Royal Decree of 20 February 2013 amending the Royal Decree of 15 May 2003 on the expedited procedure before the Council of State against certain decisions of the former Banking and Finance Commission and the Regent's Decree of 23 August 1948

FEDERAL PUBLIC SERVICE FINANCES, FEDERAL PUBLIC SERVICE ECONOMY, SMEs, MIDDLE CLASS AND ENERGY AND FEDERAL PUBLIC SERVICE INTERNAL AFFAIRS [C − 2013/03051] 20 FEBRUARY 2013. — Royal Decree amending the Royal Decree of 15 May 2003 regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the former Banking and Finance Commission and the Regent's Decree of 23 August 1948 regulating the legal proceedings for the administrative law section of the Council of State

REPORT TO THE KING

Sire,

The decree submitted for your signature pursues two objectives. First, it aims to clarify the scope of application of the Royal Decree of 15 May 2003 regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the former Banking and Finance Commission (the current FSMA), in light of the changes resulting from the Royal Decree of 3 March 2011 concerning the evolution of the supervisory architecture for the financial sector. Second, it aims to simplify the rules of the expedited procedure contained in the aforementioned Royal Decree of 15 May 2003.

The first proposed amendment aligns with the Royal Decree of 3 March 2011, which reformed the Belgian supervisory architecture for the financial sector. This reform involved the National Bank of Belgium (hereinafter "the Bank") taking over the individual prudential supervision of financial sector actors authorized to hold client funds, a competence previously held by the Banking, Finance and Insurance Commission ("CBFA"). The CBFA was at that time transformed into the Financial Services and Markets Authority ("FSMA"). During this reform, certain provisions listed in Article 122 of the Law of 2 August 2002 concerning the supervision of the financial sector and financial services, which related to the competences of the former CBFA, were transferred to Article 36/22 of the Law of 22 February 1998 establishing the organic statute of the Bank.

This raises the question of the application of the expedited procedure before the Council of State for appeals against decisions now taken by the Bank. Although Articles 330 and 331 of the Royal Decree of 3 March 2011 can be invoked to answer this question, legal certainty is better served by a provision that explicitly extends the expedited procedure before the Council of State against FSMA decisions listed in Article 122 of the aforementioned Law of 2 August 2002 to the decisions of the Bank listed in Article 36/22 of the aforementioned Law of 22 February 1998. The legal basis for this is contained in the aforementioned Articles 122 and 36/22 as well as in Article 30, § 2bis, of the coordinated laws on the Council of State.

The second proposed amendment aims to simplify the rules regarding the expedited procedure before the Council of State. In light of, on the one hand, the recent abolition of rules providing for an appeal to the CBFA as a prerequisite for filing an appeal with the Court of Appeal, (Parl. St., Chamber, sess. 2009-2010, no. 52 -2408/001, p. 24) and, on the other hand, the experience gained from applying the Royal Decree of 15 May 2003, it has appeared that it is no longer justified to require the applicant to ask the management committee of the CBFA (now transformed into the FSMA) to withdraw or modify the contested decision before filing an appeal with the Council of State. Indeed, it was explicitly stated in the report to the King preceding the Royal Decree of 15 May 2003 that the provision containing this obligation was inspired by the rules for filing an appeal with the Court of Appeal, a regulation that was only abolished by the legislator. Moreover, in most cases, it had to be established that the applicants did not bring forward any new element that allowed the CBFA (now the FSMA) to usefully reconsider its decision. Imposing such a request for revision of the decision as a prerequisite for filing an appeal with the Council of State thus proved to be contrary to the principle of procedural economy and inconsistent with the swift handling sought by the introduced procedure.

The second amendment made by the draft decree therefore consists of deleting the request for revision, which is currently a prerequisite for filing an appeal under the expedited procedure.

Finally, a transitional provision is provided to safeguard the right to an effective judicial remedy by avoiding that the public be surprised by the abolition of the mandatory revision procedure. Since the relevant decisions of the FSMA and the Bank must mention the existence of the appeal and the formalities and deadlines to be observed, this transitional provision leads to the effect that these mandatory mentions effectively align with the applicable procedural rules.

I have the honour to be,
Sire,
Your Majesty's, very respectful and very faithful servant,

The Deputy Prime Minister and Minister of Finance and Sustainable Development, S. VANACKERE

The Deputy Prime Minister and Minister of Economy, Consumers and North Sea, J. VANDE LANOTTE

The Deputy Prime Minister and Minister of Home Affairs and Equal Opportunities, Ms. J. MILQUET

COUNCIL OF STATE
Legislation Section
Opinion 52.526/2 of 3 January 2013 on a draft Royal Decree 'amending the Royal Decree of 15 May 2003 regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the Banking and Finance Commission'

On 6 December 2012, the Council of State, Legislation Section, was requested by the Deputy Prime Minister and Minister of Finance to provide an opinion within a period of thirty days on a draft Royal Decree 'amending the Royal Decree of 15 May 2003 regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the Banking and Finance Commission'.

