Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies

Title

2016003373

25 OCTOBER 2016. - Law on access to the activity of investment services provision and on the status and supervision of portfolio management and investment advisory companies (NOTE: Consultation of versions prior to 18-11-2016 and update as of 24-12-2025)

Source: Finances

Publication: 18 November 2016

Number: 2016003373

page: 76915

File number: 2016-10-25/04

Entry into force: 28 November 2016

This text modifies the following texts:

1995003337 1996003329 1996003791 1999003063 2007003240 2009003476 2006009492 1999A09646 2014003225 2014003264 2006023149 2014011239 2012003296 2014003229 2007003184 2002003392 2006003247

15 archived versions

6 implementing decrees

TITLE 1st. - Object and definitions Art. 1-2, 2/1, 2/2 TITLE 2. - On access to investment activities and to the activity of investment services provision CHAPTER 1st. - Scope of application Art. 3-5 CHAPTER 2. - On Belgian investment firms Art. 6-9 CHAPTER 3. - On foreign investment firms Section 1st. - On branches and investment services activities in Belgium of investment firms subject to the law of another Member State Art. 10-11 Section 2. - On branches and investment services activities in Belgium of investment firms not subject to [1 Directive 2014/65/UE]1 Art. 12 Section 3. - On branches in Belgium of investment firms subject to the law of third countries Art. 13 Section 4. - On investment services activities in Belgium of investment firms subject to the law of third countries Art. 14, 14/1, 14/2 CHAPTER 4. - On cooperation between supervisory authorities Art. 15 TITLE 3. - On the status and supervision of portfolio management and investment advisory companies CHAPTER 1st. . - On Belgian portfolio management and investment advisory companies Section 1st. - Authorization procedure Art. 16-19 Section 2. - Authorization conditions Sub-section 1st. - Form Art. 20 Sub-section 2. - Initial capital Art. 21 Sub-section 3. - Shareholders Art. 22 Sub-section 4. - Management Art. 23-24 Sub-section 5. - Organization Art. 25, 25/1, 25/2, 25/3, 26, 26/1, 26/2, 26/3, 27 Sub-section 6. - Central administration Art. 28 Sub-section 7. - Investor protection Art. 29 Sub-section 8. [1 - Generalities]1 Art. 29/1 Section 3. - Conditions for exercising the activity Sub-section 1st. - Minimum own funds Art. 30 Sub-section 2. - Modifications in capital structure Art. 31-33 Sub-section 3. - Management and directors Art. 34, 34/1, 34/2, 35, 35/1, 36-37 Sub-section 3/1. [1 Implementation of remuneration policy]1 Art. 37/1, 37/2 Sub-section 4. - Mergers and transfers Art. 38-39 Sub-section 5. - Obligations and prohibitions Art. 40-44, 44/1, 44/2, 45 Sub-section 6. - Opening of subsidiaries or branches abroad Art. 46-50 Sub-section 7. - Exercise of the free provision of services in another Member State of the European Economic Area Art. 51-53 Sub-section 8. - Regulatory standards and obligations Art. 54 Sub-section 9. - Periodic information and accounting rules Art. 55 Section 4. - Supervision of Belgian portfolio management and investment advisory companies Sub-section 1st. [1 - Supervision exercised by the FSMA]1 Art. 56, 56/1, 57-58 Sub-section 2. [1 - Prudential supervision process]1 Art. 58/1, 58/2, 58/3, 58/4, 58/5, 58/6, 58/7, 58/8, 58/9,
58/10, 58/11 Sub-section 3. [1 - Group supervision]1 Art. 59, 59/1, 59/2, 59/3, 59/4, 59/5, 59/6, 59/7, 59/8, 59/9, 60 Sub-section 4. [1 - Revised audit]1 Art. 61-62 Sub-section 5. [1 - Supervision of activities exercised in another Member State]1 Art. 62/1, 62/2, 62/3, 62/4 Section 5. [1 - Withdrawal of authorization, recovery measures, penalty payments and administrative sanctions]1 Sub-section 1st. [1 - Withdrawal of authorization]1 Art. 63 Sub-section 2. [1 - Referral to the Insolvency Court]1 Art. 63/1 Sub-section 3. [1 - On recovery measures]1 Art. 63/2, 64-67, 67/1, 68 Sub-section 4. [1 - On penalty payments and administrative sanctions]1 Art. 69 CHAPTER 2. - On foreign portfolio management and investment advisory companies Section 1st. - On branches and investment services activities in Belgium of foreign portfolio management and investment advisory companies subject to the law of another Member State Art. 70 Sub-section 1. - Obligations and prohibitions Art. 71 Sub-section 2. - Periodic information and accounting rules Art. 72-73 Sub-section 3. - Supervision Art. 74, 74/1, 75 Sub-section 4. - Exceptional measures, administrative and criminal sanctions Art. 76-82 Section 2. - Branches and services activities in Belgium of foreign portfolio management and investment advisory companies subject to the law of another Member State not subject to [1 Directive 2014/65/UE]1 Art. 83 Section 3. - On branches in Belgium of foreign portfolio management and investment advisory companies subject to the law of third countries Sub-section 1st. - Authorization Art. 84 Sub-section 2. - Exercise of the activity Art. 85, 85/1, 85/2 Sub-section 3. - Supervision Art. 86 Sub-section 4. - Withdrawal of authorization, exceptional measures and sanctions Art. 87 Section 4. Art. 88-94 CHAPTER 3. - On cooperation between national authorities Art. 95 TITLE 4. - On investor protection systems Art. 96-101 TITLE 5. - On foreign exchange trading intermediaries Art. 102-103 TITLE 6. - Collaboration between competent authorities and communication of information CHAPTER 1st. - On cooperation between authorities Art. 104-105 CHAPTER 2. - On the communication of information Art. 106 TITLE 7. - Criminal sanctions Art. 107-111 TITLE 8. - Miscellaneous provisions CHAPTER 1st. - Transitional provisions Art. 112-115 CHAPTER 2. - Modifying provisions Art. 116-184 CHAPTER 3. - Repealing provisions Art. 185-188 ANNEX. ANNEX 1. [1 REMUNERATION POLICY]1 Section 1st. [1 - Structure of remuneration policy]1 Art. 1 Section II. [1 - Variable remuneration]1 Art. 2-8
Section III. [1 - Pensions]1 Art. 9 Section IV. [1 - Exemptions]1 Art. 10 Section V. [1 - Anti-abuse provisions]1 Art. 11-12 Section VI. [1 - Severance and entry fees]1 Art. 13-15 Section VII. [1 - Exceptional financial support from public authorities]1 Sub-section 1st. [1 - Variable remuneration - General limitation]1 Art. 16-18 Section VIII. [1 - Publication and communication]1 Art. 19-20

Text

TITLE 1st. - Object and definitions

Article 1st.§ 1st. This law regulates a matter referred to in Article 74 of the Constitution.
§ 2. This law regulates:
1° access to investment activities and to the provision of investment services; 2° the authorization procedure, authorization conditions, exercise conditions and supervision of portfolio management and investment advisory companies; 3° the investor protection system to which portfolio management and investment advisory companies, management companies for collective investment undertakings (OPCA) and management companies for collective investment schemes must adhere; 4° access to foreign exchange trading activities. § 3. This law ensures the partial transposition of the following directives:

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC;
[1 Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU]1;
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 as regards the supplementary supervision of financial entities of financial conglomerates;
Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on investor compensation schemes;
[2 - Directive (EU) 2019/2034 of the European Parliament and of the Council of 27 November 2019 on the prudential supervision of investment firms and amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU and 2014/65/EU.]2 ---------- (1)<L 2017-11-21/08, art. 200, 002; Entry into force: 03-01-2018> (2)<L 2022-07-20/31, art. 3, 013; Entry into force: 15-09-2022>

Art. 2. For the application of this Law and the decrees and regulations issued for its implementation, the following terms shall be understood as follows:

1° by investment services and activities: any service or activity listed below concerning financial instruments:

reception and transmission of orders concerning one or more financial instruments, including the matching of two or more investors thereby enabling the execution of a transaction between these investors;
execution of orders on behalf of clients;
dealing on own account;
portfolio management;
investment advice;
underwriting of financial instruments and/or placing of financial instruments with a firm commitment;
placing of financial instruments without a firm commitment;
operation of a multilateral trading facility (MTF);
operation of an organised trading facility (OTF);

2° by auxiliary service: any service listed below:

safekeeping and administration of financial instruments for the account of clients, including custody services and ancillary services, such as cash/collateral management, and excluding the centralised securities depository at the highest level;
granting of credit or loans to an investor to enable him to carry out a transaction in one or more financial instruments, in which the entity granting the credit or loan is involved;
advice to undertakings on capital structure, industrial strategy and related questions; advice and services in relation to mergers and acquisitions;
foreign exchange services when these services are linked to the provision of investment services;
investment research and financial analysis or any other form of general recommendation concerning transactions in financial instruments;
services related to underwriting;
those of the aforementioned investment services and activities and auxiliary services which concern the underlying market of the derivative instruments referred to in Article 2, paragraph 1, 1°, e), f), g) and j), of the Law of 2 August 2002, when they are linked to the provision of investment services or auxiliary services;

3° by financial instrument: the instruments defined in Article 2, paragraph 1, 1°, of the Law of 2 August 2002;

4° by securities: the securities defined in Article 2, paragraph 1, 31°, of the Law of 2 August 2002;

5° by money market instruments: the instruments defined in Article 2, paragraph 1, 32°, of the Law of 2 August 2002;

6° by execution of orders for the account of clients: the fact of concluding purchase or sale agreements for one or more financial instruments on behalf of clients. Execution of orders includes the conclusion of sale agreements for financial instruments issued by an investment firm or a credit institution at the time of their issuance;

7° by dealing on own account: the fact of negotiating one or more financial instruments by committing own capital with a view to concluding transactions;

8° by portfolio management: the discretionary and individualised management of portfolios including one or more financial instruments, within the framework of a mandate given by the client;

9° by investment advice: the provision of personalised recommendations to a client, either at his request or on the initiative of the investment firm, concerning one or more transactions involving financial instruments;

10° by a personalised recommendation: a recommendation as defined in Article 9 of Delegated Regulation (EU) 2017/565 of the Commission of 25 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards organisational requirements and operating conditions applicable to investment firms and the definition of certain terms for the purposes of that Directive.

11° by client: any natural or legal person to whom an investment firm provides investment services and/or auxiliary services;

12° by professional client: the professional clients defined in Article 2, paragraph 1, 28°, of the Law of 2 August 2002;

13° by retail client: a client who is not treated as a professional client;

14° by multilateral trading facility (MTF): an MTF as defined by Article 3, 10°, of the Law of 21 November 2017;

15° by systematic internaliser: a systematic internaliser as defined by Article 3, 29°, of the Law of 21 November 2017;

16° by market maker: a market maker as defined by Article 3, 26°, of the Law of 21 November 2017;

17° by Member State: a State party to the Agreement on the European Economic Area (EEA);

18° by third country: a State that is not a party to the Agreement on the European Economic Area;

19° by home Member State:
a. if the investment firm is a natural person, the Member State where its head office is located; b. if the investment firm is a legal person, the Member State where its registered office is located;
c. if, in accordance with its national law, the investment firm has no registered office, the Member State where its head office is located;

20° by host Member State: the Member State, other than the home Member State, in which an investment firm has a branch or provides services and/or carries out activities;

21° by competent authority: the FSMA, the National Bank or the foreign authorities designated by each Member State in accordance with Article 67 of Directive 2014/65/EU, unless otherwise provided in the Directive;

22° by credit institution: any credit institution referred to in Book II and Titles I and II of Book III of the Law of 25 April 2014;

23° by management company: a management company within the meaning of Article 3, 12° of the Law of 3 August 2012 concerning collective investment undertakings meeting the conditions of Directive 2009/65/EC and loan financing undertakings;

24° by AIFM: an alternative investment fund manager within the meaning of Article 3, 13° of the Law of 19 April 2014 concerning alternative investment funds and their managers;

25° by tied agent: any natural or legal person who, under the full and unconditional responsibility of a single investment firm on whose behalf he acts, promotes investment services and/or auxiliary services to clients or potential clients, receives and transmits instructions or orders from clients concerning financial instruments or investment services, places financial instruments and/or provides advice to clients or potential clients on these instruments or services;

26° by branch: a place of business other than the head office which constitutes a part of an investment firm, lacking legal personality, which provides investment services and/or carries out investment activities and may also provide the auxiliary services for which it has obtained approval; all places of business established in the same Member State by an investment firm whose head office is located in another Member State are considered as a single branch;

27° by qualifying holding: the direct or indirect ownership of 10% or more of the capital of a company or of the voting rights attached to the shares issued by that company, or any other possibility of exercising significant influence over the management of the company in which a holding is held. The calculation of voting rights shall be carried out in accordance with the provisions of the Law of 2 May 2007 concerning the disclosure of major holdings, as well as those of its implementing decrees. Voting rights or shares held as a result of underwriting of financial instruments and/or placing of financial instruments with a firm commitment shall not be taken into account, provided that, on the one hand, these rights are not exercised or used otherwise to intervene in the management of the issuer and, on the other hand, they are disposed of within one year after their acquisition;

28° by the notions of control, holding, link of participation, parent undertaking, subsidiary and associated undertaking: the meaning given to them by the implementing decrees of Article 55;

28°/1 by group: a parent undertaking and all of its subsidiary undertakings;

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 undertakings are associated undertakings or c) a relationship of the same nature as under letters a) and b) above between a natural person and a legal person;

30° by financial institution: all undertakings referred to in Article 3, 41°, of the Law of 25 April 2014; for the application of Articles 59 and 60, postal cheque offices, AIFMs, management companies of collective investment undertakings, clearing houses referred to in Article 2, 17°, of the Law of 2 August 2002, as well as undertakings whose activity consists of ensuring, in whole or in part, the operational management of services provided by such clearing houses, are assimilated to financial institutions;

31° by market operator: a market operator as defined by Article 3, 3°, of the Law of 21 November 2017;

32° by regulated market: a regulated market within the meaning of Article 3, 7°, of the Law of 21 November 2017;

33° by Directive 2014/65/EU: Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU;

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 laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (recast);

35° by Directive 2009/138/EC: Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II);

36° by Directive 2011/61/EU: Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2001/41/EC and 2009/65/EC as well as Regulations (EC) No 1060/2009 and (EU) No 1095/2010;

37° by Directive 2013/36/EU: Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC;

38° ...

39° Regulation (EU) No 575/2013: Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012;

40° by Law of 2 August 2002: the Law of 2 August 2002 concerning the supervision of the financial sector and financial services;

41° by Law of 22 March 2006: the Law of 22 March 2006 concerning the intermediation in banking and investment services and the distribution of financial instruments;

42° by the Law of 11 March 2018: the Law of 11 March 2018 concerning the status and control of payment institutions and electronic money institutions, access to the activity of payment service providers and the activity of electronic money issuance, and access to payment systems;

43° by Law of 3 August 2012: the Law of 3 August 2012 concerning collective investment undertakings meeting the conditions of Directive 2009/65/EC and loan financing undertakings;

44° by Law of 19 April 2014: the Law of 19 April 2014 concerning alternative investment funds and their managers;

45° by Law of 25 April 2014: the Law of 25 April 2014 concerning the status and control of credit institutions ...

45°/1 by Law of 20 July 2022: the Law of 20 July 2022 concerning the status and control of stockbroking companies and containing various provisions;

46° by conduct rules: the rules referred to in Articles 27 to 28bis of the Law of 2 August 2002;

47° by National Bank: the National Bank of Belgium, referred to in the Law of 22 February 1998 laying down the organic statute of the National Bank of Belgium;

48° by FSMA: the Financial Services and Markets Authority, referred to in Article 44 of the Law of 2 August 2002;

49° by supervisory authority:

the National Bank, in the case of the supervision of Belgian or foreign stockbroking companies referred to in Article 2 of the Law of 20 July 2022;
the FSMA in the case of the supervision of Belgian or foreign portfolio management and investment advisory companies;

50° by consolidated supervisor: the competent authority responsible for the consolidated supervision of parent investment firms in the European Union and of investment firms controlled by parent financial companies in the European Union;

51° by European Securities and Markets Authority: the European Securities and Markets Authority established by Regulation No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC;

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 Commission Decision 2009/78/EC;

53° by independent control function: the internal audit function, the compliance function or the risk management function referred to respectively in Article 25/3;

54° by foreign portfolio management and investment advisory companies, foreign investment firms: investment firms under foreign law, whether that of a Member State or a third country, which are not, in accordance with the law to which they are subject, authorised to provide services or carry out activities reserved under Belgian law to stockbroking companies in accordance with Article 6;

55° by foreign stockbroking companies: investment firms under foreign law defined in Article 209 of the Law of 20 July 2022;

56° by Guarantee Fund: the Guarantee Fund for Financial Services created in accordance with Article 3 of the Royal Decree of 14 November 2008 implementing the Law of 15 October 2008 adopting measures to promote financial stability and in particular instituting a State guarantee relating to credits granted and other operations carried out within the framework of financial stability, concerning the protection of deposits, life insurance and the capital of approved cooperative societies, and amending the Law of 2 August 2002 concerning the supervision of the financial sector and financial services;

57° by business day: a day that is neither a Saturday, nor a Sunday, nor a legal holiday;

58° by organised trading facility (OTF): a multilateral system, other than a regulated market or an MTF, within which multiple buying and selling interests expressed by third parties for bonds, structured financial products, emission quotas or derivative instruments can interact in a way that results in the conclusion of contracts in accordance with the provisions of Chapter II of Title II of the Law of 21 November 2017;

59° by algorithmic trading: the trading of financial instruments in which a computer algorithm automatically determines the various parameters of orders, such as the decision to launch the order, the date and time, the price or quantity of the order, or the manner of managing the order after its submission, with limited or no human intervention; this does not cover systems used solely to route orders to one or more trading platforms or for the processing of orders not involving the determination of any trading parameters or for the confirmation of orders or for executing client orders or for post-trade processing of executed transactions;

60° by high-frequency algorithmic trading technique: any algorithmic trading technique characterised by:
a) an infrastructure designed to minimise computer latencies and other types of latency, including at least one of the following algorithmic order placement systems: colocation, proximity hosting or high-speed direct electronic access; b) the determination by the system of the commitment, creation, routing or execution of an order without human intervention for individual transactions or orders; and c) a high intraday message rate constituting orders, quotes or cancellations;

61° by direct electronic access: a mechanism by which a member or participant or client of a trading platform allows a person to use his trading code in such a way that this person can electronically and directly transmit to the trading platform orders relating to a financial instrument and which includes mechanisms involving the use, by a person, of the infrastructure of the member or participant or client or of any connection system provided by the member or participant or client, to transmit the orders (direct market access) as well as mechanisms in which this infrastructure is not used by a person (sponsored access);

62° by structured deposit: a deposit within the meaning of Article 2, paragraph 1, point c), of Directive 2014/49/EU of the European Parliament and of the Council which is fully repayable at maturity under conditions according to which any interest or premium will be paid or presents a risk according to a formula involving factors such as:
a) an index or a combination of indices, excluding variable rate deposits whose profitability is directly linked to an interest rate index such as Euribor or Libor; b) a financial instrument or a combination of financial instruments; c) a commodity or a combination of commodities or other physical or non-physical assets that are not fungible; or d) an exchange rate or a combination of exchange rates;

63° by third-country undertaking: an undertaking which, if its head office or registered office were located within the European Union, would be either a credit institution providing investment services or carrying out investment activities, or an investment firm;

64° by Regulation (EU) No 600/2014: Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012;

65° by Directive 2003/87/EC: Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC;

66° by Directive 2009/72/EC: Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC; 67° by Directive 2009/73/EC: Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC; 68° by Regulation (EC) No 714/2009: Regulation No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003; 69° by Regulation (EC) No 715/2009: Regulation No 715/2009 of the European Parliament and of the Council of 13 July 2009 concerning conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005; 70° by Regulation (EU) No 596/2014: Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC; 71° by Delegated Directive 2017/593: Delegated Directive (EU) 2017/593 of the Commission of 7 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards organisational requirements and conditions of operation applicable to investment firms and the definition of certain terms for the purposes of that directive; 72° Delegated Regulation 2017/565: Delegated Regulation (EU) 2017/565 of the Commission of 25 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards organisational requirements and conditions of operation applicable to investment firms and the definition of certain terms for the purposes of that directive; 73° by law of 21 November 2017: the law of 21 November 2017 relating to the infrastructure of financial instrument markets and transposing Directive 2014/65/EU;]1 [4 74° by make-whole redemption clause: a clause aimed at protecting investors by ensuring that, in the event of the early redemption of a bond, the issuer is required to pay the investor holding the bond an amount equal to the sum of the net present value of the remaining coupon payments expected until maturity and the principal amount of the bond to be redeemed;]4 [5 75° by derivative instruments: derivative instruments as defined in Article 2, paragraph 1, point 29), of Regulation No 600/2014; 76° by gender-neutral remuneration policy: a remuneration policy based on the principle of equal pay for equal work or work of equal value,
regardless of gender; 77° by Regulation (EU) 2019/2033: Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 concerning prudential requirements applicable to investment firms and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014 and (EU) No 806/2014; 78° by Directive (EU) 2019/2034: Directive (EU) 2019/2034 of the European Parliament and of the Council of 27 November 2019 concerning the prudential supervision of investment firms and amending Directives 2002/87/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU, 2014/59/EU and 2014/65/EU; 79° by Regulation (EU) 1093/2010: 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 Commission Decision 2009/78/EC; 80° by small non-interconnected portfolio management and investment advisory company: a portfolio management and investment advisory company meeting the conditions set out in Article 2/2, § 1; 81° by systemic risk: a risk of disruption of the financial system capable of having serious negative repercussions on the financial system and the real economy;]5 [6 82° Regulation (EU) 2022/2554: Regulation (EU) 2022/2554 of the European Parliament and of the Council of 14 December 2022 on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014, (EU) No 909/2014 and (EU) 2016/1011;]6 [7 83° "Regulation 2023/1114": Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets, and amending Regulations (EU) No 1093/2010 and (EU) No 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937.]7 ---------- (1)<L 2017-11-21/08, art. 201, 002; En vigueur : 03-01-2018> (2)<L 2018-03-11/07, art. 256, 004; En vigueur : 26-03-2018> (3)<L 2021-07-04/04, art. 71, 011; En vigueur : 23-07-2021> (4)<L 2022-02-23/09, art. 40, 012; En vigueur : 28-02-2022> (5)<L 2022-07-20/31, art. 4, 013; En vigueur : 15-09-2022> (6)<L 2025-03-25/05, art. 92, 015; En vigueur : 08-05-2025> (7)<L 2025-12-11/13, art. 81, 016; En vigueur :
03-01-2026>

Art. 2/1. [1 Any reference to this law, the decrees and regulations taken for its implementation, or to any of their provisions, as well as any reference to European directives or regulations referred to in this law, or to any of their provisions, also includes, where applicable, a reference to the provisions of delegated acts and regulatory or implementing technical standards adopted by the Commission in execution of the European directives or regulations transposed or implemented by this law or by the decrees and regulations taken for its implementation, or referred to by the reference concerned.]1 ---------- (1)<Inséré par L 2021-06-27/09, art. 392, 009; En vigueur : 19-07-2021>

Art. 2/2. [1 § 1. A portfolio management and investment advisory company is considered, for the application of this law and the decrees and regulations taken for its implementation, as a small non-interconnected portfolio management and investment advisory company when this company meets all the conditions set out in Article 12, § 1 of Regulation (EU) 2019/2033. As soon as it considers that it meets these conditions, it notifies the FSMA without delay. It also informs the FSMA of the date on which it considers that it meets these conditions. § 2. When a portfolio management and investment advisory company that did not meet all the conditions set out in Article 12, § 1, of Regulation (EU) 2019/2033 subsequently meets them, the provisions of this law that are not applicable to small non-interconnected portfolio management and investment advisory companies cease to be applicable to it at the end of a period of six months from the date on which the conditions set out in Article 12, § 1, of Regulation (EU) 2019/2033 are met. The provisions of this law that are not applicable to small non-interconnected portfolio management and investment advisory companies cease to apply to a portfolio management and investment advisory company at the end of this period only when the company concerned has continued to meet without interruption the conditions provided for in Article 12, § 1 of Regulation (EU) 2019/2033 and has informed the FSMA in accordance with paragraph 1. § 3. When a small non-interconnected portfolio management and investment advisory company finds that it no longer meets all the conditions set out in Article 12, § 1 of Regulation (EU) 2019/2033, it informs the FSMA, as well as the date of the assessment, and complies with the provisions of this law that are not applicable to small non-interconnected portfolio management and investment advisory companies, within a period of twelve months from the date on which the assessment took place.". Portfolio management and investment advisory companies apply the provisions of Annex I to this law to variable remuneration granted for services provided or results obtained during the financial year following that in which the assessment referred to in the first paragraph took place.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 5, 013; En vigueur : 15-09-2022>

TITLE 2. - On access to investment activities and the activity of providing investment services

CHAPTER 1. - Scope

Art. 3.§ 1. Without prejudice to the exceptions referred to in Article 4, the provisions of this title apply to companies under Belgian law whose usual activity consists of providing or offering to third parties one or more investment services on a professional basis and/or exercising one or more investment activities, as well as to companies under foreign law that exercise this activity in Belgium. These companies are hereinafter referred to as "investment firms". § 2. [1 By way of derogation from paragraph 1, the investment services referred to in Article 2, 1°, 8 and 9, may also be exercised by a market operator. Market operators intending to provide an investment service referred to in Article 2, 1°, 8 or 9, of this law must obtain prior authorization from the FSMA. [3 The FSMA grants its authorization only if it finds that the market operator complies with the following provisions:
1° Article 13 of the law of 20 July 2022;
2° Articles 14, 45 to 54 of the law of 20 July 2022; 3° Article 15, § 2 of the law of 20 July 2022; 4° Article 17, § 1, 1°, 2°, 3°, 7° and 9°, § 3 and § 4 and Article 19, paragraphs 1 and 2 of the law of 20 July 2022; 5° Article 20, § 1, paragraph 2 of the law of 20 July 2022, except when a situation prohibited by these provisions is justified by the market operator and approved by the FSMA; 6° Article 37 of the law of 20 July 2022; 7° Article 42 of the law of 20 July 2022; 8° Articles 46, 48 and 50 of the law of 21 November 2017.]3 Furthermore, the FSMA does not grant its authorization if there are objective and demonstrable reasons to believe that the [2 administrative body]2 of the market operator would risk compromising the efficient, sound and prudent management of the market operator, as well as the appropriate consideration of the interest of its clients and market integrity. The market operator communicates to the FSMA an activity program meeting the conditions set by the FSMA, in which are indicated in particular the volume of operations envisaged as well as the structure of the company's organization and its close links with other persons. The market operator also communicates to the FSMA all information necessary to assess its application. The FSMA rules within six months of the submission of a complete file. [3 Articles 47 to 53, 56 to 58 and Chapter III of this title apply by analogy to the market operators referred to in this paragraph as well as the following provisions of the law of 20 July 2022:
1° Article 56, §§ 1, 2 and 3, paragraph 2. This article applies however only for the assessment of the organizational arrangements made applicable to market operators; 2° Article 58; 3° Article 59, § 1; 4° Articles 71 to 73.]3
Article 64 applies by analogy when the FSMA finds that the aforementioned conditions are no longer met.]1
§ 3. [1 ...]1 § 4. [1 The FSMA draws up the list of market operators and investment firms authorized to operate an MTF or an OTF, indicating the MTFs or OTFs operated. The FSMA publishes this list on its website, as well as any modifications made to it, and transmits it to the European Securities and Markets Authority.]1 ---------- (1)<L 2017-11-21/08, art. 202, 002; En vigueur : 03-01-2018> (2)<L 2021-06-27/09, art. 258, 009; En vigueur : 01-01-2021> (3)<L 2022-07-20/31, art. 6, 013; En vigueur : 15-09-2022>

Art. 4. § 1. This title is not applicable:
1° to credit institutions referred to in Book II and Titles I and II of Book III of the Law of 25 April 2014. Article 9, §§ 1, 3 and 4, is nevertheless applicable to these institutions; 2° to insurance undertakings or to undertakings carrying out reinsurance and retrocession activities referred to in Directive 2009/138/EC when they carry out the activities referred to in that Directive; 3° to undertakings that provide an investment service or activity exclusively to their parent undertaking, to their subsidiaries or to another subsidiary of their parent undertaking; 4° to persons that provide an investment service or activity if that activity is carried out on a purely ancillary basis in the course of a professional activity, and if that latter activity is governed by legal or regulatory provisions or by a code of conduct governing the profession and if those do not exclude the provision of that service or activity; 5° to persons that trade financial instruments for their own account other than commodity derivatives or emission allowances, or derivatives on those, and that do not provide any other investment service or carry out any other investment activity in relation to financial instruments other than commodity derivatives or emission allowances or derivatives on those, unless those persons:
a) are market makers; b) [5] are members or participants of a regulated market or an MTF, excluding non-financial entities that execute transactions on a trading platform where such transactions relate to the management of liquidity or where the contribution of such transactions to the reduction of risks directly linked to the commercial activity or treasury financing activity of those non-financial entities or their groups can be objectively measured;]5 c) apply high-frequency algorithmic trading techniques; or d) trade for their own account when they execute client orders. Persons benefiting from the exemption under 2°, 9° or 10° are not required to meet the conditions set out in this point to benefit from the exemption; 6° to undertakings whose investment services and activities consist exclusively in the management of a workers' participation scheme; 7° to undertakings whose investment services and activities consist in providing both the services and activities referred to in 3° and those referred to in 6°; 8° to members of the European System of Central Banks, other similar national bodies, or other public bodies responsible for managing public debt or intervening in that management in the European Union, nor to international financial institutions established by two or more Member States that have the purpose of mobilizing funds and providing financial assistance to those of their members that are experiencing or risk experiencing severe financial difficulties; 9° to collective investment undertakings and pension funds, whether or not coordinated at EU level, nor to depositaries and managers of those undertakings; 10° [3] to persons:
a) that trade for their own account, including market makers, on commodity derivatives or emission allowances or derivatives on those, excluding persons trading for their own account when they execute client orders; or b) that provide investment services, other than trading for their own account, concerning commodity derivatives, emission allowances or derivatives on those, to clients or to suppliers of their main activity; provided that:
i). in each of these cases, individually and on an aggregate basis, those services are ancillary to their main activity, when that main activity is considered at group level; ii). those persons are not part of a group whose main activity is the provision of investment services as defined in Article 2, 1°, of this Law or banking activities as defined in Article 4 of the Law of 25 April 2014, or that it does not consist in carrying out the function of market maker in relation to commodity derivatives; iii). those persons do not apply high-frequency algorithmic trading techniques, and; iv). those persons indicate, upon request, to the FSMA the basis on which they have established that their activities referred to in a) and b) are ancillary to their main activity;]3 11° to persons providing investment advice in the course of exercising another professional activity that is not covered by this Law, provided that the provision of such advice is not specifically remunerated; 12° to operators subject to compliance obligations under Directive 2003/87/EC that, when trading emission allowances, do not execute orders on behalf of clients and that do not provide any investment service or carry out any investment activity other than trading for their own account, provided that those persons do not apply high-frequency algorithmic trading techniques; 13° to transmission system operators as defined in Article 2, point 4), of Directive 2009/72/EC or in Article 2, point 4), of Directive 2009/73/EC, when they carry out the tasks assigned to them under those Directives, under Regulation (EC) No 714/2009, under Regulation (EC) No 715/2009 or under network codes or guidelines adopted under those Regulations, to persons acting on their behalf as service providers to carry out the tasks assigned to them under those legislative acts or under network codes or guidelines adopted under those Regulations, nor to operators or administrators of an energy flow adjustment mechanism, a gas pipeline network or a system aimed at balancing the supply and demand of energy, when they carry out such tasks. This exemption applies to persons carrying out the activities referred to in this point only when they carry out investment activities or provide investment services concerning commodity derivatives for the purpose of exercising those activities. This exemption does not apply to the operation of a secondary market, including a secondary trading platform for financial transport rights; 14° to central securities depositaries (CSD's) that are regulated as such under EU law and to the extent that they are regulated under that EU law; [2] 15° to crowdfunding service providers as defined in Article 2, paragraph 1, point e), of Regulation (EU) 2020/1503 of the European Parliament and of the Council of 7 October 2020 on European crowdfunding service providers for
businesses, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937.]2 § 2. The rights conferred in this title do not extend to the provision of services as counterparty in transactions carried out by public bodies responsible for managing public debt or by members of the European System of Central Banks, in the course of the tasks assigned to them by the Treaty on the Functioning of the European Union (TFEU), Protocol No 4 on the Statutes of the European System of Central Banks and of the European Central Bank or equivalent functions. § 3. Persons exempted in accordance with paragraph 1 comply with Articles 69 and 70 of the Law of 21 November 2017. § 4. Members or participants of regulated markets or MTFs that benefit from the exemptions referred to in paragraph 1, 2°, 9°, 10° or 12°, comply with the requirements referred to in Article 26/2, in Article 65/3 of the Law of 25 April 2014 and in the decrees and regulations adopted for their implementation. § 5. The King may exempt from the application of this Title:
1° persons that are not authorized to provide investment services other than the reception and transmission of orders concerning securities and units of collective investment undertakings and/or the provision of investment advice in connection with those financial instruments, provided that those persons:
a) are not authorized to hold client funds or securities and, for that reason, are not at any time indebted to them; and b) in the course of providing those services, are authorized to transmit orders only to:
i). authorized investment firms in accordance with Directive 2014/65/EU; ii). authorized credit institutions in accordance with Directive 2013/36/EU; iii). branches of investment firms or credit institutions that are authorized in a third country and are subject to and satisfy prudential rules considered to be at least as strict as those established in Directive 2014/65/EU, in Regulation (EU) No 575/2013 or in Directive 2013/36/EU; iv). collective investment undertakings authorized under the law of a Member State to sell units to the public and to managers of those undertakings; or v). fixed-capital investment companies, defined in Article 17, paragraph 7, of Directive 2012/30/EU of the European Parliament and of the Council of 25 October 2012 to coordinate to make equivalent the safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 54 of the Treaty on the Functioning of the European Union, in respect of the formation of public limited liability companies as well as the maintenance and alteration of their capital, the securities of which are listed or traded on a regulated market in a Member State; 2° persons that are not authorized to provide a [4] service referred to in Article 2 of the Law of 20 July 2022]4, and that provide investment services concerning exclusively commodities, emission allowances and/or derivatives on those solely for the purpose of hedging the commercial risks of their clients, when those clients are exclusively local electricity undertakings as defined in Article 2, point 35), of Directive 2009/72/EC and/or natural gas undertakings as defined in Article 2, point 1), of Directive 2009/73/EC, and provided that those clients jointly hold 100 percent of the capital or voting rights of those persons, exercise joint control and are exempted in accordance with paragraph 1, 10°, if they provide those investment services themselves; and/or persons that provide investment services concerning exclusively emission allowances and/or derivatives on those solely for the purpose of hedging the commercial risks of their clients, when those clients are exclusively operators as defined in Article 3, point f), of Directive 2003/87/EC, and provided that those clients jointly hold 100 percent of the capital or voting rights of those persons, exercise joint control and are exempted in accordance with paragraph 1, 10°, if they provide those investment services themselves. Persons referred to in the first paragraph are exempted only on condition that they comply with requirements analogous to those provided in the following provisions of this Law and in Articles 27 to 28 of the Law of 2 August 2002:

Article 22;
Article 23, § 1, paragraph 3, §§ 2 and 3;
Article 25, § 1, 1°, 3°, 6° and 10° and § 2;
Article 25/1, § 1, paragraphs 1 and 2 and § 3;
Article 25/2, § 1, 3° and §§ 5 to 7;
Article 26, §§ 2 and 5;
Article 32, § 1;
Article 34, §§ 1, 2, 6 and 7;
Article 35, §§ 4 and 5;
Article 36, § 1, § 5, paragraphs 2 and 3, § 6, paragraphs 2 and 3, §§ 7, 9 and 10; and
Article 45;
as well as in the provisions of the corresponding decrees and regulations and delegated acts adopted under Directive 2014/65/EU, adopted for their implementation.
The King may set additional requirements.]1 ---------- (1)<L 2017-11-21/08, art. 203, 002; En vigueur : 03-01-2018> (2)<L 2021-06-27/09, art. 416, 009; En vigueur : 19-07-2021> (3)<L 2022-02-23/09, art. 41, 012; En vigueur : 28-02-2022> (4)<L 2022-07-20/31, art. 7, 013; En vigueur : 15-09-2022> (5)<L 2025-12-11/13, art. 124, 016; En vigueur : 03-01-2026>

Art. 5.
<Abrogé par L 2017-11-21/08, art. 204, 002; En vigueur : 03-01-2018>

CHAPTER 2. - Belgian investment firms

Art. 6. § 1. Belgian investment firms are required, before commencing their operations, to obtain from the supervisory authority one of the following authorizations, regardless of the place where they exercise their activities:
1° authorization as a stock exchange company;
2° authorization as a portfolio management and investment advisory company.
§ 2. Without prejudice to the provisions on capital, authorization as a stock exchange company may cover all investment services, investment activities and ancillary services referred to in Article 2.
§ 3. Authorization as a portfolio management and investment advisory company may cover only the investment services referred to in Article 2, 1°, 1, 2, 4, and 5, as well as the ancillary services referred to in Article 2, 2°, 3, 5 and 7.
In order to invest their own funds, they may hold off-book trading positions relating to financial instruments.
§ 4. No authorization as an investment firm may be granted for the sole provision of ancillary services.
§ 5. Authorization as a stock exchange company is granted by the Bank in accordance with the procedures and conditions set out in [1] Articles 5 to 10 of the Law of 20 July 2022]1.
The Bank rules on the authorization application on the advice of the FSMA in accordance with [1] Article 8 of the Law of 20 July 2022]1.
Authorization as a portfolio management and investment advisory company is granted by the FSMA in accordance with the procedures and conditions set out in Title III.

(1)<L 2022-07-20/31, art. 8, 013; En vigueur : 15-09-2022>

Art. 7. The supervisory authorities establish a list of investment firms authorized under this section. They jointly publish this list and any amendments to it on their website. The FSMA notifies the list and its amendments to the European Securities and Markets Authority.
The list of Belgian investment firms includes the following headings:
a. stock exchange companies; b. portfolio management and investment advisory companies.
The list indicates the investment services and ancillary services that investment firms are authorized to provide.
The list also indicates whether the stock exchange company has the power to act as depositary for financial instruments of insurance undertakings, collective investment undertakings and credit institutions when the latter act on behalf of their clients [1] ...]1. The list may contain sub-headings and may mention other services. The list is annexed with the mention of Belgian financial companies defined in Article 59, § 1, 2°. ---------- (1)<L 2022-07-20/31, art. 9, 013; En vigueur : 15-09-2022>

Art. 8. When an authorization is granted to a Belgian investment firm that is a direct or indirect subsidiary of one or more parent undertakings subject to the law of one or more third countries, the notification to the European Securities and Markets Authority indicates the identity of that or those parent undertakings and, if applicable, indicates the financial structure of the group controlling the investment firm to which the authorization is granted. The FSMA also informs the supervisory authorities of other Member States of the granting of such authorization. [1] ...]1 ---------- (1)<L 2019-05-02/25, art. 191, 005; En vigueur : 31-05-2019>

Art. 9. § 1. Belgian investment firms, credit institutions and foreign investment firms operating in Belgium under Articles 10 to 14 are the only ones authorized to make public use in Belgium of the term "investment firm", notably in their corporate name, in the designation of their [1] object]1, in their securities, instruments or documents or in their advertising. § 2. Stock exchange companies and foreign investment firms operating in Belgium under Articles 10 to 14 whose authorization covers the investment service referred to in Article 2, 1°, 3, 6, 7 or 8 are the only ones authorized to make public use in Belgium of the term "stock exchange company", notably in their corporate name, in the designation of their [1] object]1, in their securities, instruments or documents or in their advertising. § 3. Portfolio management and investment advisory companies, stock exchange companies and credit institutions, as well as foreign investment firms operating in Belgium under Articles 10 to 14 whose authorization covers the investment service referred to in Article 2, 1°, 4, are the only ones authorized to make public use in Belgium of the terms "wealth manager" and "wealth management" or of any other term referring to that activity, notably in their corporate name, in the designation of their [1] object]1, in their securities, instruments or documents or in their advertising. § 4. The following companies and institutions are the only ones authorized to make public use in Belgium of the terms "investment advisor", "investment advice", or of any other term referring to that activity, notably in their corporate name, in the designation of their [1] object]1, in their securities, instruments or documents or in their advertising:
a) portfolio management and investment advisory companies; b) stock exchange companies; c) credit institutions; d) foreign investment firms operating in Belgium under Articles 10 to 14 of this Law and whose authorization covers the investment service referred to in Article 2, 1°, 5; e) brokers in banking and investment services referred to in the Law of 22 March 2006. ---------- (1)<L 2021-06-27/09, art. 241, 009; En vigueur : 19-07-2021>

CHAPTER 3. - Foreign investment firms

Section 1. - Branches and service provision activities in Belgium of investment firms subject to the law of another Member State

[Art. 10] [11].§ 1. Investment firms subject to the law of another Member State, which are authorized under their national law to provide investment services and/or exercise investment activities and provide ancillary services in their home Member State, may, by establishing branches, [2 ...]2 begin to provide these services in Belgium as soon as the supervisory authority has notified them of their registration as branches of investment firms from the European Economic Area. Ancillary services may only be provided in conjunction with an investment service and/or an investment activity. § 2. The registration of branches of foreign stock exchange companies subject to the law of another Member State referred to in paragraph 1 is notified to these companies by the National Bank [3 in accordance with Article 211 of the Law of 20 July 2022]3. The FSMA is informed without delay of the branch registration notifications made by the National Bank. § 3. The registration of foreign portfolio management and investment advisory companies subject to the law of another Member State referred to in paragraph 1 is notified to these companies by the FSMA by registered letter with acknowledgment of receipt. This notification must take place no later than two months after the supervisory authorities of the home Member State of the portfolio management and investment advisory company have communicated the information file required by European law provisions. In the absence of notification within the set deadline, the company may open the branch and commence the aforementioned activities. It must inform the FSMA of this. § 4. The FSMA draws up the list of registered branches and publishes it on its website, as well as all modifications made to it during the year. The National Bank also publishes on its website the list of branches falling within its competence. [2 § 5. Paragraphs 1 to 4 apply by analogy to investment firms subject to the law of another Member State which wish to use related agents established in Belgium to provide investment services and/or exercise investment activities and, where applicable, provide ancillary services.]2 ---------- (1)<L 2017-11-21/08, art. 205, 002; En vigueur : 03-01-2018> (2)<L 2021-06-27/09, art. 393, 009; En vigueur : 19-07-2021> (3)<L 2022-07-20/31, art. 10, 013; En vigueur : 15-09-2022>

[Art. 11] [11].Investment firms subject to the law of another Member State, which are authorized under their national law to provide investment services and/or exercise investment activities and provide ancillary services in their home Member State, may commence these activities in Belgium under the freedom to provide services regime as soon as the competent authority of the home Member State has communicated to the FSMA the notification required by the European law provisions in this matter. [1 ...]1 Ancillary services may only be provided in conjunction with an investment service and/or an investment activity. The FSMA draws up the list of investment firms subject to the law of another Member State which have notified their intention to provide the investment services referred to in Article 2, 1°, and to exercise the investment activities referred to in the same article in Belgium. The FSMA publishes this list on its website, as well as all modifications made to it during the year. [3 ...]3 [2 The preceding paragraphs apply by analogy to investment firms subject to the law of another Member State which wish to provide investment services and/or exercise investment activities, and, where applicable, provide ancillary services in Belgium, through related agents established in that other Member State.]2 The FSMA requests the competent authority of the home Member State to communicate to it the identity of the related agents whom the investment firm intends to use. The FSMA publishes this information on its website. [3 When the FSMA has clear and demonstrable reasons to believe that a stock exchange company operating under the freedom to provide services regime in Belgium violates obligations arising from provisions adopted in application of Directive 2014/65/EU, Regulation No 600/2014 and Regulation 2017/565, and that said provisions do not confer powers on the FSMA, it informs the competent authority of the home Member State. If, despite the measures taken by the competent authority of the home Member State or due to the inadequacy of these measures, the concerned stock exchange company continues to act in a manner clearly prejudicial to the interests of investors in Belgium or to the orderly functioning of markets, the FSMA may, after having informed the competent authority of the home Member State, take or have taken measures to protect investors or to preserve the proper functioning of markets. These include measures referred to in Article 64, § 1, paragraph 1, 2° and paragraph 2, and § 2,
paragraph 1. The European Commission and the European Securities and Markets Authority are informed without delay of the adoption of these measures. In the case referred to in paragraph 6, the FSMA may refer the matter to the European Securities and Markets Authority and request its assistance in accordance with Article 19 of Regulation No 1095/2010.]3 ---------- (1)<L 2017-11-21/08, art. 206, 002; En vigueur : 03-01-2018> (2)<L 2021-06-27/09, art. 394, 009; En vigueur : 19-07-2021> (3)<L 2022-07-20/31, art. 11, 013; En vigueur : 15-09-2022>

[Section 2.] - Of branches and service provision activities in Belgium of investment firms not subject to the [1 Directive 2014/65/EU]1 ---------- (1)<L 2017-11-21/08, art. 207, 002; En vigueur : 03-01-2018>

[Art. 12] [12].Articles 10 and 11 do not apply to investment firms subject to the law of another Member State which do not fall within the scope of [1 Directive 2014/65/EU by virtue of Article 2, § 1, l) and m),]1 and Article 3 of that directive. The branches and service provision activities in Belgium of these firms are subject to the provisions of Sections 3 and 4. ---------- (1)<L 2017-11-21/08, art. 208, 002; En vigueur : 03-01-2018>

[Section 3.] - Of branches in Belgium of investment firms subject to the law of third countries

[Art. 13] [13].§ 1. Investment firms subject to the law of a third country which intend to offer or provide investment services and/or exercise investment activities in Belgium, by establishing branches, must previously obtain approval from the supervisory authority.
[1 When a [2 retail client or professional client]2 established or located in the European Union, on their own initiative, triggers the provision of an investment service or the exercise of an investment activity by a third-country firm, the obligation to possess the approval referred to in paragraph 1 does not apply to the provision of that service to that person or to the exercise of that activity by the third-country firm for that person, nor to a relationship specifically linked to the provision of that service or the exercise of that activity. The initiative of these clients does not entitle the third-country firm to market new categories of products or investment services to these clients through intermediaries other than a branch.]1 [3 Without prejudice to intragroup relationships, when a third-country firm, including through an entity acting on its behalf or having close links with that third-country firm or any other person acting on behalf of that entity, solicits clients or potential clients in the European Union, these services should not be considered as provided on the sole initiative of the client.]3 § 2. Branches of foreign stock exchange companies subject to the law of a third country must obtain their approval from the National Bank [3 in accordance with Article 226 of the Law of 20 July 2022]3. Branches of foreign portfolio management and investment advisory companies subject to the law of a third country must obtain their approval from the FSMA in accordance with the modalities and conditions set forth in Article 84. § 3. The FSMA draws up the list of approved branches and publishes it on its website, as well as all modifications made to it during the year. The National Bank also publishes on its website the list of branches falling within its competence. [3 The FSMA notifies these lists to the European Securities and Markets Authority on an annual basis.]3 ---------- (1)<L 2017-11-21/08, art. 209, 002; En vigueur : 03-01-2018> (2)<L 2019-05-02/25, art. 192, 005; En vigueur : 31-05-2019> (3)<L 2022-07-20/31, art. 12, 013; En vigueur : 15-09-2022>

[Section 4.] - Of service provision activities in Belgium of investment firms subject to the law of third countries

[Art. 14] [14/1].[1 § 1. [2 Investment firms subject to the law of a third country and which effectively provide investment services or exercise investment activities in their home State, may exercise these activities or offer or provide these services in Belgium, without being established there, for, or for the following investors only:]2 1° eligible counterparties, as defined in implementation of Article 26, paragraph 8, of the Law of 2 August 2002; 2° clients considered as professional in accordance with Belgian law provisions transposing Section I of Annex II of Directive 2014/65/EU; 3° persons established in Belgium who hold the nationality of the home State of the concerned investment firm or of a State in which that investment firm has established a branch, provided that [2 regarding the investment services or activities offered, provided or exercised in Belgium]2 the investment firm is subject, in its home State or in the State of establishment concerned, to supervision equivalent to that to which Belgian investment firms are subject. § 2. The firms referred to in paragraph 1 are required to notify the FSMA in advance, [2 specifying the investment services or activities they intend to provide or exercise and the categories of investors to whom these services or activities are destined]2. Without prejudice to international agreements binding Belgium, the FSMA may prohibit [2 the provision of investment services or the exercise of investment activities in Belgium]2 to a firm subject to the law of a State that does not grant the same access possibilities to its market to Belgian investment firms. § 3. The FSMA draws up annually the list of investment firms referred to in this article [2 which provide or exercise in Belgium the investment services or activities referred to in Article 2, 1°, of this law]2. The FSMA publishes this list on its website, as well as all modifications made to it during the year. [3 ...]3]1 ---------- (1)<L 2017-11-21/08, art. 210, 002; En vigueur :
03-01-2018> (2)<L 2019-04-03/02, art. 17, 010; En vigueur : 01-01-2021> (3)<L 2022-07-20/31, art. 13, 013; En vigueur : 15-09-2022>

[Art. 14/1] [14/2].[1 § 1. Investment firms subject to the law of third countries must, in the exercise of their activity in Belgium, accompany their name with the mention of their state of origin and their registered office.
§ 2. The provisions of this section do not prejudice the respect of legal and regulatory provisions, including conduct rules, applicable in Belgium to investment firms and their operations.
[2 The King may, on the advice of the FSMA, supplement the legal and regulatory provisions referred to in paragraph 1 with provisions applicable to investment firms subject to the law of a third country, which He deems necessary to ensure the protection of investors' interests and to preserve the proper functioning, integrity and transparency of financial markets. He may, in particular, establish rules for data retention and transaction reporting that investment firms subject to the law of third countries referred to in Article 14 must respect when they provide investment services for order execution and when these services concern:
a) financial instruments that are admitted to trading or traded on a trading venue within the meaning of Directive 2014/65/EU or for which an application for admission to trading has been submitted; b) financial instruments whose underlying is a financial instrument traded on a trading venue within the meaning of Directive 2014/65/EU; c) financial instruments whose underlying is an index or a basket composed of financial instruments traded on a trading venue within the meaning of Directive 2014/65/EU. For the application of paragraphs 2 and 3, the King takes into account in particular the content of the provisions of Regulation (EU) No 600/2014 of 15 May 2014 of the European Parliament and of the Council concerning markets in financial instruments and amending Regulation (EU) No 648/2012, or other European law texts in this matter.]2 § 3. The FSMA may impose on foreign investment firms subject to the law of third countries referred to in Article 14 to transmit to it all information regarding the services they provide in Belgium, in order to verify if they comply with the provisions referred to in paragraph 2 falling within its competence. The FSMA may impose the certification or correction of this information by the foreign supervisory authorities of the concerned investment firm, by its external auditor, or by the approved auditor responsible for certifying its accounts. § 4. When the FSMA finds that an investment firm subject to the law of a third country referred to in Article 14 does not act in Belgium in conformity with the provisions applicable to it, or endangers the interests of its clients, it puts the firm on notice to remedy, within the deadline it determines, the situation found. If, at the end of this deadline, the situation has not been remedied, the FSMA submits its observations to the supervisory authorities of the home State of the investment firm. In case of persistence of breaches, the FSMA may, after having advised the foreign supervisory authorities, suspend or prohibit the continuation of all or part of the activities of the investment firm in Belgium. When the concerned investment firm is not subject to the supervision of any supervisory authority, the FSMA may, if the situation has not been remedied at the end of the deadline set in virtue of paragraph 1, immediately proceed to the suspension or prohibition of all or part of the activities of the investment firm in Belgium.
Article 64, § 2, applies to the decisions referred to in this article.
§ 5. Article 68 applies to foreign investment firms subject to the law of third countries referred to in Article 14.
§ 6. Those who perform acts or operations contrary to the prohibition or suspension referred to in paragraph 4 are subject to the provisions of Article 107, § 1.
Article 108 applies.]1

(1)<Inserted by L 2017-11-21/08, art. 211, 002; En vigueur : 03-01-2018> (2)<L 2019-04-03/02, art. 18, 010; En vigueur : 01-01-2021>

[Art. 14/2] [14/3]. [1 Articles 14 and 14/1 apply without prejudice to Articles 46 to 49 of Regulation (EU) No 600/2014.]1 ---------- (1)<Inserted by L 2017-11-21/08, art. 212, 002; En vigueur : 03-01-2018>

[CHAPTER 4.] - Of collaboration between supervisory authorities

[Art. 15] [15]. In order to ensure effective and coordinated supervision of investment firms, the National Bank and the FSMA conclude a protocol, which they publish on their respective websites.
This protocol determines the modalities of collaboration between the National Bank and the FSMA in all cases where the law provides for an opinion, consultation, information or any other contact between the two institutions, as well as in cases where consultation between the two institutions is necessary to ensure uniform application of the legislation.

[TITLE 3.] - Of the status and supervision of portfolio management and investment advisory companies

[CHAPTER 1.] . - Of Belgian law portfolio management and investment advisory companies

[Section 1.] - Approval procedure

[Art. 16] The approval as a portfolio management and investment advisory company is granted by the FSMA.

Applicants must indicate the investment services and activities and/or ancillary services referred to in Article 2 that they intend to provide. They must specify the financial instruments on which these services and activities are based. The application for approval must be accompanied by an activity program meeting the conditions set by the FSMA, in which the volume of envisaged operations as well as the structure of the company's organization and its close links with other persons are indicated in particular. Applicants must provide all information necessary for the assessment of their application.

Paragraph 2 also applies to applications submitted by portfolio management and investment advisory companies already approved who wish to provide additional investment services and activities referred to in Article 2, not covered by their approval. Articles 7 and 17 to 19 apply.

[1] In its approval file, the applicant determines whether the portfolio management and investment advisory company will meet the eligibility conditions as a small non-interconnected portfolio management and investment advisory company, set out in Article 12, § 1, of Regulation (EU) 2019/2033.[1]

(1) L 2022-07-20/31, art. 14, 013; En vigueur : 15-09-2022

[Art. 17] When the approval is requested by a portfolio management and investment advisory company that is either the subsidiary of a stock exchange company, a credit institution, an insurance undertaking or a reinsurance undertaking of Belgian law, or the subsidiary of the parent undertaking of a stock exchange company, a credit institution, an insurance undertaking or a reinsurance undertaking of Belgian law, or still controlled by the same natural or legal persons as a stock exchange company, a credit institution, an insurance undertaking or a reinsurance undertaking of Belgian law, the FSMA consults the National Bank before taking its decision.

When the approval is requested by a portfolio management and investment advisory company that is either the subsidiary of another investment firm, a credit institution, an insurance undertaking, a reinsurance undertaking, an OPCA manager or a UCITS management company, approved in another Member State, or the subsidiary of the parent undertaking of another investment firm, a credit institution, an insurance undertaking, a reinsurance undertaking, an OPCA manager or a UCITS management company, approved in another Member State, or still controlled by the same natural or legal persons as another investment firm, a credit institution, an insurance undertaking, a reinsurance undertaking, an OPCA manager or a UCITS management company, approved in another Member State, the FSMA consults, before taking its decision, the national authorities of these other Member States that control the investment firms, credit institutions, insurance undertakings, reinsurance undertakings, OPCA managers or UCITS management companies, approved under their law.

[1] Similarly, the FSMA consults the National Bank or the supervisory authorities referred to in paragraph 2 in advance in order to assess the required qualities of shareholders, directors and persons responsible for independent control functions, in accordance with Articles 22 and 23, when the shareholder is an undertaking referred to, as the case may be, in paragraph 1 or 2, or when the person participating in the management of the portfolio management and investment advisory company also participates in the management of one of the undertakings referred to, as the case may be, in paragraph 1 or 2, or of an undertaking belonging to the same group, or when the person responsible for an independent control function exercises such a function within the undertakings referred to in paragraph 1 or paragraph 2 or within an undertaking that belongs to the same group. These authorities communicate to each other all information useful for the assessment of the required qualities of shareholders, persons participating in management, as well as persons responsible for independent control functions referred to in this paragraph.[1]

(1) L 2022-07-20/31, art. 15, 013; En vigueur : 15-09-2022

[Art. 18] The FSMA grants the requested approval to portfolio management and investment advisory companies meeting the conditions set out in Section II. It rules on the application within six months of the submission of a complete file.

Decisions on approval mention the investment services and activities as well as the ancillary services that the portfolio management and investment advisory company is authorized to provide.

Decisions on approval are notified to applicants within fifteen days by registered letter or with acknowledgment of receipt.

[Art. 19] In order to ensure sound and prudent management of the portfolio management and investment advisory company, the FSMA may limit the approval of the portfolio management and investment advisory company to certain services or activities or to certain financial instruments, as well as it may attach conditions to the approval regarding the provision of certain services or activities or relating to certain financial instruments.

[Section 2.] - Approval Conditions

[Sub-section 1.] - Form

[Art. 20] [1] Belgian portfolio management and investment advisory companies must be constituted in the form of one of the following corporate forms: the cooperative society, the public limited company, the European company and the European cooperative society, subject to compliance with the specific requirements provided for by this law, the Companies and Associations Code or by European regulation.[1]

(1) L 2021-06-27/09, art. 242, 009; En vigueur : 19-07-2021

[Sub-section 2.] - Initial Capital

[Art. 21] § 1. The approval as a portfolio management and investment advisory company is subject to the existence of a fully paid-up capital [1] to the extent of 75,000 euros. This initial capital is constituted in accordance with Article 9 of Regulation (EU) 2019/2033.[1]

§ 2. In the case of the pre-existence of the applicant company as a portfolio management and investment advisory company, issue premiums, reserves and retained earnings are, for the application of § 1, assimilated to capital.

[1] § 3. By way of derogation from Article 6:4 and the provisions of Book 6, Title 6 of the Companies and Associations Code, portfolio management and investment advisory companies, constituted in the form of a cooperative society, must be endowed with a capital whose fixed part, provided for in the statutes, cannot be less than the amount referred to in paragraph 1 and which must be fully paid-up to the extent of said amount, Article 7:6 of said Code being applicable by analogy.[1]

(1) L 2022-07-20/31, art. 16, 013; En vigueur : 15-09-2022

[Sub-section 3.] - Capital Holders

[Art. 22] The approval is subject to the communication to the FSMA of the identity [1] of the natural or legal person(s) [1] who, directly or indirectly, acting alone or in concert with others, hold a qualifying participation in the capital of the portfolio management and investment advisory company. The communication must include the indication of the proportions of capital and voting rights held by these persons.

The approval is refused if the FSMA has reason to consider that [1] the natural or legal person(s) [1] referred to in paragraph 1 do not present the necessary qualities with regard to the need to guarantee sound and prudent management of the portfolio management and investment advisory company.

When there are close links between the portfolio management and investment advisory company and other natural or legal persons, the approval is granted only if these links do not prevent the FSMA from effectively exercising its prudential functions.

The FSMA refuses the approval if the legislative, regulatory or administrative provisions of a third country applicable to one or more natural or legal persons with which the portfolio management and investment advisory company has close links, or difficulties related to the application of said provisions, prevent it from effectively exercising its prudential functions.

(1) L 2021-06-27/09, art. 243, 009; En vigueur : 19-07-2021

[Sub-section 4.] - Management

[Art. 23] § 1. The members of the [3] administrative body [3] of portfolio management and investment advisory companies, the persons in charge of effective management, the members of the management committee if any, as well as the persons responsible for independent control functions are exclusively natural persons.

The persons referred to in paragraph 1 must permanently possess the necessary professional integrity and adequate expertise to exercise their function [1] , and devote sufficient time to it [1] .

[1] The members of the [3] administrative body [3] collectively possess the knowledge, skills and experience necessary to understand the activities of the portfolio management and investment advisory company, including the main risks to which it is exposed.[1]

[2] The FSMA may, by means of a regulation taken in implementation of Articles 49, § 3, and 64, of the Law of 2 August 2002, specify the minimum conditions to be met regarding the requirement of adequate expertise, including the modalities of the procedure for assessing this requirement.[2]

§ 2. The effective management of portfolio management and investment advisory companies must be entrusted to at least two natural persons.

§ 3. [1] The FSMA refuses the approval if there are objective and demonstrable reasons to estimate that the [3] administrative body [3] would risk compromising the effective, sound and prudent management of the portfolio management and investment advisory company, as well as the appropriate consideration of the interest of its clients and the integrity of the market.[1]

(1) L 2017-11-21/08, art. 213, 002; En vigueur : 03-01-2018 (2) L 2017-12-05/04, art. 53, 003; En vigueur : 28-12-2017 (3) L 2021-06-27/09, art. 258, 009; En vigueur : 01-01-2021

[Art. 24] Article 20 of the Law of 25 April 2014 [1] is applicable to the persons referred to in Article 23, § 1, paragraph 1.[1]

(1) L 2022-07-20/31, art. 17, 013; En vigueur : 15-09-2022

[Sub-section 5.] - Organization

[Art. 25] [1] § 1. Portfolio management and investment advisory companies must have a solid and adequate organizational structure, including monitoring measures, in order to guarantee effective, sound and prudent management of the company and to promote market integrity and client interests, based in particular on:
1° an adequate management structure based, at the highest level, on a clear distinction between the effective management of the company on the one hand, and the control over this management on the other hand, and providing, within the company, an adequate separation of functions and an assignment of responsibilities device that is well-defined, transparent and coherent; 2° adequate administrative and accounting organization and internal control, the functioning of which is evaluated at least once a year, involving in particular a control system providing a reasonable degree of certainty as to the reliability of the financial reporting process, so that the annual accounts are in compliance with the accounting regulations in force; 3° effective procedures for the identification, measurement, management, monitoring and internal reporting of significant risks to which the company may be exposed, including the prevention of conflicts of interest [3] , and, except for small non-interconnected management companies, the risks it may pose to third parties [3] ; 4° adequate independent internal audit, risk management and compliance functions; 5° an adequate integrity policy, which is regularly updated; 6° [3] a remuneration policy ensuring sound and effective risk management, and, with the exception of small non-interconnected portfolio management companies, preventing the taking of risks exceeding the tolerance level set by the company, as well as a remuneration policy for persons participating in the provision of services to clients which aims to encourage responsible professional behavior and fair treatment of clients as well as to avoid conflicts of interest in relations with clients. Except for small non-interconnected portfolio management companies, the remuneration policy and practices must be gender-neutral; [3] 7° appropriate control and security mechanisms in the field of IT appropriate to the company's activities, including robust security mechanisms to ensure [4] , in accordance with the requirements set out in Regulation (EU) 2022/2554, [4] the security and authentication of information transfer means, minimize the risk of data corruption and unauthorized access and prevent information leaks in order to permanently maintain data confidentiality; 8° an adequate internal alert system [3] , in compliance with the legislation adopted to transpose Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report violations of Union law, [3] providing in particular for a specific, independent and autonomous mode of transmission of infringements of the company's standards and codes of conduct; 9° [4] the implementation of adequate measures to ensure the continuity and regularity of their investment services and activities. To this end, it uses appropriate and proportionate systems, including information and communication technology (ICT) systems set up and managed in accordance with
Article 7 of Regulation (EU) 2022/2554, as well as appropriate and proportionate resources and procedures; [4] 10° a policy regarding the services, activities, products and operations offered or provided, in accordance with the company's risk tolerance and the characteristics and needs of the company's clients to whom they will be offered or provided, including by carrying out, if necessary, appropriate crisis simulations. Points 6° and 10° also apply to portfolio management and investment advisory companies when they market structured deposits or provide advice on these deposits to clients.

[2] § 1/1. It is prohibited for portfolio management and investment advisory companies to set up a particular mechanism.
By "particular mechanism" is meant a process that cumulatively meets the following conditions:
1° its purpose or effect is to make possible or to favor tax fraud by third parties; 2° its initiative comes from the portfolio management and investment advisory company itself or obviously implies the active cooperation of the portfolio management and investment advisory company or, still, comes from a manifest negligence of the portfolio management and investment advisory company; 3° it involves a set of behaviors or omissions; 4° it has a particular character, that is to say that the portfolio management and investment advisory company knows or should know that the mechanism deviates from the standards and normal practices in financial operations.[2]

§ 2. The organizational devices referred to in paragraph 1 are exhaustive and appropriate to the nature, scale and complexity of the risks inherent in the business model and activities of the portfolio management and investment advisory company.

§ 3. Each portfolio management and investment advisory company establishes a governance memorandum which includes for the company concerned and, if applicable, the group or sub-group of which it is the parent undertaking, the entire internal organizational device referred to in paragraph 1 and in Article 26.

If the portfolio management and investment advisory company is part of a group subject to the supervision of the FSMA, the memorandum established at the level of the portfolio management and investment advisory company may be part of the memorandum of this group.

§ 4. The provisions [3] of Articles 25/1 to 26/3 [3] specify, in particular areas, the scope of the general obligations referred to in paragraphs 1 and 2.[3]

§ 5. If there are close links between the portfolio management and investment advisory company and other natural or legal persons, [3] or if the portfolio management and investment advisory company is part of a group, these links or the legal structure of the group cannot hinder [3] the exercise of individual or consolidated prudential control of the company.

If the portfolio management and investment advisory company has close links with a natural or legal person subject to the law of a third country, the legislative, regulatory and administrative provisions applicable to this person or their implementation cannot hinder the exercise of individual or consolidated prudential control of the company.[1]

(1) L 2017-11-21/08, art. 214, 002; En vigueur : 03-01-2018 (2) L 2021-06-02/03, art. 31, 008; En vigueur : 28-06-2021 (3) L 2022-07-20/31, art. 18, 013; En vigueur : 15-09-2022 (4) L 2025-03-25/05, art. 93, 015; En vigueur : 08-05-2025

Art. 25/1. § 1st. The administrative body is a collegiate body. In this regard, the portfolio management and investment advisory company cannot apply Article 7:101, § 1st, second paragraph, of the Code of Companies and Associations.

The administrative body assumes overall responsibility for the portfolio management and investment advisory company.

Except for unconnected small portfolio management and investment advisory companies, the risk policy referred to in the second paragraph, 2°, includes the risk tolerance level referred to in Article 34/2.

To this end, the administrative body defines, approves, and supervises, in particular:
1° the strategy and objectives of the establishment; 2° the risk policy; 3° the organizational arrangements of the portfolio management and investment advisory company referred to in Article 25; 4° the organization of the company for the provision of investment services, the exercise of investment activities, the provision of auxiliary services, and the marketing of structured deposits and the provision of advice to clients on such products, including the skills, knowledge, and expertise required of staff, resources, procedures, and mechanisms with or according to which the company provides services and exercises activities, taking into account the nature, extent, and complexity of its activity, as well as all requirements to which it must comply.

The administrative body approves the governance memorandum of the portfolio management and investment advisory company referred to in Article 25, § 3.

§ 2. Subject to the application of the second and third paragraphs of this section, a portfolio management and investment advisory company constituted as an anonymous company adopts the monist administration model, as referred to in Articles 7:85 to 7:100 of the Code of Companies and Associations.

Portfolio management and investment advisory companies constituted as an anonymous company may set up a management committee that has the powers of the board of directors referred to in Article 7:110 of the Code of Companies and Associations, without prejudice to the provisions of this law, and which is composed exclusively of members of the board of directors. The competencies thus transferred cannot be exercised concurrently by the board of directors.

The personal status of the members of the management committee meets the requirements provided for members of the board of directors referred to in Article 7:107 of the Code of Companies and Associations, in particular the second paragraph of said Article 7:107.

In a portfolio management and investment advisory company that makes use of the possibility provided for in the second and third paragraphs, the term administrative body designates, for the purposes of this law, exclusively the board of directors.

The portfolio management and investment advisory company cannot apply Article 7:104 of the Code of Companies and Associations.

§ 2/1. When the management committee referred to in paragraph 2 is called upon to take a decision or rule on an operation within its competence regarding which a member of the management committee has a direct or indirect pecuniary interest that is opposed to the interest of the portfolio management and investment advisory company, this member must inform the other members before the management committee takes a decision. His declaration and explanations regarding the nature of this opposing interest must appear in the minutes of the meeting of the management committee that must take this decision. The management committee cannot delegate this decision.

The management committee describes, in the minutes, the nature of the decision or operation referred to in the first paragraph and the pecuniary consequences for the portfolio management and investment advisory company, and justifies the decision that was taken, and transmits a copy of the minutes to the board of directors at its next meeting. This part of the minutes is included in its entirety in the annual report referred to in Article 3:5 of the Code of Companies and Associations.

The minutes of the meeting of the management committee are communicated to the statutory auditor. In his report referred to in Article 3:74 of the Code of Companies and Associations, the statutory auditor evaluates in a separate section the pecuniary consequences for the portfolio management and investment advisory company of the decisions of the management committee as described by the latter, for which there is an opposing interest within the meaning of the first paragraph.

The member with a conflict of interest within the meaning of the first paragraph cannot participate in the deliberations of the management committee concerning these operations or decisions, nor participate in the vote. If all members have a conflict of interest, the decision or operation is submitted to the board of directors; in case of approval of the decision by the latter, the management committee may execute it.

Without prejudice to the right of the persons mentioned in Articles 2:44 and 2:46 of the Code of Companies and Associations to request the nullity or suspension of the decision of the management committee, the portfolio management and investment advisory company may request the nullity of decisions taken or operations carried out in violation of the rules provided for in this article, if the other party to these decisions or operations had or should have known of this violation.

The first to fourth paragraphs do not apply when the decisions or operations of the management committee concern decisions or operations concluded between companies, of which the portfolio management and investment advisory company, and of which one holds directly or indirectly at least 95% of the votes attached to all securities issued by the other, or between companies, of which the portfolio management and investment advisory company, and of which at least 95% of the votes attached to all securities issued by each of them are held by another company.

Likewise, the first to fourth paragraphs do not apply when the decisions of the management committee concern routine operations concluded under normal market conditions and guarantees for operations of the same nature.

§ 3. The president of the administrative body in his supervisory function cannot be an effective manager of the portfolio management and investment advisory company, except when such a situation is justified by the portfolio management and investment advisory company and approved by the FSMA based on the size and risk profile of the company.

(1)Inserted by Law 2017-11-21/08, art. 215, 002; Effective: 03-01-2018 (2)Law 2021-06-27/09, art. 244, 009; Effective: 19-07-2021 (3)Law 2021-06-27/09, art. 258, 009; Effective: 01-01-2021 (4)Law 2022-07-20/31, art. 19, 013; Effective: 15-09-2022

Art. 25/2. § 1. Without prejudice to the duties of the administrative body, portfolio management and investment advisory companies shall establish, within that body, a risk committee and a remuneration committee.

In addition to the obligation set out in the first paragraph, where a portfolio management and investment advisory company presents, in the opinion of the FSMA, significant importance with regard to its size, its internal organization, or the nature, scale, and complexity of its activities, the FSMA may require such a company to also establish, within its administrative body, an audit committee and a nomination committee.

The committees referred to in this article shall be composed exclusively of members of the administrative body who are not executive members, and at least one member of whom is independent within the meaning of Article 7:87, § 1 of the Code of Companies and Associations; a member may not sit on more than three of the aforementioned committees.

