Machine Translation of "Act To Access To The Activity Of Providing Services To Investment And Status And Control Of The Companies Of Investment ..." (Belgium)

Act To Access To The Activity Of Providing Services To Investment And Status And Control Of The Companies Of Investment Advice And Portfolio Management

Original Language Title: Loi à l'accès à l'activité de prestation de services d'investissement et au statut et au contrôle des sociétés de gestion de portefeuille et de conseil en investissement

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belgiquelex.be - Carrefour Bank of Legislation

25 OCTOBER 2016. - Law on Access to Investment Services Delivery Activity and the Status and Control of Portfolio Management and Investment Consulting Corporations

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
PART 1^er. - Objects and definitions
Article 1^er. § 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
§ 2. This Act provides:
1° access to investment activities and the provision of investment services;
2° the approval procedure, the conditions of approval, the conditions of exercise and the control of portfolio management and investment consulting companies;
3° the investor protection system to which portfolio management and investment consulting companies, the management companies of OPCA and the management companies of collective investment organizations must adhere;
4° access to foreign exchange business.
§ 3. This Act provides for the partial transfer of the following directives:
- Directive 2013/36/EU of the European Parliament and the Council of 26 June 2013 on access to the activity of credit institutions and prudential supervision of credit institutions and investment companies, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC;
- Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on the markets of financial instruments, amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and the Council and repealing Council Directive 93/22/EEC;
- Directive 2011/89/EU of the European Parliament and of the Council of 16 November 2011 amending Directives 98/78/EC, 2002/87/EC, 2006/48/EC and 2009/138/EC with regard to the further monitoring of financial entities of the financial conglomerates;
- Directive 97/9/EC of the European Parliament and the Council of 3 March 1997 on investor compensation systems.
Art. 2. For the purposes of this Act and the decrees and regulations made for its execution, it is necessary to hear:
1° per services and investment activities: any service or activity listed below that relates to financial instruments:
1. the receipt and transmission of orders relating to one or more financial instruments, including the linking of two or more investors thus enabling the realization of an operation between these investors;
2. execution of orders on behalf of clients;
3. negotiation on its own;
4. portfolio management;
5. Investment Board;
6. firm financial instruments and/or the placement of financial instruments with firm commitment;
7. the placement of financial instruments without a firm commitment;
8. the operation of a multilateral trading system (MTF);
2° per auxiliary service: any service listed below:
1. the conservation and administration of financial instruments on behalf of clients, including custody and related services, such as cash and collateral management;
2. the granting of a credit or loan to an investor to enable him to make a transaction on one or more financial instruments, in which the business that grants the credit or loan occurs;
3. consulting companies on capital structure, industrial strategy and related matters; board and services for mergers and corporate redemption;
4. foreign exchange services when these services are related to the provision of investment services;
5. investment research and financial analysis or any other form of general recommendation regarding transactions on financial instruments;
6. services related to a firm catch;
7. those of the aforementioned services and investment activities and auxiliary services that concern the underlying market of derivatives referred to in Article 2, paragraph 1^er1°, (e), (f), (g) and (j), of the Act of 2 August 2002, when related to the provision of investment services or auxiliary services;
3° by financial instrument: instruments defined in Article 2, paragraph 1^er1°, of the law of 2 August 2002;
4° by securities: securities defined in Article 2, paragraph 1^er31° of the Act of 2 August 2002;
5° by instruments of the monetary market: the instruments defined in Article 2, paragraph 1^er32° of the law of 2 August 2002;
6° by execution of orders on behalf of customers: the conclusion of agreements on the purchase or sale of one or more financial instruments on behalf of customers;
7° by negotiation on its own account: negotiating by committing one or more financial instruments to enter into transactions;
8° by portfolio management: discretionary and individualized portfolio management, including one or more financial instruments, within a mandate given by the client;
9° per investment advice: the provision of personalized recommendations to a customer, either at his or her request or at the initiative of the investment company, with respect to one or more transactions involving financial instruments;
10° by a personalized recommendation: a recommendation that is presented as appropriate to that person, or is based on a review of the situation specific to that person, and that recommends that an operation be carried out under the following categories:
- the purchase, sale, subscription, exchange, repayment, detention or firm taking of a particular financial instrument;
- the exercise or non-execution of the right conferred by a particular financial instrument to purchase, sell, subscribe, exchange or repay a financial instrument.
A recommendation is not deemed to be personalized if it is broadcast exclusively by distribution channels within the meaning of section 2, paragraph 1^er26°, of the law of 2 August 2002, or is intended for the public;
11° per client: any natural or legal person to whom an investment company provides investment services and/or auxiliary services;
12° per professional customer: professional customers defined in article 2, paragraph 1^er28° of the law of 2 August 2002;
13° per retail customer: a customer who is not treated as a professional client;
14° by multilateral trading system (Multilateral trading facility - MTF): a multilateral system, operated by an investment company, a credit institution or a market company, which ensures the meeting - within itself and according to non-discretionary rules - of multiple buyer and seller interests expressed by third parties for financial instruments, in a way that leads to the conclusion of contracts in accordance with the provisions of Chapter II of the Act of 2 August 2002/39/
15° by systematic internalizer: an investment company that, in an organized, frequent and systematic way, negotiates on its own behalf by executing orders from customers outside a regulated market or MTF;
16° per market content: a person who is present on a continuous basis in the financial markets to negotiate on their own behalf and who buys and sells financial instruments by initiating their own capital at prices set by it;
17° per Member State: a State Party to the European Economic Area Agreement (EEA);
18° per third country: a State that is not a party to the European Economic Area Agreement;
19° per Member State of origin:
a. if the investment company is a natural person, the member state where its central administration is located;
b. if the investment company is a legal entity, the member state where its statutory seat is located;
c. if, in accordance with its national law, the investment company has no registered office, the member State where its central administration is located;
20° per Member State: the Member State, other than the Member State of origin, in which an investment company has a branch or provides services and/or operates;
21° by competent authority: FSMA, Bank or foreign authorities designated by each Member State in accordance with Article 48 of Directive 2004/39/EC, unless otherwise specified in the Directive;
22° per credit institution: any credit institution referred to in Book II and Title I^er and II of Book III of the Law of 25 April 2014;
23° per collective investment organization management company: a management company within the meaning of Article 3, 12° of the Act of 3 August 2012 on collective investment organizations that meet the requirements of Directive 2009/65/EC and the debt-taking institutions;
24° by manager of OPCA: a manager of alternative collective investment organizations within the meaning of section 3, 13° of the Act of April 19, 2014 on alternative collective investment organizations and their managers;
25° per related agent: any natural or legal person who, under the full and unconditional responsibility of a single investment company on whose behalf it acts, promotes with potential customers or customers of investment services and/or auxiliary services, receives and transmits instructions or orders of customers regarding financial instruments or investment services, places financial instruments and/or provides to customers or customers of services
26° per branch: an operating seat other than the central administration which constitutes a party, without legal personality, of an investment company and which provides investment services and/or carries out investment activities and may also provide the auxiliary services for which it has obtained approval; all operating seats established in the same Member State by an investment company located in another Member State are considered a single branch;
27° by qualified participation: the direct or indirect detention of at least 10 p.c. of the capital of a corporation or of the voting rights attached to the securities issued by that corporation, or any other opportunity to exert a significant influence on the management of the corporation in which an interest is held; the calculation of voting rights is established in accordance with the provisions of the Act of 2 May 2007 on the advertisement of significant participations, as well as those of its enforcement orders; is not taken into account the voting rights or shares held as a result of the firm taking of financial instruments and/or the placement of financial instruments with firm commitment, provided that, on the one hand, these rights are not exercised or otherwise used to intervene in the management of the issuer and that, on the other hand, they are transferred within one year of their acquisition;
28° by the notions of control, participation, link of participation, parent company, subsidiary and related company: the meaning conferred upon them by the decrees of execution of section 55;
29° by close links: a situation in which at least two natural or legal persons are linked by:
(a) a situation in which there is a link of participation or
(b) a situation in which companies are related or
(c) a relationship of the same nature as under (a) and (b) above between a natural person and a legal person;
30° per financial institution: all enterprises referred to in Article 3, 41°, of the Act of 25 April 2014; for the purposes of sections 59 and 60 are equivalent to financial institutions the postal cheque boards, the management companies of OPCA, the management companies of collective investment organizations, the liquidation bodies referred to in section 2, 17°, of the Act of 2 August 2002, as well as the organizations whose activity consists in ensuring, in whole or in part, the operational management of services provided by such liquidation bodies;
31° per market company: one or more persons managing and/or operating the activity of a regulated market; the market company may be the regulated market itself;
32° by regulated market: a multilateral system, exploited and/or managed by a market company, which ensures or facilitates the meeting - within itself and in accordance with its non-discretionary rules - of multiple buyer and seller interests expressed by third parties for financial instruments, in a manner that results in the conclusion of contracts relating to financial instruments admitted to the negotiation within the framework of its rules and/or systems, and that is approved and operates regularly
33° by Directive 2004/39/EC: Directive 2004/39/EC of the European Parliament and the Council of 21 April 2004 on the markets of financial instruments, amending Council Directives 85/611/EEC and Directive 93/6/EEC and Directive 2000/12/EC of the European Parliament and the Council and repealing Council Directive 93/22/EEC;
34° by Directive 2009/65/EC: Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of legislative, regulatory and administrative provisions concerning certain securities collective investment bodies (CSAs) (refonte);
35° by Directive 2009/138/EC: Directive 2009/138/EC of the European Parliament and the Council of 25 November 2009 on access to insurance and reinsurance activities and their exercise (solvency II);
36° by Directive 2011/61/EU: Directive 2011/61/EU of the European Parliament and Council of 8 June 2011 on alternative investment fund managers and amending Directives 2001/41/EC and 2009/65/EC as well as Regulation (EC) No 1060/2009 and (EU) No 1095/2010;
37° by Directive 2013/36/EU: Directive 2013/36/EU of the European Parliament and the Council of 26 June 2013 on access to the activity of credit institutions and prudential supervision of credit institutions and investment companies, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC;
38° by Regulation (EU) No. 1095/2010: Regulation (EU) No. 1095/2010 of the European Parliament and Council of 24 November 2010 establishing a European Supervisory Authority (European Financial Markets Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/77/EC;
39° Regulation (EU) No 575/2013: Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 concerning prudential requirements for credit institutions and investment companies and amending Regulation (EU) No 648/2012;
40° by law of 2 August 2002: the Financial Sector Supervision and Financial Services Act of 2 August 2002;
41° by law of 22 March 2006: the Act of 22 March 2006 on the intermediation of banking and investment services and the distribution of financial instruments;
42° by law of December 21, 2009: the Act of December 21, 2009 relating to the status of payment institutions and electronic currency institutions, access to the activity of payment service provider, electronic currency issuance activity and access to payment systems;
43° by law of 3 August 2012: the Act of 3 August 2012 on collective investment organizations that meet the requirements of Directive 2009/65/EC and debt-referring agencies;
44° by law of April 19, 2014: the Act of April 19, 2014 on alternative collective investment organizations and their managers;
45° by law of 25 April 2014: the Act of 25 April 2014 on the Status and Control of Credit Institutions and Exchange Corporations;
46° by rules of conduct: the rules referred to in articles 27 to 28bis of the Act of 2 August 2002;
47° by Bank: the National Bank of Belgium, referred to in the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium;
48° by FSMA: the Autorité des services et marchés financiers, referred to in Article 44 of the Act of 2 August 2002;
49° by control authority:
- the Bank, if it is the control of the Belgian or foreign exchange companies referred to in Article 1^er§ 3, paragraph 2 of the Act of 25 April 2014;
- FSMA if it is the control of Belgian or foreign portfolio management and investment consulting companies;
50° by consolidated supervisor: the competent authority responsible for the consolidated monitoring of parent investment companies in the European Union and investment companies controlled by parent financial companies in the European Union;
51° by European Financial Markets Authority: the European Financial Markets Authority established by Regulation No. 1095/2010;
52° by European Banking Authority: the European Banking Authority established by Regulation No. 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No. 716/2009/EC and repealing Decision 2009/78/EC of the Commission;
53° by independent control function: the internal audit function, the compliance function or the risk management function referred to in paragraph 2, 4 or 5 of Article 25, § 5, respectively;
54° by foreign portfolio management and investment consultancy companies, foreign investment companies, whether it is the right of a member State or a third country, which are not, in accordance with the law under which they fall, entitled to provide services or to carry out activities reserved under Belgian law to the stock exchange company in accordance with Article 6;
55° by foreign exchange companies, foreign investment companies defined in Article 589 of the Act of 25 April 2014;
56° by Guarantee Fund: the Financial Services Guarantee Fund established pursuant to Article 3 of the Royal Decree of 14 November 2008 implementing the Act of 15 October 2008 on measures to promote financial stability and in particular establishing a State guarantee on the credits granted and other transactions carried out in the context of financial stability, with regard to the protection of deposits, life insurance and capital of cooperative companies amending the law
57° per working day: a day that is neither a Saturday, nor a Sunday, nor a legal holiday.
PART 2. - Access to investment activities and activity
Investment Services Delivery
CHAPTER 1^er. - Scope of application
Art. 3. § 1^er. Without prejudice to the exceptions referred to in Article 4, the provisions of this Title shall apply to Belgian legal enterprises whose usual activity is to provide or offer to third parties one or more professional investment services and/or to carry out one or more investment activities, as well as to foreign companies operating in Belgium.
These companies are referred to as "investment companies".
§ 2. Derogation from paragraph 1^er, the investment service referred to in section 2, 1°, 8, may also be exercised by a market company that organizes a regulated market.
Market companies that intend to provide the investment service referred to in section 2, 1°, 8 must obtain the prior authorization of the MSDS.
FSMA only grants its authorization if it finds that the market company complies with the provisions of sections 498 to 511 of the Act of 25 April 2014.
The market company communicates to the FSMA a program of activities that meet the conditions set by the FSMA in which, among other things, the volume of planned operations as well as the structure of the company's organization and its close ties with other persons are indicated. The market company also discloses to the MSDS all information necessary to assess its application.
FSMA rules within six months of the introduction of a complete file.
Section 519 of the Act of 25 April 2014, and sections 31, 34 and 35, 47 to 53, 56 to 58 and Chapter III of this Title apply by analogy to the market enterprises referred to in paragraph 2.
§ 3. When a market company requests authorization to operate an MTF and the persons who effectively manage the MTF activity are the same as those who actually direct the activity of the regulated market, they are deemed to meet the requirements set out in section 19 of the Act of 25 April 2014.
§ 4. FSMA sets out the list of market enterprises authorized to operate a MTF, indicating the MTFs operated. FSMA publishes this list on its website, as well as the modifications made to it, and transmits it to the European Financial Markets Authority. Section 64 applies by analogy when FSMA finds that it is no longer satisfied with the above-mentioned conditions.
Art. 4. § 1^er. This title is not applicable:
1° to the credit institutions referred to in Book II and Title I^er and II of Book III of the Law of 25 April 2014. Article 9, §§ 1^er3 and 4 are nevertheless applicable to these establishments;
2° to insurance companies or companies engaged in reinsurance and reinsurance activities referred to in Directive 2009/138/EC when carrying out the activities referred to in the Directive;
3° to companies that provide a service or investment activity exclusively to their parent company, their subsidiaries or another subsidiary of their parent company;
4° to persons who provide an investment service or activity if this activity is carried out in an incidental manner in the context of a professional activity, and if the activity is governed by legal or regulatory provisions or by a code of ethics governing the profession and that the activity does not exclude the provision of that service or activity;
5° to persons who do not provide any services or investment activity other than negotiation for their own account unless they are market content or systematic internalizer;
6° to companies whose services and investment activities consist exclusively of the management of a system of participation of workers;
7° to companies whose services and investment activities consist of the provision of both the services and activities referred to in the 3° and those referred to in the 6°;
8° to members of the European system of central banks, other similar national bodies, or other public bodies responsible for the management of public debt;
9° to collective investment organizations and pension funds, whether or not they are coordinated at the community level, or to the depositaries and managers of these organizations;
10° to persons negotiating financial instruments on their own account or providing investment services on raw materials derivatives or derivative contracts referred to in Article 2, paragraph 1^er, 1°, j), from the Act of 2 August 2002 to customers of their main activity provided that these benefits are incidental to their main activity, when this main activity is considered at the group level, and that it does not consist in the provision of investment services within the meaning of section 2 or banking services within the meaning of the Act of 25 April 2014;
11° to persons providing investment advice in the course of another professional activity that is not covered by this Act provided that the provision of such advice is not specifically paid;
12° to persons whose main activity is to negotiate on their own behalf raw materials and/or derivatives on these materials. This exception does not apply where persons trading on their own account of raw materials and/or raw materials derivatives are part of a group whose main activity is the provision of investment services within the meaning of this Act or banking services within the meaning of the Act of 25 April 2014;
13° to companies whose services and/or investment activities consist exclusively of negotiating for their own account on markets of financial instruments for term or options or other derivative markets and on markets of underlying financial instruments only for the purpose of covering positions in derivative markets, or that negotiate or train prices on behalf of other members of these contracts and are then covered by the guarantee
§ 2. The rights conferred in this title do not extend to the provision of services as counterparts in transactions carried out by public bodies responsible for the management of public debt or by members of the European system of central banks, as part of the tasks assigned to them by the Treaty establishing the European Union and by the statutes of the European system of central banks and the European Central Bank.
Art. 5. The King may, on the advice of the Bank and FSMA, establish rules relating to the status and control of the enterprises referred to in Article 4, § 1^er13°.
CHAPTER 2. - Belgian law investment companies
Art. 6. § 1^er. Belgian law investment companies are required, before starting their operations, to obtain from the supervisory authority one of the following approvals, regardless of the location of their activities:
1° Accreditation as a scholarship corporation;
2° Accreditation as a portfolio management and investment consulting company.
§ 2. Without prejudice to the capital provisions, approval as a stock exchange corporation may cover all investment services, investment activities and auxiliary services referred to in section 2.
§ 3. Accreditation as a portfolio management and investment consulting company may only cover the investment services referred to in section 2, 1°, 1, 2, 4, and 5, as well as the auxiliary services referred to in section 2, 2°, 3, 5 and 7.
In order to invest their own funds, they may hold positions outside the negotiating portfolio relating to financial instruments.
§ 4. It cannot be issued as an investment company for the sole provision of auxiliary services.
§ 5. Accreditation as a scholarship corporation is issued by the Bank in accordance with the terms and conditions set out in sections 492 to 496 of the Act of 25 April 2014.
The Bank shall decide on the application for approval on the advice of FSMA pursuant to section 494 of the Act of 25 April 2014.
Accreditation as a portfolio management and investment consulting company is issued by the FSMA in accordance with the terms and conditions set out in Title III.
Art. 7. The control authorities establish a list of the investment companies authorized under this section. They publish this list in a concerted manner and any changes made to it on their website. FSMA notifies the list and its amendments to the European Financial Markets Authority.
The list of Belgian investment companies includes the following entries:
a. scholarships;
b. portfolio management and investment consulting companies.
The list mentions investment services and auxiliary services that investment companies are allowed to provide.
The list also mentions whether the stock exchange company has the authority to intervene as a depositary for financial instruments of insurance companies, for collective investment organizations and for credit institutions when they act on behalf of their clients, being the activity referred to in Article 499, § 2, of the law of April 25, 2014.
The list may include sub-rubbly and may include other services.
To the list is annexed the mention of the Belgian financial companies defined in Article 59, § 1^erTwo.
Art. 8. When an approval is granted to a Belgian legal investment company that is a direct or indirect subsidiary of one or more parent companies that fall under the law of one or more third countries, the notification to the European Financial Markets Authority refers to the identity of that or those parent companies and, if applicable, indicates the financial structure of the group that controls the investment company to which the approval is granted. FSMA also informs the supervisory authorities of other Member States of the granting of such approval.
FSMA shall provide the same information to the European Financial Markets Authority and to the European Commission, at their request, when FSMA or the Bank is seized with an application for the approval of a Belgian legal investment company meeting the conditions set out in paragraph 1^erin the cases referred to in Article 15, paragraphs 2 and 3, of Directive 2004/39/EC.
In the cases referred to in Article 15, § 3, paragraphs 2 and 3, of the same directive, FSMA limits or suspends its decisions for the approval of portfolio management and investment consulting companies referred to in paragraph 1^er and this in the manner and for the duration fixed by the Council of the European Union or the European Commission pursuant to these provisions.
Art. 9. § 1^er. Belgian investment companies, credit institutions and foreign investment companies operating in Belgium under articles 10 to 14 are only allowed to make public use in Belgium of the term "investment company", in particular in their name, in the designation of their social object, in their titles, effects or documents or in their advertising.
§ 2. Scholarship companies and foreign investment companies operating in Belgium under articles 10 to 14 and whose accreditation covers the investment service referred to in Article 2, 1°, 3, 6, 7 or 8 are only authorized to make public use in Belgium of the term "sale corporation", in particular in their name, in the designation of their social object, in their titles, effects or documents or in their advertising.
§ 3. Portfolio management and investment consulting companies, stock exchange companies and credit institutions, as well as foreign investment companies operating in Belgium under Articles 10 to 14 and whose accreditation covers the investment service referred to in Article 2, 1°, 4, are only allowed to make public use in Belgium of the terms "manager of fortune" and "management of fortune" or any other term referred to in that activity, in particular in their name
§ 4. The following companies and institutions are only authorized to make publicly use in Belgium terms "Invest advisor", "Invest advisor", or any other term referring to this activity, in particular in their name, in the designation of their social object, in their titles, effects or documents or in their advertising:
(a) portfolio management and investment consulting companies;
(b) scholarships;
(c) credit institutions;
(d) foreign investment companies operating in Belgium under sections 10 to 14 of this Act and whose approval covers the investment service referred to in section 2, 1°, 5;
(e) brokers in banking and investment services covered by the Act of 22 March 2006.
CHAPTER 3. - Foreign investment companies
Section 1^re. - branches and service delivery activities in Belgium of investment companies under the law of another Member State
Art. 10. § 1^er. Investment companies under the law of another Member State, which are empowered under their national right to provide investment services in their Member State of origin and/or to carry out investment activities therein and to provide auxiliary services, may, by way of establishment of branches, begin to presume these services in Belgium as soon as the supervisory authority has notified them of their registration as European Investment Areas branches.
Auxiliary services can only be provided jointly to an investment service and/or an investment activity.
§ 2. Registration of branches of foreign exchange companies under the law of another Member State referred to in paragraph 1^er, is notified to these companies by the Bank in accordance with Article 590 of the Act of 25 April 2014.
FSMA is promptly informed of the Bank's notifications of branch registration.
§ 3. Registration of foreign portfolio management and investment consulting companies under the law of another Member State referred to in paragraph 1^er, is notified to these companies by FSMA by registered letter to the post or with acknowledgement of receipt.
This notification must take place no later than two months after the inspection authorities of the investment companies of the member State of origin of the investment management and consulting company have communicated the information package required by the provisions of European law. In the absence of notification within the time limit, the company may open the branch and commence the above activities. She informs the FSMA.
§ 4. FSMA sets out the list of registered branches and publishes it on its website, as well as any changes made during the year. The Bank also publishes on its website a list of branches under its competence.
Art. 11. Investment enterprises under the law of another Member State, which are empowered under their national right to provide investment services in their Member State of origin and/or to carry out investment activities and to provide them with auxiliary services, may commence these activities in Belgium under the regime of the free provision of services as soon as the competent authority of the Member State of origin has communicated to the European FSMA the notification required by the provisions.
This notification must include the business program of the investment company, mentioning the services and/or investment activities and the auxiliary services it intends to provide or exercise. The notification must also specify whether the investment company plans, within the framework of the free movement of services in Belgium, to use related agents.
Auxiliary services can only be provided jointly to an investment service and/or an investment activity.
FSMA sets out the list of investment companies under the law of another Member State that notified their intention to provide in Belgium the investment services referred to in Article 2, 1°, and to carry out the investment activities referred to in the same Article. FSMA publishes this list on its website, as well as any changes made during the year. The Bank also publishes on its website the list of investment companies under its competence.
FSMA requests the competent authority of the Member State of origin to communicate to it the identity of the related agents to which the investment company intends to resort. FSMA publishes this information on its website.
Section 2. - branches and service delivery activities in Belgium of investment companies not subject to Directive 2004/39/EC
Art. 12. Articles 10 and 11 do not apply to investment companies under the law of another Member State that do not fall within the scope of Directive 2004/39/EC of the European Parliament and the Council under Article 2, § 1^er, (m) and (n), and Article 3 of this directive.
The branches and service delivery activities in Belgium of these companies are subject to the provisions of sections 3 and 4.
Section 3. - branches in Belgium of companies
of Third Country Law Investment
Art. 13. § 1^er. Investment companies under the law of a third country that intend to offer or provide investment services and/or to carry out investment activities in Belgium, through the installation of branches, must first be accredited by the supervisory authority.
§ 2. Third-country foreign exchange companies must obtain their approval from the Bank in accordance with section 603 of the Act of 25 April 2014.
Branches of foreign portfolio management and investment consulting firms under the law of a third country must obtain their approval from the ADMSP in accordance with the terms and conditions set out in section 84.
§ 3. FSMA sets out the list of authorized branches and publishes it on its website, as well as any changes made during the year. The Bank also publishes on its website a list of branches under its competence.
Section 4. - Service delivery activities in Belgium
third country investment companies
Art. 14. § 1^er. Investment companies that fall under the law of a third country and effectively provide investment services in their home state can offer or provide these services in Belgium, without being established, to the following investors:
(a) the State, the Regions and the Communities;
(b) the European Central Bank, the National Bank of Belgium, the Rent Fund, the Fund for the Protection of Deposits and Financial Instruments, the Guarantee Fund for Financial Services and the Caisse des Dépôts et Consignations;
(c) Belgian and foreign credit institutions referred to in Article 1^er§ 3 of the Act of 25 April 2014;
(d) Belgian and foreign investment companies whose usual activity is to provide investment services in a professional capacity within the meaning of Article 2, 1°;
(e) the collective investment bodies referred to in Book II of Part 2 of the Act of 3 August 2012;
(f) insurance and reinsurance companies and organizations as defined in sections 5, 1 and 2 of the Act of March 13, 2016 relating to the status and control of insurance or reinsurance companies;
(g) foreign insurance companies and foreign pension funds that do not operate in Belgium;
(h) companies whose financial instruments are admitted to a regulated market or to another foreign market, of regular operation, recognized and accessible to the public, and whose consolidated equity is at least EUR 25.000.000;
(i) persons established in Belgium who have the nationality of the State of origin of the investment enterprise concerned or of a State in which this investment company has established a branch, provided that, with regard to the investment services offered or provided in Belgium, the investment company is subject, in its State of origin or in the State of location concerned, to a control equivalent to that to which the investment companies are subject.
§ 2. Companies referred to in paragraph 1^er must be made known beforehand to the FSMA, specifying the investment services they plan to provide and the categories of investors to which they intend to provide these services.
FSMA can prohibit the provision of services in Belgium to a company under the law of a State that does not provide the same opportunities for access to its market to Belgian legal investment companies.
§ 3. FSMA sets out annually the list of investment companies referred to in this section that provide in Belgium the services referred to in Article 2, 1°, of the law. FSMA publishes this list on its website, as well as any changes made during the year. The Bank also publishes on its website the list of investment companies under its competence.
CHAPTER 4. - Collaboration between supervisory authorities
Art. 15. In order to ensure effective and coordinated control of investment companies, the Bank and FSMA conclude a protocol, which they publish on their respective website.
This protocol sets out the modalities for collaboration between the Bank and FSMA in all cases where the law provides for a notice, consultation, information or other contact between the two institutions, as well as in cases where a dialogue between the two institutions is necessary to ensure uniform enforcement of the legislation.
PART 3. - Status and control of management companies
portfolio and investment advice
CHAPTER 1^er. - Portfolio management and consulting companies
in investment in Belgian law
Section 1^re. - Accreditation procedure
Art. 16. Accreditation as a portfolio management and investment consulting company is issued by the FSMA.
Applicants indicate the investment services and activities and/or auxiliary services referred to in section 2, which they intend to provide. They specify the financial instruments for these services and activities. The application for approval is accompanied by a program of activities that meet the conditions set out by the MSDS in which, inter alia, the volume of the planned operations as well as the structure of the company's organization and its close links with other persons are indicated. Applicants must provide any information necessary to assess their application.
Paragraph 2 also applies to applications filed by already approved portfolio management and investment consulting companies that wish to provide additional services and activities referred to in section 2, not covered by their approval. Sections 7 and 17 to 19 are applicable.
Art. 17. When the credit is sought by a portfolio management and investment consulting company that is either the subsidiary of a stock exchange company, a credit institution, an insurance company or a reinsurance company of Belgian law, or the subsidiary of the parent company of a stock exchange company, a credit institution, an insurance company or a reinsurance company of Belgian law,
ACOs are to be credited to a corporation other than a member of a corporation,
Similarly, FSMA consults with the Bank or supervisory authorities referred to in paragraph 2 for the purpose of assessing the required qualities of shareholders and directors in accordance with sections 22 and 23, where the shareholder is a business referred, as the case may be, to paragraph 1^er or 2, and that the person participating in the management of the Portfolio Management and Investment Consulting Corporation shall also take part in the direction of one of the companies referred to, as the case may be, in paragraph 1^er or two. These authorities shall provide each other with any information relevant to the assessment of the qualifications required of the shareholders and persons participating in the management referred to in this paragraph.
Art. 18. FSMA grants the solicited approval to portfolio management and investment consulting companies that meet the requirements set out in section II. She decides on the application within six months of the introduction of a complete file.
Accreditation decisions refer to investment services and activities as well as auxiliary services, as well as to the portfolio management and investment consulting company, are authorized to provide.
Approval decisions are notified to applicants within 15 days by registered letter to the position or with acknowledgement of receipt.
Art. 19. With a view to sound and prudent management of the portfolio management and investment consulting company, the ADMSP may limit the approval of the portfolio management and investment consulting company to certain services or activities or financial instruments, as well as may include the approval of conditions for the provision of certain services or activities or related to certain financial instruments.
Section 2. - Conditions of licence
Sub-section 1^re. - Form
Art. 20. Portfolio management and investment consulting companies under Belgian law must be incorporated in the form of a commercial corporation, with the exception of the form of a limited liability private corporation constituted by a single person.
Sub-section 2. - Initial capital
Art. 21. § 1^er. Accreditation as a portfolio management and investment consulting company is subject to the existence of a capital entirely released up to EUR 125,000.
§ 2. In the event of the pre-existence of the applicant company of the approval as a portfolio management and investment consulting company, the emission premiums, the reserves and the deferred result are, for the purposes of § 1^er, assimilated to capital.
Subsection 3. - Holders of capital
Art. 22. Accreditation is subject to the communication to the MSDS of the identity of natural or legal persons who, directly or indirectly, acting alone or in conjunction with others, hold in the capital of the portfolio management and investment consulting company qualified participation. The communication must include the indication of the quotities of capital and voting rights held by those persons.
Accreditation is denied if the MSDS has reasons to consider that the natural or legal persons referred to in paragraph 1^er do not present the qualities necessary to ensure sound and prudent management of the portfolio management and investment consulting company.
Where there is close ties between the Portfolio Management and Investment Consulting Corporation and other natural or legal persons, approval is granted only if these ties do not prevent MSDS from effectively exercising its prudential functions.
FSMA refuses approval if the legislative, regulatory or administrative provisions of a third country applicable to one or more natural or legal persons with whom the investment management and consulting company has close ties, or difficulties related to the application of these provisions, prevent it from effectively exercising its prudential functions.
Sub-section 4. - Leaders
Art. 23. § 1^er. Members of the legal board of directors of portfolio management and investment consulting companies, those responsible for the effective management, if any, the members of the steering committee, as well as those responsible for independent oversight functions are exclusively natural persons.
Persons referred to in paragraph 1^er must always have the necessary professional honesty and expertise to exercise their function.
§ 2. The effective management of portfolio management and investment consulting companies must be entrusted to at least two natural persons.
§ 3. The FSMA denies approval if it is not convinced that individuals who will effectively lead the activity of the portfolio management and investment consulting company enjoy sufficient professional honourability and expertise or if there are objective and demonstrable reasons to estimate that the proposed change in management would compromise the sound and prudent management of the portfolio management and investment consulting company.
Art. 24. Section 20 of the Act of 25 April 2014 is applicable.
Subsection 5. - Organization
Art. 25. § 1^er. Portfolio management and investment consulting companies must have a management structure, an administrative and accounting organization, monitoring and security mechanisms in the IT field and an internal control, appropriate to the activities they operate or intend to operate.
They take into account the nature, volume and complexity of these activities and the risks associated with them.
§ 2. Portfolio management and investment consulting companies must have an adequate management structure, including a coherent and transparent organizational structure that provides adequate segregation of functions; a well-defined, transparent and consistent accountability framework; adequate procedures for the identification, measurement, management, monitoring and internal reporting of significant risks incurred by the portfolio management and investment consulting company as a result of its activities or plans to exercise; compensation policies and practices enabling and promoting sound and effective risk management.
§ 3. Portfolio management and investment consulting companies are an audit committee within their legal board of directors. The audit committee is composed of non-executive members of the legal administrative body. At least one member of the audit committee is an independent member of the administrative body within the meaning of section 526ter of the Corporate Code and is competent in accounting and/or auditing. In addition, members of the audit committee have a collective competence in the area of the activities of the relevant portfolio management and investment consulting company and in accounting and auditing.
The annual report of the legal body of administration justifies the individual and collective competence of the members of the audit committee.
Exempt from the requirement to establish an audit committee for portfolio management and investment consulting companies meeting at least two of the following three criteria:
(a) average number of employees less than 250 people over the entire year concerned,
(b) total balance sheet less than or equal to 43.000.000 euros,
(c) annual net turnover less than or equal to 50.000.000 euros.
As long as an audit committee whose powers extend to the whole group and meeting the requirements of this Act has been established, the ADMSP may, in respect of portfolio management and investment consulting companies that are subsidiaries or subsidiaries of a joint financial company, an insurance company, a financial company, a credit institution, a stock exchange corporation, FSMA makes its policy of public derogation.
The above provisions do not prejudice the provisions of the Corporate Code relating to the Board of Audit of listed companies within the meaning of section 4 of this Code.
§ 4. Portfolio management and investment consulting companies are a compensation committee within their legal board of directors. The compensation committee is composed of non-executive members of the legal body of administration. At least one member of the compensation committee is an independent member of the legal body of administration within the meaning of section 526ter of the Corporate Code. The compensation committee is composed in such a way that it can exercise a competent and independent judgment on compensation policies and practices and on incentives created for risk management, equity and liquidity.
The annual report of the legal body of administration justifies the required individual and collective expertise of the members of the compensation committee.
Exempt from the requirement to have a compensation committee for portfolio management and investment consulting companies that are not of significant importance because of their internal organization or because of the nature, scope and complexity of their activities and that meet at least two of the following three criteria:
(a) average number of employees less than 250 people over the entire year concerned;
(b) total balance sheet less than or equal to 43.000.000 euros;
(c) annual net turnover less than or equal to 50.000.000 euros.
As long as a compensation committee whose powers extend to the whole group and meeting the requirements of this Act has been established, the ADMSP may, in respect of portfolio management and investment consulting companies that are subsidiaries or subsidiaries of a joint financial company, an insurance company, a financial company, a credit institution, a stock exchange corporation,
The above provisions do not prejudice the provisions of the Corporations Code relating to the compensation committee of companies whose shares are admitted to trading in a market referred to in Article 4 of the Code.
§ 5. Portfolio management and investment consulting companies must organize adequate internal control, which is evaluated at least once a year. With regard to their administrative and accounting organization, they must organize an internal control system that provides a reasonable degree of certainty as to the reliability of the financial reporting process, so that the annual accounts are consistent with the existing accounting regulations.
Portfolio management and investment consulting companies take the necessary steps to be able to have an adequate internal audit function on an ongoing basis.
Portfolio management and investment consulting companies develop an adequate integrity policy, which is regularly updated.
Without prejudice to section 87bis of the Act of 2 August 2002, they shall take the necessary measures to be able to have an adequate independent compliance function permanently, in order to ensure the company's compliance with its directors, directors, effective officers, employees and agents, rules of law relating to the integrity of the activity of portfolio management and investment consulting firm.
Portfolio management and investment consulting companies must have an adequate independent risk management function.
§ 6. FSMA may, without prejudice to the provisions of §§ 1^er 5, specify what should be heard by appropriate management structure, adequate internal control, adequate independent audit function, adequate risk management function and adequate independent compliance function, and develop more precise rules in accordance with European legislation.
§ 7. Without prejudice to the powers vested in the legal body of administration with respect to the determination of general policy, as provided for in the Code of Companies, persons responsible for the effective management of the investment management and consulting company, if any the steering committee, shall take, under the supervision of the legal body of administration, the necessary measures to ensure compliance with the provisions of § 1^er 5.
Without prejudice to the legal duties of the legal body of administration, the audit committee is at least responsible for the following tasks:
(a) follow-up to the financial information development process;
(b) monitoring the effectiveness of internal control and enterprise risk management systems;
(c) monitoring the internal audit and its activities;
(d) Monitoring of the legal control of annual accounts and consolidated accounts.
The audit committee shall report regularly to the legal body of administration on the exercise of its duties, at least at the time of the establishment by it of the annual and consolidated accounts and the periodic reports referred to in section 55, respectively transmitted by the portfolio management and investment consulting company at the end of the social year and at the end of the first social semester.
The MSDS may specify and supplement, on technical points, the items listed in the list reproduced above, by regulation made in accordance with section 64 of the Act of 2 August 2002.
The Compensation Committee is responsible for the preparation of compensation decisions, including those that have an impact on risk and risk management in the Portfolio Management and Consulting Investment Corporation and that the management body is called to stop in the exercise of its oversight function. In preparing these decisions, the Compensation Committee shall take into account the long-term interests of shareholders, investors and other stakeholders of the Portfolio Management and Investment Consulting Corporation.
The legal body of administration of the portfolio management and investment consulting company must control at least once a year, if applicable through the audit committee, if the company complies with the provisions of § 1^er to 5 and paragraph 1^er and takes note of the appropriate measures taken.
Effective management, where appropriate, the steering committee, shall report at least once a year to the legal board of directors and to the FSMA on compliance with the provisions of paragraph 1^er and on the appropriate measures taken.
This information is transmitted to FSMA in the manner it determines.
§ 8. If there are close ties between the Portfolio Management and Investment Consulting Corporation and other natural or legal persons, these links cannot hinder the exercise of individual or consolidated prudential control of the company.
If the Portfolio Management and Investment Consulting Corporation has close ties with a natural or legal person under the law of a third country, the legislative, regulatory and administrative provisions applicable to that person or their implementation cannot hinder the exercise of an individual or consolidated prudential control of the company.
Art. 26. § 1^er. Portfolio management and investment consulting companies put in place appropriate policies and procedures to ensure compliance by the company with its directors, effective managers, employees, related agents and agents with legal provisions relating to investment services and activities.
They shall develop appropriate rules for personal, direct and indirect transactions made on financial instruments by persons referred to in paragraph 1^er.
The King, on the advice of FSMA, specifies the rules and obligations in this regard. These rules and obligations may include:
- the persons concerned to whom these rules and obligations are applicable;
- personal transactions that are deemed to be contrary to the law;
- the terms under which the persons concerned are required to notify their personal transactions to the portfolio management and investment consulting company;
- how portfolio management and investment consulting companies must maintain a record of personal transactions.
§ 2. Portfolio management and investment consulting companies are taking appropriate organizational and administrative measures to prevent conflicts of interest relating to investment services and activities that occur between the company, its directors, actual executives, its employees and agents, or any business that is related to it, on the one hand, and its clients, on the other, or among its clients, does not affect the interests of the latter.
The King, on the advice of FSMA, specifies the rules and obligations in this regard. These rules and obligations may include organizational rules to be followed in order to prevent conflicts of interest, as well as when the portfolio management and investment consulting company produces and disseminates investment research.
§ 3. Portfolio management and investment consulting companies take appropriate measures to ensure continuity of their investment services and activities.
§ 4. When a portfolio management and investment consulting company entrusts a third party with the execution of essential operational tasks to ensure the provision of its investment services and the performance of its investment activities in a continuous and satisfactory manner, it shall take appropriate measures to limit the operational risk associated with it.
Externalization referred to in paragraph 1^er cannot be carried out in a manner that significantly affects the adequacy of the company's internal control procedures and prevents MSDS from controlling whether the company complies with its legal obligations.
FSMA publishes, a communication in which it sets out the policy it follows with respect to the outsourcing of portfolio management services provided to retail customers. This statement is made public on its website.
§ 5. Portfolio management and investment consulting companies retain a record of any provided investment services and any investment activity carried out, in order to allow the ADMSP to verify whether the business complies with the provisions of this Act and, in particular, whether it meets its obligations with respect to its potential customers or customers.
§ 6. The persons responsible for the effective management of the investment management and consulting company, if any the steering committee, shall take, under the supervision of the legal body of administration of the enterprise, the necessary measures to ensure compliance with the provisions of §§ 1^er 5. The legal body of administration must control at least once a year, if any through the audit committee, if the portfolio management and investment consulting company complies with the provisions of the above paragraphs, and it is aware of the appropriate measures taken.
Effective management, where appropriate, the steering committee, shall report at least once a year to the legal board of directors and to the FSMA on compliance with the provisions of paragraph 1^er and on the appropriate measures taken.
This information is transmitted to FSMA in the manner it determines.
§ 7. FSMA may specify the provisions of this article by regulation made pursuant to articles 49, § 3, and 64 of the Act of 2 August 2002.
Art. 27. § 1^er. The FSMA determines the minimum information that portfolio management and investment consulting companies must publish in respect of creditworthiness, liquidity, risk concentration and other risk positions, their own fund requirements policy by reference to the requirements of section 54 and their compensation policy referred to in section 25, § 2, in fine. It also defines the minimum frequency and modalities for the publication of this information.
§ 2. Portfolio management and investment consulting companies provide the necessary rules and procedures to comply with the publication requirements set out in § 1^er. They assess the adequacy of their publication measures, including the control of published data and the frequency of publication.
§ 3. Portfolio management and investment consulting companies provide the necessary rules and procedures to assess whether the information they publish on their organization, their financial situation and the state of their risks provides market players with complete information on their risk profile.
§ 4. The regulations referred to in this section are made in accordance with section 64 of the Act of 2 August 2002.
§ 5. FSMA may, in special cases, authorize, within the limits of European legislation, exemptions from the provisions of the regulations made under this article.
Sub-section 6. - Central Administration
Art. 28. The central administration of a portfolio management and investment consulting company must be established in Belgium.
Sub-section 7. - Investor protection
Art. 29. Portfolio management and investment consulting companies must adhere to the investor protection system under V.
Section 3. - Conditions of activity
Sub-section 1^re. - Minimum equity funds
Art. 30. § 1^er. The equity of portfolio management and investment consulting companies cannot be less than the initial capital amount determined in accordance with section 21.
In cooperative companies, the reimbursement of shares may not be made if the result would be that the company would no longer meet the equity coefficients established under section 54.
§ 2. Where the equity no longer reaches the amounts set out in § 1^er, the ADMSP may set a time limit in which they must return to these amounts.
Sub-section 2. - Changes in capital structure
Art. 31. § 1^er. Without prejudice to Article 59 and to the Act of 2 May 2007 on the advertisement of significant participations, any natural or legal person acting alone or in conjunction with others, who has made the decision either to acquire, directly or indirectly, a qualified interest in a company of portfolio management and board of investment of Belgian law, or to carry out, directly or indirectly, an increase of that qualified interest in a company of portfolio management and investment consulting
§ 2. Severely, and in any event within two working days after receipt of the notification and complete information referred to in paragraph 1^er, and after the eventual subsequent receipt of the information referred to in paragraph 3, the MSDS shall acknowledge receipt in writing to the recipient candidate. The acknowledgement of receipt indicates the expiry date of the assessment period.
The assessment period available to the MSDS to conduct the assessment referred to in paragraph 3 shall not exceed sixty working days from the date of receipt of the notification and all required documents with the notification on the basis of the list referred to in paragraph 3, paragraph 3.
FSMA may, during the evaluation period, no later than the fiftieth working day of the evaluation period, request additional information to complete its evaluation. This request is made in writing and specifies the necessary additional information.
During the period between the date of the request for information by the MSDS and the receipt of a response from the applicant to that request, the assessment period is suspended. This suspension cannot exceed twenty working days. ADMF may make, beyond the specified deadline date in accordance with the preceding paragraph, other requests to collect additional information or clarifications, but these requests do not, however, result in a suspension of the assessment period.
The MSDS may carry the suspension referred to in paragraph 4, to thirty business days:
(a) if the recipient candidate is established outside the European Economic Area or is subject to non-community regulation; or
(b) if the acquirer candidate is a natural or legal person who is not subject to monitoring under Directive 2013/36/EU, Directive 2009/65/EC, Directive 2011/61/EU, Regulation (EC) No. 1060/2009 of the European Parliament and Council of 16 September 2009 on credit rating agencies and (EU) No. 1095/2010, Directive 2009/138/EC, or Directive 2004/39/EC, or Directive 2004/31/EC
§ 3. The ADMSP may, within the course of the assessment period referred to in paragraph 2, object to the completion of the acquisition if it has reasonable grounds to consider, on the basis of the criteria set out in paragraph 2, that the acquirer candidate does not present the qualities necessary to ensure the sound and prudent management of the investment management and consulting company or if the information provided by the purchaser candidate is unsatisfactory.
By assessing the notification and information referred to in paragraph 1^er, and additional information referred to in paragraph 2, the ADMSP appreciates, in order to ensure sound and prudent management of the portfolio management and investment consulting company under the proposed acquisition and taking into account the likely influence of the prospective purchaser candidate on the portfolio management and investment consulting company, the appropriate character of the acquirer candidate and the financial strength of the proposed acquisition by applying the following criteria:
(a) the reputation of the acquirer candidate;
(b) the accountability and expertise of any person referred to in section 23 who will manage the activities of the Portfolio Management and Investment Consulting Corporation as a result of the proposed acquisition;
(c) the financial strength of the prospective purchaser, particularly in the light of the type of activities carried out and envisaged in the portfolio management and investment advisory corporation under the proposed acquisition;
(d) the ability of the Portfolio Management and Investment Consulting Corporation to meet and continue to meet the prudential obligations arising out of this Act and the decisions taken pursuant to it, in particular whether the group to which it belongs has a structure that allows for effective monitoring, to effectively exchange information between the competent authorities and to determine the sharing of responsibilities between the competent authorities;
(e) the existence of reasonable grounds to suspect that an operation or attempt to laundering capital or financing terrorism within the meaning of section 1^er the Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or the financing of terrorism is in progress or has taken place in relation to the intended acquisition, or that the proposed acquisition may increase the risk.
The MSDS publishes on its website a list specifying the relevant information, proportionate and appropriate to the nature of the acquirer candidate and the intended acquisition, which are necessary to carry out the evaluation and to be communicated to it at the time of notification referred to in paragraph 1^er.
If the MSDS decides, at the end of the evaluation, to oppose the proposed acquisition, it shall notify the applicant in writing, within two working days and without exceeding the assessment period. An appropriate statement of the reasons for the decision may be made available to the public at the request of the applicant.
If, at the end of the evaluation period, the ADMDS did not object to the proposed acquisition, it is deemed to be approved.
The MSDS may set a maximum time limit for the conclusion of the proposed acquisition and, if necessary, extend it.
§ 4. FSMA shall conduct the assessment referred to in paragraph 3 in full consultation with any other competent authority concerned or, as the case may be, with the Bank, if the applicant acquires:
(a) a credit institution, a stock exchange corporation, an insurance company, a reinsurance company, an investment company, an OPCA manager or a collective investment organization management company approved by the Bank or by a competent authority in another Member State; or
(b) the parent company of one of the companies with one of the qualities referred to in (a); or
(c) a natural or legal person controlling one of the enterprises referred to in (a).
In the cases referred to in the preceding paragraph, any MSDS decision shall mention any notices or reservations made by the competent authority responsible for the applicant acquirer or, as the case may be, by the Bank.
Where the prudential evaluation of a planned acquisition is within the competences of the control authority of credit institutions, insurance companies, reinsurance companies, investment companies, ACOA managers or collective investment management companies of another Member State, or the Bank's competencies, the ADMSP shall exchange, as soon as possible, with that authority or with the Bank any essential or relevant information. In this context, the Commission shall provide, upon request, any relevant information and, on its own initiative, any essential information.
§ 5. Any natural or legal person who has made the decision to cease holding, directly or indirectly, qualified participation in a portfolio management and investment consulting company shall notify the investment management company in writing prior to the ADMSP and shall communicate the proposed amount of its participation. Such a person shall also notify the FSMA of its decision to reduce its qualified participation in such a way that the proportion of voting rights or shares of held capital falls below the thresholds of 20%, 30% or 50%, or that the portfolio and investment consulting company ceases to be its subsidiary.
§ 6. In the event of forbearance to make the prior notifications prescribed by paragraph 1^er or paragraph 5, or in the event of an acquisition or increase of an interest despite the opposition of the MSDS referred to in paragraph 3, the President of the Commercial Court in whose jurisdiction the Portfolio Management and Investment Consulting Company shall have its seat, as determined by reference, may take the measures referred to in 516, § 1^er, the Corporate Code, as well as the cancellation of all or part of the general assembly proceedings held in the above cases.
The procedure is initiated by a quotation from FSMA.
Article 516, § 3, of the Corporate Code is applicable.
§ 7. Without prejudice to Article 59 and to the Act of 2 May 2007 relating to the advertising of important participations, any natural or legal person acting alone or in conjunction with others, who has acquired, directly or indirectly, an interest in a portfolio management and investment consulting company of Belgian law, or who has carried out, directly or indirectly, an increase in his or her participation in a portfolio management and investment consulting company of Belgian law,
The same notification is required within ten working days of any natural or legal person who has ceased to hold, directly or indirectly, alone or acting in conjunction with other persons, an interest of more than 5% of the capital or voting rights of a portfolio management and investment consulting company, which did not constitute a qualified participation.
Notifications referred to in subparagraphs 1^er and 2 indicate the specific identity of the acquirer(s), the number of titles acquired or disposed of and the percentage of voting rights and capital of the investment management and consultancy corporation held after the acquisition or assignment, as well as the necessary information that is published by the MSDS on its website in accordance with paragraph 3, paragraph 3.
§ 8. Portfolio management and investment consulting companies shall, as soon as they are aware, communicate to FSMA the acquisitions or disposition of their securities or shares that make one or more of the thresholds referred to in paragraph 1 above or below^erParagraph 1^er.
Under the same conditions, they communicate to the FSMA, at least once a year, the identity of the shareholders or associates who have, directly or indirectly, acting alone or in concert, qualified stakes in their capital, as well as the quotity of capital and voting rights so held. They also communicate to FSMA the quotity of shares or shares as well as that of voting rights in respect of which the acquisition or alienation is declared to them in accordance with Article 515 of the Code of Companies in cases where the Articles of Association do not prescrib their declaration to FSMA.
Art. 32. Where the ADMDS has reasons to consider that the influence of a natural or legal person holding, directly or indirectly, qualified participation in a portfolio management and investment consulting company is likely to jeopardize its sound and prudent management, and without prejudice to the other measures provided for in this Act, it may:
(1) suspend the exercise of the voting rights attached to the shares or shares held by the shareholder or partner in question; it may, at the request of any interested person, grant the lifting of the measures ordered by it; its decision is notified in the most appropriate manner to the shareholder or partner in question; its decision is enforceable as soon as it has been notified; FSMA may make its decision public;
2° give injunction to the shareholder or partner in question to assign, within the time limit fixed, the rights of associate he holds.
In the absence of an assignment within the specified time limit, the MSDS may order the sequestration of partner rights with the institution or person it determines. The receiver informs the portfolio management and investment consulting company, which accordingly amends the register of shares or shares of nominative partners and which only accepts the exercise of the rights attached to them by the sole receiver. The sequester acts in the interest of a healthy and prudent management of the portfolio management and investment consulting company and in the interest of the sequester's rights holder. He exercises all rights attached to the shares or shares of partners. The amount paid by the holder for a dividend or other title shall be paid by the holder of the dividend only if the holder has satisfied the injunction referred to in paragraph 1^erTwo. The subscription to capital increases or other securities conferring or not the right to vote, the option for dividends payable in the corporation's securities, the response to public tenders for acquisition or exchange and the release of unreleased securities are subject to the agreement of the above-mentioned holder. The rights of associates acquired under these operations are, in full right, the subject of the receiver provided above. The sequester shall be paid by FSMA and shall be paid by the holder mentioned above. The receiver may charge such remuneration on the amounts paid to it as a receiver or the holder referred to above for the purposes or as a consequence of the above transactions.
When voting rights have been exercised by the original holder or by a person other than the receiver, acting on behalf of the holder after the expiry of the time limit set in accordance with paragraph 1^er, 2°, first sentence, notwithstanding a suspension of their exercise in accordance with paragraph 1^er, 1°, the court of commerce in which the company has its seat may, upon request of the FSMA, declare the nullity of all or part of the proceedings of the general assembly if, without the illegally exercised voting rights, the quorums of presence or majority required by the said deliberations would not have been gathered.
Art. 33. FSMA informs the European Commission, at the request of the latter, of any project, which FSMA is informed under Article 31, § 1^er, taking part by a parent company under the law of another Member State in an investment company of the European Economic Area and which would make it its subsidiary.
FSMA limits or suspends the participation of direct or indirect parent enterprises, subject to the right of a third country in the cases and on the terms and time determined in Article 15, paragraphs 3 and 5, of Directive 2004/39/EC.
In the event of the acquisition or increase of an interest despite the measures taken by the MSDS pursuant to paragraph 2, Article 31, § 6, shall apply.
Subsection 3. - Management and leadership
Art. 34. The Articles of Association of Portfolio Management and Investment Consulting Corporations incorporated in the form of an anonymous corporation may authorize the Board of Directors to delegate all or part of the powers referred to in section 522, § 1^erParagraph 1^er, from the Code of Societies to a steering committee established within it, of which it appoints and revokes the members and whose remuneration it determines.
However, this delegation of jurisdiction may not focus on the determination of general policy or on acts reserved to the board of directors by the other provisions of the Code of Companies.
Art. 35. § 1^er. Portfolio management and investment consulting companies priorly inform the FSMA of the proposal to appoint members of the legal board of directors and members of the steering committee, or, in the absence of a steering committee, persons responsible for effective management, as well as those responsible for independent oversight functions.
As part of the information required under paragraph 1^er, portfolio management and investment consulting companies communicate to the FSMA all the documents and information that enable it to assess whether the persons whose appointment is proposed have the necessary professional honourability and expertise to exercise their functions in accordance with section 23 .
Paragraph 1^er is also applicable to the proposal to renew the appointment of the persons referred to in the proposal and to the non-renewal of their appointment, revocation or resignation.
§ 2. Appointment of persons referred to in paragraph 1^er is subject to prior approval by the MSDS.
When it comes to the appointment of a person who is first proposed to a function referred to in subsection 1^er in an institution subject to the control of the MSDS pursuant to Article 45, § 1^er, 2° of the law of 2 August 2002, FSMA consults the Bank beforehand.
The Bank shall notify FSMA within one week of receipt of the notice request.
§ 3. Portfolio management and investment consulting companies inform the FSMA of the possible division of tasks between the members of the legal board of directors and between those responsible for effective management, if any, between the members of the steering committee.
Significant changes in the division of duties referred to in paragraph 1^er give rise to the application of paragraphs 1^er and 2.
Art. 36. § 1^er. Without prejudice to sections 25 and 26, directors, managers or directors of a portfolio management and investment consulting company and any person who, under any name and in any capacity, participate in the administration or management of the business may, in representation or not of the Belgian portfolio management and investment consulting company, exercise the terms of office of administrator or manager or take part in the administration or management of the business
§ 2. The external functions referred to in § 1^er are governed by internal rules that the Portfolio Management and Investment Consulting Corporation must adopt and enforce to pursue the following objectives:
1° to ensure that the performance of these functions by persons participating in the effective management of the Portfolio Management and Investment Consulting Corporation does not affect the availability required for the exercise of that direction;
2° to prevent in the head of the portfolio management and investment consulting company the occurrence of conflicts of interest and the risks associated with the performance of these functions, including in the case of initiation operations;
3° ensure adequate advertising of these functions.
FSMA sets out the terms and conditions for the fulfilment of these obligations by regulation submitted to the King for approval.
If the FSMA fails to establish the regulation referred to in the preceding paragraph or to amend it in the future, the King is empowered to take it himself.
§ 3. Social agents appointed on presentation of the Portfolio Management and Investment Consulting Corporation must be persons who participate in the effective management of the Portfolio Management and Investment Consulting Corporation or the persons it designates.
Directors who do not participate in the effective management of the Portfolio Management and Investment Consulting Corporation may not be a director of a corporation in which the company holds an interest only if they do not participate in the day-to-day management of that corporation. However, this prohibition is not applicable, for a limited period of 6 years, to directors appointed as a result of the acquisition of participation or resumption of the activities of the corporation in which the same persons participate in the effective management.
Persons who participate in the effective management of the Portfolio Management and Investment Consulting Corporation may exercise a mandate that includes participation in the day-to-day management only if it is a corporation referred to in section 41, § 3, with which the Portfolio Management and Investment Consulting Corporation has close ties, a statutory collective investment organization within the meaning of the Act of August 3, 2012 or the Act of April 19, 2014,
§ 4. Portfolio management and investment consulting companies shall promptly notify FSMA of the functions performed outside the portfolio management and investment consulting company by the persons referred to in § 1^er for the purpose of monitoring compliance with the provisions of this article.
Art. 37. In the event of a bankruptcy of a portfolio management and investment consulting company, there are no and no effects on the mass, the payments made by that corporation, either in cash or otherwise, to its directors or managers, as an ash or other profit-sharing, in the two years preceding the time determined by the court as the date of termination of its payments.
Paragraph 1^er does not apply if the court recognizes that no serious and characterized fault of these persons has contributed to bankruptcy.
Sub-section 4. - Mergers and assignments
Art. 38. Are subject to FSMA authorization:
1° mergers between portfolio management and investment consulting companies or between such companies and other investment companies or other financial institutions;
2° transfers between portfolio management and investment consulting companies or between such companies and other investment companies or other financial institutions of the whole or part of their business or network.
The ADMSP may only refuse authorization within three months of the prior notification that was made to it of the project and for reasons that are consistent with the sound and prudent management of the portfolio management and investment consulting company(s). If it does not intervene within the time limit set out above, the authorization is deemed to be acquired.
Art. 39. Any total or partial assignment between portfolio management and investment consulting companies or between such companies and other investment companies or other financial institutions, the rights and obligations resulting from the operations of the companies or companies concerned, and authorized in accordance with section 38, shall be subject to third parties upon publication to the Belgian Monitor of the authorization of the MSDS.
Subsection 5. - Obligations and prohibitions
Art. 40. Portfolio management and investment consulting companies may not, unless authorized by the FSMA, carry out activities other than the provision of services and activities authorized by their approval, as well as the activities that are within the framework or direct extension of these services, or that constitute the accessories or complement thereof.
Art. 41. § 1^er. Portfolio management and investment consulting companies may, directly or indirectly, hold any participation, in any form, in one or more companies under the conditions and within the limits set out in this section.
§ 2. For the purposes of this article, it is necessary to hear by companies, commercial companies, commercial companies, participation associations, economic interest groups and European economic interest groups.
§ 3. Portfolio management and investment consulting companies may hold investments in:
1° credit institutions, Belgian or foreign;
2° investment companies, Belgian or foreign;
3° liquidation agencies or organizations assimilated to liquidation bodies, as referred to in the Royal Decree pursuant to Article 36/26 of the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium;
4° insurance companies or reinsurance companies, Belgian or foreign;
5° the management companies of collective, Belgian or foreign investment bodies, as referred to in the law of 3 August 2012;
6° the management companies of OPCA, Belgian or foreign, as covered by the law of 19 April 2014;
7° other companies, whether Belgian or foreign, whose main purpose is to carry out the activities referred to in section 40 or the activities of the enterprises referred to in points 1 to 6°, as well as in incorporated companies to hold the capital of such enterprises;
8° of Belgian or foreign companies whose main purpose is to provide auxiliary services to the activity of the establishments referred to in points 1 to 6°.
§ 4. Portfolio management and investment consulting companies may hold participations in other cases than those referred to in paragraph 3, provided that they are not qualified participations or that each position does not exceed 15 per cent of the equity of the Portfolio Management and Investment Consulting Corporation and that the total amount of these positions does not exceed 45 per cent of the equity. These limits may, however, be increased by a Royal Decree taken on the advice of the FSMA, without a portfolio management and investment consulting company being able to hold qualified participations that exceed, by post, 15 p.c. of the equity of the investment management and advisory corporation and without the total of such participations exceeding 60 p.c. of the corporation's own funds.
For the application of the post limit set in accordance with paragraph 1^er, are considered to be a single position the participations issued by companies that, regardless of their status and legal form, constitute a combination of the risk perspective; related companies are, until proven otherwise, to consider as a whole from the point of view of risk.
Without prejudice to paragraph 1^er must be fully deducted from the equity for the purposes of sections 30 and 54:
(a) participation in companies with qualified participation in the portfolio management and investment consulting company or in its subsidiaries;
(b) participation in enterprises controlled by natural or legal persons holding such qualified participations.
§ 5. In special cases, FSMA may authorize the temporary detention of participations outside the conditions and limits referred to in § 4.
If, as a result of the authorizations given under paragraph 1^era Portfolio Management and Investment Consulting Corporation shall, in any other case than those referred to in paragraph 3, hold a qualified interest whose amount exceeds the percentage of the equity of the enterprise applicable under § 4 or if the total of such shares exceeds the percentage of the equity applicable under the same § 4, the amount of the surplus shall be exempted from the equity for the purposes of sections 30 and 54. In the case of surpluses compared to the two above-mentioned limits, the highest surplus is deducted from the equity.
§ 6. Orders referred to in this section shall be taken after consultation with portfolio management and investment consulting companies represented by their professional associations.
§ 7. The provisions of this section shall not prejudice the regulatory provisions prescribed by application of section 54.
Art. 42. Portfolio management and investment consulting companies cannot receive deposits of funds.
Art. 43. Portfolio management and investment consulting companies cannot provide loans or credits.
Art. 44. § 1^er. Portfolio management and investment consulting companies cannot rely on intermediaries in banking and investment services established in Belgium that are not registered in accordance with Article 5, § 1^erAct of 22 March 2006.
If they wish to appeal to a related agent established in another Member State, they must ensure that the person is registered in the Member State concerned with a register for that purpose. They ensure the limitations applicable to agents connected in the State concerned.
If the member State in which the related agent is established does not have a regime authorizing investment companies to appeal to related agents, the portfolio management and investment consulting company must ensure that the intermediary concerned is registered as an agent in banking and investment services in the Belgian register referred to in Article 5, § 1^erAct of 22 March 2006.
§ 2. Portfolio management and investment consulting companies that work with a related agent assume full and unconditional responsibility for any actions or omissions committed by that related agent when acting on their behalf.
Portfolio management and investment consulting companies ensure that the partners with whom they collaborate indicate how they act before dealing with a client.
§ 3. Portfolio management and investment consulting companies are required to control the activities of related agents. They take appropriate measures to avoid any possible complementary activities of related agents having a negative impact on the activities carried out by these agents on behalf of the portfolio management and investment consulting company.
§ 4. FSMA may supplement the provisions of this article by regulations made under articles 49, § 3, and 64 of the Act of 2 August 2002. These regulations can in particular determine the obligations of portfolio management and investment consulting companies working with related agents.
Art. 45. Chartered portfolio management and investment consulting companies are required to comply with the conditions of the initial registration.
They are required to report to FSMA any significant changes in the conditions of the initial licence.
Sub-section 6. - Opening of subsidiaries or branches abroad
Art. 46. Any portfolio management and investment consulting company that plans to acquire or create, directly or through a financial company or a joint financial company, a foreign affiliate carrying on the activity of a credit or investment company shall notify the FSMA of its intention. This notification includes information on the activities, organization, shareholding and management of the company concerned.
Art. 47. § 1^er. Any investment consulting and portfolio management company wishing to establish a branch in the territory of another Member State to provide or exercise all or part of the investment services and/or activities or auxiliary services listed in Article 2 that it is authorized to provide or exercise in Belgium shall inform the MSDS.
It provides the following information:
1° the Member States in whose territory it envisages establishing a branch;
2° an activity program including the financial instruments, services and/or investment activities, as well as the auxiliary services that the branch will provide or operate and the organizational structure of the branch and whether the branch plans to use related agents;
3° the address to which documents may be claimed in the host Member State;
4° the name of the effective officers of the branch and, where appropriate, its independent supervisory functions.
§ 2. The effective management of the branch as well as those responsible for the independent oversight functions of the branch must always have the necessary professional accountability and expertise to perform their duties. Section 35 shall apply by analogy to the appointment of the effective officers of the branch and, where appropriate, its independent supervisory functions.
§ 3. FSMA may object to the completion of the project by decision based on the adverse impact of the opening of the branch on the administrative structure or financial health of the portfolio management and investment consulting company.
§ 4. ADM's decision must be notified to the portfolio management and investment consulting company by registered letter to the position or with acknowledgement of receipt no later than three months after receipt of the complete file including the information referred to in § 1^erParagraph 2. If FSMA has not notified its decision within this timeframe, it is deemed not to oppose the project of the Portfolio Management and Investment Consulting Corporation.
§ 5. This section also applies to the opening of branches in a third country, and this does not include any restrictions on planned activities for these branches.
Art. 48. When the establishment State of the branch is a member of the European Economic Area, the MSDS shall communicate, unless it has reasons to doubt the adequacy of the administrative structure or financial health of the investment management and consulting company, taking into account the activities envisaged, all such information, within three months of their receipt, to the competent authority of the host Member State and advises the investment company concerned.
FSMA shall provide the competent authority of the host Member State with detailed information on the investor protection system to which the investment management and consulting company is affiliated in accordance with Directive 97/9/EC. If this information is changed, FSMA shall notify the competent authority of the host Member State.
Art. 49. When the establishment State of the branch is not a member of the European Economic Area, FSMA may agree with the control authority of the investment companies of that State the terms and conditions for the opening and control of the branch as well as exchanges of information desirable in accordance with articles 74 to 77bis of the law of 2 August 2002.
Art. 50. In the event of any modification of any information provided in accordance with Article 47, § 1^er, paragraph 2, any portfolio management and investment consulting company that has opened a branch abroad shall notify the MSDS in writing at least one month before implementing the amendment.
If it has opened a branch in a Member State, FSMA shall inform the competent authority of the host Member State of the amendment.
Article 47, §§ 2 and 3, is applicable if applicable, as well as Article 48, depending on the changes in the information referred to in Article 47, or the applicable investor protection system.
Sub-section 7. - Exercise of free service delivery
in another Member State of the European Economic Area
Art. 51. Any Portfolio Management and Investment Consulting Corporation that wishes to provide or exercise for the first time in the territory of another Member State all or part of the services and/or auxiliary activities or services listed in Article 2 that it is authorized to provide or operate in Belgium, or that wishes to extend the range of services provided or activities carried out shall communicate the following information to the MSDS:
1st the Member State in which it plans to operate;
2° a programme of activity referring, in particular, to the services and/or investment activities as well as the auxiliary services it intends to provide or exercise, the financial instruments on which to carry its services, and if it plans to resort to agents connected to the territory of the Member State where it plans to provide services.
If the investment consulting and portfolio management company intends to use related agents, the MSDS shall communicate, at the request of the competent authority of the host Member State and within a reasonable period of time, the identity of the related agents to which the investment management and consulting company intends to use in that Member State. The host State can make this information public.
Art. 52. In the case referred to in Article 51, FSMA shall transmit this information, within one month of receipt, to the competent authority of the host Member State; the investment management and consulting company can then begin to provide the investment services or services in the host Member State.
Art. 53. In the event of any change in any of the information provided pursuant to section 51, the Portfolio Management and Investment Consulting Corporation shall notify the ADMSP in writing, at least one month before the amendment is implemented.
FSMA informs the competent authority of the host Member State of the amendment.
Subsection 8. - Standards and regulatory obligations
Art. 54. § 1^er. FSMA determines by regulation, in accordance with European law, solvency, liquidity and risk concentration standards, and other limitation standards to be met by all portfolio management and investment consulting companies.
The standards referred to in this paragraph may be both quantitative and qualitative in nature.
§ 2. Without prejudice to the provisions of paragraph 1^er, portfolio management and investment consulting companies must have a policy regarding their own fund needs that is appropriate to the activities they operate or intend to exercise. The persons responsible for the effective management of the Portfolio Management and Investment Consulting Corporation, if any the Management Committee, shall develop, under the supervision of the legal body of administration, a policy that identifies and determines the current and future equity needs of the Portfolio Management and Investment Consulting Corporation, taking into account the nature, volume and complexity of these activities, the associated risks and the policy
The portfolio management and investment consulting company regularly assesses its policy on its own fund needs and adjusts if necessary this policy. FSMA may, by regulation, specify the frequency of this evaluation.
§ 3. Where ADM is of the opinion that the policy of a portfolio management and investment consulting corporation with respect to its own fund requirements does not meet the company's risk profile, it may, without prejudice to the provisions of section 64, impose, with respect to the objectives of this Act, requirements for credit, liquidity, risk concentration and risk positions in addition to those set out in subsection 1^er. It may, by regulation, set the criteria and procedures that it applies to this effect.
§ 4. FSMA shall notify the European Banking Authority, the European Commission and the Council of the information required by the European Directives concerning the application of the regulations referred to in this Article.
§ 5. The regulations referred to in this section are made in accordance with section 64 of the Act of 2 August 2002.
§ 6. FSMA may, in special cases, authorize, within the limits of European legislation, exemptions from the provisions of the regulations made under this article.
Subsection 9. - Periodic information and accounting rules
Art. 55. Portfolio management and investment consulting companies regularly communicate to FSMA a detailed financial situation. This is established in accordance with the rules established by the MSDS, which determines its frequency. In addition, FSMA may prescribe the regular transmission of other encrypted or descriptive information necessary to verify compliance with the provisions of this title or the orders and regulations made for their execution.
The effective management of the Portfolio Management and Investment Consulting Corporation, as appropriate the Management Committee, reports to the FSMA that the above-mentioned periodical statements transmitted to it by the Investment Management and Consulting Corporation at the end of the first social semester and at the end of the social year are in accordance with accounting and inventories. For this purpose, it is required that the periodic reports be complete, i.e. that they mention all the data in the accounting and in the inventories on which they are established, and that they are correct, i.e. that they correspond exactly with the accounting and with the inventories on which they are established. Effective management confirms that it has made the necessary steps to ensure that the above-mentioned statements are prepared in accordance with the existing instructions of the MSDS, as well as through the application of the accounting and evaluation rules for the preparation of annual accounts, or, in respect of the periodic reports that do not relate to the end of the fiscal year, by applying the accounting and evaluation rules that presided over the preparation of the annual accounts for the last fiscal year.
The King shall, on the advice of FSMA:
1° the rules that portfolio management and investment consulting companies maintain their accounting, conduct inventory assessments and establish and publish their annual accounts;
2° the rules to be followed by portfolio management and investment consulting companies for the establishment, control and publication of their consolidated accounts, as well as for the preparation and publication of management and control reports relating to these consolidated accounts.
Directors or managers shall be jointly and severally liable, either to the corporation or to the third parties, for any damages resulting from breaches of the provisions made pursuant to paragraph 3.
Paragraph 4 is also applicable to members of the steering committee.
With respect to the offences to which they have not taken part, directors, managers and members of the steering committee shall be discharged from the liability referred to in paragraphs 4 and 5 only if no fault is attributable to them and if they have denounced these offences as the case may be, at the first general meeting or at the first session of the board of directors following the time they were aware of them.
FSMA may, in special cases, authorize derogations from the orders and regulations referred to in paragraph 1^er and 3.
Section 4. - Control of portfolio management companies
and advice on investment in Belgian law
Art. 56. § 1^er. FSMA ensures that each portfolio management and investment consulting company operates in accordance with the provisions of this Act and the orders and regulations made pursuant to these Acts.
§ 2. The FSMA, in particular, assesses the adequacy of the management structure, administrative and accounting organization and internal control of the portfolio management and investment consulting company, as referred to in sections 25 and 26, as well as the appropriateness of the portfolio management and investment consulting company's policy with respect to its own fund needs, as referred to in section 54, § 2. It determines the frequency and extent of this evaluation, taking into account the importance of the portfolio management and investment consulting company's activities for the financial system, the nature, volume and complexity of these activities, as well as the principle of proportionality. The evaluation is updated at least once a year.
§ 3. ADMSP may be provided with any information relating to the organization, operation, situation and operations of the portfolio management and investment consulting companies it controls.
It may conduct on-site inspections and be informed and copied, without displacement, any information held by the Investment Management and Consulting Corporation, with a view to:
1° to verify compliance with the legal and regulatory provisions relating to the status of portfolio management and investment consulting companies, as well as the accuracy and sincerity of annual accounts and accounts, as well as the statements and other information transmitted to it by the portfolio management and investment consulting company;
2° to verify the adequacy of management structures, the administrative and accounting organization of internal control and the equity needs policy of the portfolio management and investment consulting firm;
3° to ensure that the management of the portfolio management and investment consulting company is sound and prudent and that its situation or operations are not likely to jeopardize its liquidity, profitability or solvency.
§ 4. The King determines the remuneration to be paid to the MSDS by portfolio management and investment consulting companies in charge of control fees.
Art. 57. The FSMA is not aware of the relationship between the portfolio management and investment consulting company and a specific client only to the extent required for the control of the portfolio management and investment consulting company.
Art. 58. FSMA may proceed to the branches of the Belgian portfolio management and investment consulting companies established in another Member State, with the prior information of the authorities of that State responsible for the control of investment companies, to the inspections referred to in Article 56, § 3, paragraph 2, and to any inspection to collect or verify on-site information relating to the management and management of the branch as well as any information that may facilitate the control of the portfolio.
It may, for the same purposes, and after having notified the supervisory authorities referred to in paragraph 1^er, load an expert, whom she designates, to carry out useful audits and expertise. The remuneration and expenses of the expert are borne by the portfolio management and investment consulting company.
It may also request such authorities to conduct the audits and expertise referred to in paragraph 1^er She tells them.
Art. 59. § 1^er. For the purposes of this article:
1° the notions of "exclusive or joint control" and "consortium" agree in the meaning of their definition in the regulations relating to the annual accounts and consolidated accounts of the investment companies under Article 55, paragraph 3;
2° "financial accounting" means a financial institution whose subsidiaries are exclusively or principally one or more credit institutions, investment companies or financial institutions, at least one of these subsidiaries being a credit institution or an investment company, and which is not a joint financial company within the meaning of section 60.
Groups of businesses that include a credit institution, a stock exchange, an insurance company or a reinsurance company shall be subject, with respect to their consolidated control, respectively, to the provisions of Sections I^re, II and IV of Book II, Part III, Chapter IV, or Sub-Section I^re Section IV of Book XII, Part II, Chapter III of the Act of 25 April 2014 or the provisions of Part VI, Chapters I and II of the Act of 13 March 2016 relating to the status and control of insurance or reinsurance companies.
Groups of businesses that include a portfolio management and investment consulting company and do not include credit establishment, stock exchange or insurance or reinsurance business are subject to the provisions of this section.
§ 2. When a portfolio management and investment consulting company is a parent company, it is subject to the control of the FSMA on the consolidated basis of the whole it constitutes with its Belgian and foreign affiliates.
Consolidated On-Base Control covers the financial situation, the limits and conditions referred to in section 41, the management, organization and internal control procedures referred to in sections 25 and 26 of the Consolidated Set, and the influence of companies included in consolidation on other companies. The King may extend the consolidated control to other areas provided by the European Union directives.
The standards and obligations referred to in articles 27 and 54, §§ 1^er to 3, may be imposed on the basis of the consolidated situation of the investment management and consulting company and its subsidiaries. The provisions of Article 54, §§ 5 and 6, apply in this case by analogy.
For the purpose of consolidated control, the relevant portfolio management and investment consulting companies periodically communicate to the ADMSP a consolidated financial situation. The FSMA determines, after consultation with portfolio management and investment consulting companies represented by their professional associations, the rules for establishing this situation, including the rules for consolidation scope, inclusion in consolidation and frequency of communications in these situations.
Where it deems it necessary for prudential control, FSMA may require that companies that are not affiliates be included in consolidation, but in which the Portfolio Management and Investment Consulting Corporation holds an interest or with which it has another capital bond.
FSMA may require or require that the relevant portfolio and investment consulting companies, their subsidiaries and other companies that have been relocated in consolidation, provide it with any useful information for the exercise of consolidated-based control. For the purposes of this control, FSMA may, at the expense of the relevant portfolio management and investment consulting companies, be carried out by approved reviewers or, where appropriate, by foreign experts authorized by it to do so, conduct on-site verification in all enterprises included in the consolidation of information received in the context of consolidated monitoring. FSMA shall conduct or conduct an audit with a company established in another Member State only after having notified the supervisory authority of that State and unless the supervisory authority itself conducts such an audit or permits a reviser or expert to do so. If FSMA does not proceed to the audit itself, it may nevertheless be associated with it, if it deems it desirable.