The draft was examined by the second chamber on 3 January 2013. The chamber was composed of Pierre LIENARDY, chamber president, Pierre VANDERNOOT and Martine BAGUET, councillors of state, Yves DE CORDT, assessor, and Anne-Catherine VAN GEERSDAELE, clerk.

The report was presented by Xavier DELGRANGE, first auditor section head.

The concordance between the French and Dutch text of the opinion was verified under the supervision of Pierre VANDERNOOT.

The opinion, the text of which follows, was given on 3 January 2013.

Since the request for opinion was submitted on the basis of Article 84, § 1, first paragraph, 1°, of the coordinated laws on the Council of State, as replaced by the Law of 2 April 2003, the Legislation Section, in accordance with Article 84, § 3, of the aforementioned coordinated laws, limits its examination to the legal basis of the draft, the competence of the author of the act, and the prior formalities to be fulfilled.

Regarding these three points, the draft gives rise to the following observations.

TITLE

The draft decree not only amends the Royal Decree of 15 May 2003 'regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the Banking and Finance Commission', but also the Regent's Decree of 23 August 1948 'regulating the legal proceedings for the administrative law section of the Council of State'.

For the sake of legal certainty, the title of the draft should be formulated in such a way that this double modification is clearly evident.

PREAMBLE

Since the draft decree aims to amend the Regent's Decree of 23 August 1948 'regulating the legal proceedings for the administrative law section of the Council of State', mention thereof should be made in the preamble in a fourth paragraph, drafted as follows (1):

"Having regard to the Regent's Decree of 23 August 1948 regulating the legal proceedings for the administrative law section of the Council of State".

DISPOSITION

Article 2

No mention is made of Article 2, which replaces Article 1 of the Royal Decree of 15 May 2003, nor of its introductory sentence.

The draft Article 1 should therefore be preceded by the following text:

"Art. 2. Article 1 of the same decree is replaced as follows:"

Article 7

Unless there is a specific reason to deviate from the standard entry into force period determined by Article 6, first paragraph, of the Law of 31 May 1961 'concerning the use of languages in legislative matters, the drafting, publication and entry into force of laws and regulations', immediate entry into force should generally be avoided in order to give everyone a reasonable period to become acquainted with the new rules.

The Clerk, The President,
A.-C. VAN GEERSDAELE P. LIENARDY.

Note
(1) Principles of legislative technique - Guide for drafting legislative and regulatory texts, www.raadvst-consetat.be, tab 'Legislative technique', recommendations 29 and 30 and formula F 3-3.

20 FEBRUARY 2013. — Royal Decree amending the Royal Decree of 15 May 2003 regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the Banking and Finance Commission and the Regent's Decree of 23 August 1948 regulating the legal proceedings for the administrative law section of the Council of State

ALBERT II, King of the Belgians,

To all, present and future, Greetings.

Having regard to the Laws on the Council of State, coordinated on 12 January 1973, Article 30, § 2bis, inserted by the Law of 2 August 2002 and amended by the Royal Decree of 3 March 2011;

Having regard to the Law of 22 February 1998 establishing the organic statute of the National Bank of Belgium, Article 36/22, inserted by the Royal Decree of 3 March 2011 and amended by the Law of 27 November 2012;

Having regard to the Law of 2 August 2002 concerning the supervision of the financial sector and financial services, Article 122, last amended by the Royal Decree of 3 March 2011 and the Royal Decree of 12 November 2012;

Having regard to the Regent's Decree of 23 August 1948 regulating the legal proceedings for the administrative law section of the Council of State;

Having regard to the Royal Decree of 15 May 2003 regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the Banking and Finance Commission;

Having regard to the opinion of the Inspector of Finances, given on 28 August 2012;

Having regard to the prior agreement of the Minister of the Budget, given on 29 October 2012;

Having regard to Opinion 52.526/2 of the Council of State, given on 3 January 2013, in application of Article 84, § 1, first paragraph, 1°, of the Laws on the Council of State, coordinated on 12 January 1973;

On the proposal of the Minister of Finance, the Minister of Consumers and the Minister of Home Affairs, and on the advice of the Ministers meeting in Council,

Have decided and do decide:

Article 1. In the title of the Royal Decree of 15 May 2003 regulating the expedited procedure in case of appeal before the Council of State against certain decisions of the Banking and Finance Commission, the words "Banking and Finance Commission" are replaced by the words "Financial Services and Markets Authority and the National Bank of Belgium".