§ 2. In addition to the requirements set out in paragraph 1, the members of the audit committee shall possess collective expertise in the field of activities of the concerned portfolio management and investment advisory company, as well as in accounting and audit, and at least one member of the audit committee shall be competent in accounting and/or audit.

Without prejudice to the statutory duties of the administrative body, the audit committee shall be responsible at least for the following duties:

monitoring the process for the preparation of financial information;
monitoring the effectiveness of the company's internal control and risk management systems;
monitoring internal audit and its activities;
monitoring the statutory audit of the annual and consolidated accounts.

The audit committee shall regularly report to the administrative body on the exercise of its duties, at least when the latter prepares the annual and consolidated accounts and the periodic statements referred to in Article 55, respectively transmitted by the portfolio management and investment advisory company at the end of the financial year and at the end of the first half of the financial year.

The FSMA may specify and complete, on technical points, the elements listed in the above list, by means of regulations adopted in accordance with Article 64 of the Law of 2 August 2002.

§ 3. In addition to the requirements set out in paragraph 1, the remuneration committee shall be composed in such a way as to enable it to exercise competent and independent judgment on remuneration policies and practices and on the incentives created for risk management, own funds, and liquidity. The composition of the remuneration committee shall be balanced from a gender perspective. The remuneration committee may be established at group level.

The remuneration committee is responsible for preparing decisions concerning remuneration, including those that have repercussions on risk and risk management in the concerned portfolio management and investment advisory company, which the administrative body is called upon to adopt. In preparing these decisions, the remuneration committee takes into account the long-term interests of shareholders, investors, and other stakeholders of the portfolio management and investment advisory company.

The second paragraph also applies to decisions concerning the remuneration of persons responsible for independent control functions. The remuneration committee also ensures direct supervision regarding the remuneration allocated to heads of independent control functions.

§ 4. Paragraphs 1 to 3 are without prejudice to the provisions of the Code of Companies and Associations regarding the audit committee and the remuneration committee within listed companies within the meaning of Article 1:11 of that Code.

§ 5. The nomination committee shall be composed in such a way as to enable it to exercise relevant and independent judgment on the composition and functioning of the administrative and management bodies of the portfolio management and investment advisory company, in particular on the individual and collective expertise of their members, as well as on their integrity, reputation, independence of mind, and availability.

The nomination committee:

identifies and recommends, for approval by the general meeting or, where applicable, by the administrative body, candidates suitable to fill vacant seats on the administrative body, evaluates the balance of knowledge, skills, diversity, and experience within the administrative body, draws up a description of the duties and qualifications related to a given appointment, and evaluates the time to be devoted to these functions.

The nomination committee also sets a target to be achieved regarding the representation of the underrepresented sex within the administrative body and draws up a policy aimed at increasing the number of representatives of that sex to achieve this target. The target and the plan, as well as the implementation arrangements, shall be made public in accordance with Article 435, paragraph 2, point c), of Regulation (EU) No 575/2013;

periodically evaluates, and at least once a year, the structure, size, composition, and performance of the administrative body and submits recommendations to it regarding possible changes;
periodically evaluates, and at least once a year, the knowledge, skills, experience, and degree of involvement, including attendance, of the members of the administrative body, both individually and collectively, and reports thereon to that body;
periodically examines the administrative body's policies regarding the selection and appointment of its executive members, and formulates recommendations for the administrative body.

In exercising its duties, the nomination committee ensures that decision-making within the administrative body is not dominated by one person or a small group of persons in a manner that is detrimental to the interests of the establishment as a whole.

The nomination committee may use any type of resource it considers appropriate for the exercise of its mission, including external advice, and receives appropriate financial means for this purpose.

§ 5/1. The members of the risk committee possess knowledge, skills, and expertise enabling them to understand, manage, and monitor in full knowledge of the facts the risk policy and the risk tolerance level of the portfolio management and investment advisory company. They ensure that the risk committee advises the administrative body on aspects concerning the overall risk policy and the overall risk tolerance level of the portfolio management and investment advisory company, for both current and future risks, and assists the administrative body when the latter supervises the implementation of this policy by the persons responsible for the effective management of the company, where applicable the management committee. The administrative body continues to exercise overall responsibility for the strategies and policies of the portfolio management and investment advisory company regarding risks.

Without prejudice to the information referred to in Article 34/2, § 4, the risk committee determines the nature, volume, form, and frequency of information concerning the risks to which the company may be exposed, which it transmits to the administrative body. The risk committee has access to information on the risks to which the portfolio management and investment advisory company is or may be exposed. It has, in particular, direct access to the company's risk management function and to external expert advice.

In order to promote sound remuneration practices and policies, the risk committee, without prejudice to the tasks of the remuneration committee, examines whether the incentives provided by the remuneration system appropriately take into account risk control, capital needs, and the company's liquidity position, as well as the probability and timing of benefits.

§ 6. By way of derogation from paragraph 1, small unconnected portfolio management and investment advisory companies, as well as portfolio management and investment advisory companies whose total assets on and off the balance sheet are, on average, less than or equal to 100 million euros over the four-year period immediately preceding the current financial year, are exempt from the obligation to establish the committees referred to in this article.

Furthermore, the FSMA may decide to exempt a portfolio management and investment advisory company that does not meet the criteria set out in the first paragraph but satisfies the following conditions, due in particular to the nature and scale of its activities, its internal organization, and, where applicable, the characteristics of the group to which it belongs:

the company is not one of the three largest Belgian investment firms in terms of total value of their assets;
the volume of on-balance sheet and off-balance sheet derivatives activities is less than or equal to 100 million euros; and
the total assets on and off the balance sheet are, on average, less than or equal to 300 million euros over the four-year period immediately preceding the current financial year.

§ 7. The FSMA may, with regard to portfolio management and investment advisory companies that are subsidiaries or sub-subsidiaries of a mixed financial holding company, an insurance holding company, a financial company, a credit institution, an insurance undertaking, a reinsurance undertaking, another investment firm, an alternative investment fund manager, or an alternative investment fund manager, grant, in whole or in part, derogations from the provisions of this article and set specific conditions for the granting of these derogations, provided that committees within the meaning of paragraph 1 have been established within the concerned groups or subgroups, whose duties extend to the concerned portfolio management and investment advisory company, and meeting the requirements of this law.

§ 8. If, in application of paragraph 6, the committees referred to in paragraph 1 are not established, or if the FSMA does not apply paragraph 1, second paragraph, to impose the establishment of the committees referred to therein, the functions attributed to these committees must then be exercised by the legal administrative body as a whole. When, following a derogation granted in application of Article 25/1, § 3, the chairman of the legal administrative body is an effective manager, he does not preside over the legal administrative body when it acts as one of the committees referred to in paragraph 1.

(1)Inserted by Law 2017-11-21/08, art. 216, 002; Effective: 03-01-2018 (2)Law 2021-06-27/09, art. 245, 009; Effective: 19-07-2021 (3)Law 2021-06-27/09, art. 258, 009; Effective: 01-01-2021 (4)Law 2022-07-20/31, art. 20, 013; Effective: 15-09-2022

Art. 25/3. § 1. Portfolio management and investment advisory companies shall take the necessary measures to permanently have the following adequate independent control functions:

compliance;
risk management;
internal audit,

the persons performing which are independent of the company's operational units and have the necessary powers to properly perform their duties. The remuneration of these persons is determined based on the achievement of objectives related to their functions, independently of the performance of the controlled business areas.

§ 2. In its assessment of the adequacy of the functions referred to in paragraph 1, the FSMA takes into account the provisions of Article 25, § 2.

§ 3. Portfolio management and investment advisory companies shall have an adequate independent compliance function intended to ensure that the company, its administrative body, its effective managers, its employees, its agents and representatives comply with the legal and regulatory rules of integrity and conduct applicable to the company's activities.

The first paragraph does not prejudice the provisions of Article 87bis of the Law of 2 August 2002.

The persons performing the compliance function report to the administrative body at least once a year.

The administrative body annually transmits to the FSMA a report relating to the assessment it performs of the compliance function in application of Article 34, § 3.

§ 3/1. Portfolio management and investment advisory companies shall have an adequate risk management function, independent of operational functions, which has sufficient authority, status, and resources, as well as direct access to the administrative body.

The persons performing the risk management function ensure that all significant risks are detected, measured, and properly reported. They actively participate in the development of the company's risk strategy as well as in all management decisions having a significant impact on risk and may provide a complete view of the entire range of risks to which the company is exposed.

The risk management function is headed by a person participating in effective management, where applicable by a member of the management committee, whose only particular function for which he is individually responsible. The FSMA may authorize that a company employee belonging to senior management assumes this function provided that there is no conflict of interest on his part.

By way of derogation from the first sentence of paragraph 3, the FSMA may, in order to strengthen the autonomy and independence of the risk management and compliance functions referred to in paragraph 3, authorize that the person responsible for effective management, where applicable the member of the management committee, responsible for the risk management function also assumes responsibility for the compliance function, provided that the exercise of the two concerned functions remains ensured separately.

§ 3/2. The heads of the risk management and compliance functions may report directly, where applicable via the risk committee, to the administrative body, without referring to the persons responsible for effective management, where applicable the members of the management committee, and may express concerns and warn them, where applicable, in case of risk developments affecting or likely to affect the company, in particular by damaging its reputation.

The first paragraph does not prejudice the responsibilities of the administrative body under this law and Regulation (EU) 2019/2033.

§ 3/3. Portfolio management and investment advisory companies guarantee in an audit charter, at a minimum, the independence of the internal audit function, its unlimited right of access to information, and the scope of its missions to any activity and entity of the company, including in case of outsourcing.

The internal audit function aims to provide the administrative body and the persons responsible for effective management, where applicable the members of the management committee, with an independent assessment of the quality and efficiency of the internal control, risk management, and governance system of the portfolio management and investment advisory company.

§ 3/4. The internal audit function reports directly to the administrative body, where applicable via the audit committee, with information to the persons responsible for effective management, where applicable the members of the management committee.

§ 4. The FSMA may, without prejudice to the provisions of Article 25, § 1, and paragraphs 1 to 3/4, specify what is meant by adequate management structure, adequate internal control, adequate independent internal audit function, adequate risk management function, and adequate independent compliance function, and draw up more precise rules in accordance with European legislation.

(1)Inserted by Law 2017-11-21/08, art. 217, 002; Effective: 03-01-2018 (2)Law 2021-06-27/09, art. 258, 009; Effective: 01-01-2021 (3)Law 2022-07-20/31, art. 21, 013; Effective: 15-09-2022

[Art. 26] § 1. Portfolio management and investment advisory companies shall implement adequate policies and procedures to ensure that the company, its directors, its senior management, its employees, its linked agents, and its representatives comply with the legal and regulatory provisions relating to investment services and activities.

They shall draw up appropriate rules applicable to personal transactions, direct and indirect, carried out on financial instruments by the persons referred to in the first paragraph.

The King, on the advice of the FSMA, may specify the rules and obligations in this regard. These rules and obligations may in particular concern:

the persons concerned to whom these rules and obligations are applicable;
the personal transactions that are deemed contrary to the law;
the manner in which the persons concerned are required to notify their personal transactions to the portfolio management and investment advisory company;
the manner in which portfolio management and investment advisory companies must keep a record of personal transactions.

§ 2. Portfolio management and investment advisory companies shall take adequate organizational and administrative measures to prevent conflicts of interest relating to investment services and activities and arising between the company, its directors, its senior management, its employees and its representatives, or any company linked to it, on the one hand, and its clients, on the other hand, or between its clients themselves, from harming the interests of the latter.

The King, on the advice of the FSMA, shall specify the rules and obligations in this regard. These rules and obligations may in particular concern the organizational rules to be observed in order to prevent the occurrence of conflicts of interest, as well as when the portfolio management and investment advisory company produces and disseminates investment research.

§ 3. [Omitted]

§ 4. When a portfolio management and investment advisory company entrusts a third party with the execution of essential operational tasks to ensure the continuous and satisfactory provision of its investment services and the exercise of its investment activities, it shall take adequate measures to limit the operational risk associated therewith.

The outsourcing referred to in the first paragraph may not be carried out in a manner that substantially undermines the adequacy of the company's internal control procedures or that would prevent the FSMA from controlling whether the company complies with its legal and regulatory obligations.

[Omitted]

§ 5. Portfolio management and investment advisory companies shall keep a record of any investment service provided, any investment activity exercised, and any transaction carried out in order to enable the FSMA to exercise its supervisory powers in accordance with this Law, the Law of 2 August 2002, the Law of 21 November 2017, the decrees and regulations adopted for their implementation, Regulation (EU) No 600/2014, Regulation (EU) No 596/2014 and Delegated Regulation 2017/565 and, in particular, to verify whether the company complies with its obligations towards its clients or potential clients, and concerning market integrity.

These records include the recording of telephone conversations and electronic communications relating, at least, to the provision of services which concern the reception, transmission and execution of client orders.

For this purpose, portfolio management and investment advisory companies shall take all reasonable measures to record the aforementioned telephone conversations and electronic communications which are made, sent or received by means of equipment provided by the company to an employee or a contractor or whose use by such a person has been approved or authorized by the company.

Clients may place orders by other means, provided that these communications are made by means of a durable medium, such as mail, fax, email or documents relating to client orders drawn up during meetings. In particular, the content of face-to-face conversations with a client may be recorded in writing in a minutes or notes. Such orders are considered equivalent to an order transmitted by telephone.

Portfolio management and investment advisory companies shall take all reasonable measures to prevent an employee or a contractor from making, sending or receiving the aforementioned telephone conversations or electronic communications by means of private equipment that the portfolio management and investment advisory company is unable to record or copy.

The records kept in accordance with this paragraph shall be kept for five years and, when requested by the FSMA, for a period of up to seven years.

§ 6. Paragraphs 1, 2 and 5 shall also apply to portfolio management and investment advisory companies when they market structured deposits or provide advice on such deposits to clients.

§ 7. The FSMA may specify the provisions of this Article by regulation adopted pursuant to Articles 49, § 3, and 64 of the Law of 2 August 2002.

(1) L 2017-11-21/08, art. 218, 002; En vigueur : 03-01-2018 (2) L 2019-05-02/25, art. 194, 005; En vigueur : 31-05-2019 (3) L 2022-07-20/31, art. 22, 013; En vigueur : 15-09-2022

[Art. 26/1] § 1. Portfolio management and investment advisory companies that design financial instruments intended for sale to clients shall maintain, apply and review a validation process for each financial instrument and for significant adaptations of existing financial instruments before their marketing or distribution to clients.

The aforementioned validation process shall determine a defined target market of end clients within the category of clients concerned for each financial instrument and ensure that all relevant risks for the said target market are assessed and that the planned distribution strategy is appropriate for it.

Portfolio management and investment advisory companies are exempt from the obligations set out in the preceding paragraphs when the investment service they provide relates to bonds that do not incorporate a derivative instrument other than a "make-whole call" clause or when the financial instruments are marketed exclusively to eligible counterparties, as defined in implementation of Article 26, paragraph 8, of the Law of 2 August 2002 or distributed exclusively to eligible counterparties.

§ 2. Portfolio management and investment advisory companies that propose or recommend financial instruments that they do not design shall put in place appropriate arrangements to obtain all useful information on the financial instrument and its validation process, including the defined target market of the financial instrument, and to understand the characteristics and identify the defined target market of each financial instrument.

The policies, processes and arrangements referred to in this Article are without prejudice to any other requirements provided for by this Law, the Law of 2 August 2002, Regulation (EU) No 600/2014 and Delegated Regulation 2017/565, including those applicable to publication, suitability or appropriateness, detection and management of conflicts of interest, and inducements.

§ 3. The King, on the advice of the FSMA, shall specify the implementing rules for the rules referred to in this Article, in particular for the purpose of complying with the obligations arising from Directive 2014/65/EU and Delegated Directive 2017/593.

§ 4. This Article shall also apply to portfolio management and investment advisory companies when they market structured deposits or provide advice on such deposits to clients.

(1) Inserted by L 2017-11-21/08, art. 219, 002; En vigueur : 03-01-2018 (2) L 2022-02-23/09, art. 42, 012; En vigueur : 28-02-2022

[Art. 26/2] The King shall determine, on the advice of the FSMA, the organizational requirements applicable to portfolio management and investment advisory companies that use algorithmic trading and/or provide direct electronic access to a trading platform.

(1) Inserted by L 2017-11-21/08, art. 220, 002; En vigueur : 03-01-2018

[Art. 26/3] § 1. Portfolio management and investment advisory companies shall have appropriate processes and systems to detect, measure, manage and monitor the following:

the significant causes and effects of risks to clients, as well as any significant impact on the level of the company's own funds;
the significant causes and effects of risks to the market, as well as any significant impact on the level of the company's own funds;
the significant causes and effects of risks to the portfolio management and investment advisory company, in particular those that could lower the level of available own funds;
liquidity risk over relevant periods, including intraday, in order to ensure that adequate levels of liquidity are maintained, in particular to address the significant causes of the risks referred to in 1 and 2.

For the purposes of 3, the significant causes of risks to the portfolio management and investment advisory company shall, where applicable, include significant changes in the book value of assets, including receivables from linked agents and the default of clients or counterparties, positions in financial instruments, foreign currencies and commodities, as well as obligations related to the defined benefit pension scheme.

Paragraph 1, 2, shall not apply to small non-interconnected portfolio management companies within the meaning of Article 2/2, § 1.

§ 2. When the FSMA assesses compliance with paragraph 1 by portfolio management and investment advisory companies, it may take into account the subscription of professional liability insurance, if this insurance constitutes an effective tool for their risk management.

§ 3. The processes and systems referred to in paragraph 1 shall be proportionate to the complexity, risk profile and scope of the company's activities, to the risk tolerance level set in accordance with Article 34/2, and shall reflect the importance of the company in the Member States where it carries out its activities.

§ 4. Portfolio management and investment advisory companies shall duly take into account any significant impact on own funds when such risks are not appropriately taken into account by the own funds requirements calculated in accordance with Article 11 of Regulation (EU) 2019/2033.

(1) Inserted by L 2022-07-20/31, art. 23, 013; En vigueur : 15-09-2022

[Art. 27] § 1. The FSMA may determine the minimum information that portfolio management and investment advisory companies must publish regarding solvency, liquidity, risk concentration and other risk positions, on their capital and liquidity needs policy by reference to the requirements referred to in Articles 54 and 58/4 to 58/10, as well as on their remuneration policy referred to in Article 25, § 1, 6°.

In this case, it shall also define the minimum frequency and the conditions for the publication of this information.

The FSMA may require portfolio management and investment advisory companies to publish the information referred to in Article 46 of Regulation (EU) 2019/2033 more than once a year, to set the deadlines for this publication and to use specific media and locations for publications other than financial statements, in particular their websites.

Paragraph 2 shall not apply to small non-interconnected portfolio management and investment advisory companies, except for those referred to in Article 46, paragraph 2 of Regulation (EU) 2019/2033.

§ 2. Portfolio management and investment advisory companies shall establish the rules and procedures necessary to comply with the publication requirements provided for in § 1. They shall assess the adequacy of their publication measures, including the verification of published data and the frequency of publication.

§ 3. Portfolio management and investment advisory companies shall establish the rules and procedures necessary to assess whether the information they publish on their organization, financial situation and state of risks provides market participants with complete information on their risk profile.

§ 4. The regulations referred to in this Article shall be adopted in accordance with Article 64 of the Law of 2 August 2002.

§ 5. The FSMA may, in special cases, authorize derogations from the provisions of the regulations adopted under this Article, within the limits of European legislation.

(1) L 2019-05-02/25, art. 195, 005; En vigueur : 31-05-2019 (2) L 2022-07-20/31, art. 24, 013; En vigueur : 15-09-2022

[Sub-section 6.] - Central Administration

[Art. 28] The central administration and the statutory seat of a portfolio management and investment advisory company must be located in Belgium.

(1) L 2021-06-27/09, art. 246, 009; En vigueur : 19-07-2021

[Sub-section 7.] - Investor Protection

[Art. 29] Portfolio management and investment advisory companies must adhere to the investor protection system referred to in Title IV.

(1) L 2019-05-02/25, art. 196, 005; En vigueur : 31-05-2019

[Sub-section 8.] - General Provisions

(1) Inserted by L 2022-07-20/31, art. 25, 013; En vigueur : 15-09-2022

[Art. 29/1] In addition to the conditions provided for in this section, the FSMA shall also take into account the ability of the applicant company to meet the conditions for carrying out the activity referred to in section 3, as well as to achieve its development objectives:

in a manner that ensures the sound, efficient and prudent management of the portfolio management and investment advisory company;
under the conditions required by the proper functioning of the financial system, market integrity, investor safety and the consideration of their interests.

(1) Inserted by L 2022-07-20/31, art. 26, 013; En vigueur : 15-09-2022

[Section 3.] - Conditions for Carrying Out the Activity

[Sub-section 1.] - Minimum Own Funds

[Art. 30] § 1. Without prejudice to Articles 77 and 78 of Regulation No 575/2013 made applicable by Article 9, paragraph 3 of Regulation (EU) 2019/2033, the own funds of portfolio management and investment advisory companies may not fall below the amount of initial capital fixed in accordance with Article 21.

In cooperative companies, there may be no resignation or exclusion at the expense of the social assets if it would result in the company no longer complying with the own funds ratios established under Article 54.

Any increase in the fixed share of capital referred to in Article 21, § 3 must be fully subscribed and paid up and must be attested by authentic deed. Articles 7:179 and 7:195 of the Code of Companies and Associations apply by analogy.

Articles 7:208, 7:209 and 7:210 of the said Code apply, by analogy, to any reduction of this fixed share, which requires the prior agreement of the FSMA.

§ 2. When the own funds no longer reach the amounts fixed in § 1, the FSMA may set a deadline within which they must again reach these amounts.

(1) L 2021-06-27/09, art. 247, 009; En vigueur : 19-07-2021 (2) L 2022-07-20/31, art. 27, 013; En vigueur : 15-09-2022

[Sub-section 2.] - Modifications in the Capital Structure

Art. 31. § 1. Without prejudice to Article 59 and the Law of 2 May 2007 on the disclosure of major holdings, any natural or legal person acting alone or in concert with others, who has decided to acquire, directly or indirectly, a qualifying holding in a Belgian portfolio management and investment advisory company, or to increase such qualifying holding, such that the proportion of voting rights or capital shares held reaches or exceeds the thresholds of 20%, 30%, or 50%, or such that the portfolio management and investment advisory company becomes its subsidiary, is required to notify in writing in advance to the FSMA the envisaged amount of its holding and the relevant information referred to in paragraph 3, third paragraph.

§ 2. Promptly, and in any event within a period of two working days after receipt of the notification and complete information referred to in paragraph 1, as well as after any subsequent receipt of the information referred to in the third paragraph, the FSMA shall acknowledge receipt in writing to the prospective acquirer. The acknowledgment of receipt indicates the expiry date of the evaluation period.

The evaluation period available to the FSMA to carry out the evaluation referred to in paragraph 3 is a maximum of sixty working days from the date of the acknowledgment of receipt of the notification and all documents required with the notification based on the list referred to in paragraph 3, third paragraph.

The FSMA may, during the evaluation period, at the latest on the fiftieth working day of the evaluation period, request additional information necessary to complete its evaluation. This request is made in writing and specifies the additional information required.

During the period between the date of the information request by the FSMA and the receipt of a response from the prospective acquirer to this request, the evaluation period is suspended. This suspension may not exceed twenty working days. The FSMA may make other requests for additional information or clarifications beyond the deadline determined in accordance with the preceding paragraph, without these requests giving rise to a suspension of the evaluation period.

[1] The FSMA may extend the suspension referred to in the fourth paragraph to thirty working days:
1° if the prospective acquirer is a natural or legal person established outside the European Union or subject to the regulation of a third country; or 2° if the prospective acquirer is a natural or legal person not subject to supervision under Directive 2013/36/EU, Directive 2009/65/EC, Directive 2009/138/EC, or Directive 2014/65/EU.[1]

§ 3. The FSMA may oppose the implementation of the acquisition during the evaluation period referred to in paragraph 2 if it has reasonable grounds to consider, based on the criteria set out in the second paragraph, that the prospective acquirer does not possess the necessary qualities with regard to the need to ensure sound and prudent management of the portfolio management and investment advisory company, or if the information provided by the prospective acquirer is incomplete.

In evaluating the notification and information referred to in paragraph 1, and the additional information referred to in paragraph 2, the FSMA assesses, in order to guarantee sound and prudent management of the portfolio management and investment advisory company targeted by the envisaged acquisition and taking into account the likely influence of the prospective acquirer on the portfolio management and investment advisory company, the [1] adequacy [1] of the prospective acquirer and the financial solidity of the envisaged acquisition by applying all of the following criteria:
a) the reputation of the prospective acquirer; b) the integrity and expertise of any person referred to in Article 23 who will direct the activities of the portfolio management and investment advisory company following the envisaged acquisition; c) the financial solidity of the prospective acquirer, taking into account in particular the type of activities carried out and envisaged within the portfolio management and investment advisory company targeted by the envisaged acquisition; d) the ability of the portfolio management and investment advisory company to meet and continue to meet the prudential obligations arising from this Law and the decrees issued in implementation thereof, in particular whether the group to which it belongs has a structure that allows for effective supervision, genuine exchange of information between competent authorities, and determination of the sharing of responsibilities between competent authorities; e) the existence of reasonable grounds to suspect that an operation or attempt at money laundering or terrorist financing within the meaning of Article 1 of 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 purpose of money laundering or terrorist financing is ongoing or has taken place in connection with the envisaged acquisition, or that the envisaged acquisition could increase the risk thereof.

The FSMA publishes on its website a list specifying the relevant, proportionate, and adapted information necessary to carry out the evaluation, which must be communicated to it at the time of the notification referred to in paragraph 1.

If the FSMA decides, at the end of the evaluation, to oppose the envisaged acquisition, it notifies this in writing to the prospective acquirer within a period of two working days and without exceeding the evaluation period. An appropriate statement of the reasons for the decision may be made accessible to the public upon request by the prospective acquirer.

If, at the end of the evaluation period, the FSMA has not opposed the envisaged acquisition, it is deemed approved.

The FSMA may set a maximum deadline for the conclusion of the envisaged acquisition and, if necessary, extend it.

§ 4. The FSMA carries out the evaluation referred to in paragraph 3 in full consultation with any other competent authority concerned or, as the case may be, with the National Bank, if the prospective acquirer is:
a) a credit institution, a securities firm, an insurance undertaking, a reinsurance undertaking, an investment firm, an OPCA manager, or a management company for collective investment undertakings authorized by the National Bank or by a competent authority in another Member State; or b) the parent undertaking of any of the undertakings having one of the qualities referred to in a); or c) a natural or legal person controlling any of the undertakings referred to in a).

In the cases referred to in the preceding paragraph, any decision by the FSMA mentions any opinions or reservations formulated by the competent authority responsible for the prospective acquirer or, as the case may be, by the National Bank.

When the prudential evaluation of a proposed acquisition falls within the competence of the supervisory authority for credit institutions, insurance undertakings, reinsurance undertakings, investment firms, OPCA managers, or management companies for collective investment undertakings of another Member State, or within the competence of the National Bank, the FSMA exchanges, as soon as possible, with that authority or with the National Bank any essential or relevant information for the evaluation. In this context, it communicates to them upon request any relevant information and, on its own initiative, any essential information.

§ 5. Any natural or legal person who has decided to cease holding, directly or indirectly, a qualifying holding in a portfolio management and investment advisory company must notify this in writing in advance to the FSMA and communicate the envisaged amount of its holding. Such a person must also notify the FSMA of its decision to reduce its qualifying holding such that the proportion of voting rights or capital shares held falls below the thresholds of 20%, 30%, or 50%, or such that the portfolio management and investment advisory company ceases to be its subsidiary.

§ 6. [1] ...[1]

§ 7. Without prejudice to Article 59 and the Law of 2 May 2007 on the disclosure of major holdings, any natural or legal person acting alone or in concert with others, who has acquired, directly or indirectly, a holding in a Belgian portfolio management and investment advisory company, or who has increased its holding in a Belgian portfolio management and investment advisory company, such that the proportion of voting rights or capital shares held reaches or exceeds the threshold of 5% of voting rights or capital, without however holding a qualifying holding, is required to notify this in writing to the FSMA within a period of ten working days after the acquisition.

The same notification is required within a period of ten working days from any natural or legal person who has ceased to hold, directly or indirectly, alone or acting in concert with others, a holding of more than 5% of the capital or voting rights of a portfolio management and investment advisory company, which did not constitute a qualifying holding.

The notifications referred to in the first and second paragraphs indicate the precise identity of the acquirer(s), the number of shares acquired or disposed of, and the percentage of voting rights and capital of the portfolio management and investment advisory company held subsequent to the acquisition or disposal, as well as the necessary information, the list of which is published by the FSMA on its website in accordance with paragraph 3, third paragraph.

§ 8. Portfolio management and investment advisory companies must communicate to the FSMA, as soon as they become aware of them, acquisitions or disposals of their shares or parts that cross upwards or downwards any of the thresholds referred to in paragraph 1, first paragraph.

Under the same conditions, they must communicate to the FSMA, at least once a year, the identity of shareholders or partners who possess, directly or indirectly, acting alone or in concert, qualifying holdings in their capital, as well as the proportion of capital and voting rights thus held. [2] ...[2]

(1) L 2017-11-21/08, art. 221, 002; En vigueur : 03-01-2018 (2) L 2021-06-27/09, art. 248, 009; En vigueur : 19-07-2021

Art. 32. [1] § 1.[1] When the FSMA has reason to consider that the influence exerted by a natural or legal person holding, directly or indirectly, a qualifying holding in a portfolio management and investment advisory company is likely to compromise its sound and prudent management, and without prejudice to other measures provided for by this Law, it may:
1° suspend the exercise of voting rights attached to the shares or parts held by the shareholder or partner in question; it may, upon request by any interested party, lift the measures it has ordered; its decision is notified in the most appropriate manner to the shareholder or partner concerned; its decision is enforceable as soon as it has been notified; the FSMA may make its decision public; 2° order the shareholder or partner concerned to sell, within the period it sets, the partnership rights it holds.

In the event of failure to sell within the period set, the FSMA may order the shares or partnership rights to be placed in escrow with the institution or person it determines. The escrow agent informs the portfolio management and investment advisory company, which modifies in consequence the register of shares or partnership parts of named shareholders and partners, and which accepts the exercise of the rights attached thereto only by the escrow agent. The escrow agent acts in the interest of sound and prudent management of the portfolio management and investment advisory company and in the interest of the holder of the partnership rights subject to escrow. It exercises all rights attached to the shares or partnership parts. The sums collected by it as dividends or under any other title are remitted by it to the aforementioned holder only if that holder has complied with the injunction referred to in the first paragraph, 2°. Subscription to capital increases or to other securities conferring or not conferring voting rights, the option regarding dividends payable in shares of the company, the response to public takeover or exchange offers, and the payment of unpaid calls on shares are subject to the agreement of the aforementioned holder. Partnership rights acquired by virtue of these operations are, by operation of law, subject to the escrow provided for above. The remuneration of the escrow agent is fixed by the FSMA and is borne by the aforementioned holder. The escrow agent may deduct this remuneration from the sums paid to it in its capacity as escrow agent or by the aforementioned holder for the purposes or as a consequence of the operations referred to above.

When voting rights have been exercised by the original holder or by a person, other than the escrow agent, acting on behalf of that holder after the expiry of the period set in accordance with the first paragraph, 2°, first sentence, notwithstanding a suspension of their exercise pronounced in accordance with the first paragraph, 1°, the [2] Court of Enterprise [2] within whose jurisdiction the company has its registered office may, upon application by the FSMA, declare null and void all or part of the resolutions of the general meeting if, without the illegally exercised voting rights, the quorums for presence or majority required by such resolutions would not have been met.

[1] § 2. In the event of acquisition or increase of a holding despite the opposition of the FSMA referred to in Article 31, § 3, the president of the [2] Court of Enterprise [2] within whose jurisdiction the portfolio management and investment advisory company has its registered office, sitting as in summary proceedings, may take the measures referred to in the [3] Article 7:84, § 1 of the Code of Companies and Associations [3], as well as declare null and void all or part of the resolutions of the general meeting held in the cases referred to above.

The procedure is introduced by citation issued by the FSMA.

The [3] Article 7:84, § 3 of the Code of Companies and Associations [3] applies.

§ 3. The FSMA takes measures similar to those referred to in paragraph 1 against persons who have not carried out the prior notifications prescribed in Article 31, §§ 1 or 5.[1]

(1) L 2017-11-21/08, art. 222, 002; En vigueur : 03-01-2018 (2) L 2018-04-15/14, art. 252, 006; En vigueur : 01-11-2018 (3) L 2021-06-27/09, art. 249, 009; En vigueur : 19-07-2021

Art. 33. [1] The notification obligations referred to in Article 31 are also applicable in cases of crossing of thresholds referred to in that article resulting from the existence of double or multiple voting rights, or from an acquisition of treasury shares by the portfolio management and investment advisory company, or from any other situation involving a modification of the level of a holding that is not the consequence of an acquisition or disposal.

In the case of a change in threshold referred to in Article 31, § 1 resulting from the application of the first paragraph, the evaluation provided for in Article 31, §§ 2 to 4 is applicable, it being understood that the acquisition referred to in those provisions then refers to the modification of the level of the holding.[1]

(1) L 2021-06-27/09, art. 250, 009; En vigueur : 19-07-2021

Sub-section 3. - Management and Directors

Art. 34
§ 1. The administrative body periodically evaluates, at least once a year, the effectiveness of the organizational arrangements of the establishment referred to in Articles 25 to 25/3, as well as the specific organizational arrangements referred to in Articles 26 to 26/3, and their compliance with legal and regulatory obligations. It ensures that the persons responsible for the effective management of the company, and where applicable, the management committee, take the necessary measures to remedy any shortcomings. The administrative body also periodically monitors and evaluates the relevance and implementation of the company's strategic objectives in relation to the provision of investment services, the exercise of investment activities, the provision of ancillary services and the marketing of structured deposits and the provision of advice to clients on such products, and the adequacy of policies regarding the provision of services to clients, and takes appropriate measures to remedy any deficiency. § 2. The administrative body exercises effective control over the persons responsible for the effective management of the company, and where applicable, the management committee, and ensures the monitoring of decisions taken by these persons. Each member of the administrative body demonstrates honesty, integrity, and independence of mind, enabling them to effectively evaluate and, if necessary, challenge the decisions of the persons responsible for the effective management of the company, and where applicable, the management committee, and to ensure effective supervision and monitoring of management decisions. Members of the administrative body have adequate access to the information and documents necessary to carry out the tasks assigned to them under the provisions of this law, the decrees and regulations adopted for its implementation, and directly applicable European regulation. § 3. The administrative body evaluates in particular the proper functioning of the independent control functions referred to in Article 25/3. § 4. The annual report of the administrative body justifies the individual and collective competence of the members of the committees referred to in Article 25/2. § 5. The administrative body ensures the updating of the governance memorandum referred to in Article 25, § 3, and its transmission to the FSMA. § 6. The administrative body ensures the integrity of accounting and financial reporting systems, including operational and financial control arrangements. It evaluates the functioning of internal control at least once a year and ensures that this control provides a reasonable degree of assurance regarding the reliability of the financial reporting process, so that the annual accounts and financial information comply with the accounting regulations in force. § 7. The administrative body supervises the publication and communication process required by or under this law and Regulation (EU) 2019/2033. § 8. The administrative body
adopts and regularly evaluates, at least once a year, the general principles of the remuneration policy and ensures the monitoring of its implementation. In the context of this evaluation, it uses the independent control functions.