Consolidated-based control does not result in individual control by the FSMA of the companies included in consolidation.
Consolidated-based control does not prejudice the individual control of portfolio management and investment advisory companies included in consolidation. However, it may be taken into account the implications of consolidated-based control to determine the content and terms of control on an individual basis of portfolio management and investment consulting companies or under-consolved-based control of a portfolio management and investment consulting company that is a subsidiary of another portfolio management and investment consulting company.
The King may determine the conditions under which Belgian portfolio management and investment consulting companies included in the consolidation of a foreign investment company may be required to provide information to the competent foreign authority for the consolidated control of this investment undertaking and may be subject to the on-site verification by that authority or by revisers or experts mandated by it, of the information it has transmitted.
§ 3. When a portfolio management and investment consulting company forms a consortium with one or more other companies, it is subject to consolidated control covering the companies forming the consortium and their subsidiaries.
The provisions of § 2 shall apply.
§ 4. Any portfolio management and investment consulting company whose parent company is a financial company, Belgian or foreign, under a Member State, is subject to monitoring on the basis of the consolidated financial situation of the financial company. This monitoring is carried out by the FSMA, except where there is a credit institution, insurance or reinsurance company or a stock exchange corporation, in which case supervision is exercised by the Bank. This monitoring covers substances referred to in the second and third paragraphs of paragraph 2. The King may define, adapt and supplement the terms and conditions of this monitoring by specifying which other provisions of this Act are applicable to the financial companies.
Any portfolio management and investment consulting company whose parent company is a financial company that does not belong to a Member State of the European Economic Area, is subject to monitoring on the basis of the consolidated financial situation of the financial company, according to the rules defined by the King.
§ 5. Companies that control, exclusively or jointly with others, a portfolio management and investment consulting company, as well as the subsidiaries of these companies, are required, if these companies and subsidiaries do not fall within the scope of paragraphs 2, 3 and 4 regarding the consolidated control of the enterprise or in the scope of section 60 concerning the complementary monitoring of the group, to communicate to the MSDS and to the relevant foreign authorities the information and
Such a reporting obligation is also applicable to companies that, although subsidiaries of a portfolio management and investment consulting company or a financial company, are not included in consolidated monitoring. Where the subsidiary in question is a portfolio management and investment consulting company, the ADMSP or the competent foreign control authority for the control of the said subsidiary may require that the parent investment management and consulting firm or the parent financial company disclose the information and information required as useful for the exercise of the supervision of that subsidiary.
The King determines:
(a) the terms and conditions of the obligations arising from subparagraphs 1^er and 2 as well as on-site audits of the information and information they provide;
(b) without prejudice to Article 107, those of the measures and sanctions referred to in Articles 68 and 69 that are applicable in the event of breach of their obligations by the undertakings referred to in paragraphs 1^er and 2.
§ 6. The competent authorities of the host Member State may apply to FSMA, in its capacity as a consolidated-based supervisor or in its capacity as the competent authority of the Member State of origin, that a branch of a portfolio management and investment consulting company be considered to be of significant importance.
This application sets out the grounds for considering that the branch is of significant importance, including the following:
(a) the likely impact of a suspension or termination of the operations of the portfolio management and investment consulting company on market liquidity and systems of payment, settlement and compensation in the host Member State; and
(b) the size and importance of the branch from the point of view of the number of clients, in the context of the financial system of the host Member State.
The competent authorities of the Member State of origin and of the Member State of host, as well as, where appropriate, the Supervisor on a consolidated basis, do everything in their power to arrive at a joint decision on the designation of a branch as a branch of significant importance.
If no joint decision is made within two months of receipt of the application, the MSDS must accept the decisions taken, no later than two months, by the competent authorities of the host Member State, as to whether or not the branch is of significant importance.
The above-mentioned decisions taken by the MSDS in its capacity as a consolidated supervisor or as a competent authority of the Member State of origin, are presented in a document in a duly motivated manner and are transmitted to the relevant authorities; They are recognized as determinants and are applied by the competent authorities in the Member States concerned.
§ 7. If FSMA is the consolidated-based supervisor, it establishes colleges of supervisory authorities to facilitate the control of subsidiaries and branches of significant importance and ensures adequate coordination and collaboration with relevant authorities of third countries.
§ 8. If the FSMA is the authority responsible for the control of a subsidiary of a parent investment company in the European Union or a parent financial company in the European Union, or for the control, as a result of a request as referred to in Article 75, § 3, of a branch of significant importance of an investment enterprise under the law of another member State of the European Economic Area, it may participate in a branch of competent authority
§ 9. The King regulates, for the surplus, consolidated monitoring, if applicable in accordance with the provisions of Directive 2013/36/EU and Regulation (EU) No. 575/2013.
§ 10. FSMA may, in special cases, authorize derogations from orders and regulations made under this section. In this case, it shall notify the European Commission and the European Banking Authority.
Art. 60. § 1^er. For the purposes of this article, it is necessary to hear by:
1° "group": a set of companies made up of a parent company, its subsidiaries, companies in which the parent company or its affiliates directly or indirectly hold an interest, as well as companies with which a consortium is formed and companies that are controlled by the latter or in which the latter hold an interest;
2° "financial services group": a group or subgroup in which at least one of the subsidiaries is a regulated company and that meets the following conditions:
(a) where a regulated business is at the head of the group or subgroup:
(i) this company is the parent company of a financial sector business, or a company that holds a stake in a financial sector business, or a company related to a financial sector business in the form of a consortium;
(ii) at least one entity in the group or subgroup is an insurance business and at least one entity in the group is a banking or investment services business; and
(iii) consolidated and/or aggregated activities of the group or sub-group entities that are part of the insurance sector, and entities in the banking and investment services sector are important; or
(b) where there is no regulated business at the head of the group or subgroup:
(i) the activities of the group or sub-group are mainly carried out in the financial sector;
(ii) at least one entity in the group or subgroup is an insurance business and at least one entity in the group or subgroup is a banking or investment services business; and
(iii) consolidated and/or aggregated activities of the group or sub-group entities that are part of the insurance sector, and entities in the banking and investment services sector are important;
The King determines what to hear by "mainly" and "important";
3° "regulated business": a corporation that is either an investment company as defined in Article 3 or a credit institution as defined in Article 1^er, § 3, of the law of April 25, 2014, i.e. an insurance company or a reinsurance company as defined in sections 5, 1 and 2 of the law of March 13, 2016 relating to the status and control of insurance and reinsurance companies, i.e. a manager of OPCA, or a company of management of collective investment organizations, and any other company incorporated under a foreign law that, if it had its head office in Belgium,
4° "financial sector": one sector composed of one or more of the following companies:
(a) a regulated company with the quality of credit establishment, a financial institution within the meaning of Article 3, 41°, of the Act of 25 April 2014, an auxiliary service company within the meaning of Article 4, paragraph 1, point 18) of Regulation (EU) No 575/2013; these companies are part of the same financial sector, called "bank sector";
(b) a regulated company with the quality of an insurance or reinsurance company, an insurance company within the meaning of section 338, 5° of the Act of March 13, 2016 relating to the status and control of insurance and reinsurance companies; these companies are part of the same financial sector, known as the insurance industry;
(c) a regulated company with the quality of an investment enterprise, a company that provides auxiliary services within the meaning of Article 2, 2°, a financial institution within the meaning of Article 2, 7°; these companies are part of the same financial sector, called "investment services sector";
5° "mixed financial company": a parent company, other than a regulated company, which is at the head of a group of financial services;
6° "mother company", "filial", "control", "consortium", "participation": the concepts within the meaning of the definition given in articles 2, 28° and 59, in article 3, § 1^er, 26° and Sections I^re, II and IV of Book II, Title III, Chapter IV of the Act of 25 April 2014, or to Article 338, 1°, 2° and 3° of the Act of 13 March 2016 relating to the status and control of insurance and reinsurance companies.
§ 2. Belgian law portfolio and investment consulting companies:
1° that are at the head of a group of financial services; or
2° whose parent company is a mixed financial company having its seat in a member state,
shall be subject to additional monitoring at the group level in accordance with the provisions of this paragraph.
If several regulated companies are subsidiaries of the mixed financial company referred to in paragraph 1^er, 2°, the supplementary monitoring of the financial services group applies only to the Belgian law portfolio and investment consulting company, provided that the FSMA is competent for the additional monitoring of the financial services group.
When a regulated Belgian company is at the head of a financial services group, the additional monitoring of the group is exercised by the supervisory authority responsible for the control of the regulated company concerned.
Complementary monitoring focuses on the financial situation of the financial services group in general and on the solvency of the group in particular, on the concentration of risks, intra-group operations, as well as on internal controls and risk management procedures for the group as a whole.
The King shall determine the standards applicable in accordance with paragraphs 2 and 3.
All companies in the financial services group that belong to the financial sector are included in the complementary monitoring of the group, as determined by the King.
The King may extend the additional monitoring of the group to other areas as well as companies of the group not part of the financial sector, in accordance with European regulations.
FSMA may prescribe that regulated and unregulated companies that are included in the complementary monitoring of the group, provide any information that is relevant to the exercise of the additional monitoring of the group. For the purpose of this monitoring, FSMA may, at the expense of the regulated company concerned, carry out, or, where appropriate, by foreign experts authorized by it to that effect, the on-site verification, in all enterprises included in the complementary monitoring of the group, of the information it has received. FSMA does or does not conduct an audit with a company established in another Member State of the European Economic Area only after having notified the competent control authority of that other State and unless the latter itself conducts the audit or permits a reviewer or expert to conduct it. If the supervisory authority does not conduct the audit itself, it may nevertheless be associated with it, if it deems it desirable.
Complementary monitoring of the group does not lead to individual control by the MSDS of the companies included in this monitoring. Complementary supervision of the group does not further prejudice social control and consolidated control in accordance with the other provisions of this Act.
The King may determine the conditions under which Belgian companies that are part of a financial services group and are included in the complementary monitoring of the group carried out by a foreign control authority, may be required to provide information to that control authority for the exercise of the complementary monitoring of the group and may be subject to the on-site verification, by that authority or by revisers or experts mandated by it, of the information transmitted.
§ 3. The King determines the rules of the complementary monitoring of the group in accordance with the provisions of Directive 2002/87/EC of 16 December 2002 on the supplementary monitoring of credit institutions, insurance companies and investment enterprises owned by a financial conglomerate, and amends Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC and 93/22/EEC of the Council and Directives 98/EC and 2000/12/
§ 4. FSMA may, in special cases, authorize, for the purposes of this section, exemptions to orders and regulations made under this section, provided that such exemptions are applicable to all regulated companies in similar circumstances. The use of this faculty cannot be contrary to the provisions of European law.
Art. 61. § 1^er. The commissioners, responsible for the control of the annual accounts and consolidated accounts of portfolio management and investment consulting companies in accordance with the Corporate Code, shall act as an initiative to the FSMA as soon as they see, as part of their mission to a portfolio management and investment consulting company or a review mission to a portfolio management and investment consulting company:
(a) decisions, facts or developments that significantly influence or influence the position of the portfolio management and investment consulting company in the financial or accounting context of its administrative and accounting organization or internal control;
(b) decisions or facts that may constitute violations of the Code of Societies, the statutes, this book and the decrees and regulations made for its execution;
(c) other decisions or facts that are likely to result in refusal or reservation to certify annual accounts;
(d) decisions or facts relating to the portfolio management and investment consulting company that are likely to jeopardize its continuity.
§ 2. No civil, criminal or disciplinary action may be brought or any professional sanction imposed against the commissioners who have made good faith an information referred to in paragraph 1^er.
Art. 62. The ADMSP may request an approved reviewer designated by the ADM, or the auditors responsible for the control of the annual accounts and consolidated accounts of portfolio management and investment consulting companies in accordance with the Corporations Code to provide special reports on the matters it determines at the expense of these entities.
Section 5. - Radiation of accreditation, exceptional measures,
administrative penalties
Art. 63. The FSMA shall, by decision notified by registered letter to the position or with acknowledgement of receipt, revoke the approval of portfolio management and investment consulting companies that have not commenced their activities within 12 months of the licence, which renounce the approval or ceased to operate. It amends the approval of portfolio management and investment consulting companies that partially renounce it.
Art. 64. § 1^er. When FSMA finds:
- that a portfolio management and investment consulting company does not operate in accordance with the provisions of this title and the orders and regulations made for its execution;
- that the management or financial situation of a portfolio management and investment consulting company is likely to cause the successful termination of its commitments or provide sufficient guarantees in terms of its creditworthiness, liquidity or profitability;
- that the management structures, the administrative or accounting organization or the internal control of a portfolio management and investment consulting firm have serious deficiencies;
- that a portfolio management and investment consulting company has obtained its approval by means of false statements or otherwise irregularly, it sets the time limit in which it must be corrected to the situation noted. If at the end of this period, the situation has not been resolved, the MSDS may:
1st appoint a special commissioner.
In this case, the written, general or special authorization of the investment management company is required for all acts and decisions of all organs of the investment management and consulting company, including the general assembly, and for those of the management board; FSMA may, however, limit the scope of operations subject to authorization.
The Special Commissioner may submit to the deliberation of all organs of the Portfolio Management and Investment Consulting Corporation, including the General Assembly, any proposals that he considers appropriate. The remuneration of the Special Commissioner is fixed by the FSMA and supported by the Portfolio Management and Investment Consulting Corporation.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions without obtaining the required authorization from the Special Commissioner are responsible in solidarity with the resulting harm to the portfolio management and investment consulting company or third parties.
If the FSMA has published to the Belgian Monitor the designation of the Special Commissioner and specifies the acts and decisions subject to its authorization, the acts and decisions taken without that authorization while it was required are null unless the Special Commissioner ratifies them. Under the same conditions, any decision of a general assembly made without obtaining the required authorization from the Special Commissioner is null unless the Special Commissioner ratifies it.
FSMA may designate an alternate commissioner;
2° impose additional requirements, other than those referred to in section 54, in terms of solvency, liquidity, concentration of risks and other limitations;
3° require portfolio management and investment consulting companies to limit variable remuneration to a percentage of the total net operating results where such remuneration is not compatible with the maintenance of solid equity, or affect their net profits to the strengthening of their own funds;
4° suspend for the duration that it determines the direct or indirect exercise of all or part of the activity of the investment management and consulting company or prohibit that exercise; the suspension may, to the extent determined by the MSDS, involve the total or partial suspension of the performance of the contracts in progress.
Members of the administrative and management bodies and those responsible for the management who perform acts or make decisions in violation of the suspension or prohibition are responsible in solidarity with the resulting harm to the portfolio management and investment consulting company or third parties.
If FSMA has issued the suspension or prohibition to the Belgian Monitor, the actions and decisions against it are null and void.
The ADMSP may, as well, enjoin a portfolio management and investment consulting company to assign shares it holds in accordance with section 41; section 32, paragraph 2, is applicable;
5° enjoin the replacement of the directors or managers of the portfolio management and investment consulting company within a time frame that it determines and, if not such replacement within that time frame, substitute for all the boards of the investment management and management board management company one or more directors or interim managers that have, alone or collegially, the powers of the persons replaced. FSMA publishes its decision to the Belgian Monitor.
The remuneration of the director(s) or temporary manager(s) is fixed by the ADMF and supported by the portfolio management and investment consulting company.
The MSDS may, at any time, replace the provisional directors or managers, either on its own or at the request of a majority of the shareholders or associates when they justify that the management of the persons concerned no longer has the necessary guarantees;
6° revoke the approval in whole or in part.
In the event of an extreme emergency and, in particular, in the event of a serious risk to investors, the ADMWS may adopt the measures referred to in this paragraph without prior adjustment.
§ 2. FSMA decisions referred to in paragraph 1^er their effect on the portfolio management and investment consulting company as of their notification to the investment management company by registered letter to the position or with acknowledgement of receipt and, in respect of third parties, on the date of publication in accordance with the provisions of paragraph 1^er.
§ 3. Paragraphs 1^erParagraph 1^er and paragraph 2, 4, and 2 are applicable in the event that FSMA is aware of the fact that a portfolio management and investment consulting company has established a particular mechanism for or to promote tax evasion by third parties.
§ 4. § 1^erParagraph 1^er and § 2 are not applicable in the event of the revocation of the approval of a portfolio management and investment consulting firm declared bankrupt.
§ 5. The court of commerce shall pronounce at the request of any interested person, the nullities referred to in § 1^erParagraph 2, 1 and 4.
The nullity action is directed against the portfolio management and investment consulting company. If there are serious grounds to justify it, the plaintiff may apply to refer the provisional suspension of the acts or decisions under attack. The order of suspension and the judgment pronouncing nullity produce their effects on all. In the event that the suspended or annulled act or decision has been published, the suspension order and the judgment pronouncing nullity are published by extract in the same forms.
Where nullity is likely to affect the rights acquired in good faith by a third party in respect of the investment portfolio management and advice corporation, the court may declare nullity in respect of such rights without effect, subject to the applicant's right to damages and interests if applicable.
The action in nullity may no longer be brought after the expiration of a period of six months from the date on which the acts or decisions taken are enforceable against the person who invokes nullity or are known to him.
Art. 65. Where the supervisory authorities of the investment enterprises of another Member State in which a portfolio management and investment consulting company of Belgian law has established a branch or provides investment services or auxiliary services referred to in Article 2 under the free provision of services, take the MSDS of violations of the legal, regulatory or administrative provisions applicable in that State under the control of those authorities in accordance with Directive 2004/39/EC, the FSMA shall take the measures in shorter^erthat these violations impose. She advises the supervisory authorities mentioned above. Article 64, § 2, is applicable.
Art. 66. FSMA shall promptly inform the supervisory authorities of the investment companies of other Member States in which a Belgian law portfolio management and investment consulting firm has established branches or provides investment services or auxiliary services referred to in Article 2, under the free provision of services, of the decisions it has taken in accordance with Articles 63 and 64.
Art. 67. Portfolio management and investment consulting companies whose approval has been terminated or revoked under sections 63 and 64 remain subject to this title and to the orders and regulations made for its implementation until the liquidation of the company's commitments, if any, resulting from funds and financial instruments due to investors, unless the ADMDS exempts them from certain provisions.
Paragraph 1^er is not applicable in the event of a revocation of the approval of a portfolio management and investment consulting firm declared bankrupt.
FSMA shall notify the European Financial Markets Authority of the cancellation or revocation of an approval under sections 63 and 64.
Art. 68. Without prejudice to the other measures provided for in this Act, FSMA may publish that a portfolio management and investment consulting company, a financial company, a joint company within the meaning of section 3, 40° of the Act of 25 April 2014 or a joint financial company has not complied with the orders it has made to respect within the time it determines the provisions of this title or the orders and regulations made for its execution. The costs of this publication are borne by the company concerned.
FSMA informs the European Financial Markets Authority of the publication referred to in paragraph 1^er.
Art. 69. § 1. Without prejudice to the other measures set out in this Act, the ADMSP may set a time limit for a portfolio and investment consulting corporation, a financial company, a joint company referred to in section 68 or a joint financial company to:
(a) it shall comply with any specified provisions of this title or any order made for its execution, or
(b) it must make the necessary adjustments to its management structure, its own fund needs policy, its administrative and accounting organization or its internal control.
(c) it shall comply with the provisions of Part II of Regulation No. 648/2012 of the European Parliament and of the Council of 4 July 2012 on the products derived from the voluntary, central counterparties and central repositories.
If the company concerned remains in default on the expiry of the period, the FSMA may, the company heard or at least duly summoned, inflict a breach on it at a maximum amount of 2.500,000 euros per offence or 50,000 euros per day of delay.