Art. 2. Article 1 of the same decree is replaced as follows:

"Article 1. For the purposes of this decree, the following terms are defined:
1° "the Law of 22 February 1998": the Law of 22 February 1998 establishing the organic statute of the National Bank of Belgium; 2° "the Law of 2 August 2002": the Law of 2 August 2002 concerning the supervision of the financial sector and financial services; 3° "the FSMA": the Financial Services and Markets Authority; 4° "the Bank": the National Bank of Belgium.".

Art. 3. In Article 2, first paragraph, of the same decree, the following amendments are made:
1° the words "Article 122 of the Law" are replaced by the words "Article 122 of the Law of 2 August 2002 and Article 36/22 of the Law of 22 February 1998"; 2° the words "decisions of the Commission" are replaced by the words "decisions of the FSMA and the Bank"; 3° the words "Commission" are replaced by the words "FSMA and Bank".

Art. 4. Article 3 of the same decree is replaced as follows:
"Article 3. The expedited procedure may be used for appeals against decisions of the FSMA and the Bank taken in application of the laws referred to in Article 1, 2° and 4°, and the Royal Decrees taken in application thereof, provided that these decisions are taken in individual cases and concern:
1° the authorization, refusal of authorization, withdrawal of authorization, suspension or restriction of the authorization of financial institutions; 2° the imposition of measures or sanctions; 3° the refusal to register or the withdrawal of registration of investment firms; 4° the refusal to authorize or the withdrawal of authorization of management companies; 5° the refusal to authorize or the withdrawal of authorization of undertakings for collective investment; 6° the refusal to approve or the withdrawal of approval of management companies; 7° the refusal to authorize or the withdrawal of authorization of insurance undertakings; 8° the refusal to register or the withdrawal of registration of insurance intermediaries; 9° the refusal to authorize or the withdrawal of authorization of reinsurance undertakings; 10° the refusal to approve or the withdrawal of approval of pension funds; 11° the refusal to register or the withdrawal of registration of pension fund management companies; 12° the refusal to authorize or the withdrawal of authorization of payment institutions; 13° the refusal to register or the withdrawal of registration of electronic money institutions; 14° the refusal to authorize or the withdrawal of authorization of crowdfunding service providers; 15° the refusal to register or the withdrawal of registration of crowdfunding service providers; 16° the refusal to authorize or the withdrawal of authorization of credit rating agencies; 17° the refusal to register or the withdrawal of registration of credit rating agencies; 18° the refusal to authorize or the withdrawal of authorization of trade repositories; 19° the refusal to register or the withdrawal of registration of trade repositories; 20° the refusal to authorize or the withdrawal of authorization of data reporting service providers; 21° the refusal to register or the withdrawal of registration of data reporting service providers; 22° the refusal to authorize or the withdrawal of authorization of transaction reporting service providers; 23° the refusal to register or the withdrawal of registration of transaction reporting service providers; 24° the refusal to authorize or the withdrawal of authorization of central counterparties; 25° the refusal to register or the withdrawal of registration of central counterparties; 26° the refusal to authorize or the withdrawal of authorization of trading venues; 27° the refusal to register or the withdrawal of registration of trading venues; 28° the refusal to authorize or the withdrawal of authorization of multilateral trading facilities; 29° the refusal to register or the withdrawal of registration of multilateral trading facilities; 30° the refusal to authorize or the withdrawal of authorization of organized trading facilities; 31° the refusal to register or the withdrawal of registration of organized trading facilities; 32° the refusal to authorize or the withdrawal of authorization of investment firms; 33° the refusal to register or the
withdrawal of registration of investment firms; 34° the refusal to authorize or the withdrawal of authorization of credit institutions; 35° the refusal to register or the withdrawal of registration of credit institutions; 36° the refusal to authorize or the withdrawal of authorization of investment companies; 37° the refusal to register or the withdrawal of registration of investment companies; 38° the refusal to authorize or the withdrawal of authorization of management companies; 39° the refusal to register or the withdrawal of registration of management companies; 40° the refusal to authorize or the withdrawal of authorization of undertakings for collective investment; 41° the refusal to register or the withdrawal of registration of undertakings for collective investment; 42° the refusal to approve or the withdrawal of approval of management companies; 43° the refusal to authorize or the withdrawal of authorization of insurance undertakings; 44° the refusal to register or the withdrawal of registration of insurance intermediaries; 45° the refusal to authorize or the withdrawal of authorization of reinsurance undertakings; 46° the refusal to approve or the withdrawal of approval of pension funds; 47° the refusal to register or the withdrawal of registration of pension fund management companies; 48° the refusal to authorize or the withdrawal of authorization of payment institutions; 49° the refusal to register or the withdrawal of registration of electronic money institutions; 50° the refusal to authorize or the withdrawal of authorization of