Art. 34/1
Without prejudice to the powers vested in the administrative body regarding the determination of general policy, as provided for by the Code of Companies and Associations, the persons responsible for the effective management of the portfolio management and investment advisory company, and where applicable, the management committee, take, under the supervision of the administrative body, the necessary measures to ensure compliance with and implementation of the provisions of Articles 25 to 25/3, including the specific organizational arrangements referred to in Articles 26 to 26/3. The persons responsible for effective management, and where applicable, the management committee, report at least once a year to the administrative body and to the FSMA on compliance with the provisions of the first paragraph and on the measures taken, where applicable, to remedy any deficiencies that may have been identified. The report justifies how these measures satisfy legal and regulatory provisions.

Art. 34/2
§ 1. This article does not apply to small portfolio management and investment advisory companies not interconnected within the meaning of Article 2/2, § 1.
§ 2. In the context of its tasks referred to in Article 25/1, the administrative body sets the risk tolerance level of the portfolio management and investment advisory company for all activities carried out.
To this end, the administrative body approves and regularly reviews the strategies and policies governing the taking, management, monitoring, and mitigation of risks to which the portfolio management and investment advisory company is or may be exposed, including risks generated by the macroeconomic environment in which it operates, taking into account the state of the economic cycle. The company's risk tolerance level for all concerned activities is communicated to the FSMA, which is required to be informed of any modifications thereto. § 3. The administrative body dedicates sufficient time to ensure adequate consideration of the aspects referred to in paragraph 2. Furthermore, it allocates the necessary resources for the monitoring of the management of all significant risks to which the company is exposed. § 4. The persons responsible for effective management, and where applicable, the management committee, communicate appropriate information to the administrative body regarding all significant risks, the company's significant risk management and control policies, and any modifications thereto. In general, the administrative body has access to information on the risks to which the portfolio management and investment advisory company is or may be exposed.

Art. 35
NOTE: The modifications provided for by Art. 55 of 2017-12-05 are overridden § 1. Portfolio management and investment advisory companies must notify the FSMA in advance of the proposal for the appointment of members of the administrative body and members of the management committee, or, in the absence of a management committee, the persons responsible for effective management, as well as the heads of the independent control functions. In the context of the information required under the first paragraph, portfolio management and investment advisory companies communicate to the FSMA all documents and information enabling it to assess whether the persons whose appointment is proposed possess the necessary professional integrity and adequate expertise to exercise their function in accordance with Article 23. The first paragraph also applies to the proposal for the renewal of the appointment of the persons referred to therein, as well as to the non-renewal of their appointment, their dismissal, or their resignation. § 2. The appointment of the persons referred to in paragraph 1 is subject to prior approval by the FSMA. When it concerns the appointment of a person proposed for the first time for a function referred to in paragraph 1 in an establishment subject to the control of the FSMA under Article 45, § 1, 2° of the Law of 2 August 2002, the FSMA consults the National Bank in advance. The National Bank communicates its opinion to the FSMA within a period of one week from receipt of the request for opinion. § 3. Portfolio management and investment advisory companies inform the FSMA of the possible distribution of tasks between members of the administrative body and between persons responsible for effective management, and where applicable, between members of the management committee. Significant changes in the distribution of tasks referred to in the first paragraph give rise to the application of paragraphs 1 and 2. § 4. Portfolio management and investment advisory companies and, where applicable, their nomination committee, draw on a wide range of qualities and skills when recruiting members of the administrative body and, for this purpose, implement policies favorable to diversity within this body. § 5. Portfolio management and investment advisory companies dedicate adequate human and financial resources to the induction and training of members of the administrative body.

Art. 35/1
§ 1. Persons responsible for the independent control functions referred to in Article 25/3 may not be dismissed from their function without the prior agreement of the administrative body.
The portfolio management and investment advisory company must notify the FSMA in advance.
§ 2. Persons responsible for the independent control functions referred to in Article 25/3 dedicate the necessary time to the exercise of their functions within the company.
The internal rules referred to in Article 36, § 3 must ensure that an external function exercised by a person referred to in the first paragraph cannot impair the availability required for the exercise of their independent control function and prevent any conflict of interest with the exercise of this function.

Article 36.
§ 1. Members of the administrative body, members of the management committee, and, in the absence of a management committee, persons responsible for effective management, devote the time necessary to the exercise of their functions within the portfolio management and investment advisory company.
§ 2. Without prejudice to paragraph 1 and Articles 25 to 26, members of the bodies of a portfolio management and investment advisory company and all persons who, under whatever name and in whatever capacity, participate in the administration or management of the enterprise may, on behalf of or not on behalf of the portfolio management and investment advisory company, exercise mandates as administrator or manager or participate in the administration or management within a company [...], a company of another form of Belgian or foreign law, or a Belgian or foreign public institution, having an industrial, commercial, or financial activity, under the conditions and within the limits provided for in this Article. § 3. The external functions referred to in § 2 are governed by internal rules that the portfolio management and investment advisory company must adopt and enforce to pursue the following objectives:
1° to avoid that the exercise of these functions by persons participating in the effective management of the portfolio management and investment advisory company impairs the availability required for the exercise of this management; 2° to prevent, within the portfolio management and investment advisory company, the occurrence of conflicts of interest and the risks associated with the exercise of these functions, particularly regarding insider transactions; 3° to ensure adequate publicity of these functions. The FSMA sets the modalities of these obligations by regulation subject to the approval of the King. § 4. Corporate officers appointed upon presentation by the portfolio management and investment advisory company must be persons who participate in the effective management of the portfolio management and investment advisory company or persons designated by it. § 5. Members of the administrative body not participating in the effective management of the portfolio management and investment advisory company may not exercise a mandate in a company in which the enterprise holds a participation unless they do not participate in the day-to-day management of that company. Furthermore, and without prejudice to paragraphs 1 and 3, the external functions referred to in paragraph 2, insofar as they are exercised in companies [...], other than the portfolio management and investment advisory company, are limited, except in the case where the mandate within the portfolio management and investment advisory company is exercised on behalf of a Member State, to the following number of mandates:
1° either to three mandates that cannot involve participation in day-to-day management; or 2° either to one mandate involving participation in day-to-day management and one mandate that cannot involve participation in day-to-day management.
The rule referred to in the second paragraph does not apply to portfolio management and investment advisory companies that do not have significant importance due to their internal organization or due to the nature, scope, complexity, or cross-border nature of their activities.
§ 6. Persons participating in the effective management of the portfolio management and investment advisory company may not exercise a mandate involving participation in day-to-day management unless it is a company referred to in Article 41, § 3, with which the portfolio management and investment advisory company has close links, a statutory collective investment undertaking within the meaning of the Law of 3 August 2012 or the Law of 19 April 2014, or a holding company in which such persons or their family hold a significant interest as part of the normal management of their assets. Furthermore, and without prejudice to paragraphs 1 and 3, the external functions referred to in paragraph 2, insofar as they are exercised in companies [...], other than the portfolio management and investment advisory company, are limited to two mandates that cannot involve participation in day-to-day management, except in the case where the mandate within the portfolio management and investment advisory company is exercised on behalf of a Member State. The rule referred to in the second paragraph does not apply to portfolio management and investment advisory companies that do not have significant importance due to their internal organization or due to the nature, scope, complexity, or cross-border nature of their activities. § 7. The FSMA may, in individual cases, grant a derogation from the maximum number of mandates provided for in paragraphs 5 and 6, by authorizing the possibility of exercising an additional mandate not involving participation in day-to-day management. The FSMA regularly informs the European Securities and Markets Authority of its use of this derogation power. § 8. Portfolio management and investment advisory companies must promptly notify the FSMA of the functions exercised outside the portfolio management and investment advisory company by the persons referred to in paragraph 2, for the purpose of controlling compliance with the provisions of this Article. § 9. For the application of paragraph 5, second paragraph, and paragraph 6, second paragraph, the exercise of several mandates, involving or not involving participation in day-to-day management, in companies that are part of the group to which the portfolio management and investment advisory company belongs or of another group, is considered as a single mandate. For the purposes of this Article, "group" means a set of companies consisting of a parent company, its subsidiaries, the companies in which the parent company or its subsidiaries hold a direct or indirect participation within the meaning of Article 3, 26°, of this Law, as well as companies that constitute a consortium and the companies controlled by these latter or in which they hold a participation within the meaning of Article 3, 26°, of this Law. § 10. For the application of this Article, the FSMA may verify using the statutes whether external functions are or are not exercised in companies [...], particularly regarding external
functions in holding companies. § 11. By way of derogation from paragraph 5, a member of the administrative body of a portfolio management and investment advisory company not participating in its effective management, who is appointed following the acquisition of a participation or the takeover of activities of a company in which the same person participates in effective management, is authorized to continue exercising his current mandate within that latter company on the date of entry into force of this Law until its expiration, provided that the exercise of this mandate does not exceed the anniversary date of 6 years after the aforementioned acquisition or takeover. § 12. By way of derogation from paragraph 6, members of the management committee or, in the absence of a management committee, persons participating in the effective management of a portfolio management and investment advisory company are, until 3 January 2021, authorized to continue exercising their current mandates involving participation in the day-to-day management of a company in which these persons are the sole managers and whose activity is limited to management services for the companies referred to in Article 36, § 6.

Article 37. In the event of bankruptcy of a portfolio management and investment advisory company, payments made by this company, either in cash or otherwise, to its administrators or managers, as profit shares or other participations in profits, during the two years preceding the moment determined by the court as that of the cessation of its payments, are null and void with respect to the estate.
The first paragraph does not apply if the court recognizes that no serious and characterized fault on the part of these persons contributed to the bankruptcy.

Sub-section 3/1. Implementation of remuneration policy

Article 37/1.
§ 1. This Article does not apply to small non-interconnected portfolio management and investment advisory companies within the meaning of Article 2/2, § 1.
§ 2. The remuneration policy adopted in accordance with Articles 25, § 1, first paragraph, 6°, and 34, § 8 is consistent with the economic strategy, objectives, values, and long-term interests of the portfolio management and investment advisory company, includes measures to avoid conflicts of interest, and takes into account the long-term effects of the company's investment decisions. The remuneration policy is gender-neutral and is described clearly. It encourages responsible conduct of the company's activities and promotes risk awareness and prudence in risk-taking. In establishing and applying its remuneration policy, the portfolio management and investment advisory company observes the principles set out in Annex I to this Law, in a manner and to an extent corresponding to the size and internal organization of the company and to the nature, scope, and complexity of its activities. § 3. The remuneration policy covers categories of staff whose professional activities have a significant impact on the risk profile of the company or the assets it manages. For the purposes of the first paragraph, the categories of staff whose professional activities have a significant impact on the risk profile of the portfolio management and investment advisory company or the assets it manages include at least:
1° members of the administrative body and persons responsible for effective management, and, where applicable, members of the management committee; 2° persons holding independent control functions; 3° persons holding a function involving risk-taking; and 4° employees whose total remuneration is at least equal to the lowest remuneration received by the persons referred to in 1° and 3°. § 4. The remuneration policy covers all remuneration, including variable remuneration and discretionary pension benefits, for the persons referred to in paragraph 3, and operates, in compliance with the provisions of Annex I to this Law, a clear distinction to determine the criteria for setting:

fixed basic remuneration, which must primarily reflect relevant professional experience and organizational responsibilities as defined in the job description that is part of the employment conditions, and
variable remuneration, which is based on performance criteria that must reflect sustainable and risk-adjusted performance, as well as additional benefits provided in addition to those described in the job description that is part of the employment conditions.
§ 5. Annex I to this Law defines the criteria, modalities, and obligations that the remuneration policy of portfolio management and investment advisory companies and its implementation must satisfy, particularly conditions related to the setting and payment of variable remuneration.
§ 6. Remuneration practices regarding the persons referred to in paragraph 3 respect the remuneration policy established by the company and the obligations set out in Annex I to this Law. These practices are subject to regular internal evaluation by control functions at least once a year to verify whether, taking into account the evolution of the company's situation, the provisions of Annex I are permanently respected.

Article 37/2. Portfolio management and investment advisory companies that have received exceptional financial support from public authorities must adapt their remuneration policies and practices in accordance with the requirements set out in the Annex to this Law.

Sub-section 4. - Mergers and transfers

Article 38. The following are subject to the authorization of the FSMA:
1° mergers between portfolio management and investment advisory companies or between such companies and other investment firms or other financial institutions; 2° transfers between portfolio management and investment advisory companies or between such companies and other investment firms or other financial institutions of all or part of their activity or network. The FSMA may refuse authorization only within three months of the prior notification of the project made to it and for reasons related to the sound and prudent management of the portfolio management and investment advisory company or companies concerned. If it does not intervene within the fixed deadline, authorization is deemed granted.

Article 39. Any total or partial transfer between portfolio management and investment advisory companies or between such companies and other investment firms or other financial institutions, of the rights and obligations resulting from the operations of the companies or enterprises concerned, and authorized in accordance with Article 38, is enforceable against third parties from the publication in the Belgian Monitor of the FSMA's authorization.

Sub-section 5. - Obligations and prohibitions

Article 40. Portfolio management and investment advisory companies may not, unless authorized by the FSMA, provide other services or exercise other activities than the services and activities authorized by their approval, as well as activities that fall within the framework or direct extension of these services and activities, or that constitute their accessory or complement.
Without prejudice to compliance with other requirements provided for by or under this Law, the portfolio management and investment advisory company may, however, provide the crypto-asset services permitted by Article 60, paragraph 3 of Regulation 2023/1114, in accordance with the provisions of said Regulation.

Art. 41.§ 1. Portfolio management and investment advisory companies may hold, directly or indirectly, participations, in whatever form, in one or more companies, under the conditions and within the limits set by this article.
§ 2. [1 For the application of this article, the term 'companies' shall mean companies and European economic interest groupings.]1 § 3. Portfolio management and investment advisory companies may hold participations in:
1° credit institutions, Belgian or foreign;
2° investment firms, Belgian or foreign;
3° liquidation bodies or bodies assimilated to liquidation bodies, as referred to by the Royal Decree taken in execution of Article 36/26 of the Law of 22 February 1998 fixing the organic status of the National Bank of Belgium; 4° insurance or reinsurance companies, Belgian or foreign; 5° management companies for collective investment undertakings, Belgian or foreign, as referred to by the Law of 3 August 2012; 6° management companies for collective investment schemes (OPCA), Belgian or foreign, as referred to by the Law of 19 April 2014; 7° other companies, Belgian or foreign, whose main object consists in the exercise of the activities referred to in Article 40 or the activities of the companies referred to in points 1° to 6°, as well as in companies constituted with a view to holding the capital of such companies; 8° Belgian or foreign companies whose main object consists in the provision of auxiliary services to the activity of the institutions referred to in points 1° to 6°. § 4. Portfolio management and investment advisory companies may hold participations in cases other than those referred to in paragraph 3, provided that these are participations that do not constitute qualified participations or that each holding does not exceed 15% of the own funds of the portfolio management and investment advisory company and that the total amount of these holdings does not exceed 45% of the company's own funds. These limits may, however, be increased by Royal Decree taken on the advice of the FSMA, provided that a portfolio management and investment advisory company may not hold qualified participations exceeding, per holding, 15% of the own funds of the portfolio management and investment advisory company and that the total of these participations may not exceed 60% of the company's own funds. For the application of the per-holding limit established in accordance with the first subparagraph, participations issued by companies that, regardless of their status and legal form, constitute a single entity from a risk perspective are considered as a single holding; linked companies are, until proof to the contrary, to be considered as a single entity from a risk perspective. Without prejudice to the first subparagraph, the following must be fully deducted from own funds for the application of Articles 30 and 54:
a) participations in companies holding a qualified participation in the portfolio management and investment advisory company or in its subsidiaries; b) participations in companies controlled by natural or legal persons holding such qualified participations.
§ 5. In special cases, the FSMA may authorize the temporary holding of participations outside the conditions and limits referred to in § 4.
If, as a result of the authorizations given in accordance with the first subparagraph, a portfolio management and investment advisory company holds, in cases other than those referred to in paragraph 3, a qualified participation the amount of which exceeds the percentage of the company's own funds applicable under § 4 or if the total of such participations exceeds the percentage of own funds applicable under the same § 4, the amount of the excess is subtracted from own funds for the application of Articles 30 and 54. In the case of excesses relative to the two aforementioned limits, the highest excess is deducted from own funds. § 6. The decrees referred to in this article are taken after consultation with portfolio management and investment advisory companies represented by their professional associations. § 7. The provisions of this article do not prejudice the regulatory provisions prescribed under Article 54. ---------- (1)<L 2021-06-27/09, art. 253, 009; En vigueur : 19-07-2021>

Art. 42. Portfolio management and investment advisory companies may not accept deposits of funds.

Art. 43. Portfolio management and investment advisory companies may not grant loans or credits.

Art. 44.§ 1. Portfolio management and investment advisory companies may not engage intermediaries in banking and investment services established in Belgium who are not registered in accordance with Article 5, § 1, of the Law of 22 March 2006.
If they wish to engage a linked agent established in another Member State, they must ensure that this person is registered, in the Member State concerned, [1 in the register referred to in Article 29, paragraph 3, of Directive 2014/65/EU]1. They ensure compliance with the limitations applicable to linked agents in the relevant Member State. [1 ...]1 § 2. Portfolio management and investment advisory companies that collaborate with a linked agent assume full and unconditional responsibility for any action taken or omission committed by that linked agent when acting on their behalf. Portfolio management and investment advisory companies ensure that linked agents with whom they collaborate indicate in what capacity they act before dealing with a client. § 3. Portfolio management and investment advisory companies are required to monitor the activities of linked agents. They take adequate measures to ensure that any complementary activities of linked agents do not have a negative impact on the activities exercised by these agents on behalf of the portfolio management and investment advisory company. § 4. The FSMA may supplement the provisions of this article with regulations taken under Articles 49, § 3, and 64 of the Law of 2 August 2002. These regulations may determine in particular the obligations incumbent upon portfolio management and investment advisory companies collaborating with linked agents. ---------- (1)<L 2019-05-02/25, art. 198, 005; En vigueur : 31-05-2019>

Art. 44/1. [1 § 1. Portfolio management and investment advisory companies that invest in shares of companies listed on a regulated market on behalf of insurance or reinsurance companies or professional pension institutions comply with the requirements set out in paragraph 2 or make public a clear and reasoned explanation of the reasons why they have chosen not to comply with one or more of these requirements. § 2. Portfolio management and investment advisory companies develop and make public an engagement policy describing how they integrate shareholder engagement into their investment strategy. This policy describes how they (i) monitor the companies held on relevant issues, including strategy, financial and non-financial performance, risk, capital structure, social and environmental impact, and corporate governance, (ii) engage in dialogue with the companies held, (iii) exercise voting rights and other rights attached to shares, (iv) cooperate with other shareholders, (v) communicate with relevant stakeholders of the companies held, and (vi) manage actual or potential conflicts of interest regarding their engagement. Each year, portfolio management and investment advisory companies make public information on how their engagement policy has been implemented, including a general description of their voting behavior, an explanation of the most significant votes, and the use of voting advisors. They make public how they expressed their votes at the general meetings of the companies in which they hold shares. This communication may exclude votes that are insignificant due to the subject of the vote or the size of the holding in the company. § 3. The information referred to in paragraph 2 is made available free of charge on the website of the portfolio management and investment advisory company. § 4. The provisions of Article 27, § 4, of the Law of 2 August 2002, the decrees and regulations taken for its implementation, as well as the corresponding delegated acts adopted under Directive 2014/65/EU, also apply to engagement activities.]1 ---------- (1)<Inséré par L 2020-04-28/06, art. 28, 007; En vigueur : 16-05-2020>

Art. 44/2. [1 § 1. Portfolio management and investment advisory companies referred to in Article 44/1 communicate, once a year, to the insurance or reinsurance company or the professional pension institution with which they have concluded the agreements referred to in Article 101/2 of the Law of 13 March 2016 on the status and supervision of insurance or reinsurance companies or to Article 95, § 3, second subparagraph, of the Law of 27 October 2006 on the supervision of professional pension institutions, how their investment strategy and its implementation respect this agreement and contribute to the medium and long-term performance of the assets of the insurance or reinsurance company, the professional pension institution, or the collective investment undertaking. This communication includes information on the main significant medium and long-term risks related to investments, on the composition, turnover, and turnover costs of the portfolio, on the use of voting advisors for engagement activities and their policy on securities lending and how it is applied for the exercise of their engagement activities, if applicable, particularly during the general meeting of the companies held. This communication also includes information indicating whether, and if so, how they make investment decisions based on an assessment of the medium and long-term performance of the company held, including non-financial performance, and whether conflicts of interest have arisen in connection with engagement activities, and, if so, which ones and how portfolio management and investment advisory companies have addressed them. § 2. The information referred to in paragraph 1 is communicated at the same time as the periodic communications referred to in Article 27ter, § 7, of the Law of 2 August 2002. When the information communicated under paragraph 1 is already available to the public, the portfolio management and investment advisory company is not required to provide this information directly to the insurance or reinsurance company or the professional pension institution.]1 ---------- (1)<Inséré par L 2020-04-28/06, art. 29, 007; En vigueur : 16-05-2020>

Art. 45. Licensed portfolio management and investment advisory companies are required to permanently comply with the conditions of the initial authorization.
They are required to report to the FSMA any significant modification concerning the conditions of the initial authorization.

Sous-section 6. - Opening of subsidiaries or branches abroad

Art. 46. Any portfolio management and investment advisory company that plans to acquire or create, directly or through a financial company or mixed financial company, a subsidiary abroad exercising the activity of a credit institution or an investment firm notifies its intention to the FSMA. This notification is accompanied by information on the activities, organization, shareholding, and management of the company concerned.

Art. 47.§ 1. Any portfolio management and investment advisory company wishing to establish a branch on the territory of another Member State [1 or use linked agents established in another Member State in which it has not established a branch,]1 to provide or exercise all or part of the investment and/or services and/or auxiliary services listed in Article 2 that it is authorized to provide or exercise in Belgium informs the FSMA. It communicates the following information on this occasion:
1° the Member States on the territory of which it plans to establish a branch [1 or the Member State in which it has not established a branch but plans to use linked agents established there]1; 2° [1 a detailed activity program specifying, in particular, the investment services and/or activities as well as the auxiliary services that the branch will provide or exercise, as well as, if a branch is established, the organizational structure of the branch and indicating whether the branch plans to use linked agents, as well as the identity of these linked agents;]1 [1 2° /1 if the portfolio management and investment advisory company intends to use linked agents in a Member State in which it has not established a branch, a description of the intended use of or linked agents and an organizational structure, including hierarchical channels, indicating how the agent(s) fit into the organizational structure of the portfolio management and investment advisory company;]1 3° the address at which documents can be requested in the host Member State; 4° the names of the effective managers of the branch [1 or of the linked agent]1 and, if applicable, its managers of independent control functions. [1 When a portfolio management and investment advisory company uses a linked agent established in another Member State, this linked agent is assimilated to the branch, when a branch has been established, and is in any case subject to the provisions of this law regarding branches.]1 § 2. [1 ...]1 § 3. The FSMA may oppose the realization of the project by a reasoned decision based on the prejudicial repercussions of the opening of the branch on the administrative structure or the financial health of the portfolio management and investment advisory company. § 4. The FSMA's decision must be notified to the portfolio management and investment advisory company by registered letter or with acknowledgment of receipt at the latest three months after receipt of the complete file including the information referred to in § 1, second subparagraph. If the FSMA has not notified its decision within this period, it is deemed not to oppose the portfolio management and investment advisory company's project. § 5.
[1 ...]1 ---------- (1)<L 2017-11-21/08, art. 229, 002; En vigueur : 03-01-2018>

Art. 48.[1 The FSMA]1 communicates, unless it has reasons to doubt the adequacy of the administrative structure or the financial health of the portfolio management and investment advisory company, taking into account the activities envisaged, all this information, within three months of its receipt, to the competent authority of the host Member State [1 designated as the contact point in accordance with Article 79, paragraph 1, of Directive 2014/65/EU]1 and informs the portfolio management and investment advisory company concerned. The FSMA communicates to the competent authority of the host Member State detailed information on the investor protection system to which the portfolio management and investment advisory company is affiliated in accordance with Directive 97/9/EC. In the event of a modification of this information, the FSMA informs the competent authority of the host Member State. ---------- (1)<L 2017-11-21/08, art. 230, 002; En vigueur : 03-01-2018>

Art. 49.
<Abrogé par L 2017-11-21/08, art. 231, 002; En vigueur : 03-01-2018>

Art. 50. In the event of a modification of any of the information communicated in accordance with Article 47, § 1, second subparagraph, any portfolio management and investment advisory company that has opened a branch abroad notifies this modification in writing to the FSMA at least one month before implementing said modification. If it has opened a branch in a Member State, the FSMA informs the competent authority of the host Member State of the modification.
Article 47, §§ 2 and 3, applies if applicable, as well as Article 48, depending on the modifications related to the information referred to in Article 47, or to the investor protection system applicable.

Sous-section 7. - Exercise of the free provision of services in another Member State of the European Economic Area

Art. 51.[1 Any portfolio management and investment advisory company that wishes to provide or exercise for the first time on the territory of another Member State 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, or that wishes to extend the range of services provided or activities exercised, communicates the following information to the FSMA:
1° the Member State in which it plans to operate; 2° an activity program mentioning, in particular, the investment services and/or activities as well as the auxiliary services it intends to provide or exercise on the territory of that Member State, and whether it plans to do so by using linked agents, established in Belgium.
If the portfolio management and investment advisory company intends to use linked agents, it communicates to the FSMA the identity of these linked agents.
If the portfolio management and investment advisory company intends to use, on the territory of the Member State in which it plans to provide services, linked agents established in Belgium, the FSMA communicates to the competent authority of the host Member State designated as the contact point in accordance with Article 79, paragraph 1, of Directive 2014/65/EU, within one month of receiving all the information, the identity of the linked agents to which the portfolio management and investment advisory company intends to use to provide services and investment activities in that Member State. The host Member State publishes this information.]1 ---------- (1)<L 2017-11-21/08, art. 232, 002; En vigueur : 03-01-2018>

Art. 52. In the case referred to in Article 51, the FSMA shall transmit this information, within the month following its receipt, to the competent authority of the host Member State [1 designated as the contact point in accordance with Article 79, paragraph 1, of Directive 2014/65/EU]1; the portfolio management and investment advisory company may then begin to provide the investment service or services in the host Member State. ---------- (1)<L 2017-11-21/08, art. 233, 002; En vigueur : 03-01-2018>

Art. 53. In the event of a modification of any of the information communicated in accordance with Article 51, the portfolio management and investment advisory company shall notify the FSMA in writing, at least one month before implementing said modification.
The FSMA shall inform the competent authority of the host Member State of the modification.

Sous-section 8. - Regulatory standards and obligations

Art. 54.§ 1. [2 Without prejudice to the provisions of Regulation (EU) 2019/2033 or other provisions of European law, the FSMA may determine, by means of regulations adopted under Article 64 of the Law of 2 August 2002:
1° the standards regarding solvency, liquidity, and risk concentration, and other limitation standards to be respected by all portfolio management and investment advisory companies, when these standards are not defined by Regulation (EU) 2019/2033; 2° the implementation arrangements for the solvency, liquidity, and risk concentration standards provided for by Regulation (EU) 2019/2033, including the implementation arrangements for the various options offered by these regulations to Member States and to the FSMA as the competent authority, taking into account the guidelines defined by the European Banking Authority in relation to said regulations and the regulatory technical standards adopted by the European Commission under said regulations; 3° the assessment rules applicable to the valuation of assets, liabilities, and off-balance sheet items for verifying compliance with solvency, liquidity, or risk concentration standards. The standards referred to in this paragraph may be of a quantitative or qualitative nature.]2 § 2. [2 Without prejudice to the provisions of paragraph 1, portfolio management and investment advisory companies must have a policy regarding their capital and liquidity needs that is appropriate to the activities they carry out or intend to carry out. The senior management of the portfolio management and investment advisory company, and if applicable the management committee, shall develop such a policy under the supervision of the administrative body, identifying and determining the current and future capital and liquidity needs of the portfolio management and investment advisory company, taking into account the nature, volume, and complexity of these activities, the associated risks, the company's risk management policy, as well as the risks the company may pose to third parties.]2 The portfolio management and investment advisory company shall regularly evaluate its policy regarding its capital [2 and liquidity]2 needs and adapt this policy if necessary. The FSMA may, by regulation, specify the frequency of this evaluation. § 3. [2 ...]2 § 4. The FSMA shall notify the European Banking Authority, the European Commission, and the Council of the information required by European Directives regarding the application of the regulations referred to in this article. § 5. The regulations referred to in this article are adopted in accordance with Article 64 of the Law of 2 August 2002. § 6. The FSMA may, in special cases, authorize, within the limits of European legislation, derogations from
the provisions of the regulations adopted under this article. ---------- (1)<L 2021-06-27/09, art. 258, 009; En vigueur : 01-01-2021> (2)<L 2022-07-20/31, art. 37, 013; En vigueur : 15-09-2022>

Sous-section 9. - Periodic information and accounting rules

Art. 55.Portfolio management and investment advisory companies shall periodically communicate a detailed financial statement to the FSMA. This shall be prepared in accordance with the rules fixed by the FSMA, which determines the frequency. The FSMA may, furthermore, prescribe the regular transmission of other numerical or descriptive information necessary to verify compliance with the provisions of this title [1 , the decrees and regulations adopted for their implementation, or Regulation (EU) 2019/2033]1. The senior management of the portfolio management and investment advisory company, and if applicable the management committee, shall declare to the FSMA that the aforementioned periodic statements transmitted by the portfolio management and investment advisory company to the FSMA at the end of the first half of the financial year and at the end of the financial year, are in conformity with the accounting and inventories. It is required for this purpose that the periodic statements be complete, i.e., that they mention all the data appearing in the accounting and inventories on the basis of which they are prepared, and that they be correct, i.e., that they correspond exactly with the accounting and inventories on the basis of which they are prepared. The senior management confirms having taken the necessary steps to ensure that the aforementioned statements are prepared in accordance with the FSMA's current instructions, as well as by applying the accounting and valuation rules governing the preparation of annual accounts, or, regarding periodic statements that do not relate to the end of the financial year, by applying the accounting and valuation rules that governed the preparation of the annual accounts for the last financial year. The King determines, on the advice of the FSMA:
1° the rules according to which portfolio management and investment advisory companies keep their accounting, conduct inventory valuations, and prepare and publish their annual accounts; 2° the rules to be respected by portfolio management and investment advisory companies for the preparation, 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. [1 The members of the administrative body are jointly liable, both towards the company and towards third parties, for all damages and interest resulting from infringements of the provisions adopted in execution of paragraph 3. Paragraph 4 is also applicable to the senior management, and if applicable, to the members of the management committee. Regarding infringements in which they did not participate, the members of the administrative body and the senior management, and if applicable, the members of the management committee, are discharged from the liability referred to in paragraphs 4 and 5 only if no fault is attributable to them and if they reported these infringements, as applicable, at the first general meeting or at the first meeting of the administrative body following the moment when they became aware of them. The FSMA may, for certain categories of portfolio management and investment advisory companies, or in special cases, authorize derogations from the decrees and regulations provided for in paragraphs 1 and 3.]1 ---------- (1)<L 2022-07-20/31, art. 38, 013; En vigueur : 15-09-2022>

Section 4. - Control of Belgian portfolio management and investment advisory companies

Sous-section 1re. [1 - Control exercised by the FSMA]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 39, 013; En vigueur : 15-09-2022>

Art. 56.§ 1. The FSMA ensures that each portfolio management and investment advisory company operates in accordance with the provisions of this law [2 , the decrees and regulations adopted in execution thereof, [3 Regulation (EU) No 600/2014, Regulation (EU) 2019/2033, and Regulation (EU) 2022/2554]3]2. § 2. [2 ...]2 § 3. [2 For the purpose of exercising its mission, the FSMA may request]2 all information relating to the organization, functioning, situation, and operations of the portfolio management and investment advisory companies it controls [1 as well as all records of telephone exchanges, electronic communications, or any other computer exchanges, held by the portfolio management and investment advisory company]1. It may conduct on-site inspections and review and copy, without travel, any information held by the portfolio management and investment advisory company, with a view to:
1° verifying compliance with legal and regulatory provisions [2 and directly applicable European regulations]2 regarding the status of portfolio management and investment advisory companies, as well as the accuracy and sincerity of the accounting and annual accounts, as well as the statements and other information transmitted by the portfolio management and investment advisory company; 2° verifying the adequacy of the management structures, the administrative and accounting organization, internal control, and the policy regarding capital [2 and liquidity]2 needs of the portfolio management and investment advisory company; 3° ensuring that the management of the portfolio management and investment advisory company is sound and prudent and that its situation or operations are not likely to jeopardize its liquidity, profitability, or solvency. [2 The prerogatives referred to in paragraphs 1 and 2 also cover access to the agendas and minutes of the meetings of the various bodies of the company and its internal committees, as well as to the documents related thereto and to the results of the internal and/or external evaluation of the functioning of said bodies. The prerogatives referred to in paragraphs 1 and 2 also cover the receipt, from the directors and employees of the portfolio management and investment advisory company, or any other concerned person, of any written or oral information and explanations that the FSMA deems necessary for the exercise of its missions. The FSMA may, for this purpose, require interviews with the directors or staff members of the company it designates.]2 [2 § 3/1. The FSMA may not impose additional reporting obligations or impose a higher reporting frequency than what is provided by or under Article 55 unless the information requested does not duplicate, within the meaning of paragraph 3/2, paragraph 1, and:
1° that the additional information is required for the purposes of the control and evaluation procedure referred to in Article 58/1; or 2° that it considers it necessary to gather elements to assess whether the company risks no longer operating in compliance with the provisions of this law, the decrees and regulations adopted for its implementation, or Regulation (EU) 2019/2033, over the next 12 months.]2 [2 § 3/2. For the application of paragraph 3/1, Articles 58/1 to 58/4, and Article 63/2, § 2, 10°, information is considered to duplicate any information that is substantially identical to information already communicated to the FSMA under another legal or regulatory provision or that may be produced by the FSMA, or that the latter may obtain by other means than requiring the company to declare it. Furthermore, the FSMA does not impose the communication of information already received in a different format or level of granularity to the extent that this difference does not prevent the FSMA from producing information of the same quality and reliability as that which would be required.]2 § 4. The King determines the remuneration to be paid to the FSMA by the portfolio management and investment advisory companies to cover control costs. [1 § 5. The provisions of Articles 79 to 86 of the Law of 2 August 2002 are applicable for the exercise of the powers attributed to the FSMA by and under this law.]1 ---------- (1)<L 2017-11-21/08, art. 234, 002; En vigueur : 03-01-2018> (2)<L 2022-07-20/31, art. 40, 013; En vigueur : 15-09-2022> (3)<L 2025-03-25/05, art. 94, 015; En vigueur : 08-05-2025>

Art. 56/1.[1 Without prejudice to Article 26, § 4, paragraph 2, in the event of outsourcing, the FSMA may also exercise its inspection prerogatives referred to in Article 56, paragraph 3, paragraph 2, with respect to the companies to which the portfolio management and investment advisory companies resort as service providers [2 , including third-party ICT service providers referred to in Article 3, 19) of Regulation 2022/2554,]2 in order to verify whether the conditions under which these services are provided are not likely to impair the portfolio management and investment advisory companies' compliance with their legal and regulatory obligations. The prerogatives referred to in Articles 56, § 3, and 58 may also, by analogy, be exercised with respect to these service providers. The competent authorities of another Member State whose portfolio management and investment advisory companies under their supervisory jurisdiction resort to companies as service providers located in Belgium may exercise with respect to these service providers the prerogatives provided for in paragraph 1, if applicable through the persons they mandate for this purpose. At their request, the FSMA may exercise these prerogatives on behalf of these authorities.]1 ---------- (1)<Inséré par L 2017-11-21/08, art. 235, 002; En vigueur : 03-01-2018> (2)<L 2025-03-25/05, art. 95, 015; En vigueur : 08-05-2025>

Art. 57. The FSMA only deals with the relationship between the portfolio management and investment advisory company and a specific client to the extent required for the control of the portfolio management and investment advisory company.

