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21 JULY 2016. - An Act to amend the Act of 3 November 2001 on the establishment of the Belgian Investment Corporation for the Developing Countries and to amend the Act of 21 December 1998 establishing the "Belgian Technical Cooperation" in the form of a public law society

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. (new)
In the Act of 3 November 2001 on the establishment of the Belgian Investment Corporation for the Developing Countries and amending the Act of 21 December 1998 establishing the "Belgian Technical Cooperation" in the form of a public law society, it is inserted a Chapter I^erbis entitled "Definitions".
Art. 3. (former art. 2)
In Chapter I^erbis, inserted by article 2, it is inserted an article 1^erbis, as follows:
"Art. 1^erbis. In this Act:
1° "MPME" (Micro-, Petites et Moyennes Entreprises): companies do not reach the limits set by the European Commission regarding annual turnover and total balance sheet (recommendation 2003/361/EC of 6 May 2003);
2° "intervention countries": the developing country, belonging to the following categories as defined by the Development Assistance Committee of the Organisation for Economic Co-operation and Development (OECD):
least developed countries;
- low-income countries;
- middle-income countries, lower;
- middle-income countries;
3° "Technical assistance": all measures designed to strengthen business skills and support their technical, financial, administrative, social, environmental, management and good governance activities. The objective of technical assistance is to transfer knowledge, skills and experiences to businesses to improve their economic, social, environmental and development performance;
4° "feasibility study": the study that examines whether a project is technically feasible and economically cost-effective. The study produces a project in terms of quantified, realistic, measurable and attainable objectives in a given context and identifies the means necessary to achieve them;
5° "intermediate structure": investment funds, holdings or investment companies directed exclusively to enterprises established in the countries of intervention, as well as banking and non-bank financial institutions, such as commercial or cooperative banks, microfinance institutions and banks, leasing companies, factoring companies and insurance companies that offer services to companies and populations in the countries of intervention;
6° "Final Recipient": the company established in the country of intervention that receives the intervention. ".
Art. 4. (former art. 3)
In section 2bis of the Act, subsection 4 is replaced by the following:
§ 4. The Director General of Development Cooperation and Humanitarian Aid represents the Directorate General for Development Cooperation and Humanitarian Aid of the SPF Foreign Affairs, Foreign Trade and Development Cooperation within the Board of Directors. It does not have the right to vote. His remuneration is identical to that of the directors and is dependent on BIO.".
Art. 5. (former art. 4)
Section 3 of the Act is replaced by the following:
"Art. 3. BIO has a social purpose to invest directly or indirectly in the development of:
1° MPME and social economy companies located in the countries of intervention;
2° MME and companies located in the countries of intervention, which contribute either (i) to improving the energy access of companies and the population of the countries of intervention, or (ii) to improving access to digital technologies of companies and the population of the countries of intervention or (iii) that contribute to the fight against climate change in the countries of intervention;
3° MME and enterprises established in countries of active intervention in the production, processing, trade or marketing of agricultural raw materials, agricultural products and food products, thus contributing directly or indirectly to the strengthening of food security in the countries of intervention;
4° MPME and enterprises established in countries of intervention to provide basic services to the population of these countries.
BIO may invest if the interventions referred to in paragraph 1^er, 1° to 4°, meet the following conditions:
1° to contribute to the economic and social progress of the countries of intervention and thus provide a sufficient prospect of development performance;
2° directly or indirectly lead to sustainable productive employment, respecting fundamental social rights as defined by the International Labour Organization conventions;
3° provide a sufficient prospect of performance;
4° be additional.
BIO performs its tasks unrelatedly. Direct or indirect financing is not conditioned by the purchase of goods or services from Belgian companies.
BIO conducts an ambitious policy on equality between men and women, with the aim of achieving a fair distribution of direct or indirect funding granted.".
Art. 6. (former art. 5)
In the same law, an article 3bis is inserted as follows:
"Art. 3bis. In order to achieve its social object, BIO may, under market conditions, undertake the following actions:
1° create foreign companies, alone or jointly with other investors;
2° create a Belgian law management company for the creation of investment funds;
3° directly participate in the capital of Belgian or foreign companies, including the acquisition of subscription rights or other capital convertible financial instruments;
4° grant medium- to long-term financing, in the form of loans or in other forms, such as the subscription of bonds or other debt instruments. Debt may be subordinated or not, with a right of conversion to capital or not, with security rights or not;
5° create or take minority participations in development funds, investment funds, companies or investment holdings under Belgian or foreign law, oriented exclusively to the countries of intervention, provided that the social object of these funds or companies is compatible with its social object. If BIO is the exclusive manager of such development or investment funds, these funds are created in Belgian law;
6° manage or advise the funds or companies referred to in 5° and provide other services in support of the activity of such funds or companies, alone or in partnership, either directly or indirectly through the enterprises it constitutes for that purpose or in which it takes an interest;
7° grant guarantees;
8° to manage, value and liquidate its interests and participations and to participate directly or indirectly in the management, management, control and liquidation of companies, companies and associations;
9° to study, develop and manage projects at the request of third parties;
10° to carry out all industrial, commercial, financial, promotional, securities or real estate necessary or useful for the realization of its social object.".
Art. 7. (former art. 6)
In the same law, an article 3ter is inserted as follows:
"Art. 3ter. § 1^er. BIO provides subsidies to finance business development support programs.
Support programs may include:
1° of training programmes;
2° of technical assistance programmes;
3° feasibility studies;
4° of investment support programs for MMEs that develop pioneering and innovative projects.