crowdfunding service providers; 51° the refusal to register or the withdrawal of registration of crowdfunding service providers; 52° the refusal to authorize or the withdrawal of authorization of credit rating agencies; 53° the refusal to register or the withdrawal of registration of credit rating agencies; 54° the refusal to authorize or the withdrawal of authorization of trade repositories; 55° the refusal to register or the withdrawal of registration of trade repositories; 56° the refusal to authorize or the withdrawal of authorization of data reporting service providers; 57° the refusal to register or the withdrawal of registration of data reporting service providers; 58° the refusal to authorize or the withdrawal of authorization of transaction reporting service providers; 59° the refusal to register or the withdrawal of registration of transaction reporting service providers; 60° the refusal to authorize or the withdrawal of authorization of central counterparties; 61° the refusal to register or the withdrawal of registration of central counterparties; 62° the refusal to authorize or the withdrawal of authorization of trading venues; 63° the refusal to register or the withdrawal of registration of trading venues; 64° the refusal to authorize or the withdrawal of authorization of multilateral trading facilities; 65° the refusal to register or the withdrawal of registration of multilateral trading
facilities; 66° the refusal to authorize or the withdrawal of authorization of organized trading facilities; 67° the refusal to register or the withdrawal of registration of organized trading facilities; 68° the refusal to authorize or the withdrawal of authorization of investment firms; 69° the refusal to register or the withdrawal of registration of investment firms; 70° the refusal to authorize or the withdrawal of authorization of credit institutions; 71° the refusal to register or the withdrawal of registration of credit institutions; 72° the refusal to authorize or the withdrawal of authorization of investment companies; 73° the refusal to register or the withdrawal of registration of investment companies; 74° the refusal to authorize or the withdrawal of authorization of management companies; 75° the refusal to register or the withdrawal of registration of management companies; 76° the refusal to authorize or the withdrawal of authorization of undertakings for collective investment; 77° the refusal to register or the withdrawal of registration of undertakings for collective investment; 78° the refusal to approve or the withdrawal of approval of management companies; 79° the refusal to authorize or the withdrawal of authorization of insurance undertakings; 80° the refusal to register or the withdrawal of registration of insurance intermediaries; 81° the refusal to authorize or the withdrawal of authorization of reinsurance undertakings; 82° the refusal to approve or the withdrawal of approval of pension funds; 83° the refusal to register or the withdrawal of registration of pension fund management companies; 84° the refusal to authorize or the withdrawal of authorization of payment institutions; 85° the refusal to register or the withdrawal of registration of electronic money institutions; 86° the refusal to authorize or the withdrawal of authorization of crowdfunding service providers; 87° the refusal to register or the withdrawal of registration of crowdfunding service providers; 88° the refusal to authorize or the withdrawal of authorization of credit rating agencies; 89° the refusal to register or the withdrawal of registration of credit rating agencies; 90° the refusal to authorize or the withdrawal of authorization of trade repositories; 91° the refusal to register or the withdrawal of registration of trade repositories; 92° the refusal to authorize or the withdrawal of authorization of data reporting service providers; 93° the refusal to register or the withdrawal of registration of data reporting service providers; 94° the refusal to authorize or the withdrawal of authorization of transaction reporting service providers; 95° the refusal to register or the withdrawal of registration of transaction reporting service providers; 96° the refusal to authorize or the withdrawal of authorization of central counterparties; 97° the refusal to register or the withdrawal of registration of central counterparties; 98° the refusal to authorize or
the withdrawal of authorization of trading venues; 99° the refusal to register or the withdrawal of registration of trading venues; 100° the refusal to authorize or the withdrawal of authorization of multilateral trading facilities; 101° the refusal to register or the withdrawal of registration of multilateral trading facilities; 102° the refusal to authorize or the withdrawal of authorization of organized trading facilities; 103° the refusal to register or the withdrawal of registration of organized trading facilities;"

Art. 5. Article 4 of the same decree is replaced as follows:
"Article 4. The request for the expedited procedure must be filed with the Council of State within thirty days of the notification of the decision or, if the decision is not notified, within thirty days of its publication or, if it is not published, within thirty days of its adoption."

Art. 6. Article 5 of the same decree is replaced as follows:
"Article 5. The request for the expedited procedure must be accompanied by:
1° a statement of the grounds on which the request is based; 2° a copy of the decision against which the appeal is lodged; 3° a copy of any documents supporting the grounds of the appeal; 4° a power of attorney, if the request is filed by a representative."

Art. 7. This Royal Decree enters into force on the sixtieth day following its publication in the Moniteur belge."

MONITEUR BELGE — 04.03.2013 — BELGISCH STAATSBLAD 13268