Art. 58.
<Abrogé par L 2022-07-20/31, art. 41, 013; En vigueur : 15-09-2022>

Sous-section 2. [1 - Prudential supervision process]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 42, 013; En vigueur : 15-09-2022>

Art. 58/1. [1 To the extent it deems necessary taking into account the size, risk profile, and business model of the portfolio management and investment advisory companies, the FSMA shall control the procedures and mechanisms implemented by them to comply with the provisions of this law, the decrees and regulations adopted in execution thereof, and Regulation (EU) 2019/2033 according to the procedure specified in this sub-section. Based on the criteria referred to in Article 58/2, the FSMA evaluates the risks to which the portfolio management and investment advisory companies are or may be exposed, and the adequacy, relative to said risks, of the policy regarding their capital and liquidity needs as referred to in Article 54. The FSMA, taking into account the principle of proportionality, determines the frequency and intensity of this control and evaluation, taking into account the scale, nature, volume, complexity, and importance, if systemic, of the activities of the portfolio management and investment advisory companies. The FSMA decides on a case-by-case basis whether and in what form the control and evaluation referred to in paragraph 1 must be carried out with respect to small portfolio management and investment advisory companies that are not interconnected, only when it deems necessary due to the scale, nature, scale, and complexity of the activities of these companies. For the purposes of the evaluation referred to in paragraph 1, the FSMA takes, if applicable, into consideration the subscription of professional liability insurance.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 43, 013; En vigueur : 15-09-2022>

Art. 58/2. [1 § 1. The control and evaluation carried out by the FSMA under Article 58/1 concern the following aspects:
1° verification of the management of the risks referred to in Article 34/2; 2° the geographical location of the company's exposures; 3° the company's business model; 4° if applicable, the assessment of systemic risk, taking into account the identification and measurement of systemic risk provided for in Article 23 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority) or the recommendations of the ESRB; 5° the risks threatening the security of the networks and information systems used by the company to ensure the confidentiality, integrity, and availability of its processes, data, and assets; 6° the company's exposure to interest rate risk inherent in its activities outside the trading book; 7° the organizational arrangement of the portfolio management and investment advisory company referred to in Article 25 and the capacity of the administrative body and the senior management, and if applicable the management committee, to exercise their powers. § 2. The FSMA may, by means of regulations adopted under Article 64 of the Law of 2 August 2002, specify the quantitative and qualitative criteria it takes into account to assess the level of risks and the adequacy of their treatment by the portfolio management and investment advisory companies.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 44, 013; En vigueur : 15-09-2022>

Art. 58/3. [1 § 1. The FSMA examines at regular intervals, and at least every three years, the compliance with Regulation (EU) 2019/2033 of internal approaches for the calculation of regulatory capital requirements. It further examines whether portfolio management and investment advisory companies authorized to use these approaches respect the conditions previously set by the FSMA for such use. It takes into account, in particular, the evolution of the company's activities and the application of these approaches to new products.

§ 2. The FSMA verifies and evaluates, in particular, whether the companies using the internal approaches referred to in paragraph 1 use techniques and practices that are adequately developed and kept up to date.

§ 3. When the FSMA finds that the internal approach used by a portfolio management and investment advisory company presents material deficiencies in risk perception, it requires the company to take appropriate measures to remedy this situation or mitigate its consequences, and imposes, where applicable, an increase in multiplier coefficients or specific capital requirements in application of Article 58/4.

§ 4. If numerous breaches, within the meaning of Article 366 of Regulation No. 575/2013, indicate that an internal market risk model is not sufficiently accurate, the FSMA may revoke the authorization to use this internal model or impose appropriate measures so that this model is rapidly improved within a timeframe it determines.

§ 5. When it finds that a portfolio management and investment advisory company authorized to use an internal approach for the calculation of regulatory capital requirements no longer satisfies the conditions set for the use of this approach, the FSMA requires the company to submit a compliance plan integrating a schedule or to demonstrate that the effects of non-compliance are negligible.

The FSMA requires that the compliance plan be modified if it considers that its implementation cannot lead to compliance with the applicable conditions or if the compliance period presented by the portfolio management and investment advisory company is inadequate or unrealistic. If the FSMA considers that the company will not be able to satisfy, within the timeframe it deems appropriate, the conditions for using the internal approach, it revokes the authorization to use said internal approach or limits this use to areas for which compliance is ensured or can be ensured within a timeframe the FSMA deems appropriate.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 45, 013; En vigueur : 15-09-2022>

Art. 58/4. [1 § 1. The FSMA may not impose on a portfolio management and investment advisory company a specific capital requirement that adds to the requirements required by or under Regulation (EU) 2019/2033 or regulations taken in application of Article 54, § 1, only when it finds, based on the results of the control and evaluation procedure carried out in application of Article 58/1 and the examination of internal approaches referred to in Article 58/3, that:

1° the company is exposed to risks or risk elements or poses significant risks to third parties, not covered or insufficiently covered by the capital requirements set out in Part Three or Part Four of Regulation (EU) 2019/2033 and regulations taken in application of Article 54, § 1;

2° the examination carried out in application of Article 58/3, § 5 shows that non-compliance with the conditions set for the use of an authorized internal approach is likely to result in the company concerned no longer complying with the applicable capital requirements;

3° the portfolio management company has repeatedly failed to establish or maintain a sufficient level of additional capital to cover the additional capital recommendations communicated in accordance with Article 58/6.

In the cases referred to in the first paragraph, the FSMA may also impose any other measures provided for in Article 63/2, § 2.

§ 2. For the application of paragraph 1, first paragraph, 1°, risks or risk elements are considered not covered or insufficiently covered by the capital requirements set out in Parts Three and Four of Regulation (EU) 2019/2033 only if the amount, categories, distribution and/or quality of the capital necessary to comply with said capital requirements are at a level lower than that which the FSMA deems adequate, taking into account the capital management referred to in Article 54.

For the purpose of assessing the adequate level of capital, the FSMA may take into consideration risks or risk elements that are explicitly not taken into account for the calculation of the capital requirements set out in Part Three or Part Four of Regulation (EU) 2019/2033.

§ 3. The FSMA sets the level of additional capital required to satisfy the specific requirement provided for in paragraph 1 as the difference between the capital that the FSMA deems adequate in accordance with paragraph 2 and the capital resulting from the requirements applicable in accordance with Part Three or Part Four of Regulation 2019/2033.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 46, 013; En vigueur : 15-09-2022>

Art. 58/5. [1 A portfolio management and investment advisory company is required to satisfy the specific additional capital requirement provided for in Article 58/4, § 1 by means of capital meeting the following conditions:

1° the specific capital requirement is satisfied, at least three-quarters of, by means of Tier 1 capital;

2° the Tier 1 capital referred to in 1° is constituted, at least three-quarters of, by Common Equity Tier 1 capital;

3° this capital is not used to satisfy the capital requirements set out in Article 11, paragraph 1, points a), b) and c) of Regulation 2019/2033.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 47, 013; En vigueur : 15-09-2022>

Art. 58/6. [1 The FSMA justifies in writing the decision to impose a specific capital requirement in accordance with Article 58/4, § 1 by communicating a clear report of the complete assessment of the elements referred to in Articles 58/4 and 58/5. This document includes, in the case referred to in Article 58/4, § 1, first paragraph, 3°, a specific statement of the reasons why recommendations on additional capital are no longer considered sufficient.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 48, 013; En vigueur : 15-09-2022>

Art. 58/7. [1 The FSMA may impose, in accordance with Articles 58/4 to 58/6, a requirement for additional capital on small non-interconnected portfolio management and investment advisory companies, based on a case-by-case assessment and when it deems it justified.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 49, 013; En vigueur : 15-09-2022>

Art. 58/8. [1 § 1. This article does not apply to small non-interconnected portfolio management and investment advisory companies.

§ 2. The FSMA may require a portfolio management and investment advisory company to have a level of capital that is, in accordance with the management of capital needs referred to in Article 54, sufficiently higher than the requirements provided for by Part Three of Regulation 2019/2033 and by this law, including the additional capital requirements referred to in Article 58/4, in order to ensure that economic cyclical fluctuations do not lead to non-compliance with these requirements or compromise the company's ability to liquidate or cease its activities in an orderly manner.

For the purpose of the first paragraph, the FSMA takes into account the size, systemic importance, nature, scale and complexity of the activities of portfolio management and investment advisory companies, as well as the principle of proportionality.

§ 3. The FSMA evaluates the adequacy of the level of capital set by portfolio management and investment advisory companies in application of paragraph 2.

If it deems it necessary, the FSMA communicates to the concerned portfolio management and investment advisory company the recommendations resulting from the assessment referred to in the first paragraph regarding the amount of additional capital that would allow reaching the level of capital determined under paragraph 1 as well as the date by which the FSMA expects these recommendations to be implemented.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 50, 013; En vigueur : 15-09-2022>

Art. 58/9. [1 The FSMA informs the European Banking Authority of the method it used to adopt the decisions referred to in Articles 58/4 to 58/8.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 51, 013; En vigueur : 15-09-2022>

Art. 58/10. [1 § 1. This article does not apply to small non-interconnected portfolio management and investment advisory companies, except to those that have not been exempted from the liquidity requirement in accordance with Article 43, § 1 of Regulation (EU) 2019/2033.

§ 2. The FSMA may not impose specific liquidity requirements only when, based on the controls and examinations carried out in accordance with Articles 58/1 and 58/3, it considers that a portfolio management and investment advisory company is exposed to significant liquidity risks or liquidity risk elements not covered or insufficiently covered by the liquidity requirement set out in Part Five of Regulation No. 2019/2033.

§ 3. For the application of paragraph 2, a liquidity risk or liquidity risk elements are considered not covered or insufficiently covered by the liquidity requirement set out in Part Five of Regulation 2019/2033 only if the amount and/or type of liquidity necessary to comply with said liquidity requirement are at a level lower than that which the FSMA deems adequate taking into account the liquidity management referred to in Article 54.

§ 4. The FSMA sets the specific level of liquidity required under paragraph 2 as the difference between the level of liquidity that the FSMA deems adequate in accordance with paragraph 3 and the liquidity requirement applicable under Part Five of Regulation 2019/2033.

§ 5. Portfolio management and investment advisory companies are required to satisfy the specific liquidity requirement referred to in paragraph 2 by means of liquid assets in accordance with Article 43 of Regulation 2019/2033.

§ 6. The FSMA justifies in writing the decision to impose a specific liquidity requirement in accordance with paragraph 2 by communicating a clear report of the complete assessment of the elements referred to in paragraphs 2 to 4.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 52, 013; En vigueur : 15-09-2022>

Art. 58/11. [1 The FSMA may decide to attach a deadline to the measures imposed in application of Articles 58/4 to 58/10. The application of these provisions does not prejudice the application of other provisions of this law, in particular its Article 63/2 and the application of measures provided for by other laws, decrees or regulations.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 53, 013; En vigueur : 15-09-2022>

Sub-section 3. [1 - Group Supervision]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 54, 013; En vigueur : 15-09-2022>

Art. 59.[1 § 1er. Without prejudice to Article 2 of this Law, for the application of this Article and Articles 59/1 to 59/9, as well as the decrees and regulations adopted for their implementation, the following terms shall be understood as:

1° "investment enterprise group": an investment enterprise group as defined in Article 4, paragraph 1, point 25), of Regulation (EU) 2019/2033;

2° "ancillary services company": a company whose main activity consists in the holding or management of real estate, the management of IT services, or a similar activity having an ancillary character with respect to the main activity of one or more investment enterprises;

3° "compliance with the group capitalization test": the compliance, by a parent company of an investment enterprise group, with the requirements of Article 8 of Regulation (EU) 2019/2033;

4° "group controller": a competent authority responsible for monitoring compliance with the group capitalization test by investment enterprise parents in the European Union and investment enterprises controlled by investment holding companies parents in the European Union or by mixed financial holding companies parents in the European Union;

5° "investment holding company", an investment holding company as defined in Article 4, paragraph 1, point 23), of Regulation (EU) 2019/2033;

6° "mixed financial holding company": a mixed financial holding company as defined in Article 2, point 15), of Directive 2002/87/EC of the European Parliament and of the Council;

7° "mixed holding company": a parent company other than a mixed financial holding company, an investment holding company, a credit institution, an investment enterprise or a mixed financial holding company within the meaning of Directive 2002/87/EC, which has among its subsidiaries at least one investment enterprise;

8° "parent company": a parent company within the meaning of Article 2, point 9), and Article 22 of Directive 2013/34/EU;

9° "investment enterprise parent in the Union": an investment enterprise parent in the European Union as defined in Article 4, paragraph 1, point 56), of Regulation (EU) 2019/2033;

10° "investment holding company parent in the Union": an investment holding company parent in the European Union as defined in Article 4, paragraph 1, point 57), of Regulation (EU) 2019/2033;

11° "mixed financial holding company parent in the Union": a mixed financial holding company parent in the European Union as defined in Article 4, paragraph 1, point 58), of Regulation (EU) 2019/2033;

12° "group": a set of companies consisting of a parent company and its subsidiaries, as well as companies constituting a consortium and companies controlled by the latter;

13° "consolidated situation": the situation resulting from the application of the requirements of Regulation 2019/2033 in accordance with Article 7 of that Regulation to an investment enterprise parent in the Union, an investment holding company parent in the Union or a mixed financial holding company parent in the Union as if this company formed, together with all investment enterprises, financial establishments, companies providing ancillary services and related agents of the investment enterprise group, a single investment enterprise; for the purposes of this definition, the terms investment enterprise, financial establishment, company providing ancillary services and related agent also apply to companies established in third countries which, if they were established in the Union, would correspond to the definitions of these terms;

14° exclusive or joint control, control within the meaning of its definition in the regulations on annual accounts and consolidated accounts of investment enterprises adopted pursuant to Article 55, paragraph 3.

§ 2. Investment enterprise groups comprising a credit institution are subject, with regard to their consolidated supervision, respectively to the provisions of Book II, Title III, Chapter IV, Section II and Section IV of the Law of 25 April 2014.

The group controller of an investment enterprise group comprising a Belgian portfolio management and investment advisory company and not comprising a stock exchange company is determined in accordance with the provisions of paragraphs 3 to 6.

If the investment enterprise group also comprises a stock exchange company, Articles 162 to 172 of the Law of 20 July 2022 shall apply.

§ 3. To the extent and in the manner required by Article 7 of Regulation 2019/2033, by this Law and its implementing decrees and regulations, Belgian portfolio management and investment advisory companies that are part of an investment enterprise group:

1° which are Belgian investment enterprise parents in the Union, are subject to supervision based on their consolidated situation;

2° having as parent company an investment enterprise parent in the European Union, an investment holding company parent in the Union or a mixed financial holding company parent in the Union, are subject to supervision based on the consolidated situation of the investment enterprise parent, the investment holding company parent or the mixed financial holding company parent.

The first paragraph does not apply when the group controller authorizes the application of the group capitalization test provided for in Article 8 of Regulation 2019/2033.

§ 4. When Article 7 of Regulation 2019/2033 is applicable, Belgian portfolio management and investment advisory companies that are qualified as Belgian investment enterprise parents in the Union and Belgian investment holding companies in the Union and Belgian mixed financial holding companies parents in the Union must satisfy, on a consolidated basis, if applicable, Articles 25, 25/2 to 26, 26/3, 27, 34 to 34/2, 37/1, 37/2, 55 and 56/1, including the provisions of the Annex.

The obligations arising from the Articles mentioned in the first paragraph for subsidiaries of third countries do not apply if the portfolio management and investment advisory companies, investment holding companies or mixed financial holding companies referred to in the first paragraph can demonstrate to the FSMA that their application is illegal under the law of that country.

§ 5. Without prejudice to paragraph 2, the consolidated supervision or the control of compliance with the group capitalization test of a Belgian portfolio management and investment advisory company that is part of an investment enterprise group is exercised as follows:

1° if it is a Belgian investment enterprise parent in the Union, by the FSMA;

2° if its parent company is an investment enterprise parent in the Union, by the competent authority of the investment enterprise parent in the Union;

3° if its parent company is an investment holding company parent in the Union or a mixed financial holding company parent in the Union, not holding other investment enterprise subsidiaries in the EEA, by the FSMA;

4° if its parent company is an investment holding company parent in the Union or a mixed financial holding company parent in the Union, holding several investment enterprise subsidiaries in the EEA of which at least one is authorized in the Member State where this parent holding company is established, by the competent authority of that Member State;

5° if its parent company is a Belgian investment holding company parent in the Union or a Belgian mixed financial holding company parent in the Union, holding several investment enterprise subsidiaries in the EEA, by the FSMA;

6° if its parent company is an investment holding company parent in the Union or a mixed financial holding company parent in the Union, holding several investment enterprise subsidiaries in the EEA, of which none has been authorized in the Member State where this parent holding company is established, by the competent authority of the investment enterprise with the highest total balance sheet;

7° if several investment holding companies or mixed financial holding companies, established in different Member States, are the parent company of investment enterprises authorized in different Member States, including a Belgian portfolio management and investment advisory company, and there is an investment enterprise in each of said Member States, by the competent authority of the investment enterprise with the highest total balance sheet.

§ 6. The FSMA and the competent authorities concerned may, by common agreement, derogate from the criteria mentioned in paragraph 5, 4° to 7° and designate another competent authority to exercise consolidated supervision or control of compliance with the group capitalization test if the application of these criteria is not appropriate to ensure the effectiveness of consolidated supervision or control of compliance with the group capitalization test with regard to the investment enterprises concerned and the relative importance of their activities in the different Member States.

In these cases, before adopting such a decision, the FSMA and the competent authorities concerned give the investment holding company parent in the Union, the mixed financial holding company parent in the Union or the investment enterprise showing the highest total balance sheet, as the case may be, the opportunity to express its opinion on this draft decision.

The FSMA notifies the European Commission and the European Banking Authority of any decision taken pursuant to this paragraph.

§ 7. Investment holding companies and mixed financial holding companies are included in the control of compliance with the group capitalization test.

§ 8. Consolidated supervision and control of compliance with the group capitalization test does not result in the exercise of individual supervision, by the FSMA, on an investment holding company or a mixed financial holding company, nor on any other company included in the consolidation.

Without prejudice to the principle set out in the first paragraph, and when consolidated supervision or control of compliance with the group capitalization test is exercised by the FSMA, the members of the administrative body, the persons responsible for effective management, and, if applicable, the members of the management committee, of Belgian investment holding companies and mixed financial holding companies are subject to the requirements of Article 23, § 1er, paragraphs 2 and 3 of this Law, taking into account the particular role of an investment holding company or a mixed financial holding company.

Consolidated supervision and control of compliance with the group capitalization test do not prejudice the supervision, on an individual basis, of portfolio management and investment advisory companies included in the consolidation. However, the implications of consolidated supervision or control of compliance with the group capitalization test may be taken into account to determine the content and manner of supervision on an individual basis of portfolio management and investment advisory companies or of sub-consolidated supervision of a portfolio management and investment advisory company that is a subsidiary of another portfolio management and investment advisory company.

§ 9. A Belgian portfolio management and investment advisory company that constitutes a consortium with one or more other companies is subject to consolidated supervision that applies to all companies in the consortium as well as to their subsidiaries. The provisions applicable to the portfolio management and investment advisory companies referred to in Article 59, § 3, first paragraph, 2° shall apply in this case.

§ 10. The FSMA may, by means of a regulation adopted pursuant to Article 64 of the Law of 2 August 2002, specify the practical arrangements for consolidated supervision and control of compliance with the group capitalization test, as set out in this Article.

§ 11. With a view to consolidated supervision and control of compliance with the group capitalization test being as effective as possible, the FSMA may authorize individual derogations from the provisions of this Article, as well as, where applicable, from the regulations adopted pursuant to the preceding paragraph, provided that they remain in conformity with the relevant provisions of Directive (EU) 2019/2034. In this case, it shall inform the European Commission and, with regard to consolidated supervision, also the European Banking Authority.]1

(1)<L 2022-07-20/31, art. 55, 013; En vigueur : 15-09-2022>

Art. 59/1. [1 § 1er. If the FSMA is designated as group controller in accordance with Article 59, § 5, it shall establish a supervisory authority college in order to facilitate the performance of the tasks referred to in this Article and to ensure coordination and cooperation with the supervisory authorities of the relevant third countries, particularly when this is necessary for the purposes of applying Article 23, paragraph 1, first paragraph, point c), and paragraph 2, of Regulation (EU) 2019/2033 to exchange and update information useful on the margin model with the supervisory authorities of eligible central counterparties (ECCP).

§ 2. The supervisory authority colleges provide a framework allowing the FSMA, as group controller, the European Banking Authority and other competent authorities to perform the following tasks:

a) the tasks referred to in Article 59/2;

b) the coordination of information requests when this is necessary to facilitate consolidated supervision, in accordance with Article 7 of Regulation (EU) 2019/2033;

c) the coordination of information requests, in cases where several competent authorities of investment enterprises belonging to the same group must request either from the competent authority of the home Member State of a clearing member, or from the competent authority of the eligible central counterparty (ECCP), information relating to the margin model and the parameters used to calculate the margin requirement of the investment enterprises concerned;

d) the exchange of information between all competent authorities as well as with the European Banking Authority, in accordance with Article 21 of Regulation (EU) No 1093/2010, and with the European Securities and Markets Authority, in accordance with Article 21 of Regulation (EU) No 1095/2010;

e) the search for an agreement on the voluntary delegation of tasks and responsibilities between competent authorities, where applicable;

f) the strengthening of the effectiveness of supervision by striving to avoid unnecessary duplication of prudential requirements.

Where applicable, a supervisory authority college may also be established when the subsidiaries of an investment enterprise group directed by an investment enterprise in the Union, an investment holding company parent in the Union or a mixed financial holding company parent in the Union are located in a third country.

In accordance with Article 21 of Regulation (EU) No 1093/2010, the European Banking Authority participates in the meetings of the supervisory authority colleges.

§ 3. The following authorities are members of the supervisory authority college:

a) the FSMA;

b) the competent authorities responsible for the supervision of the subsidiaries of an investment enterprise group directed by an investment enterprise in the Union, an investment holding company parent in the Union or a mixed financial holding company parent in the Union;

c) where applicable, third-country supervisory authorities, subject to confidentiality requirements which, in the opinion of all competent authorities, are equivalent to the requirements laid down in Title IV, Chapter 1, Section 2, of Directive (EU) 2019/2034.

§ 4. If the FSMA is designated as group controller in accordance with Article 59, § 5, it shall chair the meetings of the supervisory authority college and adopt decisions. All members of the supervisory authority college are fully informed in advance by the FSMA of the organization of these meetings, the main issues to be addressed and the activities to be examined. All members of the supervisory authority college are also fully informed in good time by the FSMA of the decisions adopted at these meetings or the actions taken.

When adopting decisions, the FSMA takes into account the relevance of the supervision activity to be planned or coordinated by the authorities referred to in paragraph 3.

The establishment and functioning of the supervisory authority colleges are formalized by written agreements.

In the event of disagreement with a decision adopted by the group controller on the functioning of the supervisory authority colleges, one or more of the competent authorities concerned may refer the matter to the European Banking Authority and request the assistance of the latter, in accordance with Article 19 of Regulation (EU) 1093/2010.]1

(1)<Inséré par L 2022-07-20/31, art. 56, 013; En vigueur : 15-09-2022>

Art. 59/2. [1 When an emergency situation occurs, including a situation described in Article 18 of Regulation (EU) No 1093/2010 or a situation of unfavorable market developments, likely to threaten market liquidity and financial stability in one of the Member States in which entities of an investment enterprise group have been authorized, the FSMA, if it is designated as group controller in accordance with Article 59, § 5, shall alert the European Banking Authority, the European Systemic Risk Board and any competent authority concerned as soon as possible and communicate to them all essential information for the performance of their tasks.]1

(1)<Inséré par L 2022-07-20/31, art. 57, 013; En vigueur : 15-09-2022>

Art. 59/3. [1 The FSMA, in its capacity as competent authority responsible for the supervision of Belgian subsidiaries of an investment enterprise group directed by an investment enterprise parent in the Union, an investment holding company parent in the Union or a mixed financial holding company parent in the Union, participates in the supervisory authority colleges established by the group controller.

In the event of disagreement by the FSMA, in its capacity referred to in the first paragraph, with a decision taken by the group controller on the functioning of the supervisory authority colleges, it may refer the matter to the European Banking Authority and request its assistance in accordance with Article 19 of Regulation (EU) 1093/2010.]1

(1)<Inséré par L 2022-07-20/31, art. 58, 013; En vigueur : 15-09-2022>

Art. 59/4. [1 § 1. The FSMA shall communicate to the competent authorities referred to in Article 59/1, § 3 and, where applicable, to the group supervisor, all relevant information necessary, in particular:
a) a description of the legal structure of the investment undertaking group and its governance structure, including its organizational structure, encompassing all regulated and unregulated entities, unregulated subsidiaries, and parent undertakings, and an indication of the competent authorities to which the regulated entities of the investment undertaking group are subject; b) the procedures governing the collection of information from investment undertakings of an investment undertaking group, as well as the procedures for verifying this information; c) any negative developments experienced by investment undertakings or other entities of an investment undertaking group that could seriously affect these investment undertakings; d) all significant sanctions and exceptional measures taken by competent authorities in accordance with national provisions transposing Directive (EU) 2019/2034; e) the imposition of a specific own-funds requirement under Article 39 of Directive (EU) 2019/2034. § 2. The competent authorities and the group supervisor may refer the matter to the European Banking Authority, under Article 19(1) of Regulation (EU) No 1093/2010, if the necessary information has not been communicated under paragraph 1 without unjustified delay, or if a request for cooperation, in particular for the exchange of relevant information, has been rejected or has not been followed up within a reasonable time. § 3. The FSMA shall consult the competent authorities referred to in Article 59/1, § 3 and, where applicable, the group supervisor, before taking a decision likely to be of importance for the supervisory tasks of these other competent authorities, on the following points:
a) changes affecting the shareholding structure, organizational structure, or management structure of investment undertakings forming part of an investment undertaking group and requiring the approval or authorization of competent authorities; b) significant sanctions and exceptional measures imposed on investment undertakings forming part of the investment undertaking group; c) specific own-funds requirements imposed under the national transposition of Article 39 of Directive (EU) 2019/2034. § 4. The FSMA, in its capacity as the competent authority responsible for the supervision of Belgian law subsidiaries of an investment undertaking group directed by an investment undertaking parent in the Union, an investment holding company parent in the Union, or a mixed financial holding company parent in the Union, must always consult the group supervisor when it intends to take a decision such as referred to in paragraph 3(b). § 5. By way of derogation from paragraph 3, the FSMA is not required to consult other competent authorities in cases of urgency or where such consultation could compromise the effectiveness of its decision, in which case it shall inform the other competent authorities concerned of its decision not to consult them without delay.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 59, 013; En vigueur : 15-09-2022>

Art. 59/5. [1 § 1. For the purposes of consolidated supervision, the portfolio management and investment advisory companies concerned shall periodically communicate a consolidated financial statement to the FSMA. The FSMA shall determine, after consulting the portfolio management and investment advisory companies represented by their professional associations, the rules for drawing up this statement, in particular the rules relating to the consolidation perimeter, the methods of inclusion in the consolidation, and the frequency of communication of these statements. When it deems it necessary for prudential supervision, the FSMA may require that companies which are not subsidiaries but in which the portfolio management and investment advisory company holds a participation or has another capital link be included in the consolidation. § 2. The FSMA may prescribe or require that the portfolio management and investment advisory companies concerned, investment holding companies, mixed financial holding companies, mixed holding companies concerned, their subsidiaries, as well as other undertakings included in the consolidation or included in the group capital adequacy test, and any person belonging to these entities, communicate to it all information useful for the exercise of consolidated supervision or for the control of compliance with the group capital adequacy test. For the purposes of this control, the FSMA may carry out or have carried out, at the expense of the portfolio management and investment advisory companies concerned, by approved auditors or, where appropriate, by foreign experts approved by it for this purpose, on-site verification of the information received within the framework of consolidated supervision or the control of compliance with the group capital adequacy test, in all undertakings included in the consolidation or in the group capital adequacy test. § 3. Undertakings that control, exclusively or jointly with others, a portfolio management and investment advisory company, as well as the subsidiaries of these undertakings, are required, if these undertakings and their subsidiaries do not fall within the scope of the provisions concerning consolidated supervision or the control of compliance with the group capital adequacy test or within the scope of Article 60 concerning supplementary supervision of the group, to communicate to the FSMA and to foreign competent authorities the information and details useful for the exercise of supervision of the portfolio management and investment advisory companies controlled by these undertakings. § 4. The FSMA may require that the information referred to in paragraph 2 concerning undertakings subject to the law of a Member State other than Belgium be communicated to it by the portfolio management and investment advisory company, the investment holding company, or the mixed financial holding
company subject to Belgian law.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 60, 013; En vigueur : 15-09-2022>

Art. 59/6. [1 § 1. If a mixed financial holding company owns one or more subsidiaries that are Belgian portfolio management and investment advisory companies, the FSMA may request all data and information it deems useful for the exercise of its supervision of these portfolio management and investment advisory companies from the mixed financial holding company, either directly from the mixed holding company or through the aforementioned subsidiaries. In the latter case, the mixed financial holding company remains, together with the portfolio management and investment advisory company making the report, responsible for the correctness and timely communication of the information provided. If the mixed holding company referred to in the first paragraph is an undertaking subject to Belgian law, it must have adequate administrative and accounting organization and internal control to ensure that the information and details to be provided are correct and comply with applicable rules. § 2. The FSMA may carry out on-site checks on the data and information provided under paragraph 1. If the mixed financial holding company or one of its subsidiaries is established in a Member State other than Belgium, the on-site verification of information shall be carried out in accordance with the procedure set out in Article 59/7, § 2. When the mixed financial holding company or one of its subsidiaries is established outside the European Economic Area, the arrangements for implementing the provisions of paragraph 2 shall be fixed in agreements concluded between the FSMA and the foreign supervisory authorities concerned, where appropriate in accordance with Article 77, § 2 of the Law of 2 August 2002. § 3. The FSMA may have the correctness and completeness of the information and details communicated under paragraph 1 verified:
1° when the reporting undertaking is a Belgian company, by the auditor responsible for the audit of the annual and consolidated accounts of this company in accordance with the Code of Companies and Associations; 2° when the reporting undertaking is established outside Belgium, by the auditor responsible, in accordance with the Code of Companies and Associations, for the audit of the annual and consolidated accounts of the Belgian portfolio management and investment advisory company that is a subsidiary of the mixed holding company. § 4. The portfolio management and investment advisory companies referred to in paragraph 1 must have risk management processes, as well as adequate internal control mechanisms, including sound reporting and accounting procedures, in order to appropriately detect, measure, monitor, and control transactions carried out with their parent mixed financial holding company and its subsidiaries. These transactions are subject to control by the FSMA.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 61, 013; En vigueur : 15-09-2022>

Art. 59/7. [1 § 1. The FSMA may carry out on-site verification of compliance with the obligations covered by this sub-section, as well as of the correctness and completeness of the information and details communicated, in the undertakings referred to in Article 59/5, § 2, in mixed financial holding companies and their subsidiaries, and in undertakings providing auxiliary services. It may, at the expense of these undertakings, appoint auditors or foreign experts approved by it for this purpose to carry out these verifications. § 2. When the undertakings referred to in paragraph 1 are subject to the law of another Member State, the FSMA shall request the competent authority of that Member State to carry out this control. The FSMA shall carry out this control itself if it has received authorization from the competent authority of that Member State. When the latter wishes to carry out this control itself, or appoints an approved auditor or expert for this purpose, the FSMA may, if it wishes, be associated with it. § 3. If the FSMA is itself seized of such a request:
a) it carries out the requested verification itself; b) it allows the competent authorities originating the request to carry out the verification; or c) it requests an auditor or expert to carry out the verification impartially and to communicate the results promptly.
For the purposes of points a) and c), the competent authorities originating the request are authorized to participate in the verification.
§ 4. When the undertakings referred to in paragraph 1 are subject to the law of a third country, the arrangements for on-site verification shall be regulated in cooperation agreements that the FSMA has concluded with the foreign authorities concerned or that the European Commission has concluded with the foreign authorities concerned, in accordance with the provisions of Article 56 of Directive (EU) 2019/2034.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 62, 013; En vigueur : 15-09-2022>

Art. 59/8. [1 § 1. When a Belgian portfolio management and investment advisory company belongs to a third-country investment undertaking group, which holds several subsidiaries in the EEA, at least two of which are authorized as investment undertakings, the portfolio management and investment advisory company must meet one of the following conditions:
1° the portfolio management and investment advisory company is owned by an intermediate parent undertaking in the EEA; 2° the portfolio management and investment advisory company belongs to a third-country investment undertaking group whose total value of assets in the EEA is less than 40 billion euros.
§ 2. For the application of this Article, the total value of assets in the EEA of a third-country investment undertaking group is the sum of the following:
1° the total value of assets of each investment undertaking in the EEA belonging to the third-country group, as shown in the consolidated balance sheet or, in its absence, in the individual balance sheets; and 2° the total value of assets of each branch of the third-country group that has received authorization in a Member State in accordance with Regulation No 600/2014 or Directive 2014/65/EU. § 3. Each portfolio management and investment advisory company referred to in paragraph 1, 1°, must be owned by an intermediate parent undertaking in the EEA, holding all the subsidiaries in the EEA of the third-country investment undertaking group that are authorized as investment undertakings. § 4. Without prejudice to Article 218/1 of the Law of 25 April 2014, the intermediate parent undertaking in the EEA referred to in paragraph 1, 1° must be an investment undertaking that is authorized in accordance with Article 6 or the legislation of another Member State, and which is subject to Directive 2014/59/EU. § 5. Without prejudice to paragraphs 1 to 4, Belgian portfolio management and investment advisory companies whose parent undertaking is an investment undertaking parent, an investment holding company, or a mixed financial holding company having its registered office in a third country and having as a subsidiary at least one other investment undertaking subject to the law of a Member State, and which are not already subject to or do not yet fall within the scope of consolidated supervision or the control of compliance with the group capital adequacy test, in accordance with this sub-section, exercised by the FSMA or by another competent authority, are subject to the assessment referred to in paragraphs 6 and 7. § 6. The FSMA shall assess whether the portfolio management and investment advisory company is subject, by a third-country supervisory authority, to supervision equivalent to that provided for by this Law and in Part One of Regulation (EU) 2019/2033. § 7. If the assessment provided for in paragraph 6 concludes that there is no equivalent supervision, the FSMA may resort to supervisory techniques specific to achieving supervisory objectives in accordance with Article 7 or 8 of Regulation (EU) 2019/2033. If the FSMA would have been the group supervisor in the event that the parent undertaking were established in the European Union, it shall adopt these supervisory techniques after consulting the other competent authorities concerned. All measures taken under this paragraph shall be notified to the other competent authorities concerned, to the European Banking Authority, and to the European Commission. If the FSMA would have been the group supervisor in the event that the parent undertaking were established in the European Union, it could, in particular, require the establishment of an investment holding company or a mixed financial holding company in the European Union and apply Article 7 or 8 of Regulation (EU) 2019/2033 to this investment
holding company or mixed financial holding company.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 63, 013; En vigueur : 15-09-2022>

Art. 59/9. [1 Investment holding companies, mixed financial holding companies, and mixed holding companies, or their senior managers who infringe this sub-section may be subject to the measures and sanctions of Articles 64 to 69.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 64, 013; En vigueur : 15-09-2022>

Art. 60. § 1. For the application of this article, the following shall be understood:
1° "group": a set of companies consisting of a parent company, its subsidiaries, companies in which the parent company or its subsidiaries hold, directly or indirectly, a participation, as well as companies with which a consortium is formed and companies that are controlled by the latter or in which the latter hold a participation; 2° "financial services group": a group or sub-group in which at least one of the subsidiaries is a regulated entity and which meets the following conditions:
a) when a regulated entity is at the head of the group or sub-group:
i) this entity is the parent company of a company in the financial sector, or of a company that holds a participation in a company in the financial sector, or of a company linked to a company in the financial sector in the form of a consortium; ii) at least one of the entities of the group or sub-group is a company in the insurance sector and at least one of the entities of the group is a company in the banking sector or the investment services sector; and iii) the consolidated and/or aggregated activities of the entities of the group or sub-group that are part of the insurance sector, and of the entities in the banking sector and the investment services sector, are significant; or b) when there is no regulated entity at the head of the group or sub-group:
i) the activities of the group or sub-group are carried out primarily in the financial sector; ii) at least one of the entities of the group or sub-group is a company in the insurance sector and at least one of the entities of the group or sub-group is a company in the banking sector or the investment services sector; and iii) the consolidated and/or aggregated activities of the entities of the group or sub-group that are part of the insurance sector, and of the entities in the banking sector and the investment services sector, are significant; The King determines what is meant by "primarily" and "significant"; 3° "regulated entity": a legal person that is either an investment firm as defined in Article 3, or a credit institution as defined in Article 1, § 3, of the Law of 25 April 2014, or an insurance or reinsurance undertaking as defined in Articles 5, 1° and 2° of the Law of 13 March 2016 on the status and supervision of insurance and reinsurance undertakings, or a UCITS management company, or an AIFM, and any other company constituted under foreign law that, if its registered office were in Belgium, would be required to obtain authorization to carry on the activity of investment firm, UCITS management company or AIFM; 4° "financial sector": a sector composed of one or more of the following companies:
a) a regulated entity having the status of credit institution, a financial institution within the meaning of Article 3, 41°, of the Law of 25 April 2014, a ancillary investment firm within the meaning of Article 4, paragraph 1, point 18) of Regulation (EU) No 575/2013; these companies form part of the same financial sector, referred to as the "banking sector"; b) a regulated entity having the status of insurance or reinsurance undertaking, an insurance holding company within the meaning of Article 338, 5° of the Law of 13 March 2016 on the status and supervision of insurance and reinsurance undertakings; these companies form part of the same financial sector, referred to as the "insurance sector"; c) a regulated entity having the status of investment firm, a company providing ancillary services within the meaning of Article 2, 2°, a financial institution within the meaning of Article 2, 7°; these companies form part of the same financial sector, referred to as the "investment services sector"; 5° "mixed financial holding company": a parent company, other than a regulated entity, that is at the head of a financial services group; 6° "parent company", "subsidiary", "control", "consortium", "participation": the concepts within the meaning of the definition given in Articles 2, 28° and 59, in Article 3, § 1, 26° and in Sections I, II and IV of Book II, Title III, Chapter IV of the Law of 25 April 2014, or in Article 338, 1°, 2° and 3° of the Law of 13 March 2016 on the status and supervision of insurance and reinsurance undertakings.

