belgiquelex.be - Carrefour Bank of Legislation

28 AVRIL 1999. - Act to transpose Directive 98/26/EC of 19 May 1998 on the final nature of the regulation in securities payment and settlement systems (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER I. - Scope of application
Art. 2. § 1^er. This Act applies to the payment and settlement systems for securities transactions governed by Belgian law, which are described below as "systems", the following designation:
(a) Payment systems
1° the system called Electronic Large Value Interbank Payment System ("ELLIPS") owned by the non-profit association of the same name and managed by the National Bank of Belgium;
2° the system known as the Exchange and Compensation Centre ("CEC"), held by the non-profit association of the same name and managed by the National Bank of Belgium;
3° the Belgian Compensation Chamber, a contractual association managed by the National Bank of Belgium;
(b) Control systems
1° the system of circulation, by scriptural means, of financial instruments managed by the inter-professional organization known as the "Inter-professional Fund for Deposits and Transfer of Titles" ("CIK") pursuant to Royal Decree No. 62 of 10 November 1967 promoting the circulation of financial instruments;
2° the securities compensation system of the National Bank of Belgium ("clearing BNB") governed by the law of 2 January 1991 on the market of public debt securities and instruments of monetary policy and by the aforementioned royal decree No. 62;
3° the Euroclear system, owned by the English law company Euroclear Clearance System plc, and managed by the Belgian branch of the American law bank " Morgan Guaranty Trust Company of New York";
4° the liquidation and compensation system organized by the Brussels Securities Exchange Corporation, if applicable through an entity designated for that purpose by the King;
5° the system of compensation and liquidation of transactions on financial instruments managed by the Belgian Scholarship of Futures and Sch Options (" Belfoxsc") under the Royal Decree of 22 December 1995 concerning the recognition of Belfox sc.
§ 2. This Act applies to any participant in the systems referred to in paragraph 1^er, which may include credit institutions within the meaning of the Act of 22 March 1993 relating to the status and control of credit institutions, investment companies within the meaning of the Act of 6 April 1995 relating to secondary markets, the status of investment enterprises and their control and to intermediaries and investment advisers, any person of Belgian or foreign public law or controlled enterprise operating under the guarantee of a State and any enterprise having its head office outside the European Union
It is also considered to be "participating" within the meaning of this Act, any manager, regulatory officer or entity responsible for the systems it seeks, in particular the National Bank of Belgium, the ASBL ELLIPS and CEC, the CIK, Beltox sc, the Belgian branch of the American Law Bank Morgan Guaranty Trust Company of New York, as well as the managers of settlement systems. Titles designated by other Member States of the Union and notified as such to the European Commission, as appropriate, that any other central bank, of a Member State of the European Union or not. and the European Central Bank.
§ 3. A credit institution shall also be considered as a participant within the meaning of this Act, in the sense defined in the preceding paragraph, whose cash payment orders are executed through a participant in a payment system, under a commission or mandate agreement. The credit institution thus acting on the intervention of a participant in a payment system must be known to the organizations in charge of that system.
§ 4. This Act is also applicable, if it acquires, with respect to the determination, under Belgian law, of the rights and obligations arising from the participation of a Belgian legal participant referred to in § 2 of this article in a system of a Member State of the European Union as notified by the competent authorities of that State to the European Commission, or of a third State.
§ 5. 1° The King may amend the list of systems referred to in paragraph 1 and publish it annually to the Belgian Monitor.
2° The King may extend the list of participants in these systems, as defined in § 2 and § 3, under the conditions provided for in Article 2 of Directive 98/26/EC of 19 May 1998 concerning the final character of the regulation in the payment and settlement systems of securities transactions.
3° The Minister of Finance shall notify the European Commission of the systems covered by this Act and the authority referred to in section 5 below.
CHAPTER II. - Compensation
Art. 3. § 1^er. The compensation of the orders of transfer of cash or financial instruments, and of the receivables and obligations resulting from these orders, within a system is valid and enforceable to the third parties, including in case of bankruptcy, judicial concordat or in case of competition other than bankruptcy against a participant, provided that the orders of transfer in question were introduced in a system, under the rules of the latter,
§ 2. The compensation referred to in paragraph 1 shall not be challenged by the effect of the Acts of 17 July 1997 relating to judicial concordat or 8 August 1997 on bankruptcy, in particular Articles 16 to 26 of the latter Act.
§ 3. Notwithstanding the bankruptcy, judicial reconciliation or the occurrence of a competitive situation against a participant in a system, the manager or settlement officer may, if the applicable contractual provisions permit, debit the default participant's settlement account, in particular for the purpose of clearing the debt balance of the latter after compensation, and thus permit the payment of the final payment. If it is purchased, the manager or settlement officer is also authorized, under the applicable contractual conditions, to withdraw from office the amounts or financial instruments necessary for the performance of the participant's obligations, in particular with respect to the performance of the debt balance of the default participant by using the opening of credit (including a loan of financial instruments) eventually consented to the participant, within the limits of the day-to-day guarantees attached to the credit.
