Royal Decree of 20 March 2022 amending the Royal Decree of 16 March 2009 on the protection of deposits and life insurance by the Financial Services Compensation Fund

FEDERAL PUBLIC SERVICE FINANCES
[C − 2022/31431]
20 MARCH 2022. — Royal Decree amending the Royal Decree of 16 March 2009 concerning the protection of deposits and life insurance by the Guarantee Fund for Financial Services

REPORT TO THE KING

Sire,

The Decree that we have the honour to submit for the signature of Your Majesty is taken to amend the Royal Decree of 16 March 2009 concerning the protection of deposits and life insurance by the Guarantee Fund for Financial Services.

FEDERAL PUBLIC SERVICE FINANCES
[C − 2022/31431]
20 MARCH 2022. — Royal Decree amending the Royal Decree of 16 March 2009 relating to the protection of deposits and life insurance by the Guarantee Fund for Financial Services

REPORT TO THE KING

Sire,

The Royal Decree that we have the honour to submit for the signature of Your Majesty aims to amend the Royal Decree of 16 March 2009 relating to the protection of deposits and life insurance by the Guarantee Fund for Financial Services.

26408 BELGIAN STATE GAZETTE — 01.04.2022 — MONITEUR BELGE

Article-by-article discussion
Preamble
The preamble has been corrected in accordance with the advice of the Council of State.

Article 2
The explanation for this article has been modified to include additional explanations in accordance with the advice of the Council of State.

a) Article 2, 1°
The references to Article 77, § 2, of the Law of 6 April 1999 concerning the status and supervision of investment firms, included in Article 11, first paragraph, 12°, must be deleted. The aforementioned Law of 6 April 1999 was repealed by the Law of 25 October 2016. Furthermore, the reference to Article 77 of the Law of 6 April 1999 had the effect of limiting the scope of Article 11 to stock exchange companies under Belgian law.

However, in accordance with Article 7(3) of the aforementioned Directive 2014/49, Article 11 aims to protect the clients of all stock exchange companies that have segregated their clients' funds with a failing credit institution under Belgian law, regardless of the law to which this stock exchange company is subject.

b) Article 2, 2°
It is necessary to bring the regulation into compliance with Article 7(3) of the aforementioned Directive 2014/49/EU, which provides for the repayment of protected funds directly to the beneficiary, if the latter is not the holder of the account on which the funds are held, provided that they are identified or identifiable by the date of the failure of the institution acting as custodian. This specification must be added in cases where investment funds are segregated by stock exchange companies on joint client accounts at a credit institution.

The proportionality rule (according to which each client of the stock exchange company must prove the amount of their claim) has been abolished, meaning the burden of proof no longer lies with the clients of the stock exchange companies, but with the stock exchange company itself. Consequently, these latter must provide the failing credit institution or the curator appointed after its failure with the data necessary for repayment by the Guarantee Fund, including the amount owed to each of their clients.

In accordance with Article 14/1 of the Royal Decree of 16 March 2009, the credit institution or the curator then communicates this information to the Guarantee Fund.

c) Article 2, 3°
Article 2, 3° was amended to clarify the determination of the data necessary for the payment of the repayment by the Guarantee Fund, in accordance with the advice of the Council of State.

Annex 2 of the Ministerial Decree of 20 December 2018 implementing certain provisions of the Royal Decree of 16 March 2009 contains the full list of data required for repayment by the Guarantee Fund. Reference is therefore made to this annex for the determination of the data to be communicated by the stock exchange companies. The other provisions of this ministerial decree do not apply to stock exchange companies.

Subsequently, it is listed which of the data communicated by the stock exchange companies are personal data. This is the information relating to the identification of the beneficiary of the repayment by the Guarantee Fund. This data makes it possible to distinguish the beneficiary of a repayment by the Guarantee Fund from anyone else with sufficient certainty. Under "place of birth" and "place of residence" is meant a full address, i.e., street, number and post office box, postal code, municipality and country.