§ 2. Belgian portfolio management and investment advisory companies:
1° that are at the head of a financial services group; or 2° whose parent company is a mixed financial holding company with its registered office in a Member State, are subject to supplementary supervision exercised at group level in accordance with the provisions of this paragraph.
If several regulated entities are subsidiaries of the mixed financial holding company referred to in the first paragraph, 2°, the supplementary group supervision of the financial services group applies only to the Belgian portfolio management and investment advisory company, provided that the FSMA is competent for the supplementary supervision of the financial services group. When a Belgian regulated entity is at the head of a financial services group, the supplementary group supervision is exercised by the supervisory authority responsible for the supervision of the concerned regulated entity. The supplementary supervision covers the financial situation of the financial services group in general and the solvency of the group in particular, the concentration of risks, intragroup transactions, as well as the internal control mechanisms and risk management procedures put in place for the entire group. The King determines the standards applicable in implementation of paragraphs 2 and 3. All companies of the financial services group that belong to the financial sector are included in the supplementary group supervision, according to the modalities determined by the King. The King may extend the supplementary group supervision to other areas as well as to companies of the group that are not part of the financial sector, in accordance with European regulations. The FSMA may prescribe that the regulated and unregulated companies included in the supplementary group supervision communicate to it all information useful for the exercise of the supplementary group supervision. The FSMA may, for the purposes of this supervision, carry out or have carried out, at the expense of the concerned regulated entity, by approved auditors or, where appropriate, by foreign experts approved by it for this purpose, on-the-spot verification of the information it has received in all companies included in the supplementary group supervision. The FSMA does not carry out or have carried out a verification with a company established in another Member State of the European Economic Area without first notifying the competent supervisory authority of that other State, unless the latter carries out this verification itself or allows an auditor or expert to do so. If the supervisory authority does not carry out the verification itself, it may nevertheless be associated with it, if it deems it desirable. The supplementary group supervision does not entail individual supervision by the FSMA of the companies included in this supervision. The supplementary group supervision does not prejudice the supervision on a consolidated basis and the consolidated supervision exercised in accordance with the other provisions of this law. The King may determine the conditions under which Belgian companies that are part of a financial services group and are included in the supplementary group supervision exercised by a foreign supervisory authority may be required to provide information to that
supervisory authority for the exercise of the supplementary group supervision and may be subject to on-the-spot verification, by that authority or by auditors or experts mandated by it, of the information transmitted.

§ 3. The King determines the rules of the supplementary group supervision in accordance with the provisions of Directive 2002/87/EC of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms belonging to a financial conglomerate, and amending 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 98/78/EC and 2000/12/EC of the European Parliament and of the Council.

§ 4. The FSMA may, in special cases, authorize, for the purpose of achieving the objectives of this article, justified derogations from the decrees and regulations adopted pursuant to this article, provided that such derogations apply to all regulated entities that find themselves in analogous circumstances. The use of this power may not be contrary to the provisions of European law.

[Sub-section 4.][1] - Revised audit control[1] ---------- (1)Inserted by L 2022-07-20/31, art. 65, 013; Effective: 15-09-2022>

Art. 61. § 1. The statutory auditors, responsible for the audit of the annual and consolidated accounts of portfolio management and investment advisory companies in accordance with the 1 Companies and Associations Code1, shall report to the FSMA on their own initiative as soon as they observe, in the course of their mission with a portfolio management and investment advisory company or an audit mission with a company related to the portfolio management and investment advisory company:
a) decisions, facts or developments that influence or may significantly influence the situation of the portfolio management and investment advisory company from a financial perspective or from the perspective of its administrative and accounting organization or its internal control; b) decisions or facts that may constitute violations of the 1 Companies and Associations Code1, the articles of association, 2 provisions referred to in Article 56, § 12; c) other decisions or facts that are likely to lead to the refusal or qualifications in the certification of the annual accounts; d) decisions or facts relating to the portfolio management and investment advisory company that are likely to compromise its continuity.

§ 2. No civil, criminal or disciplinary action may be brought, nor any professional sanction imposed, against statutory auditors who have acted in good faith to provide information referred to in paragraph 1.

(1)<L 2021-06-27/09, art. 254, 009; En vigueur : 01-01-2021> (2)<L 2025-03-25/05, art. 96, 015; En vigueur : 08-05-2025>

Art. 62. The FSMA may request an approved auditor designated by it, or the statutory auditors responsible for the audit of the annual and consolidated accounts of portfolio management and investment advisory companies in accordance with the 1 Companies and Associations Code1, to submit to it, at the expense of these entities, special reports on the subjects it determines. ---------- (1)<L 2021-06-27/09, art. 255, 009; En vigueur : 19-07-2021>

[Sub-section 5.][1] - Supervision of activities carried out in another Member State[1] ---------- (1)Inserted by L 2022-07-20/31, art. 66, 013; Effective: 15-09-2022>

Art. 62/1. 1 § 1. Without prejudice to the prerogatives of the competent authorities of the host Member State under legislation adopted to transpose Directive 2019/2034 in that Member State, the supervision exercised by the FSMA in accordance with Sub-section I also covers the activities that portfolio management and investment advisory companies carry out by way of branch or free provision of services in other Member States. The supervision referred to in the first paragraph does not prejudice consolidated supervision. § 2. In the exercise of its tasks, the FSMA duly takes into account the potential impact of its decisions on the stability of the financial system of all other concerned Member States, particularly in emergency situations, and this on the basis of the information available at the time.]1 ---------- (1)Inserted by L 2022-07-20/31, art. 67, 013; Effective: 15-09-2022>

Art. 62/2. 1 When the supervisory authorities of investment firms in another Member State in which a Belgian portfolio management and investment advisory company has established a branch or provides investment services or ancillary services referred to in Article 2 under the regime of the free provision of services, notify the FSMA of violations of the legal, regulatory or administrative provisions applicable in that State under the supervision of these authorities in implementation of Directive 2014/65/EU, the FSMA shall, as soon as possible, take those measures referred to in Article 64, § 1, that these violations require. It shall notify the aforementioned supervisory authorities. Article 64, § 2, shall apply.]1 ---------- (1)Inserted by L 2022-07-20/31, art. 68, 013; Effective: 15-09-2022>

Art. 62/3. 1 § 1. In order to supervise the activity of portfolio management and investment advisory companies carried out in other Member States by way of a branch, the FSMA shall cooperate closely with the competent authority of the host Member State.
The FSMA shall communicate to the competent authority of the host Member State:
1° all information relating to the management and shareholding of the concerned portfolio management and investment advisory companies likely to facilitate their supervision and the examination of the conditions of their authorization; 2° all information likely to facilitate their monitoring, particularly in terms of liquidity, solvency, administrative and accounting organization and internal control mechanisms, as well as limitation of concentration risks or, where appropriate, limitation of large exposures; and 3° all information relating to any other factor likely to influence the risk, where appropriate systemic, that these companies represent. § 2. The FSMA shall immediately communicate to the competent authority of the host Member State all information and findings relating to any problem or potential risk that a portfolio management and investment advisory company may pose regarding the protection of clients or the stability of the financial system in the concerned host Member State. § 3. The FSMA shall act on the basis of the information communicated by the competent authorities of the host Member State by taking all necessary measures to prevent or remedy the potential problems and risks referred to in paragraph 2. At the request of the competent authority of the host Member State, the FSMA shall communicate and explain in detail how the information and findings provided by the latter have been taken into consideration. If the FSMA opposes the measures to be taken by a competent authority of the host Member State in order to prevent new breaches with a view to protecting the interests of investors and other persons for whom services are provided, or to preserve the stability of the financial system, it may refer the matter to the European Banking Authority in accordance with Article 19 of Regulation No 1093/2010. § 4. Similarly, the FSMA may, in accordance with Article 19 of Regulation No 1093/2010, refer the matter to the European Banking Authority in situations where a request for cooperation, particularly for the exchange of information, has been rejected or has not been followed up within a reasonable time. § 5. For the purpose of assessing the condition provided for in Article 23, paragraph 1, first paragraph, point c) of Regulation 2019/2033, the FSMA may request the competent authority of the home Member State of a clearing member to provide information relating to the margin model and parameters used to calculate the margin requirement of the concerned company.]1 ---------- (1)Inserted by L 2022-07-20/31, art. 69, 013; Effective: 15-09-2022>

Art. 62/4. 1 § 1. The FSMA may carry out, at the branches of Belgian portfolio management and investment advisory companies established in another Member State, subject to prior notification of the authorities of that State responsible for the supervision of investment firms, the inspections referred to in Article 56, § 3, second paragraph, as well as any inspection to collect or verify on the spot information relating to the direction and management of the branch as well as all information likely to facilitate the supervision of the portfolio management and investment advisory company, particularly in terms of liquidity, solvency, investor protection, administrative and accounting organization and internal control as well as in terms of limitation of concentration risks or, where appropriate, limitation of large exposures. It may, for the same purposes and after having notified the supervisory authorities referred to in the first paragraph, entrust an expert, designated by it, to carry out the useful verifications and expertise. The remuneration and expenses of the expert are borne by the portfolio management and investment advisory company. It may, likewise, request these authorities to carry out the verifications and expertise referred to in the first paragraph, which it specifies to them. § 2. The competent authorities of the Member State in which a portfolio management or investment advisory company has established a branch have the power to carry out on a case-by-case basis, for supervisory purposes and if they deem it relevant for the stability of the financial system in that host Member State, controls and on-the-spot inspections of the activities carried out on their territory by the branch of the concerned portfolio management and investment advisory company and to require information from this branch regarding its activities. Before carrying out these controls and inspections, the competent authorities of the host Member State shall consult the FSMA without delay. As soon as possible after the completion of these controls and inspections, the competent authorities of the host Member State shall communicate to the FSMA the information obtained and findings established that are relevant for the assessment of the risks of the concerned portfolio management and investment advisory company.]1 ---------- (1)Inserted by L 2022-07-20/31, art. 70, 013; Effective: 15-09-2022>

Section 5. 1 - Withdrawal of authorization, remedial measures, periodic penalty payments and administrative sanctions1

(1)L 2022-07-20/31, art. 71, 013; En vigueur : 15-09-2022>

Sub-section 1. 1 - Withdrawal of authorization1 ---------- (1)Inserted by L 2022-07-20/31, art. 72, 013; Effective: 15-09-2022>

Art. 63. The FSMA shall withdraw, by decision notified by registered letter with acknowledgment of receipt, the authorization of portfolio management and investment advisory companies that have not commenced their activities within twelve months of the authorization, that renounce the authorization or that have ceased to carry on their activities. It shall modify the authorization of portfolio management and investment advisory companies that partially renounce it.

Sub-section 2. [1 - Referral to the Insolvency Court]1 ---------- (1)<Inserted by L 2022-07-20/31, art. 73, 013; Effective: 15-09-2022>

Art. 63/1. [1 When the FSMA considers that the conditions set out in Article XX.99 of the Code of Economic Law are met for a portfolio management and investment advisory company, the FSMA may, by way of derogation from Article XX.100 of the Code of Economic Law, of its own motion refer the matter to the insolvency court by summons.]1 ---------- (1)<Inserted by L 2022-07-20/31, art. 74, 013; Effective: 15-09-2022>

Sub-section 3. [1 - Restructuring measures]1 ---------- (1)<Inserted by L 2022-07-20/31, art. 75, 013; Effective: 15-09-2022>

Art. 63/2.[1 § 1. When the FSMA finds:

that a portfolio management and investment advisory company is not operating in compliance with the provisions of this Title, the decrees or regulations adopted for its implementation, or with the provisions of Regulation (EU) 2019/2033 applicable to it [2 , or with the provisions of Regulation (EU) 2022/2554]2;
or when it has elements indicating that this company risks no longer operating in compliance with these provisions over the next 12 months,
it sets the time limit within which the situation found must be remedied.
§ 2. As long as the portfolio management and investment advisory company has not remedied the situation referred to in paragraph 1, the FSMA may, at any time:
1° without prejudice to Article 58/4, § 1, impose capital requirements more stringent than, or additional to, those provided for by or under Article 11 of Regulation (EU) 2019/2033, or regulations adopted pursuant to Article 54, when a portfolio management and investment advisory company does not meet the requirements provided for in Articles 25 and 54 and it is unlikely that other supervisory measures will be capable of ensuring compliance with these requirements within an appropriate time frame; 2° require the strengthening of the company's policy on capital and liquidity needs and the organizational arrangements implemented in accordance with Articles 54, § 2 and 25 of this Law; 3° require portfolio management and investment advisory companies to submit, within one year, a plan for compliance with the supervisory requirements provided for by this Law and Regulation (EU) 2019/2033, and to set a deadline for the implementation of this plan, and require improvements to said plan regarding its scope and the deadline provided; 4° impose the application of specific rules for valuation or adjustment of value for the purposes of the capital requirements provided for by or under Article 11 of Regulation (EU) 2019/2033, or by regulations adopted pursuant to Article 54 of this Law; 5° require portfolio management and investment advisory companies to allocate net profits to the strengthening of capital; 6° limit or prohibit any distribution of dividends or any payment, including interest, to shareholders or holders of additional tier 1 capital instruments, to the extent that the suspension of payments resulting therefrom does not give rise to the conditions for opening liquidation proceedings under the provisions of Book XX of the Code of Economic Law; 7° impose that variable remuneration be limited to a percentage of profit; 8° without prejudice to Article 58/10, impose specific liquidity requirements more stringent than those defined by or under Regulation (EU) 2019/2033, or regulations adopted pursuant to Article 54 of this Law, when a portfolio management and investment advisory company does not meet the requirements provided for in Articles 25 and 54 and it is unlikely that other supervisory measures will be capable of ensuring compliance with these requirements within an appropriate time frame; 9° require the company to reduce the risk inherent in certain activities or products or in its organization, including outsourced activities, if necessary by requiring the sale of all or part of its activities or network; 10° impose, within the limits of Article 56, § 3/2, second paragraph, and provided that the required information does not duplicate the meaning of Article 56, § 3/2, first paragraph, an additional reporting obligation or impose a higher reporting frequency than that provided for by or under Article 55 or Regulation (EU) 2019/2033, particularly regarding risks, capital, or liquidity positions; 11° require the publication of more complete and
more frequent information than that provided for by or under Article 27 or Regulation (EU) 2019/2033; 12° require portfolio management and investment advisory companies to reduce the risks threatening the security of the networks and information systems they use in order to guarantee the confidentiality, integrity, and availability of their processes, data, and assets. § 3. When the FSMA considers that the measures taken by the company within the time limit set in application of paragraph 1 to remedy the situation found are satisfactory, it lifts, according to the procedures it determines, all or part of the measures decided in application of paragraph 2. § 4. The FSMA informs the European Banking Authority of the method used to justify the finding that a company risks, over the next 12 months, no longer operating in compliance with the provisions referred to in paragraph 1, as well as to adopt the decisions referred to in paragraph 2.]1 ---------- (1)<Inserted by L 2022-07-20/31, art. 76, 013; Effective: 15-09-2022> (2)<L 2025-03-25/05, art. 97, 015; Effective: 08-05-2025>

Art. 64.§ 1. [4 Without prejudice to other provisions provided for by this Law, when the FSMA finds that a portfolio management and investment advisory company does not comply or ceases to comply with the measures adopted in application of Article 63/2, § 2 or that, at the end of the time limit set in application of Article 63/2, § 1, the situation has not been remedied, it may:
1° appoint a special commissioner;
In this case, the written, general or special authorization of the special commissioner is required for all acts and decisions of all bodies of the portfolio management and investment advisory company, including the general meeting, and for those of the persons in charge of management; the FSMA may however limit the scope of operations subject to authorization. The special commissioner may submit to the deliberation of all bodies of the portfolio management and investment advisory company, including the general meeting, any proposals he deems appropriate. The remuneration of the special commissioner is fixed by the FSMA and borne by the portfolio management and investment advisory company. The members of the administrative body and the persons in charge of effective management, if applicable the members of the management committee, who perform acts or take decisions without having obtained the required authorization from the special commissioner are jointly and severally liable for the damage resulting therefrom for the portfolio management and investment advisory company or third parties. If the FSMA has published the appointment of the special commissioner in the Belgian Monitor and specified the acts and decisions subject to his authorization, acts and decisions made without this authorization when it was required are null and void, unless the special commissioner ratifies them. Under the same conditions, any general meeting decision taken without having obtained the required authorization from the special commissioner is null and void, unless the special commissioner ratifies it. The FSMA may appoint an alternate special commissioner; 2° suspend for the duration it determines the direct or indirect exercise of all or part of the activity of the portfolio management and investment advisory company or prohibit this exercise; this suspension may, to the extent determined by the FSMA, imply the total or partial suspension of the execution of ongoing contracts; The members of the administrative body and the persons in charge of effective management, if applicable the members of the management committee, who perform acts or take decisions in violation of the suspension or prohibition are jointly and severally liable for the damage resulting therefrom for the portfolio management and investment advisory company or third parties. If the FSMA has published the suspension or prohibition in the Belgian Monitor, acts and decisions made in contravention thereof are null and void. The FSMA may, likewise, order a portfolio management and investment advisory company to transfer shareholder rights it holds in accordance with Article 10 of Regulation (EU) 2019/2033. In this case, Article 32, second paragraph, is applicable; 3° order the replacement of all or part of the members of the administrative body, the persons in charge of effective management, if applicable the members of the management committee, of the portfolio management and investment advisory
company within a time limit it determines and, in the absence of such replacement within this time limit, dismiss one or more members of the administrative body, or one or more persons in charge of effective management, if applicable one or more members of the management committee of the portfolio management and investment advisory company or substitute for all administrative and management bodies one or more interim administrators or managers who have, alone or collectively depending on the case, the powers of the persons replaced. The FSMA publishes its decision in the Belgian Monitor. When circumstances justify it, the FSMA may proceed to the appointment of one or more interim administrators or managers without previously issuing the order to replace all or part of the management referred to in the first paragraph. With the authorization of the FSMA, the interim administrator or managers may convene a general meeting and establish its agenda. The FSMA may require, according to the procedures it determines, that the interim administrator or managers report to it on the financial situation of the company and on the measures taken within the framework of their mission, as well as on the financial situation at the beginning and at the end of this mission. The remuneration of the interim administrator or managers is fixed by the FSMA and borne by the portfolio management and investment advisory company. The FSMA may, at any time, replace the interim administrator or managers, either ex officio or at the request of a majority of shareholders or partners when they justify that the management of the interested parties no longer offers the necessary guarantees; 4° order the company to convene, within the time limit it sets, a general meeting of shareholders, for which it establishes the agenda; 5° revoke the authorization in whole or in part. In cases of extreme urgency and notably in case of serious peril for investors, the FSMA may adopt the measures referred to in this paragraph without a prior restructuring time limit being set.]4 § 2. [4 The decisions of the FSMA referred to in paragraph 1 take effect with regard to the portfolio management and investment advisory company from their notification to it by registered letter with acknowledgment of receipt and, with regard to third parties, from their publication in accordance with the provisions of paragraph 1. When these measures are adopted for violation of the obligations provided for by Regulation (EU) No 600/2014, or Regulation (EU) 2019/2033, by this Law for the transposition of Directive 2014/65/EU or Directive (EU) 2019/2034, or by provisions adopted on the basis of or in execution of these regulations or these provisions, the FSMA publishes the adoption of the measures referred to in paragraph 1, in accordance with Article 72, § 3, paragraphs 4 to 7, of the Law of 2
August 2002. The FSMA informs the European Securities and Markets Authority when it publishes a measure in accordance with the previous paragraph for violation of the obligations provided for by Regulation (EU) No 600/2014, by this Law for the transposition of Directive 2014/65/EU, or by provisions adopted on the basis of or in execution of this regulation or these provisions. The FSMA furthermore provides the European Securities and Markets Authority with overall information on the measures taken for this type of breaches. The FSMA informs the European Banking Authority of the measures imposed in accordance with paragraph 1 for violation of the obligations provided for by Regulation (EU) 2019/2033, by this Law for the transposition of Directive (EU) 2019/2034, or by provisions adopted on the basis of or in execution of this regulation or these provisions, as well as of any appeal against these measures and the result of this appeal.]4 § 3. [3 [4 Paragraphs 1 and 2]4 are applicable in the case where the FSMA has knowledge that a portfolio management and investment advisory company has put in place a particular mechanism within the meaning of Article 25, § 1/1.]3 § 4. § 1, first paragraph and § 2 are not applicable in the case of revocation of the authorization of a portfolio management and investment advisory company declared bankrupt. § 5. The [2 Enterprise Court]2 pronounces, at the request of any interested party, the nullities referred to in § 1, first paragraph, 1° and 4°. The action for nullity is brought against the portfolio management and investment advisory company. If serious grounds justify it, the applicant for nullity may request in summary proceedings the provisional suspension of the acts or decisions challenged. The order of suspension and the judgment pronouncing the nullity produce their effects with regard to all. In the case where the suspended or annulled act or decision has been the subject of a publication, the order of suspension and the judgment pronouncing the nullity are published by extract in the same forms. When the nullity is likely to affect the acquired rights of a third party in good faith with regard to the portfolio management and investment advisory company, the court may declare the nullity without effect with regard to these rights, subject to the right of the applicant to damages if applicable. The action for nullity can no longer be brought after the expiration of a period of six months from the date on which the acts or decisions made are enforceable against the person
invoking the nullity or are known to him. [4 § 6. The FSMA may also adopt the measures referred to in this article in the case where a portfolio management and investment advisory company has obtained authorization by means of false declarations or by any other irregular means.]4 [5 § 7. In cases where the FSMA finds that a person who exercises or has exercised a function referred to in Article 23, § 1, first paragraph, no longer meets the legal requirement of professional integrity necessary or adequate expertise, the FSMA may impose a ban on this person from exercising functions in portfolio management and investment advisory companies, provided that this ban may not exceed a duration of five years. The FSMA may complement a ban decision adopted pursuant to the first paragraph with a ban on exercising functions in other establishments subject to the supervision of the FSMA in accordance with Article 45, § 1, 2°, of the Law of 2 August 2002 or, with the conforming opinion of the Bank, in establishments referred to in Article 36/2, § 1, of the Law of 22 February 1998 fixing the organic statute of the National Bank of Belgium.]5 ---------- (1)<L 2017-11-21/08, art. 236, 002; Effective: 03-01-2018> (2)<L 2018-04-15/14, art. 252, 006; Effective: 01-11-2018> (3)<L 2021-06-02/03, art. 32, 008; Effective: 28-06-2021> (4)<L 2022-07-20/31, art. 77, 013; Effective: 15-09-2022> (5)<L 2023-12-20/08, art. 45, 014; Effective: 25-01-2024>

Art. 65.When the supervisory authorities of investment firms of another Member State in which a Belgian portfolio management and investment advisory company has established a branch or provides investment services or ancillary services referred to in Article 2 under the regime of the free provision of services, refer to the FSMA violations of the legal, regulatory or administrative provisions applicable in that State under the control of these authorities in execution of the [1 Directive 2014/65/EU]1 , the FSMA takes, in the shortest possible time, those of the measures referred to in Article 64, § 1, that these violations impose. It informs the aforementioned supervisory authorities. Article 64, § 2, is applicable. ---------- (1)<L 2017-11-21/08, art. 237, 002; Effective: 03-01-2018>

Art. 66.The FSMA informs without delay the supervisory authorities of investment firms of other Member States in which a Belgian portfolio management and investment advisory company has established branches or provides investment services or ancillary services referred to in Article 2, under the regime of the free provision of services, of the [1 decisions it has taken in accordance with Articles 63, 63/2 and 64]1. ---------- (1)<L 2022-07-20/31, art. 78, 013; Effective: 15-09-2022>

Art. 67.[1 Portfolio management and investment advisory companies whose authorization has been cancelled or revoked in accordance with Articles 63 and 64 remain subject to the provisions of European Union law directly applicable to them, to the provisions of this Title and to the decrees and regulations adopted for its implementation, unless the FSMA exempts them from certain provisions:
1° until the liquidation of the company's commitments resulting, if applicable, from funds and financial instruments due to investors; 2° until the liquidation of all their other commitments on financial markets. For this purpose, portfolio management and investment advisory companies, taking into account the viability and sustainability of their business models and strategies, take into consideration the requirements and resources necessary which are realistic in terms of timeframes and the maintenance of their capital and liquid resources.]1 The first paragraph is not applicable in the case of revocation of the authorization of a portfolio management and investment advisory company declared bankrupt. The FSMA notifies the European Securities and Markets Authority of the cancellation or revocation of an authorization in accordance with Articles 63 and 64. ---------- (1)<L 2022-07-20/31, art. 79, 013; Effective: 15-09-2022>

Art. 67/1. [1 Without prejudice to Article 64, § 1, 1°, 2° and 3° and § 2, paragraph 2, the FSMA shall, without unjustified delay and after having previously informed the company concerned, publish on its website the measures taken in accordance with Article 64 when it considers that such publication is necessary and proportionate. Such publication shall be carried out in accordance with Article 72, § 3, paragraphs 4 to 7, of the Law of 2 August 2002.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 80, 013; En vigueur : 15-09-2022>

Art. 68.[1 Without prejudice to other measures provided for by this Law, the FSMA may, after having informed the entity concerned, publish that a portfolio management and investment advisory company, a financial company, a mixed company within the meaning of Article 3, 40° of the Law of 25 April 2014, or a mixed financial company has not complied with the injunctions it has issued to respect, within the time limit it determines, the provisions of this Title or the decrees and regulations adopted for its implementation, or the provisions of Regulation (EU) 600/2014 or Regulation (EU) 2019/2033 [2 or Regulation (EU) 2022/2554]2. The costs of this publication shall be borne by the company concerned. The publication referred to in paragraph 1 shall specify the nature of the breach, as well as the identification of the responsible entity. Such publication shall be carried out in accordance with Article 72, § 3, paragraphs 4 to 7, of the Law of 2 August 2002. The FSMA shall inform the European Securities and Markets Authority of the publication referred to in paragraph 1. When the publication referred to in paragraph 1 concerns infringements of the provisions of Regulation (EU) 2019/2033 or of the provisions of this Law adopted with a view to transposing Directive (EU) 2019/2034, or of the provisions adopted on the basis of or in implementation of that Regulation or those provisions, the FSMA shall also inform the European Banking Authority. It shall also inform it of any appeal against such publication, as well as of the outcome of that appeal.]1 ---------- (1)<L 2022-07-20/31, art. 81, 013; En vigueur : 15-09-2022> (2)<L 2025-03-25/05, art. 98, 015; En vigueur : 08-05-2025>

Sous-section 4. [1 - Penalty payments and administrative sanctions]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 82, 013; En vigueur : 15-09-2022>

Art. 69.§ 1. [3 Without prejudice to other measures provided for by this Law, the FSMA may set a time limit for a portfolio management and investment advisory company, a financial company, a mixed company referred to in Article 68, or a mixed financial company, within which:
a) it must comply with specific provisions of this Title or the decrees or regulations adopted for its implementation or the provisions of Regulation (EU) 600/2014 or Regulation (EU) 2019/2033 [4 of Regulation (EU) 2019/2033]4; or b) it must make the necessary adaptations to its organizational arrangements, or to its policy regarding its capital or liquidity needs. This injunction shall only apply to branches of portfolio management and investment advisory companies subject to the law of another Member State insofar as it concerns a breach of an obligation referred to in Article 71, or c) it must comply with the provisions of Title II of Regulation No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories; or d) it must comply with a requirement imposed by the FSMA in application of the provisions referred to in a); or e) it must comply with the requirements set by the FSMA as conditions for a decision taken in application of the provisions referred to in a), in particular the granting of an authorization or a derogation.]3 If the company concerned remains in default upon the expiry of the time limit, the FSMA may, after the company has been heard or at least duly summoned, impose a penalty payment at a maximum amount of 2,500,000 euros per infringement or 50,000 euros per day of delay. § 2. [3 Without prejudice to other measures provided for by this Law and without prejudice to measures defined by other laws or regulations, the FSMA may, when it finds:
1° an infringement of the provisions of this Law or the measures taken in implementation thereof or the provisions of Regulation (EU) 600/2014 or Regulation (EU) 2019/2033 [4 or Regulation (EU) 2022/2554]4 or; 2° an infringement of the provisions of Title II of Regulation No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories; or 3° the failure to comply with a requirement imposed by the FSMA in application of the provisions referred to in 1° or 2°; or 4° the failure to comply with requirements set by the FSMA as conditions for a decision taken in application of the provisions referred to in 1° or 2°, in particular the granting of an authorization or a derogation, impose an administrative fine on a portfolio management and investment advisory company, a financial company, a mixed company referred to in Article 68, or a mixed financial company, Belgian or foreign established in Belgium, which may not exceed, for the same act or for the same set of acts, 2,500,000 euros. [4 In the event of an infringement of the provisions of Regulation (EU) 600/2014, Regulation (EU) 2019/2033 or Regulation (EU) 2022/2554, of the provisions of this Law adopted with a view to transposing Directive 2014/65/EU or Directive (EU) 2019/2034, or of the provisions adopted on the basis of or in implementation of those Regulations or those provisions, the FSMA may also impose an administrative fine on one or more members of the administrative body and on any person charged with the effective management of the portfolio management and investment advisory company.]4 By way of derogation from paragraph 1, [4 in the event of an infringement of the provisions of Regulation (EU) 600/2014 or Regulation (EU) 2022/2554, of the provisions of this Law adopted with a view to transposing Directive 2014/65/EU, or of the provisions adopted on the basis of or in implementation of those Regulations or those provisions]4, the following maximum amounts shall apply: as regards natural persons, 5,000,000 euros and, as regards legal persons, 5,000,000 euros or, if the amount obtained by applying this percentage is higher, ten percent of the total annual turnover. When the infringement has provided a profit to the offender or has allowed the latter to avoid a loss, this maximum may be doubled to twice the amount of that profit or loss. By way of derogation from paragraph 1, in the event of an infringement of the provisions of Regulation (EU) 2019/2033, of the provisions of this Law adopted with a view to transposing Directive (EU)
2019/2034, or of the provisions adopted on the basis of or in implementation of that Regulation or those provisions, the following maximum amounts shall apply: as regards natural persons, 5,000,000 euros and, as regards legal persons, ten percent of their net annual turnover. When the infringement has provided a profit to the offender or has allowed the latter to avoid a loss, this maximum may be doubled to twice the amount of that profit or loss. For the application of paragraph 4, the gross income of the company consisting of interest and similar income, income from shares and other variable or fixed income securities, and commissions received by the company during the previous financial year shall be included in the calculation of the net annual turnover of the concerned legal person. When the concerned legal person is a subsidiary, the gross income to be taken into account shall be that resulting from the latest available consolidated accounts drawn up by the administrative body of the ultimate parent company.]3 § 3. The penalty payments and fines imposed in application of §§ 1 or 2 shall be collected for the benefit of the Treasury by the General Administration for Collection and Recovery. When the FSMA makes public measures imposed in accordance with paragraphs 1 and 2 [3 which concern infringements of the provisions of Regulation (EU) 600/2014 or of the provisions of this Law adopted with a view to transposing Directive 2014/65/EU, or of the provisions adopted on the basis of or in implementation of that Regulation or those provisions,]3 it shall simultaneously inform the European Securities and Markets Authority. [3 When the measures referred to in paragraphs 1 and 2 concern infringements of the provisions of Regulation (EU) 2019/2033 or of the provisions of this Law adopted with a view to transposing Directive (EU) 2019/2034, or of the provisions adopted on the basis of or in implementation of that Regulation or those provisions, the FSMA shall inform the European Banking Authority. It shall also inform it of any appeal against such measures, as well as of the outcome of that appeal.]3 ---------- (1)<L 2017-11-21/08, art. 239, 002; En vigueur : 03-01-2018> (2)<L 2021-06-27/09, art. 258, 009; En vigueur : 01-01-2021> (3)<L 2022-07-20/31, art. 83, 013; En vigueur : 15-09-2022> (4)<L 2025-03-25/05, art. 99, 015; En vigueur : 08-05-2025>

CHAPITRE 2. - Foreign portfolio management and investment advisory companies

Section 1re. - Branches and service provision activities in Belgium of foreign portfolio management and investment advisory companies subject to the law of another Member State

Art. 70. This Section applies to foreign portfolio management and investment advisory companies subject to the law of another Member State which are authorized to carry out their activities in Belgium in accordance with Articles 10 and 11.

Sous-section 1. - Obligations and prohibitions

Art. 71. Without prejudice to the rules provided for by and under the Law of 2 August 2002 and without prejudice to other provisions conferring powers on the FSMA with regard to foreign portfolio management and investment advisory companies subject to the law of another Member State, Article 26, § 5, shall apply to the branches of these companies, for transactions carried out by these branches.

Sous-section 2. - Periodic information and accounting rules

Art. 72. The branches of foreign portfolio management and investment advisory companies subject to the law of another Member State shall transmit to the FSMA, in the forms and according to the periodicity determined by it, periodic statistical statements relating to their operations carried out in Belgium.
The FSMA may require these branches to transmit to it, in the forms and according to the periodicity determined by it, information of the same nature as that required of Belgian portfolio management and investment advisory companies, in matters not falling within the competence of the supervisory authorities of the home Member State.
Foreign portfolio management and investment advisory companies subject to the law of another Member State may also be required to communicate to the National Bank and the European Central Bank information that is required of Belgian portfolio management and investment advisory companies.

Art. 73.L'[1 Article 55, paragraph 3]1 shall apply to the branches of foreign portfolio management and investment advisory companies subject to the law of another Member State.

(1)<L 2019-05-02/25, art. 200, 005; En vigueur : 31-05-2019>

Sous-section 3. - Supervision

Art. 74.Without prejudice to the powers conferred by and under the Law of 2 August 2002, foreign portfolio management and investment advisory companies subject to the law of another Member State are subject to the supervision of the FSMA for the purposes provided for in Articles 71 to 73, insofar as the matters covered by these provisions fall within the competence of the FSMA. [1 The FSMA shall also ensure that the services provided by the branches of foreign portfolio management and investment advisory companies subject to the law of another Member State comply with the obligations provided for in Articles 14 to 26 of Regulation (EU) No 600/2014.]1 [2 Following consultation with the competent authority of the home Member State, the FSMA may, on a case-by-case basis, carry out on-site checks and inspections of the activities carried out by the branches of foreign portfolio management and investment advisory companies subject to the law of another Member State established in Belgium, and require information from them on their activities for supervisory purposes, when it deems it pertinent for the stability of the financial system in Belgium. Articles 56, §§ 3 and 4, and 57 shall apply to this extent. After such checks and inspections, the FSMA shall communicate to the competent authority of the home Member State the information obtained and the findings made that are relevant for the assessment of the risks of the company concerned or for the stability of the Belgian financial system.]2 ---------- (1)<L 2017-11-21/08, art. 240, 002; En vigueur : 03-01-2018> (2)<L 2022-07-20/31, art. 84, 013; En vigueur : 15-09-2022>

Art. 74/1. [1 § 1. With a view to ensuring the supervision of the activities of portfolio management and investment advisory companies subject to the law of another Member State operating, in particular through a branch, in Belgium or in other Member States, the FSMA shall cooperate closely with the competent authorities of the other concerned Member States. To this end, the FSMA shall communicate, insofar as it has such information:
1° all information relating to the management and shareholding of these companies likely to facilitate their supervision and the examination of the conditions for their authorization; 2° all information likely to facilitate their monitoring, in particular regarding liquidity, solvency, administrative and accounting organization, and internal control mechanisms, as well as the limitation of concentration risks or, where applicable, the limitation of large exposures; and 3° all information relating to any other factor likely to influence the risk, where applicable systemic, represented by the company. § 2. The FSMA, in its capacity as the competent authority of the host Member State, may request that the competent authority of the home Member State communicate and explain how the information and findings provided in application of paragraph 1 have been taken into consideration. When, following the communication of information and findings, the FSMA considers that the competent authority of the home Member State has not taken appropriate measures, it may, after having informed the European Securities and Markets Authority, the European Banking Authority, and the competent authority of the home Member State, without prejudice to the possibility for the latter to refer the matter to the European Banking Authority in application of Article 19 of Regulation No 1093/2010, take appropriate measures to prevent further infringements in order to protect the interest of investors or other persons to whom services are provided or to preserve the stability of the financial system.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 85, 013; En vigueur : 15-09-2022>

Art. 75.§ 1. The FSMA may agree, at the request of the supervisory authorities of the home Member State of the foreign portfolio management and investment advisory company, and for the purpose of assisting those authorities, to carry out inspections of the branches of these companies covering both the matters referred to in Article 74 and those referred to in Article 58, paragraph 1. The costs incurred by the inspections and verifications referred to in paragraph 1 shall be borne by the requesting authority. § 2. The foreign competent authorities for the prudential supervision of foreign portfolio management and investment advisory companies subject to the law of another Member State that have opened a branch in Belgium may, following prior notice to the FSMA and in the exercise of their responsibilities, carry out on-site inspections in that branch or have them carried out, at their expense, by experts they designate, at that branch. [1 These authorities may also access the records referred to in Article 26, § 5, kept by portfolio management and investment advisory companies subject to their competence in accordance with Article 71.]1 § 3. The FSMA may request that the competent consolidated supervisor or the competent authority of the home Member State consider a branch of a foreign portfolio management and investment advisory company subject to the law of another Member State to have significant importance within the meaning of Article 59, § 6. ---------- (1)<L 2017-11-21/08, art. 241, 002; En vigueur : 03-01-2018>

Sous-section 4. - Exceptional measures, administrative and criminal sanctions

Art. 76.§ 1. When the FSMA has clear and demonstrable reasons to believe that a foreign portfolio management and investment advisory company subject to the law of another Member State operating in Belgium through a branch or by way of free provision of services violates the obligations incumbent upon it under provisions adopted pursuant to [1 Directive 2014/65/EU]1 which do not confer powers on the FSMA, it shall inform the competent authority of the home Member State.

If, despite the measures taken by the competent authority of the home Member State or due to the inadequacy of those measures, the company in question continues to act in a manner clearly prejudicial to the interests of investors in Belgium or to the orderly functioning of markets, the FSMA may, after having informed the competent authority of the home Member State, take measures to protect investors or to preserve the good functioning of markets. [3 With regard to branches, these are the measures referred to in Article 64, § 1, 1°, 2° and 3°, and § 2.]3 With regard to foreign portfolio management and investment advisory companies subject to the law of another Member State operating by way of provision of services, [3 these are the measures referred to in Article 64, § 1, 2°, and § 2]3. The European Commission and the European Securities and Markets Authority shall be informed without delay of the adoption of these measures.

§ 2. If the FSMA finds that a foreign portfolio management and investment advisory company subject to the law of another Member State having a branch in Belgium does not comply with the legislative or regulatory provisions in force in Belgium which fall within the competence of the FSMA pursuant to the directive cited in § 1, it shall serve notice on the company concerned to remedy the situation found within the time limit it determines.

If the company concerned does not take the necessary steps, the FSMA shall take all appropriate measures to ensure that the company puts an end to this irregular situation. The scope of these measures shall be communicated to the competent authorities of the home Member State.

In the event of persistent failures on the part of a branch referred to in the first paragraph, the FSMA may, after having notified the authorities of the home Member State, take the [3 measures referred to in Article 64, § 1, 1°, 2° and 3°]3. Article 64, § 2 is also applicable. [2 ...]2 The European Commission and the European Securities and Markets Authority shall be informed without delay of the adoption of these measures.

§ 3. The FSMA may refer the matter to the European Securities and Markets Authority, as provided for in Article 77, § 1, of the Law of 2 August 2002.

§ 4. [2 Paragraph 2 is, except for the last sentence, also applicable when a foreign portfolio management and investment advisory company subject to the law of another Member State violates obligations that do not arise from provisions adopted pursuant to Directive 2014/65/EU but which nevertheless fall within the competence of the FSMA.]2

(1)<L 2019-05-02/25, art. 201, 005; En vigueur : 31-05-2019] (2)<L 2021-06-02/03, art. 33, 008; En vigueur : 28-06-2021] (3)<L 2022-07-20/31, art. 86, 013; En vigueur : 15-09-2022]

Art. 77. In the event of cancellation or revocation of the authorization of the foreign portfolio management and investment advisory company subject to the law of another Member State by the supervisory authorities of its home Member State, the FSMA shall order, after having notified these authorities, the closure of the branch established by that company in Belgium. It may appoint an interim manager who ensures the assets and financial instruments of the branch pending a decision on their destination, and who is authorized to take all conservatory measures in the interest of creditors.

Art. 78. The FSMA may communicate to the supervisory authorities of a foreign portfolio management and investment advisory company subject to the law of another Member State the reasons it has for considering that the situation of the branch of that company in Belgium does not offer sufficient guarantees regarding sound administrative or accounting organization or internal control.

Art. 79. Article 68 is applicable to the portfolio management and investment advisory companies referred to in this section.

Art. 80. Article 69, first paragraph, a), and paragraphs 2 and 3, are applicable to foreign portfolio management and investment advisory companies subject to the law of another Member State operating in Belgium through a branch.

Art. 81. The following are subject to the provisions of Article 107, § 1:
1° the directors, managers or directors who contravene the provisions referred to in Article 73 and the regulations adopted for their implementation; 2° those who perform acts or operations without having obtained the authorization of the special commissioner referred to in Article 64, § 1, 1°, in the cases referred to in Article 76, §§ 1 and 2; 3° those who perform acts or operations contrary to a suspension order or prohibition given [1 pursuant to Article 64, § 1, 2°]1 in the cases referred to in Article 76, §§ 2 and 3; ---------- (1)<L 2022-07-20/31, art. 87, 013; En vigueur : 15-09-2022]

Art. 82. Article 108 is applicable to the offenses referred to in Article 81.

Section 2. - Branches and service provision activities in Belgium of foreign portfolio management and investment advisory companies subject to the law of another Member State not subject to the [1 Directive 2014/65/EU]1 ---------- (1)<L 2017-11-21/08, art. 242, 002; En vigueur : 03-01-2018]

Art. 83. Foreign portfolio management and investment advisory companies subject to the law of another Member State which do not fall within the scope of application of the [1 Directive 2014/65/EU]1 pursuant to Article 2, § 1, l) and m), and Article 3 of that directive are subject to the provisions of Sections 3 and 4 of this chapter. ---------- (1)<L 2017-11-21/08, art. 243, 002; En vigueur : 03-01-2018]

Section 3. - Branches in Belgium of foreign portfolio management and investment advisory companies subject to the law of third countries

Sub-section 1. - Authorization

Art. 84.[1 § 1. The portfolio management and investment advisory company subject to the law of a third country seeking authorization from the FSMA pursuant to Article 13, § 2, second paragraph, shall provide the FSMA with the following information:
1° the name of the authority responsible for its supervision in the third country concerned. If supervision is carried out by several authorities, the respective areas of competence of these authorities are specified; 2° all useful information relating to the company (name, legal form, registered office and address, members of the governing body, shareholders concerned) and a program of activities mentioning the investment services and/or activities and ancillary services it intends to provide or carry out, as well as the organizational structure of the branch, including a description of any outsourcing to third parties of essential operational functions; 3° the names of the persons responsible for the management of the branch and relevant documents demonstrating that the requirements provided for in Article 23 are met; 4° information relating to the initial capital which is freely available to the branch. § 2. The FSMA grants the authorization sought to branches that meet the following conditions:
1° the branch must have an endowment of a minimum amount of 125,000 euros. The FSMA assesses the components of the endowment; 2° regarding the identity of the holders of the capital of the portfolio management and investment advisory company, Article 22 is applicable; 3° the persons responsible for the management of the branch comply with Articles 23 to 26; 4° if the commitments of the branches referred to in this section are not covered by an investor protection system to a degree at least equivalent to that resulting from the Belgian investor protection system, Article 29 is applicable; 5° the provision of services for which the portfolio management and investment advisory company subject to the law of a third country seeks authorization is subject to authorization and supervision in the third country in which it is established, and the applicant company is duly authorized taking fully into account the recommendations of the Financial Action Task Force in the framework of the fight against money laundering and terrorist financing; 6° the competent supervisory authorities of the third country in which the company is established have signed cooperation mechanisms with the FSMA, providing in particular for provisions concerning the exchange of information to preserve market integrity and protect investors; 7° the third country in which the company is established has signed with Belgium an agreement perfectly conforming to the standards set out in Article 26 of the OECD Model Tax Convention on Income and on Capital guaranteeing an effective exchange of information in tax matters, including, where appropriate, multilateral agreements in the field of taxation; 8° the branch is able to comply with the provisions referred to in Article 85. The FSMA rules on the application within six months of the introduction of a complete file. Before ruling on the authorization application of the branch, the FSMA consults the supervisory authorities of the home state of the foreign portfolio management and investment advisory company subject to the law of the third country. The decision of the FSMA mentions the investment services and activities as well as the ancillary services that the branch is authorized to provide in Belgium. Decisions on authorization are notified to applicants within fifteen days by registered letter with acknowledgment of receipt.
Article 7 applies, it being understood that the branches referred to in this sub-section are mentioned in a special section of the list referred to in that article.
[2 The FSMA notifies the European Securities and Markets Authority annually of the list of branches of third-country portfolio management and investment advisory companies active on Belgian territory.]2 § 3. Without prejudice to International Agreements binding Belgium, the FSMA may refuse to authorize the branch of a foreign portfolio management and investment advisory company subject to the law of a third country that does not grant the same opportunities of access to its market to Belgian portfolio management and investment advisory companies.]1 ---------- (1)<L 2017-11-21/08, art. 244, 002; En vigueur : 03-01-2018] (2)<L 2022-07-20/31, art. 88, 013; En vigueur : 15-09-2022]

Sub-section 2. - Exercise of Activity

Art. 85.[1 The branches referred to in this section comply with the following provisions, under the supervision of the FSMA, as well as with the regulations and rules adopted for their implementation:
1° [2 Articles 25, §§ 1, 9° and 1/1, and 26 to 26/2 of this law;]2 2° Articles 26, paragraphs 7 to 9, 27, 27bis, 27ter, §§ 1 to 3 and 5 to 8, 27quater, § 1, and 28 of the Law of 2 August 2002; 3° Articles 46, 48, 50, 51 and 52 of the Law of 21 November 2017; 4° Articles 3 to 26 of Regulation (EU) No 600/2014.]1 ---------- (1)<L 2017-11-21/08, art. 245, 002; En vigueur : 03-01-2018] (2)<L 2021-06-02/03, art. 34, 008; En vigueur : 28-06-2021]

Art. 85/1. [1 The branches referred to in this section communicate the following information to the FSMA on an annual basis:
a) the scale and extent of the services provided and activities carried out by the branch in Belgium, b) the volume of transactions and the total value of assets corresponding to the services and activities referred to in point a); c) a detailed description of the measures taken to protect investors whom clients of the branch can avail themselves of, including the rights conferred on these clients by the investor protection system applicable in their home state; d) the risk management policy and measures applied by the branch in the context of the services and activities referred to in point a); e) corporate governance arrangements, including regarding holders of key positions for the activities of the branch; f) any other information that the FSMA deems necessary to enable complete monitoring of the branch's activities.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 89, 013; En vigueur : 15-09-2022]

Art. 85/2. [1 Upon request, the FSMA communicates the following information to the European Securities and Markets Authority:
a) all authorizations for branches authorized pursuant to Article 84, § 2 and any subsequent modifications made to said authorizations; b) the scale and extent of the services provided and activities carried out by a branch authorized pursuant to Article 84, § 2; c) the volume of transactions and the total value of assets corresponding to the services and activities referred to in point b); d) the denomination of the group of third countries to which an authorized branch belongs, if applicable.]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 90, 013; En vigueur : 15-09-2022]

Sub-section 3. - Control

Art. 86. Articles 56, §§ 1 to 3, and 57 are applicable.

Sub-section 4. - Cancellation of authorization, exceptional measures and sanctions

Art. 87.[1 The FSMA cancels by decision notified by registered letter with acknowledgment of receipt, the authorization of portfolio management and investment advisory companies subject to the law of a third country who have not used it within a period of twelve months, expressly renounce it, have not provided any investment service or exercised any investment activity during the last six months. The following provisions of this law are applicable:
1° Articles 64, 67, 68 and 69;
2° Articles 107 and 108.]1 ---------- (1)<L 2017-11-21/08, art. 246, 002; En vigueur : 03-01-2018]

Section 4.
<Abrogé par L 2017-11-21/08, art. 247, 002; En vigueur : 03-01-2018>

Art. 88.
<Abrogé par L 2017-11-21/08, art. 247, 002; En vigueur : 03-01-2018>

Art. 89.
<Abrogé par L 2017-11-21/08, art. 247, 002; En vigueur : 03-01-2018>

Art. 90.
<Abrogé par L 2017-11-21/08, art. 247, 002; En vigueur : 03-01-2018>

Art. 91.
<Abrogé par L 2017-11-21/08, art. 247, 002; En vigueur : 03-01-2018>

Art. 92.
<Abrogé par L 2017-11-21/08, art. 247, 002; En vigueur : 03-01-2018>

Art. 93.
<Abrogé par L 2017-11-21/08, art. 247, 002; En vigueur : 03-01-2018>

Art. 94.
<Abrogé par L 2017-11-21/08, art. 247, 002; En vigueur : 03-01-2018>

CHAPTER 3. - Collaboration between national authorities

Art. 95.[2 Before a decision is made on the opening of bankruptcy proceedings or a provisional disqualification within the meaning of Article XX.32 of the Code of Economic Law regarding a portfolio and investment advisory company, the president of the enterprise court seizes the FSMA with a request for an opinion.]2 The clerk transmits this request without delay. He informs the King's prosecutor. The seizure of the FSMA is written. It is accompanied by the documents necessary for its information. The FSMA renders its opinion within a period of fifteen days from receipt of the request for opinion. The FSMA may, in the case of proceedings relating to a portfolio management and investment advisory company likely, in its assessment, to present significant systemic implications or which requires prior coordination with foreign authorities, render its opinion within a longer period, without however the total period exceeding thirty days. When it considers it necessary to use this exceptional period, the FSMA notifies it to the judicial authority called upon to rule. The period available to the FSMA to render its opinion suspends the period within which the judicial authority must rule. In the absence of a response from the FSMA within the time limit, the court may rule on the request. The opinion of the FSMA is written. It is transmitted by any means to the clerk, who hands it over to the president of the [1 enterprise court]1 and to the King's prosecutor. The opinion is added to the file. ---------- (1)<L 2018-04-15/14, art. 252, 006; En vigueur : 01-11-2018] (2)<L 2021-06-27/09, art. 256, 009; En vigueur : 19-07-2021]

TITLE 4. - Investor protection systems

Art. 96. Portfolio management and investment advisory companies established in Belgium, OPCA management companies referred to in Article 35 of the Law of 19 April 2014, and collective investment scheme management companies referred to in Article 205 of the Law of 3 August 2012 must participate in a collective investor protection system to which they contribute and which aims to grant certain categories of investors compensation, when the bankruptcy of such a portfolio management and investment advisory company, such an OPCA management company, or such a collective investment scheme management company is declared, or when the FSMA has taken the decision referred to in Article 97 with regard to such a company.

Paragraph 1 shall not apply to branches of portfolio management and investment advisory companies, and of collective investment scheme management companies subject to the law of another Member State, nor to branches of foreign OPCA management companies. It shall not apply either to branches of portfolio management and investment advisory companies and collective investment scheme management companies subject to the law of a third country, the commitments of which are covered by an investor protection system of that State to an extent at least equivalent to that resulting from the system referred to in paragraph 1.

The Guarantee Fund ensures the management and operations of the investor protection system.

Art. 97. The FSMA informs the Guarantee Fund as soon as possible when it detects problems likely to give rise to the intervention of the investor protection system.

Unless bankruptcy has been declared, the FSMA takes the decision establishing that, for reasons directly related to its financial situation, a Belgian portfolio management and investment advisory company, an OPCA management company, or a collective investment scheme management company does not appear able to return or reimburse investors' cash deposits or financial instruments, and that the company will not be able to do so in the near future. This finding is made as soon as possible and in any case no later than five working days after it is first established that a portfolio management and investment advisory company, an OPCA management company, or a collective investment scheme management company has not returned cash deposits or has failed to return a financial instrument.

The Guarantee Fund ensures the reimbursement or compensation referred to in Article 96 within a period of three months, after the eligibility and amount of the investor's claim have been established. The FSMA may decide on an extension not exceeding three months. This extension may only be granted in very exceptional circumstances and for specific cases.

The failing portfolio management and investment advisory company, the failing OPCA management company, the failing collective investment scheme management company, or, if these are in bankruptcy, the trustee, shall at all times and at the request of the Guarantee Fund, communicate all data required by the latter to ensure the compensation of investors referred to in Article 96. The King may define the rules regarding the exchange of data between the portfolio management and investment advisory company, the OPCA management company, the collective investment scheme management company, or the trustee, on the one hand, and the Guarantee Fund, on the other.

If there is doubt regarding the accuracy of the data received by the Guarantee Fund in execution of the preceding paragraph, the portfolio management and investment advisory company, the OPCA management company, the collective investment scheme management company, or the trustee shall verify it at its request and transfer, if applicable, the corrected data.

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 failure to return or reimburse financial instruments that were entrusted in good faith ignorance of the prohibition imposed on these companies to receive, hold, or keep financial instruments from clients, up to a limit of 20,000 euros per investor and per portfolio management and investment advisory company, OPCA management company, or collective investment scheme management company adhering to this system, regardless of the currency in which the financial instruments are denominated.

The cash deposit component of the investor protection system established by the Guarantee Fund provides, up to a limit of 100,000 euros per investor and per portfolio management and investment advisory company, OPCA management company, or collective investment scheme management company adhering to this system, the reimbursement of cash deposits, which were made in good faith ignorance of the prohibition imposed on these companies to receive, hold, or keep cash deposits from clients, regardless of the currency in which they are denominated, provided that these cash deposits are not already covered by the deposit protection system referred to in Articles 380 to 384/1 of the Law of 25 April 2014.

Art. 99. The King may regulate the content of the information to be provided to investors by portfolio management and investment advisory companies, OPCA management companies, and collective investment scheme management companies concerning the coverage of their assets resulting from the aforementioned system.

Art. 100. The Guarantee Fund takes the necessary measures and provisions to enable branches of portfolio management and investment advisory companies, OPCA management companies, and collective investment scheme management companies subject to the law of another Member State to participate in the investor protection system which it manages, in order to complete, within the limits of this system, the guarantees provided by the system to which the company adheres in its State.

If the branch that has used the option provided for in paragraph 1 fails to meet its obligations towards the investor protection system, the Guarantee Fund, in collaboration with the FSMA, shall refer the matter to the competent authority that granted the authorization to the portfolio management and investment advisory company, the OPCA management company, or the collective investment scheme management company to which the branch belongs. In the event of failure to rectify the situation within twelve months, the Guarantee Fund may, with the prior opinion of this authority, exclude the branch after a notice period of twelve months. Forward commitments prior to exclusion remain covered by the protection system until their maturity. Other assets held prior to exclusion remain covered for twelve months. Investors are informed by the branch, or, failing that, by the FSMA, of the cessation of 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 portfolio management and investment advisory companies, OPCA management companies, and collective investment scheme management companies that adhere to it for the first time and for whom sufficient contributions have not been paid by a system to which they had previously adhered.

TITRE 5. - On intermediaries in foreign exchange trading

Art. 102.[1 Only the following are authorized to conduct in Belgium, for their own account or as a broker or agent, the trading of foreign exchange, whether forward or spot operations:
1° the National Bank of Belgium and the European Central Bank; 2° Belgian credit institutions; 3° foreign credit institutions authorized to exercise their activities in Belgium under the Law of 25 April 2014; 4° Belgian stockbroking companies referred to in Title II of Book XII of the Law of 25 April 2014; 5° foreign stockbroking companies authorized to exercise their activities in Belgium under Book XII, Title III of the Law of 25 April 2014; 6° Belgian payment institutions authorized by the Bank in accordance with Article 9 of the Law of 11 March 2018; 7° payment institutions subject to the law of another Member State authorized to exercise their activities in Belgium under the Law of 11 March 2018; 8° Belgian electronic money institutions authorized by the Bank in accordance with Article 169 of the Law of 11 March 2018; 9° electronic money institutions subject to the law of another Member State authorized to exercise their activities in Belgium under the Law of 11 March 2018; 10° the public law company bpost. With regard to the intermediaries referred to in paragraph 1, points 7° and 9°, the benefit of paragraph 1 applies only to foreign exchange services closely linked to the provision of payment services and/or the issuance of electronic money. In addition to the persons referred to in paragraph 1, persons registered in accordance with Article 103 may also carry out spot purchase or sale operations of foreign exchange, notably in the form of cash or checks denominated in foreign currency or by using a credit or payment card.]1 ---------- (1)<L 2018-03-11/07, art. 257, 004; En vigueur : 26-03-2018>

Art. 103. The King determines:
1° the rules regarding the registration of persons established in Belgium who, professionally, carry out the operations referred to in Article 102, paragraph 2, and the regime and control applicable to them; 2° the rules to which foreign exchange operations referred to in Article 102, paragraph 2, are subject.
The persons referred to in paragraph 1 must possess the necessary professional integrity and adequate expertise to carry out the activities referred to in Article 102, paragraph 2. They must not fall into any of the cases defined by Article 20 of the Law of 25 April 2014.
When it is a company, the aforementioned conditions apply to the persons responsible for effective management.
[1 The registration of the company shall be refused if the persons who directly or indirectly hold at least 5 percent of the capital or voting rights do not possess the necessary qualities with regard to the need to guarantee sound and prudent management of the company.]1 The King may provide that registration shall be refused, revoked, or suspended if the persons referred to in paragraph 1, 1°, do not meet the legal conditions or other conditions he determines. The King regulates the registration procedure as well as the suspension and revocation of registration. The FSMA may request, within the time limit it determines, from the institutions referred to in Article 102, paragraph 1, points 1° to 8°, information regarding transactions carried out between these institutions and these persons. ---------- (1)<L 2021-06-27/09, art. 257, 009; En vigueur : 19-07-2021>

TITRE 6. - Collaboration between competent authorities and communication of information

CHAPITRE 1er. - On collaboration between authorities

Art. 104. The FSMA may, as provided by Article 77, § 1, of the Law of 2 August 2002, refer to the European Securities and Markets Authority situations in which a request regarding activities of control, on-site verification, investigation, and exchange of information has been rejected or has not been followed up within a reasonable time.

Art. 105. The FSMA may, with the approval of the Minister of Finance, agree, on the basis of reciprocity, with the supervisory authorities of the home State of the foreign portfolio management and investment advisory company subject to the law of a third country and with those of other branches of this company established in states other than Belgium, on rules regarding the obligations and prohibitions of the branch of this portfolio management and investment advisory company in Belgium, the subject matter and modalities of its supervision, as well as the modalities of collaboration and exchange of information with these authorities. Agreements may derogate from the provisions of Section 3 of this chapter in order to establish rules and modalities more appropriate to the nature and distribution of the activities of the foreign portfolio management and investment advisory company and its control. Provided that there is overall control meeting the criteria provided for under Section 3 of this chapter, these agreements may dispense with the application of certain provisions of this section and of the decrees and regulations adopted for its implementation. The agreements provided for by this article may not, for the benefit of branches of a foreign portfolio management and investment advisory company subject to the law of a third country that they concern, contain rules more favorable than those applicable to branches established in Belgium of portfolio management and investment advisory companies subject to the law of another Member State. Agreements must contain a termination clause with a notice period that may not exceed six months. The FSMA publishes in its annual report the list and substance of agreements concluded under this article.

CHAPITRE 2. - On the communication of information

Art. 106. The FSMA provides the following information on its website:
1° the legislation regarding the status and control of investment firms, as well as decrees, regulations, and circulars adopted in execution or application of this legislation; 2° a table transposing the provisions of European directives regarding the prudential supervision of investment firms, indicating the options chosen; 3° the verification criteria and methods it uses to carry out the assessment referred to in Article 56, § 2; 4° aggregated statistical data on the main aspects related to the application of the legislation referred to in 1°; 5° any other information prescribed by decrees and regulations adopted in execution of this law. The information referred to in paragraph 1 is, where applicable, published on the FSMA website according to the modalities agreed between the Member States of the European Economic Area. The FSMA ensures that the information provided on its website is regularly updated.

TITRE 7. - Criminal sanctions

Art. 107.§ 1. Shall be punished by imprisonment of one month to one year and a fine of 50 EUR to 10,000 EUR or by one of these penalties only:
1° those who exercise the activity of an investment firm referred to in Article 3 without this firm being authorized or registered for this purpose in accordance with the provisions of this law, or after having renounced such authorization or registration, or having had such authorization or registration withdrawn, struck off, revoked, or suspended; 2° those who do not comply with Article 9; 3° those who knowingly refrain from making the notifications referred to in Article 31, §§ 1 and 5, those who disregard the opposition referred to in Article 31, § 3, or those who disregard the suspension referred to in Article 32, paragraph 1, 1°; 4° administrators, managers, or directors who violate Articles 36, 44, 55, paragraph 1, 1st and 3rd sentences, and paragraph 2, 59, § 2, paragraph 4, 1st sentence, and § 5, paragraphs 1 and 2, and 60, § 2, paragraph 8; 5° administrators, managers, or directors of an investment firm who, abroad, open a branch or provide services there without having carried out the notifications provided for by Articles 47 or 51 or who do not comply with Articles 50 and 53; 6° administrators, managers, or directors who violate decrees or regulations referred to in Articles 55, paragraph 1, 2nd 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, and 103; 8° those who perform acts or operations without having obtained the authorization of the special commissioner referred to in Article 64, § 1, 1° or against a [2 suspension decision taken in accordance with Article 64, § 1, 2°]2 ; 9° those who obstruct inspections and verifications to which they are subject in the country or abroad or refuse to provide information they are required to provide under Titles III and V or who knowingly provide inaccurate or incomplete information; [1 10° those who, knowingly, set up a specific mechanism within the meaning of Article 25, § 1/1.]1 § 2. Violations of Articles 24 and 45 shall be punished by imprisonment of three months to two years and a fine of 1,000 EUR to 10,000 EUR. § 3. Administrators, managers, or directors who do not comply with the provisions of regulations adopted in execution of Article 54 shall be punished by imprisonment of eight days to three months and a fine of 50 EUR to 10,000 EUR or by one of these penalties only. ---------- (1)<L 2021-06-02/03, art. 35, 008; En vigueur : 28-06-2021> (2)<L 2022-07-20/31, art. 91, 013; En vigueur : 15-09-2022>

Art. 108. The provisions of Book I of the Penal Code, without exception of Chapter VII and Article 85, apply to offenses punished by this title.

Art. 109. Companies are civilly liable for the fines imposed on their administrators, managers, directors, or agents in application of the provisions of this title.

Art. 110. Any information regarding offenses under this title or one of the legislations referred to in Article 24 against administrators, directors, managers, agents, or heads of independent control functions of portfolio management and investment advisory companies, and any information regarding offenses under this book against any other natural or legal person, must be brought to the attention of the FSMA by the judicial or administrative authority seized thereof. Any criminal action regarding the offenses referred to in paragraph 1 must be brought to the attention of the FSMA at the instance of the public prosecutor.

Art. 111. The FSMA is authorized to intervene at any stage before the criminal court seized of an offense punished by this law, without having to justify damage.
The intervention follows the rules applicable to a civil party.

TITRE 8. - Miscellaneous provisions

CHAPITRE 1er. - Transitional provisions

Art. 112. Portfolio management and investment advisory companies that hold an authorization at the date of entry into force of this law retain it for those investment services and/or auxiliary services referred to in Article 2, which correspond to their existing authorization.

Art. 113. Investment firms subject to the law of a Member State registered on the lists referred to in Articles 3 and 4 of the Royal Decree of 20 December 1995 on foreign investment firms are, by operation of law, registered on the lists referred to in Articles 10, § 4 and 11, § 2.
Branches of investment firms subject to the law of a third country that hold an authorization at the date of entry into force of this law retain it for those investment services and/or auxiliary services referred to in Article 2, which correspond to their existing authorization.
Investment firms subject to the law of a third country appearing on the list referred to in Article 25, § 2, paragraph 3 of the Royal Decree of 20 December 1995 on foreign investment firms are, by operation of law, included on the list referred to in Article 14, § 2, paragraph 3.

Art. 114. § 1. Royal decrees, FSMA regulations, and all other regulatory acts adopted in execution of the Law of 6 April 1995 on the status and control of investment firms remain applicable to the extent that the provisions of this law provide the general or specific legal authorizations necessary for these regulatory acts and that their content is not contrary to this law. § 2. Authorizations and derogations granted by the FSMA, as well as all individual scope acts adopted previously on the basis of the Law of 6 April 1995 on the status and control of investment firms or regulatory acts adopted for its implementation, remain in force, unless their revocation or modification is decided in accordance with this law.

[Art. 114] [115]. For the application of Articles 96 to 101, the words "Guarantee Fund" shall be understood as comprising both the Special Protection Fund for deposits, life insurance, and the capital of approved cooperative societies and the Deposit and Financial Instruments Protection Fund, according to their respective missions provided for by the Royal Decree of 14 November 2008 implementing the Law of 15 October 2008 on measures to promote financial stability and establishing in particular a State guarantee relative to credits granted and other operations carried out within the framework of financial stability, as regards the protection of deposits, life insurance, and the capital of approved cooperative societies, and amending the Law of 2 August 2002 on the supervision of the financial sector and financial services, and by the Law of 17 December 1998 creating a Deposit and Financial Instruments Protection Fund and reorganizing the deposit and financial instruments protection systems.

[CHAPTER 2.] - Modifying Provisions

[Art. 115] [116]. In Articles 92, § 3, 2°, 108, 1°, 145, 1°, 224, first paragraph, 311, first paragraph, 399, first paragraph, 422, first and third paragraphs, 449, first paragraph, 468, paragraph 6, 1°, 600, first paragraph, 771, 798, first paragraph, and 869 of the Companies Code, the words "the Law of 25 April 2014 on the status and control of credit institutions" are each time replaced by the words "the Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies".

[Art. 116] [117]. In Article 88, paragraph 2 of the same Code, the words "Article 1, § 3, of the Law of 6 April 1995 on secondary markets, the status of investment firms and their control, intermediaries and investment advisors" are replaced by the words "Article 2, 5° of the Law of 2 August 2002 on the supervision of the financial sector and financial services".

[Art. 117] [118]. In Article 92, § 3, 4° of the same Code, as amended by the Law of 18 December 2015, the words "Article 44 of the Law of 6 April 1995 on the status and control of investment firms, excluding the institutions referred to in Article 45 of that Law" are replaced by the words "Article 3 of the Law of 25 October 2016 on access to the activity of investment services provision and the status and control of portfolio management companies and investment advisory companies, excluding the institutions referred to in Article 4 of that Law".

[Art. 118] [119]. In Article 107, § 1, paragraph 4 of the same Code, the words "Article 1, § 3, of the Law of 6 April 1995 on secondary markets, the status of investment firms and their control, intermediaries and investment advisors" are replaced by the words "Article 2, 5° of the Law of 2 August 2002 on the supervision of the financial sector and financial services".

[Art. 119] [120]. In Article 108, 3°, of the same Code, as amended by the Law of 18 December 2015, the words "Article 44 of the Law of 6 April 1995 on the status and control of investment firms, excluding the institutions referred to in Article 45 of that Law" are replaced by the words "Article 3 of the Law of 25 October 2016 on access to the activity of investment services provision and the status and control of portfolio management companies and investment advisory companies, excluding the institutions referred to in Article 4 of that Law".

[Art. 120] [121]. In Article 141 of the same Code, as amended by the Law of 18 December 2015, the words "Article 47, § 1, 1°, of the Law of 6 April 1995 on the status and control of investment firms" are replaced by the words "Article 6, § 1, 1°, of the Law of 25 October 2016 on access to the activity of investment services provision and the status and control of portfolio management companies and investment advisory companies".

[Art. 121] [122]. In Article 145, 3°, of the same Code, the words "the Law of 6 April 1995 on secondary markets, the status of investment firms and their control, intermediaries and investment advisors" are replaced by the words "the Law of 25 October 2016 on access to the activity of investment services provision and the status and control of portfolio management companies and investment advisory companies".

[Art. 122] [123]. In Article 430, § 2, 1°, of the same Code, as amended by the Law of 25 April 2014, the words "enterprises governed by the Law of 25 April 2014 on the status and control of credit institutions" are replaced by the words "credit institutions governed by the Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies".

[Art. 123] [124]. In Article 468, paragraph 6, 2°, of the same Code, the words "the Law of 6 April 1995 on the status of investment firms and their control, intermediaries and investment advisors" are replaced by the words "the Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies".

[Art. 124] [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 on the status and control of credit institutions" are each time replaced by the words "credit institutions governed by the Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies".

