Royal Decree of 15 May 2003 regulating the expedited procedure for appeals before the Council of State against certain decisions of the Banking and Finance Commission

15 MAY 2003. — Royal Decree regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the Banking and Finance Commission

ALBERT II, King of the Belgians,

To all whom these presents shall come, Greeting.

Having regard to the laws on the Council of State, coordinated on 12 January 1973, in particular Article 30, § 2bis, inserted by the law of 2 August 2002 supplementing, regarding the remedies against decisions taken by the Minister, the CBF, the OCA and the market undertakings and regarding the intervention of the CBF and the OCA before the criminal courts, the law of 2 August 2002 on the supervision of the financial sector and financial services and amending various other legal provisions;

Having regard to the law of 2 August 2002 on the supervision of the financial sector and financial services, in particular Article 122;

Having regard to the request for urgent treatment, motivated by the fact that, on 1 June 2003, Article 122 of the law of 2 August 2002 on the supervision of the financial sector and financial services will enter into force, allowing an appeal to be lodged directly before the Council of State, according to an expedited procedure, against certain decisions of the Banking and Finance Commission and that at the same time, on 1 June 2003, certain provisions of the law of 4 December 1990, the law of 22 March 1993 and the law of 6 April 1995 providing for an administrative appeal before the Minister of Finance will be repealed;

Having regard to Opinion 35.291/4 of the Council of State, given on 22 April 2003, in application of Article 84, first paragraph, 2°, of the coordinated laws on the Council of State;

On the proposal of Our Minister of the Interior and of Our Minister of Finance and on the advice of Our Ministers who have deliberated in Council,

Have decided and do decide:

Article 1. For the purposes of this Decree, the following shall be understood:

1° the law: the law of 2 August 2002 on the supervision of the financial sector and financial services;

2° the CBF: the Banking and Finance Commission.

Art. 2. The appeal referred to in Article 122 of the law must, under penalty of forfeiture, be lodged by registered letter within fifteen days of the notification of the contested decision or, when the CBF has not ruled within the period fixed by or pursuant to the law, within fifteen days of the expiry of that period.

The case is brought before the Council of State by a petition signed by the applicant or, if the applicant is a legal person, by the person or persons legally or statutorily authorized to represent the legal person in court, or by a lawyer enrolled on the roll of the Order of Lawyers or on the list of trainees, as well as, in accordance with the provisions of the Judicial Code, by a national of a Member State of the European Union who is entitled to practice the profession of lawyer. The petition is addressed to the Council of State by registered letter, accompanied by four certified copies and a copy of the decision against which the appeal is lodged. A list of supporting documents is attached to the petition, accompanied by four certified copies.

Art. 3. § 1. Within three days of receiving the petition, the clerk shall send to the CBF, by registered letter, a copy of every petition lodged in accordance with Article 2.

§ 2. Within one month of receiving this copy, the CBF shall transmit a statement of defence and the case file to the registry of the Council of State.

§ 3. Within three months of receiving the CBF's statement of defence, the member of the auditorium shall prepare his report.

§ 4. If the chamber, within six months of the lodging of the petition and after reviewing the report on the state of the case, considers that the case is ready for judgment, the President shall fix the date on which it will be called. If the chamber considers that new inquiries should be ordered, it shall designate a Councillor of State or a member of the auditorium to do so, who shall prepare an additional report within one month of his designation. This report shall be dated, signed and sent to the chamber.

The order fixing the case or referring it for further investigation shall be issued within one month of the filing of the report.

The order fixing the case shall be notified, together with the reports, to the applicant and the CBF. The order fixes the case within one month.

§ 5. The judgment must be delivered within three months of the closing of the debates. This period may be extended by order of the chamber, after the opinion of the Advocate General, provided that the total duration of the extensions does not exceed one month.

§ 6. The judgment shall be notified to the applicant and the CBF.

§ 7. The provisions of Articles 2, § 1, 1° and 2°, 5, 12, 16, 17, 20 to 27, 29, 33 to 37, 40 to 51, 55 to 65, 70, 72, 77, 84, 86 to 88, 91, 93 and 94 of the Royal Decree of 23 August 1948 regulating the procedure before the administrative section of the Council of State shall apply to the legal proceedings regulated by this Article.

Art. 4. The appeal referred to in Article 122 of the law may only be lodged 15 days after the applicant has unsuccessfully requested, by registered letter with acknowledgment of receipt, the management committee of the CBF to withdraw or modify the contested decision.

The applicant is not, however, required to delay the lodging of his appeal if the CBF has indicated that it intends to proceed with the execution of its decision notwithstanding any request for its withdrawal or modification. The time limit for lodging an appeal as referred to in Article 2 shall be extended by one month from the date of sending the registered letter requesting the withdrawal or modification of the contested decision, provided that this letter was sent before the expiry of the time limit referred to in Article 2.

Art. 5. The list contained in Article 95 of the aforementioned Royal Decree of 23 August 1948 is supplemented as follows:

« 7° Article 122 of the law of 2 August 2002 on the supervision of the financial sector and financial services. »

Art. 6. This Royal Decree shall enter into force on 1 June 2003.