Any processing of personal data must respect the confidentiality and protection of personal data in accordance with the GDPR and the Law of 30 July 2018. In accordance with the comments of the Council of State and the Data Protection Authority, it is further specified that the confidentiality guarantees applicable to the processing of data of clients of credit institutions also apply to the processing of data communicated by stock exchange companies, when this data is processed by the failing institution acting as custodian or by the curator after the failure of that institution.

Commentary on the articles
Preamble
The preamble has been corrected in accordance with the advice of the Council of State.

Article 2
The commentary on this article has been modified to add additional explanations, in accordance with the advice of the Council of State.

a) Article 2, 1°
The references to Article 77, § 2 of the Law of 6 April 1999 relating to the status and control of investment companies, made in Article 11, first paragraph, 12°, must be deleted. The aforementioned Law of 6 April 1999 was repealed by the Law of 25 October 2016. Moreover, the reference to Article 77 of the Law of 6 April 1999 had the effect of limiting the scope of Article 11 to Belgian law stock exchange companies.

However, in accordance with Article 7, (3), of Directive 2014/49 of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes, Article 11 aims to protect the clients of all stock exchange companies that have segregated their clients' funds with a failing credit institution under Belgian law, regardless of the law to which this stock exchange company is subject.

b) Article 2, 2°
It is necessary to bring the regulation into compliance with Article 7, (3), of the aforementioned Directive 2014/49/EU, which provides for the repayment of protected funds directly to the beneficiary, when the latter is not the holder of the account on which the funds are recorded, provided that he is identified or identifiable before the date of failure of the depositary institution. This clarification must be added in cases where fund deposits are segregated on global client accounts by stock exchange companies with credit institutions.

The proportional rule (according to which each client of the stock exchange company must prove the amount of their claim) has been repealed and the burden of proof no longer rests on the clients of the stock exchange companies but on the stock exchange company itself. Thus, the latter must provide the failing credit institution or the curator appointed following its failure with the data necessary for repayment by the Guarantee Fund, which includes the amount due to each of their clients. The credit institution or the curator then communicates this information to the Guarantee Fund in accordance with Article 14/1 of the Royal Decree of 16 March 2009.

c) Article 2, 3°
Article 2, 3° was modified to clarify the determination of the data necessary for the payment of the intervention of the Guarantee Fund, in accordance with the advice of the Council of State.

Annex 2 of the ministerial decree of 20 December 2018 implementing certain provisions of the Royal Decree of 16 March 2009 provides the complete list of data necessary for repayment by the Guarantee Fund. Reference is therefore made to this annex for the determination of the data that must be communicated by the stock exchange companies. The other provisions of this ministerial decree are not applicable to stock exchange companies.

It is then enumerated what, among the information communicated by the stock exchange companies, constitutes personal data. These are the information relating to the identification of the beneficiary of the intervention of the Guarantee Fund. These data allow distinguishing the beneficiary, from any other person, in a sufficiently certain manner. By "place of birth" and "place of residence", a complete address is meant, namely: the street name, the house number, the postal code, the city, and the country.

Any processing of personal data must respect the confidentiality and protection of personal data in accordance with the GDPR and the Law of 30 July 2018. In accordance with the remarks of the Council of State and the Data Protection Authority, it is further specified that the confidentiality guarantees applicable to the processing of data of clients of credit institutions also apply to the processing of data communicated by stock exchange companies when this data is processed by the failing depositary credit institution or by the curator appointed following the failure of this institution.