[Art. 125] [126]. In Article 2 of the Law of 2 August 2002 on the supervision of the financial sector and financial services, as last amended by the Law of 27 June 2016, the following modifications are made:
1° in 1°, a), 34° and 41°, the words "Law of 25 April 2014 on the status and control of credit institutions" are each time replaced by the words "Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies"; 2° the first paragraph is supplemented by 49° drafted as follows:
"49° Law of 25 October 2016: the Law of 25 October 2016 on access to the activity of investment services provision and the status and control of portfolio management companies and investment advisory companies"; 3° in the second paragraph, the words "Law of 6 April 1995 on the status and control of investment firms" are replaced by the words "Law of 25 October 2016".

[Art. 126] [127]. In Article 19, § 3, paragraph 3 of the same Law, the words "Article 67, § 7, paragraphs 2 and 3, of the aforementioned Law of 6 April 1995" are replaced by the words "Article 32, paragraphs 2 and 3 of the Law of 25 October 2016".

[Art. 127] [128]. In Article 27, § 6, 4th dash 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 pursuant to Article 62bis of the Law of 6 April 1995 on the status and control of investment firms" are replaced by the words "of Articles 42 and 510 of the Law of 25 April 2014, insofar as the latter article makes the aforementioned Article 42 applicable to stock exchange companies, as well as by and pursuant to Article 26 of the Law of 25 October 2016".

[Art. 128] [129]. In the same Law, Article 28quater is inserted drafted as follows:
"Art. 28quater. The King may, on the opinion of the FSMA and the NBB, determine the obligations and prohibitions applicable to investment firms that exercise for professional clients activities of reception and transmission of orders relating to one or more financial instruments when this activity involves matching these professional clients thereby enabling a transaction to be executed between them. The present Royal Decree may determine in particular the conduct rules and incompatibility rules applicable to these firms, as well as the rules regarding the administrative and accounting treatment of these operations."

[Art. 129] [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 on the status and control of investment firms" are replaced by the words "Articles 65, §§ 1 and 2, and 528 of the Law of 25 April 2014, insofar as the latter article makes the aforementioned Articles 65, §§ 1 and 2, applicable to stock exchange companies".

[Art. 130] [131]. In Article 45, § 1, first paragraph of the same Law, as last amended by the Law of 22 April 2016, the following modifications are made:
1° in 3°, the following modifications are made:
a) in f), the words "Articles 21, 41, 42, 64 and 65, as well as Article 66 as regards 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 on the status and control of investment firms" are replaced by the words "Articles 21, 41, 42, 64 and 65, § 3, as well as Article 66 as regards the provision of investment services and the exercise of investment activities, of the Law of 25 April 2014, Articles 502, 510, 527 and 528, as well as Article 530 as regards the provision of investment services and the exercise of investment activities, of the same Law, insofar as Articles 502 and 528, first paragraph, of that Law make the aforementioned Articles 21 and 65, § 3, applicable to stock exchange 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 and 2, and 528, first paragraph, of the Law of 25 April 2014, insofar as the latter article makes the aforementioned Articles 65, §§ 1 and 2, applicable to stock exchange companies".
2° 5° is supplemented by the words "and against the illegal use of denominations reserved for approved, registered or recorded enterprises with the FSMA or the Bank".

[Art. 131] [132]. In Article 75, § 1, 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 firms" are replaced by the words "Article 59, §§ 6 and 7, of the Law of 25 October 2016".

[Art. 132] [133]. In Article 86bis, § 1, first paragraph of the same Law, as last amended by the Law of 19 April 2014, the following modifications are made:
a) in 2°, the words "Article 137 or Article 139 of the Law of 6 April 1995 on the status and control of investment firms" are replaced by the words "Article 102 or Article 103 of the Law of 25 October 2016". b) the paragraph is supplemented by 6°, drafted as follows:
"6° publicly uses in Belgium denominations or bears titles reserved by legal or regulatory provisions to approved, registered or recorded enterprises with the FSMA or the Bank, without having been approved, registered or recorded in accordance with the applicable legal or regulatory provisions, or after having renounced such approval, registration or recording or having had such approval, registration or recording withdrawn, removed or revoked."

[Art. 133] [134]. In Article 121, § 1, first paragraph, 4° of the same Law, as last amended by the Law of 29 June 2016, the words "Article 109, § 1, paragraph 2, or § 2, of the Law of 6 April 1995 on secondary markets, the status of investment firms and their control, intermediaries and investment advisors" are replaced by the words "Article 69, § 1, paragraph 2, or § 2, of the Law of 25 October 2016".

[Art. 134] [135]. In Articles 4, 1°, a) and d), and 5°, 8, first paragraph, 4°, 9, 1° and 2°, 10, § 1, paragraph 3, 12, § 1, 2° and § 2, 2° of the Law of 22 March 2006 on intermediation in banking services and investment services and the distribution of financial instruments, the words "banking law" are each time replaced by the words "Law of 25 April 2014".

[Art. 135] [136]. In Article 4 of the same Law, as last amended by the Law of 19 April 2014, the following modifications 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 25 October 2016"; 2° in 5°, the words "Article 44 of the investment services law" are replaced by the words "Article 3 of the Law of 25 October 2016"; 3° 7° is replaced by the following:
"7° Law of 25 April 2014: the Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies".
4° 9° is replaced by the following:
"9° Law of 25 October 2016: 'the Law of 25 October 2016 on access to the activity of investment services provision and the status and control of portfolio management companies and investment advisory companies'."

[Art. 136] [137]. In Article 5, § 1 of the same Law, as amended by the Royal Decree of 27 April 2007, the following modifications are made:
1° in paragraph 5, the words "within the meaning of Article 46, 23°, of the investment services law. The provisions provided for by and pursuant to Article 110 of the same Law are applicable" are replaced by the words "within the meaning of Article 2, 26°, of the Law of 25 October 2016. The provisions provided for by Articles 10, 70 to 82 of the Law of 25 October 2016 and by Articles 590, 592 to 600 of the Law of 25 April 2014 are applicable"; 2° in paragraph 6, the words "Article 79 of the investment services law" are replaced by the words "Article 44 of the Law of 25 October 2016 or Article 537 of the Law of 25 April 2014".

[Art. 137] [138]. In Article 11, § 1, of the same Law, paragraph 2 is replaced by the following:
"It must also comply with the following obligations:
1° the investment services referred to in Article 4, 1°, b), are limited to securities and units of collective investment undertakings; 2° it may at no time receive and hold funds and financial instruments, whether in cash or on an account, nor be in a debit position towards the saver or investor; it may not hold any mandate or power of attorney on a client's account, except for those of family members who are part of its household, nor hold or keep in deposit values or account books of its clients."

[Art. 138] [139]. In Article 12, § 1 of the same Law, as amended by the Law of 25 April 2014, the following modifications are made:
a) 3° is replaced by the following:
"3° the provision:

for its own account, of investment services referred to in Article 2, 1°, of the Law of 25 October 2016, and, for the account of third parties, of such investment services other than the investment services referred to in Article 4, 1°, and,
for its own account, of ancillary services referred to in Article 2, 2°, of the Law of 25 October 2016
Furthermore, a banking and investment service broker may not act as intermediary in ancillary services referred to in Article 2, 2°, 1) of the Law of 25 October 2016". b) in 4°, the words "Articles 137 to 139bis of the investment services law" are replaced by the words "Articles 102 and 103 of the Law of 25 October 2016".

[Art. 139] [140]. In Article 56, first paragraph of the Law of 16 June 2006 on public offers of investment instruments and admissions of investment instruments to trading on regulated markets, as last amended by the Law of 25 April 2014, the following modifications are made:
1° in b), the words "Law of 25 April 2014 on the status and control of credit institutions" are replaced by the words "Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies"; 2° in e), the words "in Book II, Title II, of the Law of 6 April 1995 on the status and control of investment firms" are replaced by the words "in Book XII, Title II of the Law of 25 April 2014"; 3° in 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 on access to the activity of investment services provision and the status and control of portfolio management companies and investment advisory companies"; 4° in g), the words "pursuant to Book II, Title III, of the Law of 6 April 1995" are replaced by the words "pursuant to Title II, Chapter III, Section 1 of the Law of 25 October 2016"; 5° in 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 "pursuant to the Royal Decrees taken in implementation of Book II, Title IV, of the Law of 6 April 1995" are replaced by the words "pursuant to Title II, Chapter III, Section IV of the Law of 25 October 2016".

[Art. 140] [141]. In Article 68bis, first paragraph of the same Law, as last amended by the Law of 25 April 2014, the following modifications are made:
a) in 1°, the words "the Law of 25 April 2014 on the status and control of credit institutions" are replaced by the words "the Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies"; b) in 4°, the words "referred to in Article 47 of the Law of 6 April 1995 on the status and control of investment firms, for deposits received in accordance with Article 77, § 1, paragraph 2, of the aforementioned Law" are replaced by the words "referred to in Article 1, § 3, paragraph 2 of the Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies, for deposits received in accordance with Article 533 of the aforementioned Law"; c) in 5°, the words "the Law of 25 April 2014 on the status and control of credit institutions" are replaced by the words "the Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies".

[Art. 141] [142]. In Article 25 of the Law of 27 October 2006 on the supervision of professional retirement institutions, replaced by the Law of 25 April 2014, the words "Law of 25 April 2014 on the status and control of credit institutions" are replaced by the words "Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies".

[Art. 142] [143]. In Article 10, § 1 of the Law of 1 April 2007 on public takeover bids, as amended by the Law of 25 April 2014, the following modifications are made:
a) in 2°, the words "Law of 25 April 2014 on the status and control of credit institutions" are replaced by the words "Law of 25 April 2014 on the status and control of credit institutions and stock exchange companies"; b) in 5°, the words "referred to in Book II, Title II, of the Law of 6 April 1995 on the status of investment firms and their control, intermediaries and investment advisors" are replaced by the words "referred to in Book XII, Title II of the aforementioned Law of 25 April 2014"; c) in 6°, the words "in accordance with Book II, Title III, of the aforementioned Law of 6 April 1995" are replaced by the words "in accordance with Title II, Chapter III, Section 1 of the Law of 25 October 2016 on access to the activity of investment services provision and the status and control of portfolio management companies and investment advisory companies"; d) in 7°, the words "in accordance with Book II, Title IV, of the aforementioned Law of 6 April 1995" are replaced by the words "in accordance with Title II, Chapter III, Section III of the aforementioned Law of 25 October 2016"; e) in 8°, the words "pursuant to the Royal Decrees taken in implementation of Book II, Title IV, of the aforementioned Law of 6 April 1995" are replaced by the words "pursuant to Title II, Chapter III, Section IV of the aforementioned Law of 25 October 2016".

[Art. 143] [144]. Articles 117 and 119 of the Royal Decree of 27 April 2007 aiming to transpose the European directive concerning markets in financial instruments are repealed.

[Art. 144] [145]. Article 120 of the same Royal Decree is replaced by the following:
"Art. 120. Article 12, § 1, 3° of the same Law, as amended by the Law of 25 October 2016, is supplemented by two paragraphs drafted as follows:
'Furthermore, a banking and investment service broker may, by way of derogation from the first paragraph, offer for its own account investment advisory services referred to in Article 2, 1°, 5), of the Law of ..., concerning securities and units of collective investment undertakings.
The King may impose specific organizational rules as well as conduct rules on banking and investment service brokers that offer investment advisory services for their own account.'".

Art. 146. Article 40, § 1, first paragraph of the Law of 21 December 2009 on the status of payment institutions and electronic money institutions, on access to the activity of payment service providers, on the activity of electronic money issuance, and on access to payment systems, last amended by the Law of 27 November 2012, is supplemented by a fourth paragraph drafted as follows:

"Article 21, § 7, first paragraph is applicable to the payment institutions referred to in Article 39 who exercise their activity in Belgium through branches. However, the payment institutions referred to in Article 39 who exercise in Belgium an activity of currency exchange operations referred to in Article 103 of the Law of ... on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies, through branches, are, for this activity, included in the list of registered exchange offices in Belgium with the mention 'payment institution exercising activities referred to in Article 103 of the Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies'. To this end, the concerned payment institutions notify the FSMA of the exercise of this currency exchange activity."

Art. 147. In Article 48, § 1, of the same law, the second paragraph is replaced by the following paragraph:

"The Bank may not exempt these legal persons from the application of Articles 21, paragraphs 1 to 6 and 8, and 22."

Art. 148. In Article 3 of the Law of 3 August 2012 on collective investment undertakings that meet the conditions of Directive 2009/65/EC and on collective investment undertakings in debt, last amended by the Law of 13 March 2006, the following modifications are made:

1° in the 39°, the words "in Book II, Titles II to IV, of the Law of 6 April 1995" are replaced by the words "in Title II of the Law of 25 October 2016";

2° in the 47°, the words "the Law of 25 April 2014 on the status and supervision of credit institutions" are replaced by the words "the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies";

3° the 48° is replaced by the following:

"48° Law of 25 October 2016: the Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies".

Art. 149. In Article 42, § 1, 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 Article 50, § 2, 3°, of the same law, the words "which are subject to the Law of 6 April 1995" are replaced by the words "which are subject to Book XII of the Law of 25 April 2014".

Art. 151. In Article 71, first paragraph of the same law, last amended by the Law of 19 April 2014, the following modifications are made:

1° in 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 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 "by virtue of Book II, Title III, of the Law of 6 April 1995" are replaced by the words "by virtue of Title II, Chapter III, Section 1 of the Law of 25 October 2016";

4° in 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 "by virtue of the regulations taken in execution of Book II, Title IV, of the Law of 6 April 1995" are replaced by the words "by virtue of Title II, Chapter III, Section IV of the Law of 25 October 2016".

Art. 152. In Articles 85, § 2 and 154, § 2, second paragraph of the same law, amended by the Law of 25 April 2014, the words "Article 53 of the Law of 6 April 1995" are each time replaced by the words "Article 7, second paragraph, a) of the Law of 25 October 2016".

Art. 153. In Article 187 of the same law, amended by the Law of 25 April 2014, the following modifications are made:

a) in 1°, the words "referred to 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 "referred to 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, 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 Article 205 of the same law, 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, first paragraph of the same law, amended by the Law of 19 April 2014, 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. 157. In Article 241 of the same law, last amended by the Law of 13 March 2016, the following modifications are made:

1° in the first paragraph, first paragraph, 2°, 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 the first paragraph, second paragraph, the words "of Article 95 of the Law of 6 April 1995" are replaced by the words "to the provisions of Sub-section 1 of Section IV of Book XII, Title II, Chapter III of the same law, of Article 59 of the Law of 25 October 2016";

3° in the fifth paragraph, first paragraph, 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, Title II, Chapter III of the same law, of Article 60 of the Law of 25 October 2016".

Art. 158. In Article 5, 51° of the Law of 4 April 2014 on insurance, replaced by the Law of 26 October 2015, the words "the Law of 25 April 2014 on the status and supervision of credit institutions" are replaced by the words "the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies".

Art. 159. In Article 3 of the Law of 19 April 2014 on alternative investment funds and their managers, the following modifications are made:

1° in the 75°, the words "the Law of 25 April 2014 on the status and supervision of credit institutions" are replaced by the words "the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies";

2° the 76° is replaced by the following:

"76° 'Law of 25 October 2016': the Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies".

Art. 160. In Article 33, first paragraph 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 Article 35 of the same law, 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, first paragraph, 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, first paragraph of the same law, the words "Article 53 of the Law of 6 April 1995" are replaced by the words "Article 7, second paragraph, a) of the Law of 25 October 2016".

Art. 165. In Article 307 of the same law, the following modifications are made:

1° in 1°, the words "referred to 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 "referred to in Title II of the Law 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, first paragraph, 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 Article 345 of the same law, the following modifications are made:

1° in the first paragraph, the following modifications are made:

a) in the first paragraph, 2°, 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 the second paragraph, the words "of Article 95 of the Law of 6 April 1995" are replaced by the words "to the provisions of Sub-section 1 of Section IV of Book XII, Title II, Chapter III of the same law, of Article 59 of the Law of 25 October 2016";

2° in the fifth paragraph, first paragraph, 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, Title II, Chapter III of the same law, of Article 60 of the Law of 25 October 2016".

Art. 168. In Articles I. 9, 71° and 82°, XV. 57/1, first paragraph, and XV. 67/3, § 1, first and second paragraphs, and § 2, first paragraph of the Code of Economic Law, the words "Law of 25 April 2014 on the status and supervision of credit institutions" are each time replaced by the words "Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies".

Art. 169. In Article I. 9 of the same Code, inserted by the Law of 19 April 2014 and last amended by the Law of 29 June 2016, the following modifications are made:

1° in 2°, a) the words "Article 1, second paragraph, of the Law of 22 March 1993 on the status and supervision of credit institutions" are replaced by the words "Article 1, § 3, first paragraph of the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies";

2° the 83° is replaced by the following:

"83° Law of 25 October 2016: Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies".

Art. 170. In Article III. 25, second paragraph of the same Code, inserted by the Law of 17 July 2013, the words "the Law of 22 March 1993 on the status and supervision of credit institutions" are replaced by the words "the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies".

Art. 171. In Article III. 95, § 1 of the same Code, inserted by the Law of 17 July 2013, the words "subject to the Law of 22 March 1993 on the status and supervision of credit institutions, as well as to investment firms subject to the Law of 6 April 1995 on secondary markets, the status of investment firms and their supervision, placement intermediaries and advisors" are replaced by the words "subject to the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies, as well as to investment firms subject to the Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies".

Art. 172. In Article VI. 55, § 1, 4°, b) of the same Code, inserted by the Law of 21 December 2013, the words "the Law of 22 March 1993 on the status and supervision of credit institutions" are replaced by the words "the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies".

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, § 3, of the Law of 25 April 2014 on the status and supervision of credit institutions, for the purpose of allowing an investor to effect 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, § 3, first paragraph of the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies, for the purpose of allowing an investor to effect a transaction related to at least one of the financial instruments referred to in Article 2, 1°, of the Law of 2 August 2002".

Art. 174. In Article VII.173 of the same Code, inserted by the Law of 19 April 2014 and last amended by the Law of 13 March 2016, the words "Article 53 of the Law of 6 April 1995" are replaced by the words "Article 7 of the Law 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 the Law of 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, second paragraph of the same Code, inserted by the Law of 19 April 2014, the words "to Articles 13 and 65 of the Law of 22 March 1993 on the status and supervision of credit institutions" are replaced by the words "to Articles 14 and 312 of the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies".

Art. 177. XI. 250, second paragraph, 2°, of the same Code, inserted by the Law of 19 April 2014, a) and b) are replaced by the following:

"a) to Article 107 of the Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies; b) to Articles 348 and 349 of the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies;".

Art. 178. In Article 4, 3° of the Law of 25 April 2014 on the status and supervision of independent financial planners and the provision of planning consultations by regulated companies and amending the Companies Code and the Law of 2 August 2002 on the supervision of the financial sector and financial services, the following modifications are made:

1° in a), the words "Law of 25 April 2014 on the status and supervision of credit institutions" are replaced by the words "Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies";

2° in b), the words "Article 44 of the Law of 6 April 1995 on the status and supervision of investment firms" are replaced by the words "Article 3 of the Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies".

Art. 179. In Article 12, § 2, of the same law, the words "Law of 25 April 2014 on the status and supervision of credit institutions" are replaced by the words "Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies".

Art. 180. In Article 18, § 1 of the same law, the words "Article 46, 9° of the Law of 6 April 1995 on the status and supervision of investment firms" are replaced by the words "Article 2, 9° of the Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies".

Art. 181. In Article 22, § 2, 4° of the same law, the words "referred to in Articles 137 and 139 of the Law of 6 April 1995 on the status and supervision of investment firms" are replaced by the words "referred to in Articles 102 and 103 of the Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies".

Art. 182. In Article 26, § 2, first paragraph, d) of the same law, the words "referred to in Article 46, 9°, of the Law of 6 April 1995 on the status and supervision of investment firms" are replaced by the words "referred to in Article 2, 9° of the Law of 25 October 2016 on access to the activity of investment services provision and the status and supervision of portfolio management and investment advisory companies".

Art. 183. In Article 2, 37° of the Law of 12 May 2014 on regulated real estate companies, the words "the Law of 25 April 2014 on the status and supervision of credit institutions" are replaced by the words "the Law of 25 April 2014 on the status and supervision of credit institutions and stockbroking companies".

Art. 184. The King may adapt the references contained in other legislation that refer to legal provisions contained in the Law of 6 April 1995 on the status and supervision of investment firms or its implementing regulations to bring them into conformity with the provisions of this law or its implementing regulations and decrees.

CHAPITRE 3. - Repealing Provisions

Art. 185. The Law of 6 April 1995 on the status and supervision of investment firms is repealed.

Art. 186. The Royal Decree of 20 December 1995 on foreign investment firms is repealed.

Art. 187. The Royal Decree of 17 June 1996 increasing the limits within which credit institutions and investment firms may hold shareholding rights and participations is repealed.

Art. 188. The Royal Decree of 29 January 1999 designating investment firms required to participate in a collective protection system for financial instruments is repealed.

ANNEXE.

ANNEXE 1. [1 REMUNERATION POLICY]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 92, 013; En vigueur : 15-09-2022>

Section 1. [1 - Structure of the remuneration policy]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 92, 013; En vigueur : 15-09-2022>

Art. 1. [1 § 1. The remuneration policy provides for an appropriate balance between the fixed and variable components of total remuneration. The fixed remuneration represents a sufficiently significant share of total remuneration to ensure the exercise of a variable remuneration policy that is fully flexible, and in particular the possibility of paying no variable remuneration. § 2. The remuneration policy defines the appropriate ratios between the fixed and variable components of total remuneration, taking into account the activities of the portfolio management and investment advisory company and the risks associated with them, as well as the impact that the different categories of staff referred to in Article 37/1, § 3 have on the risk profile of the portfolio management and investment advisory company. It provides that the variable remuneration of each person is, in any case, limited to the higher of the following two amounts:

50% of the fixed remuneration;
€50,000, provided that this amount may not exceed that of the fixed remuneration.]1

(1)<Inséré par L 2022-07-20/31, art. 92, 013; En vigueur : 15-09-2022>

Section II. [1 - Variable remuneration]1 ---------- (1)<Inséré par L 2022-07-20/31, art. 92, 013; En vigueur : 15-09-2022>

[Art. 2] The total volume of variable remuneration may not limit the company's ability to strengthen its own funds.

[Art. 3] The total amount of variable remuneration is established by combining the assessment of the performance of the person and the relevant business unit with that of the overall results of the company.
The assessment of individual performance takes into account financial and non-financial criteria.
The assessment of performance is based on a period of several years, taking into account the company's economic cycle and its economic risks.

[Art. 4] The assessment of performance, for the purposes of calculating the variable remuneration of individuals or groups to which they belong, is adjusted according to all types of current and future risks and takes into account the cost of capital and the liquidity required in accordance with Regulation (EU) 2019/2033.
When allocating the variable components of remuneration within the company, all types of current and future risks are also taken into account.

[Art. 5] Any guaranteed variable remuneration is prohibited, except exceptionally when recruiting new staff and provided that the company has strong capital and it is strictly limited to the first year following recruitment.

[Art. 6] § 1. At least 50% of any variable remuneration, including its deferred portion under Article 7 of this Annex, is composed of one of the following instruments:

Shares or, depending on the legal structure of the relevant company, equity participations equivalent to capital or financial instruments linked to shares or, depending on the legal structure of the relevant company, equivalent non-liquid instruments ("non-cash instruments");
Other capital instruments that meet the conditions to be eligible as additional tier 1 or tier 2 capital instruments, or other instruments that can be fully converted into common equity tier 1 capital instruments or can be fully written down, and which in any case correctly reflect the credit quality of the company from a going-concern perspective; or
Non-liquid instruments ("non-cash instruments") that reflect the instruments in the portfolios under management.
When a portfolio management and investment advisory company does not issue any of the instruments referred to in this paragraph, the FSMA may approve the use of other mechanisms fulfilling the same objectives.
§ 2. The instruments referred to in paragraph 1 are subject to an appropriate holding policy, whereby the holder of the instruments is required to retain ownership, intended to align the person's incentives with the long-term interests of the company, its creditors, and its clients. The FSMA may prohibit or restrict the types of instruments whose characteristics do not meet this requirement.

[Art. 7] The payment of at least 40% of the variable remuneration is deferred for a minimum period of three to five years depending on the duration of the economic cycle of the portfolio management and investment advisory company, the nature of its activities, its risks, as well as the activities of the person concerned.
When the amount of variable remuneration is particularly high, the percentage of deferred variable remuneration referred to in the first paragraph must be at least 60%.
Variable remuneration that is due under deferral mechanisms vests no faster than pro rata.

[Art. 8] § 1. Variable remuneration granted by portfolio management and investment advisory companies, including the deferred portion, is paid or vested only if its amount is sustainable given the overall financial situation of the company and if it is justified by the performance of the company, the business unit, and the person concerned.
§ 2. The total variable remuneration of the portfolio management and investment advisory company is significantly reduced if the company generates reduced or negative financial returns.
The reduction referred to in the first paragraph applies to both variable remuneration not yet vested, variable remuneration vested but not yet paid, as well as that which has already been effectively paid, inter alia through malus or clawback mechanisms.
The total amount of variable remuneration is subject to a malus or clawback provision, particularly in situations where the person concerned:
a) participated in practices that resulted in significant losses for the company, or was responsible for them; b) is no longer considered to possess the required professional expertise and integrity; c) participated in a specific mechanism intended or having the effect of facilitating tax fraud by third parties.

Section III. - Pensions

[Art. 9] The pension policy is consistent with the company's economic strategy, objectives, values, and long-term interests.
If a staff member leaves the company before reaching retirement age, discretionary pension benefits related to that member are retained by the company for a period of five years in the form of instruments referred to in Article 6 of this Annex.
In the case of a staff member who reaches retirement age and retires, discretionary pension benefits are paid to them in the form of instruments referred to in Article 6 of this Annex, these instruments being subject to a holding period of five years.
The provisions of Article 8, § 2 of this Annex apply to discretionary pension benefits.

Section IV. - Exemptions

[Art. 10] Articles 6, 7, and 9, paragraphs 2 and 3, of this Annex are not applicable:

To portfolio management and investment advisory companies whose total value of on-balance sheet and off-balance sheet assets is, on average, less than or equal to 100 million euros over the four-year period immediately preceding the current financial year and, where applicable, to portfolio management and investment advisory companies referred to in Article 25/2, § 6, paragraph 2 of the law;
To a staff member whose annual variable remuneration does not exceed 50,000 euros and does not represent more than one quarter of the staff member's total annual remuneration.

Section V. - Anti-abuse provisions

[Art. 11] Persons referred to in Article 37/1, § 3, refrain from carrying out operations, including insurance operations, that undermine, in whole or in part, compliance with the provisions of this Annex, in particular operations intended or likely to neutralize the risk arising from the terms of their variable remuneration.

[Art. 12] Portfolio management and investment advisory companies refrain from allocating or paying variable remuneration through vehicles or methods that facilitate non-compliance with the provisions of this law or Regulation (EU) 2019/2033.

Section VI. - Severance and entry bonuses

[Art. 13] For the purposes of this Annex, severance pay means any form of remuneration or compensation granted to a person referred to in Article 37/1, § 3 upon their departure, regardless of the timing of this departure and whether it is voluntary or not. A severance pay may, where applicable, include a termination indemnity, namely a sum/compensation paid in connection with the early termination of an employment contract or a social mandate on a non-voluntary basis for a person referred to in Article 73, paragraphs 2, 3, and, where applicable, 4. Any severance pay constitutes variable remuneration to which the provisions of Articles 1 to 8 of this Annex therefore apply. Without prejudice to the Code of Companies and Associations, any severance pay must take into account actual long-term performance and be designed so as not to reward failure or misconduct. Furthermore, a severance pay whose amount exceeds an amount equivalent to 12 months of fixed remuneration, or, on the reasoned and compliant opinion of the remuneration committee, an amount exceeding an amount equivalent to 18 months of fixed remuneration, may not be granted, notwithstanding any contrary statutory provision or contractual clause, subject to the approval of the first ordinary general meeting following. The procedure provided for in Article 7:92, paragraphs 2 and 3, of the Code of Companies and Associations applies by analogy.

[Art. 14] § 1. By way of exception to Article 13, paragraph 2 of this Annex, Articles 1, § 2, and 2 to 8 of this Annex are not applicable to:

Severance pay consisting of an amount intended to compensate for loss of income under a non-compete clause, for which the company can demonstrate to the FSMA, prior to its granting, that it meets the qualification criteria for fixed remuneration;
Severance pay granted to a person within the framework of an employment contract or a social mandate consisting of a termination indemnity, up to the amount to which the person concerned is entitled or would, by analogy, have been entitled based on their seniority, under the legal provisions relating to dismissal within the framework of an employment contract.
§ 2. In the case of severance pay consisting of a termination indemnity, by way of exception to Article 13, paragraph 2 of this Annex, the whole or part of the amount of indemnities not benefiting from the exceptions provided for in paragraph 1 may, furthermore, be exempted from the application of Articles 1, § 2, 6, and 7 of this Annex provided that this exemption is duly motivated and previously notified to the FSMA and that this exemption can exclusively be justified in the specific and exceptional situations referred to by the European Banking Authority Guidelines on remuneration policies.

[Art. 15] Bonuses paid upon entry into office and intended to compensate for a loss related to a previous employment contract must be consistent with the long-term interests of the company.

Section VII. - Exceptional public financial support

Sub-section 1. - Variable remuneration - General limitation

[Art. 16] For the purposes of this Section, exceptional public financial support:

Is presumed, irrebuttably, to exist when:

loans granted by the Federal State have not yet been repaid;
a guarantee granted by the Federal State has not expired or has not been released;

Without prejudice to point 1, ends when the following conditions are cumulatively met:

the company must not draw up a restructuring plan based on a decision of the European Commission, or has fully and correctly complied with such a plan; a restructuring plan is considered fully and correctly complied with when the company can demonstrate that it has implemented all structural measures (in particular the sale of participations) and that restrictive measures (in particular the prohibition on taking control of companies) are no longer applicable, the company having, furthermore, demonstrated that it has complied with the obligations incumbent upon it regarding the planned withdrawal of support from public authorities; and
the FSMA certifies that the company complies with the provisions of this law and the decrees and regulations adopted for its implementation as well as with Regulation (EU) 2019/2033 or Regulation No 575/2013 regarding the solvency and liquidity requirements applicable.

[Art. 17] In the case of portfolio management and investment advisory companies benefiting from exceptional public financial support within the meaning of Article 2, § 1, point 28) of Directive 2014/59/EU, variable remuneration is, without prejudice to Article 18 of this Annex, strictly limited to a percentage of the company's total profit when this remuneration is not compatible with maintaining a sound financial base and a timely exit from the public aid program. Companies benefiting from the support referred to in the first paragraph restructure remuneration in a manner consistent with sound risk management and long-term growth, including, where appropriate, by setting limits on the remuneration of members of the administrative body and persons who, in the absence of a management committee, participate in effective management.

[Art. 18] In the event of exceptional public financial support, no variable remuneration is paid, directly or indirectly, to members of the company's administrative body nor to persons in charge of effective management, nor, where applicable, to members of the management committee.

Section VIII. - Publication and communication

[Art. 19] Portfolio management and investment advisory companies publish their remuneration policy in accordance with the provisions of applicable European law, in particular Article 51 of Regulation (EU) 2019/2033.
The companies provide the FSMA with the information published in accordance with Article 51, paragraph 1, points c) and d) of Regulation (EU) 2019/2033, as well as information on the gender pay gap so that it can carry out comparative analyses of trends and practices in remuneration.

Art. 20.[1] Companies shall provide the FSMA with information on the number of persons who benefit within the company from remuneration of at least one million euros per financial year, broken down by increments of one million euros, including a description of their professional responsibilities, the area of activity concerned, and the main elements of remuneration, including bonuses, long-term incentives, and pension contributions.

At the request of the FSMA, portfolio management companies and investment advisory companies shall provide the total remuneration amounts for each member of the administrative body and each person responsible for effective management, and where applicable, each member of the management committee.

The FSMA shall transmit the information referred to in paragraphs 1 and 2 to the European Banking Authority.[1]

(1)Inserted by Law of 20-07-2022/31, art. 92, 013; Effective: 15-09-2022

Parliamentary Works

Chamber of Representatives (www.lachambre.be): Documents: 54-2060.

Signatures

Given in Brussels, on 25 October 2016.
PHILIPPE
By the King:
The Minister of Finance,
J. VAN OVERTVELDT
Seal of the State:
The Minister of Justice,
K. GEENS

Preamble

PHILIPPE, King of the Belgians,
To all, present and future, Greetings.
The Chamber of Representatives has adopted and We sanction the following:

Modification Sheet

Law of 22-07-2026 published on 07-08-2026

Articles modified:
2; 3; 16; 44/1; 45/1; 105/1

Law of 11-12-2025 published on 24-12-2025

Articles modified:
2; 40

Article modified:
4

Law of 25-03-2025 published on 28-04-2025

Articles modified:
2; 25; 56; 56/1; 61; 63; 68; 69

Law of 20-12-2023 published on 15-01-2024

Articles modified:
64; N1

Law of 20-07-2022 published on 05-09-2022

Articles modified:
1; 2; 2/2; 3; 4; 6; 7; 10; 11; 13; 14; 16; 17; 21; 24; 25; 25/1; 25/2; 25/3; 26; 26/3; 27; 29/1; 30; 34; 34/1; 34/2; 35/1; 36; 37/1; 37/2; 40; 54; 55; 56; 58; 58/1; 58/2; 58/3; 58/4; 58/5; 58/6; 58/7; 58/8; 58/9; 58/10; 58/11; 59; 59/1; 59/2; 59/3; 59/4; 59/5; 59/6; 59/7; 58/8; 59/9; 62/1; 62/2; 62/3; 62/4; 63/1; 63/2; 64; 66; 67; 67/1; 68; 69; 74; 74/1; 76; 81; 84; 85/1

Articles modified:
85/2; 107

Law of 23-02-2022 published on 04-04-2022

Articles modified:
2; 4; 26/1

Law of 04-07-2021 published on 13-07-2021

Article modified:
2

Law of 27-06-2021 published on 09-07-2021

Articles modified:
9; 20; 22; 25/1; 25/2; 28; 30; 31; 32; 33; 34/1; 36; 41; 61; 62; 95; 103; 3; 23; 25/1; 25/2; 25/3; 34; 34/1; 35; 35/1; 36; 54; 69

Articles modified:
2/1; 10; 11

Article modified:
4

Law of 02-06-2021 published on 18-06-2021

Articles modified:
25; 64; 76; 85; 107

Law of 28-04-2020 published on 06-05-2020

Articles modified:
44/1; 44/2

Law of 02-05-2019 published on 21-05-2019

Articles modified:
8; 13; 25; 26; 27; 29; 36; 44; 56/1; 73; 76

Law of 03-04-2019 published on 10-04-2019

Articles modified:
14; 14/1

Law of 15-04-2018 published on 27-04-2018

Articles modified:
32; 64; 95

Law of 11-03-2018 published on 26-03-2018

Articles modified:
2; 102

Law of 05-12-2017 published on 18-12-2017

Articles modified:
23; 25; 35

Law of 21-11-2017 published on 07-12-2017

Articles modified:
1; 2; 3; 4; 5; 10; 11; 12; 13; 14; 14/1; 14/2; 23; 25; 25/1; 25/2; 25/3; 26; 26/1; 26/2; 31; 32; 33; 34; 34/1; 35; 35/1; 36; 47; 48; 49; 51; 52; 56; 56/1; 64; 65; 68; 69; 74; 75; 83; 84; 85; 87

Links

https://www.ejustice.just.fgov.be/eli/loi/2016/10/25/2016003373/justel Image of the official publication Consolidated PDF version

External Links

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