§ 2. Without prejudice to the other measures provided for in this Act and without prejudice to the measures defined by other laws or other regulations, FSMA may, when it finds an offence to the provisions of this Act or to the measures taken in execution of them or when it finds an offence to the provisions of Part II of Regulation No. 648/2012 of the European Parliament and of the Council of 4 July 2012 on the products derived from at will, the central company counterparties and
§ 3. Penalties and fines imposed under §§ 1^er or 2 are recovered for the benefit of the Treasury by the General Administration of Collection and Recovery.
When FSMA makes public the measures imposed in accordance with paragraphs 1^er and 2 also informs the European Financial Markets Authority.
CHAPTER 2. - Portfolio management and consulting companies
foreign investment
Section 1^re^{. -}Branches and service delivery activities in Belgium of foreign portfolio management and investment consulting companies under the law of another Member State
Art. 70. This section applies to foreign investment portfolio management and consulting companies under the law of another Member State that are authorized to operate in Belgium in accordance with Articles 10 and 11.
Sub-section 1. - Obligations and prohibitions
Art. 71. Without prejudice to the rules laid down by and under the Act of 2 August 2002 and without prejudice to the other provisions that confer powers on the MSDS vis-à-vis foreign portfolio management and investment consulting companies under the law of another Member State, Article 26, § 5, is applicable to the branches of these companies, for transactions carried out by these branches.
Sub-section 2. - Periodic information and accounting rules
Art. 72. The branches of foreign portfolio management and investment consulting companies under the law of another Member State shall transmit to the FSMA, in the forms and periodicity it determines, periodic reports for statistical purposes relating to their operations in Belgium.
FSMA may impose on these branches to transmit to it, in the forms and according to the periodicity it determines, information of the same nature as those required by Belgian law portfolio management and investment consulting companies, in matters not within the competence of the control authorities of the Member State of origin.
Foreign portfolio management and investment consulting companies under the law of another Member State may also be required to communicate to the Bank and the European Central Bank information that is required from Belgian portfolio management and investment consulting companies.
Art. 73. Section 55, paragraphs 2 and 3, is applicable to the branches of foreign investment management and advisory companies under the law of another Member State.
Subsection 3. - Control
Art. 74. Without prejudice to the powers conferred by and under the Act of 2 August 2002, foreign investment portfolio and consultancy companies under the law of another member State shall be subject to the control of the MSDS for the purposes provided for in sections 71 to 73, to the extent that the materials covered by these provisions fall within the competence of the MSDS.
Articles 56, §§ 3 and 4, and 57 are applicable to this measure.
Art. 75. § 1^er. FSMA may agree to undertake, at the request of the control authorities of the member State of origin of the foreign investment portfolio management and consulting company, and for the purpose of assisting these authorities, to carry out inspections with the branches of these companies covering both the matters referred to in Article 74 and those referred to in Article 58, paragraph 1^er.
Expenses incurred by inspections and audits under paragraph 1^er is the responsibility of the requesting authority.
§ 2. Competent foreign authorities for the prudential control of foreign portfolio management and investment consulting companies under the law of another Member State that has opened a branch in Belgium may, with a prior notice given to FSMA and in the exercise of their responsibilities, carry out on-site inspections in that branch or, at their own cost, by experts designated by them, carry out inspections with that branch.
§ 3. FSMA may apply to the competent consolidated supervisor or to the competent authority of the Member State of origin that a branch of a foreign investment management and consulting company under the law of another Member State is considered to be of significant importance within the meaning of Article 59, § 6.
Sub-section 4. - exceptional measures, administrative and criminal sanctions
Art. 76. § 1^er. Where the FSMA has clear and demonstrable reasons to estimate that a foreign investment portfolio management and advice corporation under the law of another Member State operating in Belgium through a branch or through the free provision of services violates its obligations under the provisions established under Directive 2004/39/EC, which do not confer powers on the competent FSMA, the latter shall, in fact, share the obligations of the member State under the provisions of Directive 2004/39/EC.
If, despite the measures taken by the competent authority of the Member State of origin or because of the inadequacy of these measures, the company concerned continues to act clearly injurious to the interests of investors in Belgium or to the orderly functioning of the markets, FSMA may, after informing the competent authority of the Member State of origin, take measures to protect investors or to preserve the proper functioning of the markets. In respect of branches, these are the measures referred to in Article 64, § 1^er, 1°, 4° and 5°, and § 2. In respect of foreign portfolio management and investment consulting companies under the law of another Member State operating by way of service delivery, these are the measures referred to in Article 64, § 1^er, 4°, and § 2. The European Commission and the European Financial Markets Authority are informed without delay of the adoption of these measures.
§ 2. If FSMA finds that a foreign investment portfolio management and consulting company under the law of another Member State with a branch in Belgium does not comply with the legislative or regulatory provisions in force in Belgium that fall within the scope of the MSDS pursuant to the directive cited in § 1^er, it still requires the company concerned to remedy, within the time it determines, the situation identified.
If the company concerned does not take the necessary steps, FSMA shall take all appropriate measures to ensure that the company ends this irregular situation. The scope of these measures is communicated to the competent authorities of the Member State of origin.
In the event of a breach in the head of a branch referred to in paragraph 1^er, FSMA may, after having notified the authorities of the Member State of origin, take the measures referred to in Article 64, § 1^er, 1°, 4° and 5°. Article 64, §§ 2 and 3, is also applicable. Article 64, § 3, also applies to foreign portfolio and investment consulting companies under the law of another Member State operating in Belgium under the free provision of services. The European Commission and the European Financial Markets Authority are informed without delay of the adoption of these measures.
§ 3. FSMA may refer to the European Financial Markets Authority, as provided by Article 77, § 1^erAct of 2 August 2002.
§ 4. The requirement of paragraph 2 of this article is, with the exception of the last sentence, also applicable where the branch of a foreign investment portfolio management and advice corporation under the law of another Member State violates obligations that do not arise from the provisions set out in Directive 2004/39/EC but which fall within the jurisdiction of the MSDS.
Art. 77. In the event of the cancellation or revocation of the approval of the foreign investment portfolio and consultancy corporation under the law of another Member State by the control authorities of its Member State of origin, FSMA orders, after having notified these authorities, the closure of the branch established in Belgium. It may designate a provisional manager who ensures the assets and financial instruments of the branch pending the decision on their destination, and who is authorized to take any interim measures in the interest of creditors.
Art. 78. The FSMA may communicate to the supervisory authorities of a foreign investment portfolio management and consulting company under the law of another Member State the reasons it has to consider that the situation of the branch in Belgium of that company does not present the necessary guarantees in the proper administrative or accounting organization or internal control.
Art. 79. Section 68 applies to portfolio management and investment consulting companies referred to in this section.
Art. 80. Article 69, paragraph 1^er, (a), and paragraphs 2 and 3, is applicable to foreign portfolio and investment consulting companies under the law of another Member State operating in Belgium through a branch.
Art. 81. Are subject to the provisions of Article 107, § 1^er:
(1) directors, managers or directors who contravene the provisions referred to in Article 73 and the orders made pursuant to those provisions;
2° those who perform acts or operations without obtaining the authorization of the Special Commissioner referred to in section 64, § 1^er1°, in the cases referred to in Article 76, §§ 1^er and 2;
3° those who perform acts or operations against an order of suspension or a prohibition given in accordance with Article 64, § 1^er4°, in the cases referred to in Article 76, §§ 2 and 3;
Art. 82. Section 108 applies to offences under section 81.
Section 2. - Branches and services activities in Belgium of foreign portfolio management and investment consulting companies under the law of another Member State not subject to Directive 2004/39/EC
Art. 83. Foreign portfolio management and investment consulting companies under the law of another Member State that do not fall within the scope of Directive 2004/39/EC of the European Parliament and the Council under Article 2, § 1, (m) and (n), and Article 3 of this directive are subject to the provisions of sections 3 and 4 of this chapter.
Section 3. - branches in Belgium of foreign portfolio management and investment consulting companies under third country law
Sub-section 1^re^{. -}Accreditation
Art. 84. § 1^er. The following provisions shall apply:
1st Articles 6, 16, and 18: On the understanding that, prior to filing on the application for approval of the branch, FSMA consults with the authorities of control of the Member State of origin of the foreign investment management and consulting company under the law of third countries;
2° Article 7: on the understanding that the branches referred to in this subsection are listed in a special section of the list;
3° Article 20: However, may be approved from branches of portfolio management and investment consulting companies with legal personality but not in the form of a commercial corporation;
4° Article 21, the original capital being replaced by an endowment, the MSDS has jurisdiction to assess the constituent elements of the endowment;
5° Article 22: with respect to the identity of the holders of the capital of the portfolio management and investment consulting company;
6° Articles 23, 24, 25 and 26;
7° Article 29: if the commitments of the branches referred to in this section are not covered by an investor protection system to a minimum equivalent to that of the Belgian investor protection system.
§ 2. The FSMA may refuse the approval of a foreign investment portfolio management and consulting firm under the law of a third country that does not provide the same opportunities for access to its market to Belgian portfolio management and investment consulting companies.
§ 3. FSMA may deny approval to a branch referred to in this section if it considers that the protection of investors or the sound and prudent management of the portfolio management and investment consulting company requires the establishment of a Belgian law firm.
Sub-section 2. - Exercise of activity
Art. 85. The following articles shall apply:
1° Article 30, § 1^erParagraph 1^er, and § 2;
2° Article 31, § 7, when FSMA has reasons to consider that the influence of natural or legal persons holding, directly or indirectly, qualified participation within the meaning of Article 31, § 1^er, is likely to jeopardize the sound and prudent management of the Portfolio Management and Investment Consulting Corporation, and without prejudice to the other measures provided for in this Act, the ADMSP may, for the time it determines, suspend or revoke the approval of the branch; Article 64, § 1^er4° and 6°, and § 2 is applicable to these decisions;
3° Article 36, with respect to the officers of the branch;
Articles 38 and 39;
5° Article 40;
6° Article 42;
7° Articles 43 to 45;
8° Articles 54 and 55.
Subsection 3. - Control
Art. 86. Articles 56, §§ 1^er to 3, and 57 are applicable.
Sub-section 4. - Radiation of accreditation, exceptional measures
and sanctions
Art. 87. The following provisions shall apply:
Articles 63, 64, 67, 68 and 69;
2° Articles 107 and 108.
Section 4. - Service delivery activities in Belgium of foreign portfolio management and investment consulting companies under the law of third countries
Art. 88. This section applies to foreign portfolio management and investment consulting companies under the law of a third country that are authorized to operate in Belgium in accordance with and within the limits set out in section 14.
Art. 89. Foreign portfolio management and investment consulting companies under the law of third countries shall, in the course of their activity in Belgium, accompany their names of the mention of their State of origin and their headquarters.
Art. 90. The provisions of this section do not prejudice compliance with legal and regulatory provisions, including rules of conduct, applicable in Belgium to portfolio management and investment advice companies and their operations.
Art. 91. FSMA may impose on foreign portfolio management and investment consulting companies under the law of third countries referred to in Article 14 to transmit to it any information relating to the services they undertake in Belgium, in order to verify whether they comply with the provisions referred to in Article 90 that fall within its jurisdiction. FSMA may impose the certification or recovery of this information by the foreign control authorities of the relevant portfolio management and investment consulting company, by its external reviser or by the approved auditor who is responsible for the certification of its accounts.
Art. 92. When FSMA finds that a foreign investment portfolio management and advice corporation under the law of a third country referred to in Article 14 does not, in Belgium, act in accordance with the provisions applicable to it, or that it endangers the interests of its customers, the company shall, within the time it determines, remedy the situation.
If, at the end of this period, the situation has not been resolved, the FSMA takes its observations to the control authorities of the State of origin of society.
In the event of persistent breaches, FSMA may, after having notified the foreign supervisory authorities, suspend or prohibit the continuation of all or part of the activities of the company in Belgium.
Where the corporation is not subject to the supervision of any control authority, the ADMSP may, if it has not been remedied to the situation at the end of the period established under paragraph 1^erimmediately suspend or prohibit all or part of the activities of the company in Belgium.
Article 64, § 2, shall apply to the decisions referred to in this Article.
Art. 93. Section 68 is applicable to foreign portfolio and investment consulting companies under the law of third countries referred to in Article 14.
Art. 94. Are subject to the provisions of Article 107, § 1^erthose who perform acts or operations against the prohibition or suspension referred to in section 30 of this Act.
Section 108 is applicable.
CHAPTER 3. - Collaboration between national authorities
Art. 95. Before a decision is taken on the opening of a bankruptcy proceeding or a provisional divestiture within the meaning of section 8 of the Bankruptcy Act of 8 August 1997 in respect of a portfolio management and investment consulting company, the President of the Commercial Court shall apply to the FSMA for an opinion. The clerk shall forward this request without delay. He informs the King's attorney.
The MSDS referral is written. It is accompanied by the necessary documents for its information.
FSMA renders its notice within fifteen days of receipt of the notice request. ADMDS may, in the case of a portfolio management and investment consulting company proceeding that may, according to its assessment, present significant systemic implications or that requires prior coordination with foreign authorities, render its opinion within a longer period of time, but the total time limit may not exceed 30 days. When the court considers it necessary to make use of this exceptional period, the MSDS shall notify the judicial authority to decide. The time limit available to the FSMA to render its notice suspends the period in which the judicial authority must decide. In the absence of an ADM response within the time limit, the court may decide on the application.
ADM's notice is written. It is transmitted by any means to the Clerk, who gives it to the President of the Commercial Court and to the King's Prosecutor. The notice is placed on file.
PART 4. - Investor protection systems
Art. 96. ACOA's portfolio management and investment consulting companies established in Belgium, ACOA's management companies referred to in section 35 of the Act of April 19, 2014 and the collective investment management companies referred to in section 205 of the Act of August 3, 2012 must participate in a collective investor protection system to which they contribute and to grant certain investor categories compensation, where the bankruptcy of a particular portfolio management corporation
Paragraph 1^er is not applicable to branches of portfolio management and investment consulting companies, and management companies of collective investment organizations under the law of another Member State, as well as to branches of foreign management companies. It is not more applicable to branches of portfolio management and investment consulting companies and collective investment management companies under the law of a third country and whose commitments are covered by a system of investor protection of that State to a minimum equivalent to that of the system referred to in paragraph 1^er.
The Guarantee Fund manages and operates the investor protection system.
Art. 97. FSMA shall promptly inform the Guarantee Fund when it identifies problems that may lead to the intervention of the investor protection system.
Except in cases where bankruptcy has been pronounced, FSMA makes the decision that, for reasons directly related to its financial situation, a portfolio management and investment consulting company, a management company of OPCA or a management company of collective investment bodies of Belgian law does not appear to be able to return or repay to investors deposits of funds or financial instruments, and that the company will not do so in the near future. This finding is made as soon as possible and in any event no later than five working days after having established for the first time that a portfolio management and investment consulting company, an ACOA management company or a collective investment management company, did not return the deposits of funds or failed to return a financial instrument.
The Guarantee Fund shall provide the refund or compensation referred to in section 96 within three months, after the eligibility and amount of the investor's debt has been established. FSMA may decide an extension not exceeding three months. This extension can only be granted in very exceptional circumstances and for specific cases.
The failing portfolio management and investment consulting company, the failing PCO management company, the failed collective investment management company, or, if they are in bankruptcy, the curator shall, at any time and at the request of the Guarantee Fund, disclose all the data it needs to ensure the compensation of investors referred to in section 96. The King may define the rules for the exchange of data between the portfolio management and investment consulting company, the management company of OPCA, the management company of collective investment organizations or the curator, on the one hand, and the Guarantee Fund, on the other.
If there is any doubt as to the accuracy of the data received by the Guarantee Fund pursuant to the preceding paragraph, the Portfolio Management and Investment Consulting Corporation, the Management Company of OPCA, the Management Company of Collective Investment Organizations or the curator shall verify the information on request and transfer the corrected data, if any.
Art. 98. Without prejudice to possible deductibles in accordance with European law, the investor protection system established by the Guarantee Fund provides compensation for any non-restitution or non-refunding of financial instruments that have been entrusted in the ignorance in good faith of the prohibition that is made to these companies to receive, hold or retain financial instruments of customers, up to a ceiling of 20,000 euros per investor and
The deposits of funds of the investor protection system established by the Guarantee Fund provides, up to a ceiling of 100,000 euros per investor and by investment management and consulting company, management company of OPCA, or management company of collective investment organizations adhering to this system, the refund of the deposits of funds, which have been made in the ignorance of good faith of the currency that is made to these
Art. 99. The King may regulate the content of the information to be provided to investors by portfolio management and investment consulting companies, the management company of OPCA, and the management company of collective investment organizations regarding the coverage of their assets resulting from the aforementioned system.
Art. 100. The Guarantee Fund shall take the necessary measures and arrangements to enable the branches of portfolio management and investment consulting companies, management companies of OPCA and management companies of collective investment organizations under the law of another Member State to participate in the investor protection system of which it assumes management, with a view to supplementing, within the limits of this system, the guarantees provided by the system to which the company adheres in its State.
If the branch that made use of the faculty provided for in paragraph 1^er fails to meet its obligations to the investor protection system, the Guarantee Fund in collaboration with the ADMSP, with the competent authority that issued the approval to the investment management and consulting firm of the ACOA Management Corporation or to the management company of the collective investment organizations under the branch. In the absence of a correction of the situation, within twelve months, the Guarantee Fund may, in the opinion of that authority, exclude the branch after a twelve-month notice. The long-term commitments prior to exclusion remain covered by the protection system until they are completed. Other assets held previously excluded remain covered for twelve months. Investors are informed by the branch, or, if not, by the MSDS, of the termination of the coverage.
Art. 101. The King may, on the advice of the FSMA, determine the method of assessment and calculation of the initial contribution to be paid to the investor protection system by the portfolio management and investment consulting companies the management companies of OPCA and the management companies of collective investment organizations that subscribe to it for the first time and for which insufficient contributions are made by a system to which they have previously subscribed.
PART 5. - Foreign currency trading intermediaries
Art. 102. Only authorized to conduct foreign exchange trade in Belgium, on behalf of itself or as a commissioner or agent:
1° the National Bank of Belgium and the European Central Bank;
2° Belgian credit institutions;
3° foreign credit institutions authorized to operate in Belgium under the Act of 25 April 2014;
4th Belgian law stock exchange companies referred to in title II of Book XII of the Act of 25 April 2014;
5° foreign exchange companies authorized to operate in Belgium under Book XII, Title III of the Act of 25 April 2014;
6° Belgian legal payment institutions approved by the Bank in accordance with Article 6 of the Act of 21 December 2009;
7° payment institutions under the right of another Member State authorized to carry out their activities in Belgium in accordance with articles 39 et seq. of the law of 21 December 2009;
8° La Poste.
Paragraph 1^er is not applicable to foreign currency purchase or sale transactions in the form of foreign currency cash or cheques or through the use of a credit or payment card.
Art. 103. The King determines:
1° the rules relating to the registration of persons established in Belgium who, as a profession, carry out the operations referred to in Article 102, paragraph 2 and the regime and the control that apply to them;
2° the rules to which foreign exchange transactions referred to in Article 102, paragraph 2.
Persons referred to in paragraph 1^er must have the necessary professional honesty and expertise to carry out the activities referred to in section 102, paragraph 2. They cannot be found in any of the cases defined by section 20 of the Act of 25 April 2014.
In the case of a corporation, the above-mentioned conditions apply to persons in charge of effective management.