BELGIAN STATE GAZETTE — 01.04.2022 — MONITEUR BELGE 26409

The retention period for this personal data is set at 10 years from the closure of the "procedure opened following the unavailability of deposits". By this latter expression, one must understand the procedures resulting from the decisions referred to in points 1° and 2° of Article 5, first paragraph, of the Royal Decree of 16 March 2009, such as, in particular, resolution or insolvency procedures. The closure of the procedure indeed also marks the definitive closure of the repayments by the Guarantee Fund. The period of 10 years is based on the recommendations of the NBB regarding the retention of personal data and documents in the framework of the prevention of money laundering and the financing of terrorism, available at https://www.nbb.be/en/financial-supervision/prevention-of-money-laundering-and-financing-of-terrorism/retention-0 (last consulted on 21 December 2021).

d) Article 2, 4°
Article 11, second paragraph, of the Royal Decree of 16 March 2009 avoids that the same claim gives rise to a double repayment by the Guarantee Fund: once on the basis of deposit protection and a second time on the basis of investor protection. Article 615 of the aforementioned Law of 25 April 2014 concerning the status and supervision of credit institutions and stock exchange companies indeed provides for the repayment, up to a limit of 100,000 euros, per investor and per stock exchange company, of the investment funds held for the account of investors pending the allocation of financial instruments, in the event of the failure of the stock exchange company, on condition that these funds have not already been compensated in the framework of deposit protection.

The debt waiver referred to in Article 11, second paragraph, 1° of the Royal Decree of 16 March 2009 already has the effect of reducing the investor's claim by the amounts repaid on the basis of the deposit guarantee. It is therefore superfluous to make the repayment by the Guarantee Fund in the context of the failure of the credit institution acting as custodian conditional on the client's agreement to offset the amount of this repayment with the amounts eligible in the framework of the investor protection scheme, as provided for in Article 11, paragraph 2, 3° of the Royal Decree of 16 March 2009. Furthermore, there is no question of a further reduction of the amount eligible for investor protection. The two protection schemes indeed coexist, as they concern two separate failures. Article 11, paragraph 2, 3° is therefore repealed.

e) Article 2, 5°
Article 382 of the aforementioned Law of 25 April 2014 provides for a repayment, up to a limit of 100,000 euros, per depositor and per credit institution. It must be specified which funds are taken into account first to reach this limit, when the funds of the beneficiary, held at the same credit institution acting as custodian, and eligible for repayment on the basis of deposit protection, include not only funds held on accounts of which he is the holder, but also funds booked on accounts of which he is not the holder.

I have the honour to be,
Sire,
Your Majesty's, very respectful and very faithful servant, The Minister of Finance,
V. VAN PETEGHEM

20 MARCH 2022. — Royal Decree amending the Royal Decree of 16 March 2009 concerning the protection of deposits and life insurance by the Guarantee Fund for Financial Services

FILIP, King of the Belgians,
To all who are now and hereafter shall be, Our Greeting.

Having regard to the Constitution, Article 108;

The retention period for this personal data is set at 10 years from the closure of the "procedure opened following the unavailability of deposits". One must understand by this latter expression, the procedures resulting from the decisions referred to in points 1° and 2° of Article 5, first paragraph, of the Royal Decree of 16 March 2009, such as, in particular, resolution or insolvency procedures. Indeed, the closure of the procedure also marks the definitive closure of the repayments by the Guarantee Fund. The period of 10 years is inspired, on the other hand, by the recommendations of the NBB regarding the retention of personal data and documents in the framework of the prevention of money laundering and the financing of terrorism, available at the link:
https://www.nbb.be/fr/supervision-financiere/prevention-du-blanchiment-de-capitaux-et-du-financement-du-terrorisme-72 (consulted last on 21 December 2021).

d) Article 2, 4°
Article 11, paragraph 2, of the Royal Decree of 16 March 2009 aims to avoid that a single and same claim gives rise to a double repayment by the Guarantee Fund: a first time as deposit guarantee and a second time as investor protection. Indeed, Article 615 of the Law of 25 April 2014 relating to the status and control of credit institutions and stock exchange companies provides for the repayment, up to a ceiling of 100,000 euros, per investor and per stock exchange company, of the fund deposits held for the account of investors pending allocation of financial instruments, in case of failure of the stock exchange company, on condition that these funds have not already been compensated in the framework of deposit protection.