Support programmes are intended for the development of the following companies:
1° the enterprises established in the countries of intervention, financed directly or indirectly by BIO, in any form with the exception of a subsidy, provided that this funding is still under way during the allocation of the subsidy;
2° at their request, companies established in the countries of intervention that could benefit, directly or indirectly, from financing by BIO, in any form with the exception of a subsidy, but have not yet received such funding;
3° companies to be established in countries of intervention that may benefit, directly or indirectly, from financing by BIO, in any form with the exception of a subsidy, of which the promoter is a natural or legal person established in a country of intervention.
§ 2. Recipients of subsidies are:
1° the enterprises referred to in paragraph 1^erParagraph 3, 1 and 2;
2° the proponent referred to in paragraph 1^erParagraph 3, 3;
3° the intermediate structures financed by BIO.
§ 3. The maximum amount of the subsidy is set at 350,000 euros per beneficiary.
When the subsidy is intended to fund a feasibility study, the amount referred to in paragraph 1^er is limited to 100,000 euros.
§ 4. Companies referred to in paragraph 1^erparagraph 3, 1 and 2 and the promoter of the enterprises referred to in paragraph 1^er, paragraph 3, 3°, participate in the cost of the support program, in a proportion to be determined by BIO.
When the grant is intended to fund a feasibility study, the funding of BIO is limited to a maximum of 50% of the cost of the support program.
§ 5. The grant of the subsidy is by signing a convention between BIO and the recipient. The subsidy agreement includes:
1° the description of activities;
2° if the recipient is an intermediate structure that is not established in an intervention country, mentioning that the subsidies will be used exclusively for the financing of the enterprise development support programs established in the countries of intervention funded by these intermediate structures;
3° the financing modalities;
4° the reporting obligations, including the justification for the use of the means, the possibilities of control of BIO and the conditions of reimbursement of the subsidy.
§ 6. Subsidies granted by BIO are not subject to the requirement for a return referred to in Article 3, paragraph 2, 3°, and are granted within the limits of the means specifically made available to BIO by the Belgian State. ".
Art. 8. (former art. 7)
In the same Act, an article 3quater is inserted as follows:
"Art. 3quater. § 1^er. BIO implements support programmes in accordance with Article 3ter § 1^er, paragraph 2, for the development of one or more companies referred to in Article 3ter, § 1^er, paragraph 3, either with its own human resources or through the intervention of the experts it mandates.
§ 2. The company or target companies of the support program are specifically identified.
The use of this form of support is duly motivated for each support program.
§ 3. The cost of the support programme supported by BIO is set at a maximum of 350,000 euros per support programme.
When the support program is a feasibility study, the amount referred to in paragraph 1^er is limited to 100,000 euros.
§ 4. The company or target companies of the support program participate in the cost of the support program, in a proportion to be determined by BIO.
When the support program is a feasibility study, the cost supported by BIO is not more than 50% of the cost of the support program.
§ 5. The support programmes supported by BIO are not subject to the requirement for a return referred to in Article 3, paragraph 2, 3°, and are granted within the limits of the means specifically made available to BIO by the Belgian State. ".
Art. 9. (former art. 8)
In the same law, an article 3quinquies is inserted as follows:
"Art. 3quinquies. § 1^er. BIO cannot invest directly or via an intermediate structure, where the final beneficiary of the intervention or the intermediate structure are established in a country referred to in Article 307, § 1^er, paragraph 5, (a), of the Income Tax Code 1992, with the exception of countries of intervention considered by the OECD Global Forum on Transparency and Exchange of Information for Tax Purposes as having not substantially and effectively implemented the OECD Standard for a period of less than five years.
§ 2. BIO cannot invest directly or via an intermediate structure, where the final beneficiary of the intervention or the intermediate structure are established in a country referred to in Article 307, § 1^erParagraph 5 (b) of the Income Tax Code 1992. This list is defined by royal decree deliberated in the Council of Ministers.
§ 3. BIO cannot invest directly or via an intermediate structure, where the final beneficiary of the intervention or the intermediate structure are established in a country that is listed on the list of States that refuse to negotiate and sign an agreement that provides, in accordance with OECD standards, the automatic exchange of tax and banking information with Belgium from 2015. This list is defined by royal decree deliberated in the Council of Ministers.
§ 4. The limitations referred to in paragraphs 1^er to 3 also applies to support programs funded by grants granted by BIO or directly implemented by BIO."
Art. 10. (former art. 9)
Section 7 of the Act is supplemented by two paragraphs:
"BIO annually transmits a report on the rationale for the use of the means specifically available to it to fund programs of support to the member of government who has Development Cooperation in its responsibilities.
The report contains the following data:
1° the assessment of the activities carried out;
2° the financial balance;
3° the evaluation of the development and financial results obtained;
4° any changes to consider the strategy followed in compliance with the management contract.".
Art. 11. (former art. 10)
In the same law, an article 9bis is inserted as follows:
"Art. 9bis. The staff of BIO are contracted in accordance with the Act of 3 July 1978 on labour contracts.
As long as BIO does not have the necessary expertise, it can rely on a third party, with a recognized competence, for the preparation of investment decisions and the monitoring of their implementation. ".
Promulgation of this law, let us order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 21 July 2016.
PHILIPPE
By the King:
Deputy Prime Minister and Minister of Development Cooperation, Digital Agenda, Telecommunications and Post Office,
A. DE CROO
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
House of Representatives
(www.lachambre.be)
Documents: 54 1865
Full report: 14 July 2016.