The registration of the company is denied if persons who directly or indirectly hold an interest in the capital of the society, conferring the right to vote or not, at least 5 pct., do not have the qualities necessary to ensure a healthy and prudent management of the society.
The King may provide that the registration is refused, revoked or suspended if the persons referred to in paragraph 1^er, 1°, do not meet the legal conditions or other conditions that it determines.
The King rules the registration procedure as well as the suspension and revocation of the registration.
FSMA may request, within the time it determines, the establishments referred to in section 102, paragraph 1^er, 1° to 8°, information relating to transactions between these institutions and those persons.
PART 6. - Collaboration between competent authorities and communication of information
CHAPTER 1^er- Collaboration between authorities
Art. 104. FSMA may, as provided by Article 77, § 1^er, of the Act of 2 August 2002 refer to the European Financial Markets Authority situations in which a request for control, on-site verification, investigation and information exchange activities has been rejected or has not been implemented within a reasonable period of time.
Art. 105. The FSMA may, with the approval of the Minister of Finance, agree, on the basis of reciprocity, with the authorities of the State of origin of the foreign investment management company under the law of third countries and with those of the other branches of that company established in other States than Belgium, rules relating to the obligations and prohibitions of the branch of this company of portfolio management and investment advice in Belgium
Conventions may deviate from the provisions of section 3 of this chapter with a view to establishing rules and procedures more appropriate to the nature and distribution of the activities of the foreign investment management and consulting company and its control.
Through the existence of a comprehensive control that meets the criteria set out in section 3 of this chapter, these conventions may exempt from the application of certain provisions of this section and from the orders and regulations made for its implementation.
The agreements provided for in this Article shall not include for the benefit of the branches of a foreign investment portfolio management and advice corporation under the law of a third country that they relate to rules more favourable than those applicable to branches established in Belgium of foreign portfolio management and investment consulting companies under the law of another Member State.
Conventions must include a termination clause on a notice that cannot exceed six months.
FSMA publishes in its annual report the list and substance of the conventions concluded under this article.
CHAPTER 2. - Communication of information
Art. 106. FSMA provides the following information on its website:
1° the legislation relating to the status and control of investment companies, as well as the decrees, regulations and circulars implemented or pursuant to that legislation;
2° a table for the transposition of the provisions of the European directives relating to the prudential supervision of investment companies, indicating the options selected;
3° the verification criteria and methods it uses to conduct the assessment referred to in Article 56, § 2;
4° of aggregate statistical data on key aspects of the application of the legislation referred to in 1°;
5° any other information prescribed by the decrees and regulations made pursuant to this Act.
The information referred to in paragraph 1^er are, if any, published on the FSMA website in accordance with the terms agreed between the Member States of the European Economic Area. FSMA ensures that the information provided on its website is updated regularly.
PART 7. - Penal sanctions
Art. 107. § 1^er. Are punished by imprisonment from one month to one year and a fine of 50 EUR to 10,000 EUR or one of these penalties only:
1° those who exercise the activity of an investment enterprise referred to in section 3 without the approval or registration of that undertaking in accordance with the provisions of this Act, or after renouncing that approval or registration or having been withdrawn, removed, removed, revoked or suspended such approval or registration;
2° those who do not comply with Article 9;
3° those who knowingly refrain from making the notifications referred to in Article 31, §§ 1^er and 5, those who pass beyond the opposition referred to in Article 31, § 3, or those who pass beyond the suspension referred to in Article 32, paragraph 1^er, 1° ;
4° Directors, managers or directors who contravene sections 36, 44, 55, paragraph 1^er, 1^re and third sentences, and paragraph 2, 59, paragraph 2, paragraph 4, 1^re sentence, and § 5, paragraph 1^er and 2, and 60, § 2, paragraph 8;
5° the directors, managers or directors of an investment company that, abroad, open a branch or undertake services without having made notifications under sections 47 or 51 or that do not comply with sections 50 and 53;
6° directors, managers or directors who contravene orders or regulations referred to in articles 55, paragraph 1^er, 2^e sentence, and paragraph 3, 59, § 2, paragraph 4, and paragraph 9, § 4, § 5, paragraph 3, and § 9, 60, § 2, paragraph 5 and last paragraph, and § 3;
7° those who do not comply with articles 102, paragraph 1^erand 103;
8° those who perform acts or operations without obtaining the authorization of the Special Commissioner referred to in section 64, § 1^er, 1° or against a decision of suspension made in accordance with Article 64, § 1^er, 4° ;
9° those who obstruct inspections and audits in the country or abroad or refuse to provide information that they are required to provide under headings III and V or knowingly provide inaccurate or incomplete information.
§ 2. Offences under Articles 24 and 45.
§ 3. A fine of EUR 50 to EUR 10,000 or one of these penalties shall be imposed on directors, managers or directors who do not comply with the provisions of the regulations made pursuant to section 54.
Art. 108. The provisions of Book I of the Criminal Code, without exception of Chapter VII and Article 85, apply to offences punishable by this title.
Art. 109. Corporations are civilly liable for fines to which their directors, managers, directors or agents are convicted pursuant to the provisions of this title.
Art. 110. Any information of the offence leader under this heading or any of the legislation referred to in section 24 against directors, directors, managers, directors, agents, supervisors, supervisors, supervisors, supervisors, supervisors of independent oversight functions of portfolio management and investment consulting companies and any information of the offence leader in this book against any other natural or legal person must be brought to the attention of the FSMA by the administrative authority
Any criminal action by the head of the offences referred to in paragraph 1^er must be brought to the attention of the FSMA at the diligence of the Public Prosecution Service.
Art. 111. The MSDS is empowered to intervene in any event before the criminal court that has been charged with an offence punishable by this Act, without having to justify injury.
The intervention follows the rules applicable to the civil party.
PART 8. - Miscellaneous provisions
CHAPTER 1^er. - Transitional provisions
Art. 112. Portfolio and Investment Consulting Corporations that have an approval on the effective date of this Act, shall retain it for those of the services and/or investment activities and auxiliary services referred to in section 2, which correspond to their existing approval.
Art. 113. Investment companies under the right of a Member State registered on the lists referred to in Articles 3 and 4 of the Royal Decree of 20 December 1995 relating to foreign investment companies are registered on the lists referred to in Articles 10, § 4 and 11, § 2.
The branches of investment undertakings under the law of a third country that have an approval on the date of entry into force of this Act shall retain it for those of the services and/or investment activities and auxiliary services referred to in section 2, which correspond to their existing approval.
Investment companies falling under the law of a third country on the list referred to in Article 25, § 2, paragraph 3 of the Royal Decree of 20 December 1995 on foreign investment companies are, in full right, taken to the list referred to in Article 14, § 2, paragraph 3.
Art. 114. § 1^er. Royal decrees, FSMA regulations and any other acts of a regulatory nature adopted pursuant to the Act of 6 April 1995 relating to the status and control of investment enterprises remain applicable to the extent that the provisions of this Act provide for the legal, general or specific authorizations necessary for such regulatory acts and that their content is not contrary to this Act.
§ 2. The authorizations and derogations given by the MSDS and all acts of individual scope previously adopted on the basis of the Act of 6 April 1995 relating to the status and control of investment undertakings or regulatory acts adopted for its implementation, shall remain in force, except for their revocation or amendment decided in accordance with this Act.
Art. 115. For the purposes of sections 96 to 101, the words "Safety Funds" must be understood as including both the Special Fund for the Protection of Deposits, the Insurance of the Life and Capital of Chartered Cooperative Societies and the Fund for the Protection of Deposits and Financial Instruments, according to their respective missions provided by the Royal Decree of 14 November 2008 on the implementation of the Act of 15 October 2008 on measures to promote financial stability and
CHAPTER 2. - Amendments
Art. 116. In articles 92, § 3, 2°, 108, 1°, 145, 1°, 224, paragraph 1^er, 311, paragraph 1^er, 399, paragraph 1^er, 422, paragraphs 1^er and 3, 449, paragraph 1^er, 468, paragraph 6, 1°, 600, paragraph 1^er, 771, 798, paragraph 1^er, and 869 of the Corporate Code, the words "the Act of April 25, 2014 on the Status and Control of Credit Institutions" are replaced by the words "the Act of April 25, 2014 on the Status and Control of Credit Institutions and Exchange Corporations".
Art. 117. In Article 88, paragraph 2 of the same Code, the words "Article 1^er, § 3, of the Act of 6 April 1995 on secondary markets, the status of investment companies and their control, intermediaries and investment advisers are replaced by the words "Article 2, 5° of the Act of 2 August 2002 on the supervision of the financial sector and financial services".
Art. 118. In Article 92, § 3, 4° of the same Code, as amended by the Act of 18 December 2015, the words "Article 44 of the Act of 6 April 1995 relating to the status and control of investment enterprises, excluding the establishments referred to in Article 45 of this Act" are replaced by the words "Article 3 of the Act of 25 October 2016 relating to access to the activity of the provision of investment services and
Art. 119. In Article 107, § 1^er, paragraph 4 of the same Code, the words "Article 1^er, § 3, of the Act of 6 April 1995 on secondary marches, the status of investment companies and their control, intermediaries and investment advisers are replaced by the words "Article 2, 5° of the Act of 2 August 2002 on the supervision of the financial sector and financial services".
Art. 120. In section 108, 3°, of the same Code, as amended by the Act of 18 December 2015, the words "section 44 of the Act of 6 April 1995 relating to the status and control of investment enterprises, excluding the establishments referred to in section 45 of this Act" are replaced by the words "section 3 of the Act of 25 October 2016 relating to access to the activity of the provision of investment services and the status
Art. 121. In Article 141 of the same Code, amended by the Act of 18 December 2015, the words "Article 47, § 1^er, 1°, of the Act of 6 April 1995 relating to the status and control of investment companies" are replaced by the words "Article 6, § 1^er, 1°, of the Act of October 25, 2016 on Access to Investment Services Delivery Activity and the Status and Control of Portfolio Management and Investment Consulting Corporations".
Art. 122. In section 145, 3°, of the same Code, the words "the Act of April 6, 1995 on secondary markets, the status of investment companies and their control, intermediaries and investment advisors" are replaced by the words "the Act of October 25, 2016 on access to investment services delivery activity and the status and control of portfolio management and investment consulting companies".
Art. 123. In Article 430, § 2, 1°, of the same Code, as amended by the Act of 25 April 2014, the words "companies governed by the Act of 25 April 2014 relating to the Status and Control of Credit Institutions" are replaced by the words "credit institutions governed by the Act of 25 April 2014 relating to the Status and Control of Credit Institutions and Exchange Societies".
Art. 124. In article 468, paragraph 6, 2°, of the same Code, the words "the Act of 6 April 1995 relating to the status of investment companies and their control, to intermediaries and investment advisers" are replaced by the words "the Act of 25 April 2014 relating to the status and control of credit institutions and exchange companies".
Art. 125. In articles 629, § 2, 1°, and 630, § 2, of the same Code, as amended by the law of 25 April 2014, the words "enterprises governed by the law of 25 April 2014 relating to the status and control of credit institutions" are each replaced by the words "credit institutions governed by the law of 25 April 2014 relating to the status and control of credit institutions and exchange companies".
Art. 126. In section 2 of the Financial Sector Supervision and Financial Services Act of August 2, 2002, the following amendments are made:
1° in 10°, (a), 34° and 41°, the words "Law of 25 April 2014 relating to the status and control of credit institutions" are each replaced by the words "Law of 25 April 2014 relating to the status and control of credit institutions and exchange companies";
2° paragraph 1^er is supplemented by the 49th written as follows:
"49th Act of October 25, 2016: the Act of October 25, 2016 on Access to Investment Services Delivery Activity and the Status and Control of Portfolio Management and Investment Consulting Corporations";
3° in paragraph 2, the words "Law of April 6, 1995 on the status and control of investment companies" are replaced by the words "Law of October 25, 2016".
Art. 127. In Article 19, § 3, paragraph 3 of the Act, the words "Article 67, § 7, paragraphs 2 and 3, of the Act of 6 April 1995 referred to above" are replaced by the words "Article 32, paragraphs 2 and 3 of the Act of 25 October 2016".
Art. 128. In Article 27, § 6, 4th of the same Law, as amended by the Law of 25 April 2014, the words "of Article 42 of the Law of 25 April 2014, as well as by and under Article 62bis of the Law of 6 April 1995 relating to the Status and Control of Investment Companies" are replaced by the words "of articles 42 and 510 of the Law of 25 April 2014, to the extent that
Art. 129. In the same Act, an article 28quater is inserted as follows:
"Art. 28quater. The King may, on the advice of the FSMA and the BNB, determine the obligations and prohibitions applicable to investment companies that carry out for professional customers activities relating to the receipt and transmission of orders relating to one or more financial instruments when this activity relates to the reporting of these professional customers, thus enabling them to carry out an operation.
This Order may determine, inter alia, the rules of conduct and the rules of incompatibility applicable to these undertakings, and the rules of administrative and accounting treatment for such transactions. ".
Art. 130. In Article 31, § 5, of the same Law, as amended by the Royal Decree of 27 April 2007, the words "Article 77bis of the Law of 6 April 1995 relating to the Status and Control of Investment Companies" are replaced by the words "Articles 65, §§ 1^er and 2, and 528 of the Act of 25 April 2014, to the extent that the latter article renders Article 65, §§ 1^er and 2, above-mentioned applicable to stock exchange companies".
Art. 131. In Article 45, § 1^erParagraph 1^er of the Act, as amended last by the Act of April 22, 2016, the following amendments are made:
1° in 3°, the following modifications are made:
(a) in the (f), the words "sections 21, 41, 42, 64 and 65, as well as section 66 with respect to the provision of investment services and the exercise of investment activities, of the law of 25 April 2014, as well as articles 62 and 62bis of the law of 6 April 1995 relating to the status and control of investment enterprises" are replaced by the words "sections 21, 41, 42, 64 and 65^er of this law make articles 21 and 65, § 3, referred to above applicable to scholarship companies, as well as articles 25 and 26 of the law of 25 October 2016";
(b) (g) is replaced by the following:
"g. Articles 65, §§ 1^er and 2, and 528, paragraph 1^er of the law of 25 April 2014, to the extent that the latter article renders article 65, §§ 1^er and 2, above-mentioned applicable to stock exchange companies".
2° 5° is supplemented by the words "and against the illegal use of names reserved for registered, registered or registered companies with the FSMA or the Bank".
Art. 132. In Article 75, § 1^er, 1°, paragraph 2 of the same law, the words "Article 95, §§ 5bis and 5ter, of the Law of 6 April 1995 on the Status and Control of Investment Companies" are replaced by the words "Article 59, §§ 6 and 7, of the Law of 25 October 2016".
Art. 133. In article 86bis, § 1^erParagraph 1^er of the Act, as amended last by the Act of 19 April 2014, the following amendments are made:
(a) in 2°, the words "Article 137 or Article 139 of the Act of 6 April 1995 relating to the Status and Control of Investment Businesses" are replaced by the words "Article 102 or Article 103 of the Act of 25 October 2016".
(b) the paragraph is supplemented by a 6°, which reads as follows:
"6° makes public use in Belgium of denominations or holds securities reserved under legal or regulatory provisions to registered, registered or registered companies with the FSMA or the Bank, without having been registered, registered or registered in accordance with the applicable legal or regulatory provisions, or after having renounced such approval, registration or registration or having been withdrawn, revoked or revoked such approval, registration or registration. ".
Art. 134. In Article 121, § 1^erParagraph 1^er4° of the same law, as last amended by the law of 29 June 2016, the words "Article 109, § 1^er, paragraph 2, or § 2, of the Law of 6 April 1995 on secondary markets, the status of investment enterprises and their control, to intermediaries and investment advisers are replaced by the words "Article 69, § 1^erParagraph 2, or § 2, of the Law of 25 October 2016".
Art. 135. In articles 4, 1°, (a) and (d), and 5°, 8, paragraph 1^er, 4°, 9, 1° and 2°, 10, § 1^erParagraph 3, 12, § 1^er, 2° and § 2, 2° of the Act of 22 March 2006 relating to the intermediation in banking and investment services and the distribution of financial instruments, the words "bank law" are replaced each time by the words "law of 25 April 2014".
Art. 136. In section 4 of the Act, last amended by the Act of April 19, 2014, the following amendments are made:
1° in 1°, b) is replaced by the following:
"(b) investment services and activities within the meaning of Article 2, 1°, 1, 5 and 7 of the law of October 25, 2016";
2° in 5°, the words "Article 44 of the Investment Services Act" are replaced by the words "Article 3 of the Law of 25 October 2016";
3° the 7° is replaced by the following:
"7th Act of April 25, 2014: the Act of April 25, 2014 on the Status and Control of Credit Institutions and Scholarships".
4° 9° is replaced by the following:
"9th Act of October 25, 2016: "The Act of October 25, 2016 on Access to Investment Services Delivery Activity and the Status and Control of Portfolio Management and Investment Consulting Corporations".
Art. 137. In Article 5, § 1^er the same Act, as amended by the Royal Decree of 27 April 2007, the following amendments are made:
1° in paragraph 5, the words "in the sense of Article 46, 23°, of the Investment Services Act. The provisions provided by and under section 110 of the Act are applicable" are replaced by the words "as defined in section 2, 26°, of the Act of 25 October 2016. The provisions of sections 10, 70 to 82 of the Act of 25 October 2016 and sections 590, 592 to 600 of the Act of 25 April 2014 are applicable";
2° in paragraph 6, the words "section 79 of the Investment Services Act" are replaced by the words "section 44 of the Act of 25 October 2016 or section 537 of the Act of 25 April 2014".
Art. 138. In Article 11, § 1^erParagraph 2 of the Act is replaced by the following:
"It must also meet the following obligations:
1° the investment services referred to in Article 4, 1°, b), are limited to securities and shares of collective investment bodies;
2° it cannot at any time receive and retain funds and financial instruments, either in cash or on an account, or be in a debiting position with respect to the savers or the investor; no warrant or power of attorney may be available on an account of its customers, except for those of its family members who are part of its household, or hold or keep in deposit the values or accounts of its customers. ".
Art. 139. In Article 12, § 1^er of the Act, amended by the Act of 25 April 2014, the following amendments are made:
(a) the 3° is replaced by the following:
"3° the supply:
- for its own account, the investment services referred to in Article 2, 1°, the Act of 25 October 2016, and, on behalf of third parties, such investment services other than the investment services referred to in Article 4, 1°, and,
- for its own account, the auxiliary services referred to in section 2, 2°, of the law of 25 October 2016
In addition, a broker in banking and investment services may not be used as an intermediary for auxiliary services referred to in section 2, 2°, 1) of the Act of 25 October 2016".
(b) in the 4th, the words "articles 137 to 139bis of the Investment Services Act" are replaced by the words "articles 102 and 103 of the Act of 25 October 2016".
Art. 140. In section 56, paragraph 1^er of the Act of 16 June 2006 relating to public tenders of investment instruments and admissions of instruments for the negotiation of regulated markets, last amended by the Act of 25 April 2014, the following amendments are made:
1° in (b), the words "Law of April 25, 2014 relating to the status and control of credit institutions" are replaced by the words "Law of April 25, 2014 relating to the status and control of credit institutions and exchange companies";
2° in the e), the words "in Book II, Title II, of the Act of 6 April 1995 on the Status and Control of Investment Companies" are replaced by the words "in Book XII, Title II of the Act of 25 April 2014";
3° in (f), the words "in Book II, Title II, of the Act of 6 April 1995" are replaced by the words "in Title III of the Act of 25 October 2016 on access to the activity of providing investment services and the status and control of portfolio management and investment consulting companies";
4° in (g), the words "under Book II, Title III, of the Law of 6 April 1995" are replaced by the words "under Title II, Chapter III, Section I of the Law of 25 October 2016";
5° in the h), the words "in accordance with Book II, Title IV, of the Law of 6 April 1995" are replaced by the words "in accordance with Title II, Chapter III, Section III of the Law of 25 October 2016";
6° in (i) the words "under the decrees taken pursuant to Book II, Title IV, of the Law of 6 April 1995" are replaced by the words "under title II, chapter III, section IV of the Law of 25 October 2016".