The debt waiver referred to in Article 11, paragraph 2, 1° of the Royal Decree of 16 March 2009 already has the effect of reducing the investor's claim to the extent of the sums reimbursed as deposit guarantee. It is therefore superfluous to condition the intervention of the Guarantee Fund in the context of the failure of the depositary credit institution to the client's agreement to impute the amount of this intervention on the amounts eligible in the framework of the investor protection system, as provided for in Article 11, paragraph 2, 3° of the Royal Decree of 16 March 2009. Moreover, there is no question of generating an additional reduction of the amount eligible in the framework of investor protection. Indeed, the two protection systems coexist insofar as it is a question of two distinct failures. Article 11, paragraph 2, 3° is therefore repealed.

e) Article 2, 5°
Article 382 of the aforementioned Law of 25 April 2014 provides for a repayment, up to a ceiling of 100,000 euros, per depositor and per credit institution. It is therefore necessary to specify which funds are taken into account, in priority, to reach this ceiling when the funds of the beneficiary, held within the same depositary credit institution and eligible for reimbursement on the title of deposit guarantee, include not only sums recorded on accounts of which he is the holder and sums recorded on accounts of which he is not the holder.

I have the honour to be,
Sire,
Your Majesty's, very respectful and very faithful servant, The Minister of Finance,
V. VAN PETEGHEM

20 MARCH 2022. — Royal Decree amending the Royal Decree of 16 March 2009 relating to the protection of deposits and life insurance by the Guarantee Fund for Financial Services

PHILIPPE, King of the Belgians,
To all, present and future, Greeting.

Having regard to the Constitution, Article 108;

26410 BELGIAN STATE GAZETTE — 01.04.2022 — MONITEUR BELGE

Having regard to the Law of 25 April 2014 on the status and supervision of credit institutions and stock exchange companies, Articles 380, first paragraph, modified by the Law of 22 April 2016, 381, fourth paragraph, modified by the Law of 22 April 2016, and 381/1, inserted by the Law of 22 April 2016;

Having regard to the Royal Decree of 14 November 2008 implementing the crisis measures provided for in the Law of 22 February 1998 establishing the organic statute of the National Bank of Belgium, as regards the creation of the Guarantee Fund for Financial Services, confirmed by Article 199 of the program law of 22 December 2008, Articles 5, third paragraph, modified by the Law of 22 April 2016 and 5/1, first paragraph, inserted by the Law of 22 April 2016;

Having regard to the Royal Decree of 16 March 2009 concerning the protection of deposits and life insurance by the Guarantee Fund for Financial Services;

Having regard to the advice of the Financial Inspection, given on 9 July 2021;

Having regard to advice No. 154 of the Data Protection Authority of 10 September 2021;

Having regard to the agreement of the Secretary of State for Budget of 21 September 2021;

Having regard to advice 70.354/2 of the Council of State, given on 22 November 2021, in application of Article 84, § 1, first paragraph, 2°, of the Laws on the Council of State, coordinated on 12 January 1973;

On the proposal of the Minister of Finance,

We have decided and decide:

Article 1. This Decree partially transposes the provisions of Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes.

Art. 2. In Article 11 of the Royal Decree of 16 March 2009 concerning the protection of deposits and life insurance by the Guarantee Fund for Financial Services, modified by the Royal Decree of 21 November 2016, the following modifications are made:

1° in the first paragraph, 12°, first sub-paragraph, the words "in application of Article 77, § 2, first paragraph, of the Law of 6 April 1995 concerning the status and supervision of investment firms" are repealed;

2° in the first paragraph, 12°, the second sub-paragraph is replaced as follows:
"The funds on joint client accounts opened by a stock exchange company with an institution acting as custodian, in the event of the failure of the institution acting as custodian, are considered as funds belonging to the clients of that stock exchange company, if these clients are identified or identifiable by the date on which the circumstances referred to in Article 5 have occurred. If the institution acting as custodian fails, the stock exchange company must provide the institution acting as custodian or the curator, at any time and upon their request, with all data necessary for the repayment by the Guarantee Fund on the basis of the deposit guarantee.";