Art. 7. Our Minister of the Interior and Our Minister of Finance are each charged, insofar as he is concerned, with the implementation of this Decree.

Given at Brussels, 15 May 2003.

ALBERT

By the King:

The Minister of the Interior,
A. DUQUESNE

The Minister of Finance,
D. REYNDERS

15 MAY 2003. — Royal Decree regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the Banking and Finance Commission

ALBERT II, King of the Belgians,

To all, present and future, Greeting.

Having regard to the laws on the Council of State, coordinated on 12 January 1973, in particular Article 30, § 2bis, inserted by the law of 2 August 2002 supplementing, regarding the remedies against decisions taken by the Minister, by the CBF, by the OCA and by the market undertakings and regarding the intervention of the CBF and of the OCA before the criminal courts, the law of 2 August 2002 on the supervision of the financial sector and financial services and amending various other legal provisions;

Having regard to the law of 2 August 2002 on the supervision of the financial sector and financial services, in particular Article 122;

Having regard to the urgency motivated by the entry into force, on 1 June 2003, of Article 122 of the law of 2 August 2002 on the supervision of the financial sector and financial services allowing an appeal to be lodged directly, according to an expedited procedure, before the Council of State against certain decisions of the Banking and Finance Commission and the concomitant repeal of certain provisions of the law of 4 December 1990, of the law of 22 March 1993 and of the law of 6 April 1995 providing for an administrative appeal before the Minister of Finance;

Having regard to Opinion 35.291/4 of the Council of State given on 22 April 2003, in application of Article 84, first paragraph, 2°, of the coordinated laws on the Council of State;

On the proposal of Our Minister of the Interior and of Our Minister of Finance and on the advice of Our Ministers who have deliberated in Council,

Have decided and do decide:

Article 1. For the application of this Decree, the following shall be understood:

1° the law: the law of 2 August 2002 on the supervision of the financial sector and financial services;

2° the CBF: the Banking and Finance Commission.

Art. 2. The appeal provided for in Article 122 of the law must, under penalty of forfeiture, be lodged by registered letter within fifteen days of the notification of the contested decision or, when the CBF has not ruled within the period fixed by or pursuant to the law, within fifteen days of the expiry of that period.

The Council of State is seized by a petition signed by the applicant or, if the applicant is a legal person, by the person or persons legally or statutorily authorized to represent him in court or by a lawyer enrolled on the roll of the Order of Lawyers or on the list of trainees, as well as, in accordance with the provisions of the Judicial Code, by a national of a Member State of the European Union who is authorized to practice the profession of lawyer. It is addressed to the Council of State by registered letter, accompanied by four certified copies and a copy of the decision against which the appeal is made. A list of supporting documents is attached to the petition, accompanied by four certified copies.

Art. 3. § 1. Within three days of receiving the petition, the clerk shall transmit to the CBF, by registered letter, a copy of any petition lodged in accordance with Article 2.

§ 2. Within one month of receiving the copy, the CBF shall transmit to the registry of the Council of State a statement of defence as well as the case file.

§ 3. The member of the auditorium shall prepare his report within three months of receiving the CBF's statement of defence.

§ 4. If, within six months of the petition, the chamber, on the basis of the report on the state of the case, considers that the case is ready for judgment, the President shall fix the date on which it is called. If the chamber considers that it is necessary to order new inquiries, it shall designate a Councillor of State or a member of the auditorium to do so, who shall prepare an additional report within one month of his designation. This report shall be dated, signed and transmitted to the chamber.

The order fixing the case or referring it for investigation shall be issued within one month of the filing of the report.

The order fixing the case, accompanied by the reports, shall be notified to the applicant and to the CBF. It contains the fixing of the case within one month.

§ 6. The judgment shall be notified to the applicant and to the CBF.

§ 7. The provisions of Articles 2, § 1, 1° and 2°, 5, 12, 16, 17, 20 to 27, 29, 33 to 37, 40 to 51, 55 to 65, 70, 72, 77, 84, 86 to 88, 91, 93 and 94 of the Royal Decree of 23 August 1948 determining the procedure before the administrative section of the Council of State shall apply to the procedure regulated by this Article.

Art. 4. The appeals referred to in Article 122 of the law may only be lodged 15 days after the applicant has requested, by registered letter with acknowledgment of receipt, the management committee of the CBF to withdraw or modify the contested decision, without his request being satisfied. The applicant is not, however, required to delay the lodging of his appeal if the CBF has indicated that it intends to proceed with the execution of its decision notwithstanding the request addressed by the applicant to the management committee of the CBF. The time limit for lodging an appeal referred to in Article 2 shall be extended by one month from the date of sending the registered letter requesting the withdrawal or modification of the contested decision, provided that this letter is sent before the expiry of the time limit referred to in Article 2.

Art. 5. The list in Article 95 of the aforementioned Royal Decree of 23 August 1948 is supplemented as follows: