
No. 4: Decision not to amend.
Annales du Sénat : 18 juillet 2002.