CHAPTER III. - Transfer orders
Art. 4. § 1^er. The orders of transfers of cash or financial instruments, and the payments resulting from these orders, are valid and enforceable to third parties, including in the event of bankruptcy, judicial concordat or in the event of a contest other than the bankruptcy against a participant, provided that the orders of transfer in question were introduced into a system, under the rules of the latter, prior to the default, of the contest The execution of such orders, and the payments resulting from these orders, in a system, even after bankruptcy, judicial concordat or the occurrence of the competition situation against a participant, is valid and final and can no longer be challenged for any reason.
§ 2. If the operating rules of a system provide for the irrevocability of orders for transfers of cash or financial instruments from a certain time, this irrevocability is required in all cases to the policy donor participant or any third party.
CHAPTER IV. - Provisions relating
insolvency proceedings of a participant
System Transparency
Art. 5. § 1^er. When it is a participant of Belgian law referred to in Article 2, § 2 and § 3 of this Law, any request for judicial concordat, filed by a request of the participant or by a summons of the Crown Prosecutor, any confession of bankruptcy and any application for declaration of bankruptcy, any judgment granting, prorogating or ending a provisional or final stay of any declarative judgment of bankruptcy pronounced by a court of trade, The National Bank of Belgium, in turn, ensures that the request or judgment be notified to the managers and agents of the regulation of the systems referred to in Article 2, as well as any judgement referred to above to the authorities designated by the other Member States of the European Union concerns the judicial concordat or bankruptcy of the participant in question. Similarly, the National Bank of Belgium ensures that such managers and settlement agents are informed without delay of any decision on insolvency proceedings within the meaning of Article 7, § 3, which would be notified to it by an authority of a Member State of the European Union.
§ 2. Each system referred to in this Act shall communicate to the National Bank of Belgium the list of participants in the system, including any indirect participant within the meaning of Article 2, § 3, of that Act and any subsequent amendments to the list of such participants. The National Bank of Belgium is required to ensure the confidentiality of this data.
§ 3. Any person with a legitimate interest, duly justified by the law, may obtain from a financial institution referred to in section 2, § 2, of that law that the law indicates to him the systems to which it participates and provides to him, at the expense of the applicant, information on the main operating rules of the said systems.
Art. 6. Without prejudice to sections 3 and 4 of this Act and section 157, § 2, of the Act of 22 March 1993 relating to the status and control of credit institutions as extended to other categories of financial institutions by the Royal Decree of 28 January 1998, a bankruptcy procedure may not have, on the rights and obligations of a participant related to the participation of a participant in a system, a retroactive effect pronounced in relation to the moment
CHAPTER V. - Private international law
Art. 7. § 1^er. The effects of an insolvency proceeding, open against a participant under the law of another Member State of the European Union or a third State, on the rights and obligations of that participant related to his participation in a Belgian system, are governed exclusively by Belgian law, and in particular by this Act.
§ 2. In the case of a participant under Belgian law to a system governed by the law of another Member State of the European Union or of a third State, the rights and obligations of that participant related to his participation in a foreign system are governed exclusively by the foreign law applicable to the system.
§ 3. Insolvency proceedings within the meaning of this Article shall be defined as any bankruptcy, concordat, moratorium, suspension of payments, and, in general, as any collective measure provided for in the legislation of a Member State or a third State for the purpose of either liquidating a participant or reorganizing it as long as that measure involves the suspension or limitation of all or part of orders of transfer or correlative payments.
CHAPTER VI. - Effectiveness of security rights
Art. 8. § 1^er. Insolvency, as defined in Article 7, § 3, of a participant, of Belgian law or of foreign law to a system or of a consideration of a central bank, as well as any measure of seizure or sequestration against them, may not affect in any way the validity, opposability or preferential realization of the security rights, including any related rights, constituted in favour of another central member State of the framework
§ 2. Where financial instruments, including rights relating to the issuance or restitution of financial instruments held elsewhere, are subject to a security right in favour of participants or a central bank of a Member State of the European Union or the European Central Bank, and that these financial instruments (or rights relating to these instruments) are registered in account, in a register or in a centralized deposit system located in a Member State of the
§ 3. A security right within the meaning of this Article is any guarantee or special privilege relating to cash or financial instruments, any transaction of transfer-retrocession or transfer of property as a guarantee, or any other similar guarantee, organized by Belgian law or by a foreign law, in favour of participants or entered into in favour of a central bank of a Member State of the European Union or the European Central Bank for their operations of central banks with counterparties.
CHAPTER VII
Sustainability of settlement accounts
Art. 9. Any cash settlement account with a manager organization or a system settlement agent may not be seized, sequestered or otherwise blocked by a participant (other than the manager organization or settlement officer), counterparty or third party.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 28 April 1999.
ALBERT
By the King:
Minister of Finance,
J.-J. VISEUR
Seal of the state seal:
Minister of Justice,
T. VAN PARYS
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Note
(1) Session 1998-1999.
House of Representatives.
Bill, 1999 - No. 1. - Report of Mr. Schoeters, 1999 - No. 2. - Text adopted in plenary and transmitted to the Senate, 1999 - No. 3.
Annales of the House. - 30 March and 1^er April 1999.
Senate.
Project transmitted by the House of Representatives, 1-1343/1.