3° the first paragraph, 12° is supplemented with a third, fourth and fifth sub-paragraph, reading:
"The data necessary for the repayment are the data listed in Annex 2 of the Ministerial Decree of 20 December 2018 implementing certain provisions of the Royal Decree concerning the protection of deposits and life insurance by the Guarantee Fund for Financial Services, applicable to credit institutions. This data includes personal data relating to the identification of the beneficiary of the repayment by the Guarantee Fund, namely:
1° their customer number;
2° their national register number or BIS number; 3° their name; 4° their first name; 5° their gender; 6° their date of birth; 7° their place of birth; 8° their place of residence.

In the communication of this personal data, the confidentiality guarantees applicable to the processing of data of clients of credit institutions are respected when

Having regard to the Law of 25 April 2014 relating to the status and control of credit institutions and stock exchange companies, Articles 380, first paragraph, modified by the Law of 22 April 2016, 381, fourth paragraph, modified by the Law of 22 April 2016, and 381/1, inserted by the Law of 22 April 2016;

Having regard to the Royal Decree of 14 November 2008 implementing the crisis measures set out in the Law of 22 February 1998 establishing the organic statute of the National Bank of Belgium, insofar as it concerns the creation of the Guarantee Fund for Financial Services, confirmed by Article 199 of the program law of 22 December 2008, Articles 5, third paragraph, modified by the Law of 22 April 2016 and 5/1, first paragraph, inserted by the Law of 22 April 2016;

Having regard to the Royal Decree of 16 March 2009 relating to the protection of deposits and life insurance by the Guarantee Fund for Financial Services;

Having regard to the advice of the Financial Inspection given on 9 July 2021;

Having regard to advice No. 154 of the Data Protection Authority of 10 September 2021;

Having regard to the agreement of the Secretary of State for Budget given on 21 September 2021;

Having regard to advice 70.354/2 of the Council of State, given on 22 November 2021 in application of Article 84, § 1, first paragraph, 2°, of the Laws on the Council of State, coordinated on 12 January 1973;

On the proposal of the Minister of Finance,

We have decided and decide:

Article 1. This Decree partially transposes Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes.

Art. 2. In Article 11 of the Royal Decree of 16 March 2009 relating to the protection of deposits and life insurance by the Guarantee Fund for Financial Services, last modified by the Royal Decree of 21 November 2016, the following modifications are made:

1° in the first paragraph, 12°, first sub-paragraph, the words "in application of Article 77, § 2, second paragraph, of the Law of 6 April 1995 relating to the status and control of investment companies" are repealed;

2° in the first paragraph, 12°, the second sub-paragraph is replaced by the following: "The funds recorded on client accounts opened by a stock exchange company with an institution acting as custodian, in the event of the failure of the institution acting as custodian, are considered as funds belonging to the clients of that stock exchange company, if these clients are identified or identifiable by the date on which the circumstances referred to in Article 5 have occurred. If the institution acting as custodian fails, the stock exchange company must provide the institution acting as custodian or the curator, at any time and upon their request, with all data necessary for the repayment by the Guarantee Fund on the basis of the deposit guarantee.";

3° the first paragraph, 12° is supplemented with a third, fourth and fifth sub-paragraph, reading:
"The data necessary for the repayment are the data listed in Annex 2 of the Ministerial Decree of 20 December 2018 implementing certain provisions of the Royal Decree concerning the protection of deposits and life insurance by the Guarantee Fund for Financial Services, applicable to credit institutions. This data includes personal data relating to the identification of the beneficiary of the repayment by the Guarantee Fund, namely:
1° their customer number;
2° their national register number or BIS number; 3° their name; 4° their first name; 5° their gender; 6° their date of birth; 7° their place of birth; 8° their place of residence.

In the communication of this personal data, the confidentiality guarantees applicable to the processing of data of clients of credit institutions are respected when