Art. 141. In article 68bis, paragraph 1^er of the Act, as amended last by the Act of 25 April 2014, the following amendments are made:
(a) in the 1st, the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions" are replaced by the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions and Exchange Corporations";
(b) in the 4th, the words "in accordance with Article 47 of the Act of 6 April 1995 relating to the status and control of investment enterprises, for deposits received in accordance with Article 77, § 1^er, paragraph 2, of the aforementioned law" are replaced by the words "seen to section 1^er, § 3, paragraph 2 of the Act of 25 April 2014 relating to the status and control of credit institutions and scholarship companies, for deposits received in accordance with Article 533 of the above-mentioned Act;
(c) in the 5th, the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions" are replaced by the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions and Exchange Corporations".
Art. 142. In section 25 of the Act of 27 October 2006 on the Control of Professional Retirement Institutions, replaced by the Act of 25 April 2014, the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions" are replaced by the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions and Exchange Corporations".
Art. 143. In Article 10, § 1^er Act of 1^er April 2007 on public tenders, as amended by the Act of 25 April 2014, the following amendments are made:
(a) in 2°, the words "the Act of 25 April 2014 relating to the status and control of credit institutions" are replaced by the words "the Act of 25 April 2014 relating to the status and control of credit institutions and exchange companies";
(b) in the 5th, the words "in Book II, Title II, of the Act of 6 April 1995 relating to the status of investment companies and their control, to intermediaries and investment advisers" are replaced by the words "in Book XII, Title II of the Act of 25 April 2014 referred to above";
(c) in 6°, the words "in accordance with Book II, Title III, of the Act of 6 April 1995 referred to above" are replaced by the words "in accordance with Part II, Chapter III, Section I of the Act of 25 October 2016 relating to access to the activity of the provision of investment services and the status and control of portfolio management and investment consulting companies";
(d) in the 7th, the words "in accordance with Book II, Title IV, of the Act of 6 April 1995 referred to above" are replaced by the words "in accordance with Title II, Chapter III, Section III of the aforementioned Act of 25 October 2016";
(e) in the 8th, the words "under the decrees taken pursuant to Book II, Title IV, of the Act of 6 April 1995 referred to above" are replaced by the words "under title II, chapter III, section IV of the aforementioned Act of 25 October 2016".
Art. 144. Sections 117 and 119 of the Royal Decree of 27 April 2007 to transpose the European Directive on the Markets of Financial Instruments are repealed.
Art. 145. Section 120 of the same Royal Decree is replaced by the following:
"Art. 120. Article 12, § 1^er, 3° of the same law, as amended by the law of 25 October 2016, is supplemented by two paragraphs written as follows:
"In addition, a broker in banking and investment services may, by derogation from paragraph 1^er, to offer for its own account the investment advisory services referred to in section 2, 1°, 5), the law of ..., concerning securities and shares of collective investment bodies.
The King may impose specific rules of organisation as well as rules of conduct to brokers in banking and investment services that offer advisory services on their own behalf."
Art. 146. Article 40, § 1^er the Act of 21 December 2009 on the Status of Payment Institutions and Electronic Currency Establishments, Access to the Activity of Payment Services Provider, Electronic Currency Emitting Activity and Access to Payment Systems, last amended by the Act of 27 November 2012, is supplemented by a fourth paragraph written as follows:
"Article 21, § 7, paragraph 1^er is applicable to the payment establishments referred to in Article 39 that operate in Belgium through branches. However, the payment establishments referred to in Article 39 that operate in Belgium an activity of foreign exchange transactions referred to in Article 103 of the Law of ... relating to access to the activity of the provision of investment services and the status and control of the companies of management of portfolio and investment consulting, by way of branches, are, with respect to this activity, resumed in the list of exchange offices registered in Belgium with the mention referred to " To this end, the payment institutions concerned notify the FSMA of the exercise of this foreign currency transaction activity. ".
Art. 147. In Article 48, § 1^erParagraph 2 of the Act is replaced by the following paragraph:
"The Bank cannot exempt these legal persons from the application of Articles 21, paragraphs 1^er 6 and 8 and 22. ".
Art. 148. In section 3 of the Act of 3 August 2012 on collective investment organizations that meet the requirements of Directive 2009/65/EC and debt-taking institutions, as amended lastly by the Act of 13 March 2006, the following amendments are made:
1° in 39°, the words "in Book II, Titles II to IV, of the Law of 6 April 1995" are replaced by the words "under title II of the Law of 25 October 2016";
2° in 47°, the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions" are replaced by the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions and Exchange Corporations";
3° the 48° is replaced by the following:
"48th Act of October 25, 2016: the Act of October 25, 2016 on Access to Investment Services Delivery Activity and the Status and Control of Portfolio Management and Investment Consulting Corporations".
Art. 149. In Article 42, § 1^er, 4°, a) of the same law, amended by the law of 19 April 2014, the words "Article 46, 1°, 4 of the law of 6 April 1995" are replaced by the words "Article 2, 1°, 4 of the law of 25 October 2016".
Art. 150. In section 50, § 2, 3, of the same law, the words "that are subject to the law of April 6, 1995" are replaced by the words "that are subject to Book XII of the Law of April 25, 2014".
Art. 151. In section 71, paragraph 1^er of the Act, as amended last by the Act of 19 April 2014, the following amendments are made:
1° in the e), the words "in Book II, Title II, of the Law of 6 April 1995" are replaced by the words "in Book XII, Title II of the Law of 25 April 2014";
2° in the f), the words "in Book II, Title II, of the Law of 6 April 1995" are replaced by the words "in Title III of the Law of 25 October 2016";
3° in (g), the words "under Book II, Title III, of the Law of 6 April 1995" are replaced by the words "under Title II, Chapter III, Section I of the Law of 25 October 2016";
4° in the h), the words "in Book II, Title IV, of the Law of 6 April 1995" are replaced by the words "in Title II, Chapter III, Section III of the Law of 25 October 2016";
5° in (i), the words "under the decrees taken pursuant to Book II, Title IV, of the Law of 6 April 1995" are replaced by the words "under title II, chapter III, section IV of the Law of 25 October 2016".
Art. 152. In sections 85, § 2 and 154, § 2, paragraph 2, of the same law, as amended by the law of 25 April 2014, the words "Article 53 of the law of 6 April 1995" are replaced by the words "Article 7, paragraph 2, (a) of the law of 25 October 2016".
Art. 153. In section 187 of the Act, amended by the Act of April 25, 2014, the following amendments are made:
(a) in the 1st, the words "in Book II, Titles II to IV, of the Law of 6 April 1995, which are authorized to provide the investment services referred to in Article 46, 1°, 4 of the Law of 6 April 1995" are replaced by the words "in Title II of the Law of ..., which are authorized to provide the investment services referred to in Article 2, 1°, 4 of the Law of 25 October 2016;
(b) in 2°, the words "Article 46, 1°, 4 of the Law of 6 April 1995" are replaced by the words "Article 2, 1°, 4 of the Law of 25 October 2016".
Art. 154. In Article 202, § 1^er, 4°, a) of the same law, amended by the law of 19 April 2014, the words "Article 46, 1°, 4 of the law of 6 April 1995" are replaced by the words "Article 2, 1°, 4 of the law of 25 October 2016".
Art. 155. In section 205 of the Act, the words "Title V of the Law of 6 April 1995" are replaced by the words "Title IV of the Law of 25 October 2016".
Art. 156. In article 221, paragraph 1^er of the same law, as amended by the Act of 19 April 2014, the words "Article 62bis of the Act of 6 April 1995" are replaced by the words "Article 26 of the Act of 25 October 2016".
Art. 157. In section 241 of the Act, last amended by the Act of March 13, 2016, the following amendments are made:
1° in paragraph 1^erParagraph 1^er2°, the words "Article 95bis of the Law of 6 April 1995" are replaced by the words "Article 60 of the Law of 25 October 2016";
2° in paragraph 1^er, paragraph 2, the words "of section 95 of the Act of 6 April 1995" are replaced by the words "to the provisions of subsection I^re Section IV of Book XII, Part II, Chapter III of the Act, of section 59 of the Act of 25 October 2016";
3° in paragraph 5, paragraph 1^er, the words "of Article 95bis of the Law of 6 April 1995" are replaced by the words "of Sub-section II of Section IV of Book XII, Part II, Chapter III of the same Law, of Article 60 of the Law of 25 October 2016".
Art. 158. In section 5, 51° of the Insurance Act of April 4, 2014, replaced by the Act of October 26, 2015, the words "the Act of April 25, 2014 on the Status and Control of Credit Institutions" are replaced by the words "the Act of April 25, 2014 on the Status and Control of Credit Institutions and Exchange Corporations".
Art. 159. 3 of the Act of April 19, 2014 on alternative collective investment organizations and their managers, the following amendments are made:
1° in 75°, the words "the Act of 25 April 2014 relating to the Status and Control of Credit Institutions" are replaced by the words "the Act of 25 April 2014 relating to the Status and Control of Credit Institutions and Exchange Corporations";
2° the 76° is replaced by the following:
"76° "Law of October 25, 2016: The Law of October 25, 2016 on Access to Investment Services Delivery Activity and the Status and Control of Portfolio Management and Investment Consulting Corporations".
Art. 160. In article 33, paragraph 1^er of the same law, the words "Article 62bis of the Law of 6 April 1995" are replaced by the words "Article 26 of the Law of 25 October 2016".
Art. 161. In section 35 of the Act, the words "Title V of the Law of 6 April 1995" are replaced by the words "Title IV of the Law of 25 October 2016".
Art. 162. In article 108, § 3, of the same law, the words "law of 6 April 1995" are replaced by the words "law of 25 October 2016".
Art. 163. In Article 209, § 1^erParagraph 1^er, 2°, a) of the same law, the words "Article 46, 1°, 4 of the Law of 6 April 1995" are replaced by the words "Article 2, 1°, 4 of the Law of 25 October 2016".
Art. 164. In Article 248, § 2, paragraph 1^er the words "Article 53 of the Act of 6 April 1995" are replaced by the words "Article 7, paragraph 2, (a) of the Act of 25 October 2016".
Art. 165. In section 307 of the Act, the following amendments are made:
1° in 1°, the words "seen in Book II, Titles II to IV, of the Act of 6 April 1995, which are authorized to provide the investment services referred to in Article 46, 1°, 4 of the Act of 6 April 1995" are replaced by the words "seen under Part II of the Act of 25 October 2016, which are authorized to provide the investment services referred to in Article 2, 1°, 4 of the Law of 25 October 2016;
2° in 2°, the words "Article 46, 1°, 4 of the Law of 6 April 1995" are replaced by the words "Article 2, 1°, 4 of the Law of 25 October 2016".
Art. 166. In Article 320, § 1^erParagraph 1^er, 2°, a) of the same law, the words "Article 46, 1°, 4 of the Law of 6 April 1995" are replaced by the words "Article 2, 1°, 4 of the Law of 25 October 2016".
Art. 167. In section 345 of the Act, the following amendments are made:
1° in paragraph 1^erthe following modifications are made:
(a) in paragraph 1^er2°, the words "Article 95bis of the Law of 6 April 1995" are replaced by the words "Article 60 of the Law of 25 October 2016";
(b) in paragraph 2, the words "of section 95 of the Act of 6 April 1995" are replaced by the words "to the provisions of subsection I^re Section IV of Book XII, Title II, Chapter III of the Act, of Article 59 of the Act of 25 October 2016";
2° in paragraph 5, paragraph 1^er, the words "of section 95bis of the law of 6 April 1995" are replaced by the words "of section II of section IV of Book XII, title II, chapter III of the same law, of section 60 of the law of 25 October 2016".
Art. 168. In articles I. 9, 71° and 82°, XV. 57/1, paragraph 1^er, and XV. 67/3, § 1^erParagraphs 1^er and 2, paragraph 2, paragraph 1^er of the Economic Law Code, the words "Law of April 25, 2014 relating to the status and control of credit institutions" are replaced by the words "Law of April 25, 2014 relating to the status and control of credit institutions and exchange companies".
Art. 169. In section I. 9 of the same Code, inserted by the Act of 19 April 2014 and last amended by the Act of 29 June 2016, the following amendments are made:
1° in 2°, a) the words "Article 1^er, paragraph 2, of the Act of 22 March 1993 on the Status and Control of Credit Institutions are replaced by the words "Article 1^er§ 3, paragraph 1^er the Act of 25 April 2014 relating to the Status and Control of Credit Institutions and Scholarships";
2° the 83° is replaced by the following:
"83° Act of October 25, 2016: Act of October 25, 2016 on Access to Investment Services Delivery Activity and the Status and Control of Portfolio Management and Investment Consulting Corporations".
Art. 170. In article III. 25, paragraph 2, of the same Code, inserted by the Act of 17 July 2013, the words "the Act of 22 March 1993 on the Status and Control of Credit Institutions" are replaced by the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions and Exchange Corporations".
Art. 171. In Article III. 95, § 1^er the same Code, inserted by the law of 17 July 2013, the words "subject to the law of 22 March 1993 relating to the status and control of credit institutions, as well as to investment companies subject to the law of 6 April 1995 relating to secondary markets, the status of investment companies and their control, to intermediaries and investment advisors" are replaced by the words "submitted to the law of 25 April 2014 relating to the status and
Art. 172. In Article VI. 55, § 1^er, 4°, b) of the same Code, inserted by the Act of 21 December 2013, the words "the Act of 22 March 1993 on the Status and Control of Credit Institutions" are replaced by the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions and Exchange Corporations".
Art. 173. In Article VII. 3, § 3, 5° of the same Code, amended by the law of 26 October 2015, the words "by the law of 6 April 1995 or with a credit institution referred to in Article 1^er, § 3, of the Act of 25 April 2014 on the Status and Control of Credit Institutions, for the purpose of allowing an investor to make a transaction related to at least one of the financial instruments referred to in Article 2, 1°, of the Law of 6 April 1995" are replaced by the words "by the law of 25 October 2016 or with a credit institution referred to in Article 1^er§ 3, paragraph 1^er the Act of April 25, 2014 relating to the status and control of credit institutions and exchange companies, for the purpose of allowing an investor to make a transaction related to at least one of the financial instruments referred to in section 2, 1°, of the Act of August 2, 2002".
Art. 174. In Article VII.173 of the same Code, inserted by the Act of 19 April 2014 and last amended by the Act of 13 March 2016, the words "Article 53 of the Act of 6 April 1995" are replaced by the words "Article 7 of the Act of 25 October 2016".
Art. 175. In Article VII. 176, § 3, 2° of the same Code, inserted by the law of 17 April 2014 and amended by law 26 October 2015, the words "Article 53 of the law of 6 April 1995" are replaced by the words "Article 13, § 3, of the law of 25 October 2016".
Art. 176. In Article XI. 248, § 3, paragraph 2, of the same Code, inserted by the Act of 19 April 2014, the words "at articles 13 and 65 of the Act of 22 March 1993 relating to the Status and Control of Credit Institutions" are replaced by the words "at articles 14 and 312 of the Act of 25 April 2014 relating to the Status and Control of Credit Institutions and Exchange Corporations".
Art. 177. XI. 250, paragraph 2, 2°, of the same Code, inserted by the Act of 19 April 2014, (a) and (b) are replaced by the following:
"(a) to section 107 of the Act of October 25, 2016 on access to the investment services delivery activity and the status and control of portfolio management and investment consulting companies;
(b) Sections 348 and 349 of the Act of 25 April 2014 on the Status and Control of Credit Institutions and Scholarships; "
Art. 178. In section 4, 3° of the Act of April 25, 2014 relating to the status and control of independent financial planners and the provision of planning consultations by regulated companies and amending the Corporate Code and the Act of August 2, 2002 on financial sector monitoring and financial services, the following amendments are made:
1° in (a), the words "Law of April 25, 2014 relating to the status and control of credit institutions" are replaced by the words "Law of April 25, 2014 relating to the status and control of credit institutions and exchange companies";
2° in (b), the words "Article 44 of the Act of 6 April 1995 on the Status and Control of Investment Businesses" are replaced by the words "Article 3 of the Act of 25 October 2016 on access to the activity of providing investment services and the status and control of portfolio management and investment consulting companies".
Art. 179. In Article 12, § 2, of the same Law, the words "Law of April 25, 2014 on the Status and Control of Credit Institutions" are replaced by the words "Law of April 25, 2014 on the Status and Control of Credit Institutions and Exchange Companies".
Art. 180. In Article 18, § 1^er of the same law, the words "Article 46, 9° of the Act of 6 April 1995 relating to the status and control of investment companies" are replaced by the words "Article 2, 9° of the Act of 25 October 2016 relating to access to the activity of the provision of investment services and the status and control of portfolio management and investment consulting companies".
Art. 181. In section 22, § 2, 4, of the same Act, the words "in accordance with sections 137 and 139 of the Act of 6 April 1995 relating to the status and control of investment companies" are replaced by the words "in accordance with sections 102 and 103 of the Act of 25 October 2016 relating to access to the activity of the provision of investment services and the status and control of portfolio management and investment consulting companies".
Art. 182. In Article 26, § 2, paragraph 1^er, d) of the same law, the words "seen to section 46, 9°, of the Act of 6 April 1995 relating to the Status and Control of Investment Businesses" are replaced by the words "seen to section 2, 9° of the Act of 25 October 2016 on access to the activity of the provision of investment services and the status and control of portfolio management and investment consulting companies".
Art. 183. In Article 2, 37° of the Law of 12 May 2014 on Regulated Real Estate Corporations, the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions" are replaced by the words "the Act of 25 April 2014 on the Status and Control of Credit Institutions and Exchange Corporations".
Art. 184. The King may adapt the references contained in other legislation that refer to legal provisions in the Act of 6 April 1995 relating to the status and control of investment companies or its enforcement orders to align them with the provisions of this Act or its enforcement orders and regulations.
CHAPTER 3. - Abrogatory provisions
Art. 185. The Act of 6 April 1995 on the Status and Control of Investment Businesses is repealed.
Art. 186. The Royal Decree of 20 December 1995 on foreign investment companies is repealed.
Art. 187. The Royal Decree of June 17, 1996 on the limits in which credit institutions and investment companies may hold partner rights and participations is repealed.
Art. 188. The Royal Decree of 29 January 1999 designates investment companies to participate in a collective financial instruments protection system is repealed.
Given in Brussels, 25 October 2016.
PHILIPPE
By the King:
Minister of Finance,
J. VAN OVERTVELDT
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
(1) House of Representatives (www.lachambre.be):
Documents: 54-2060.

Act To Access To The Activity Of Providing Services To Investment And Status And Control Of The Companies Of Investment Advice And Portfolio Management

Original Language Title: Loi à l'accès à l'activité de prestation de services d'investissement et au statut et au contrôle des sociétés de gestion de portefeuille et de conseil en investissement

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25 OCTOBER 2016. - Law on Access to Investment Services Delivery Activity and the Status and Control of Portfolio Management and Investment Consulting Corporations

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