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22 AVRIL 2016. - An Act to transpose Directive 2014/49/EU on deposit guarantee systems and to make various provisions (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The House of Representatives adopted and sanctioned the following:
CHAPTER 1^er. - Introductory provisions
Article 1^er. This Act regulates a matter referred to in Article 74 of the Constitution.
Art. 2. This Act partially transposes Directive 2014/49/EU on deposit guarantee systems.
CHAPTER 2. - Amendments to the Act of 25 April 2014
Status and control of credit institutions
Art. 3. In section 3 of the Act of April 25, 2014 relating to the status and control of credit institutions, as amended by default by the Royal Decree of December 26, 2015, the following amendments are made:
(a) 22° is replaced by the following:
"22° Guarantee Fund, the Guarantee Fund for Financial Services created by Article 3 of the Royal Decree of 14 November 2008 implementing the anti-crisis measures set out in the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium with regard to the creation of the Guarantee Fund for Financial Services;"
(b) in the 68°, the words "and debt securities issued by a credit institution" are replaced by the words ", including nominal cash vouchers and dematerialized cash vouchers and registered in nominal accounts,"
(c) in the 69°, the words ", of which nominal cash vouchers and dematerialized cash vouchers and recorded in nominal accounts," are inserted between the word "deposit" and the word "who".
Art. 4. In section 380 of the Act, the following amendments are made:
1° in paragraph 1^er, the words ", with regard to deposits held in Belgium or in a Member State" are inserted between the word "shall" and the word "participate";
2° in paragraph 1^er, the words "to ensure, in the event of a failure of an establishment, compensation for certain categories of depositors who do not exercise a banking or financial activity" are replaced by the words "to grant compensation to certain categories of depositors when the bankruptcy is pronounced or when the supervisory authority has made the decision referred to in section 381, paragraph 2";
3rd paragraph 1^er is supplemented by the following sentences:
"In addition, the deposit guarantee system is aimed at financing the resolution of credit institutions in accordance with Article 384/1. The resolution authority shall determine, after consulting the Guarantee Fund, the amount of the deposit guarantee system that is indebted. The financial means of this deposit guarantee system may also be used to finance measures to preserve the access of depositors to deposits insured in the context of the bankruptcy of the credit institution concerned. The King sets out the terms and conditions for the adoption of these measures. ";
Paragraph 4 is replaced by the following:
"The depositors of branches established in Belgium by credit institutions under the law of another Member State shall be informed and reimbursed by the Guarantee Fund on behalf of and in accordance with the instructions of the deposit guarantee system of that other Member State. "
Paragraph 5 is replaced by the following:
"The Guarantee Fund conducts at least every three years, and more frequently, if applicable, tests on its deposit protection system. The first of these tests takes place by 3 July 2017. "
Art. 5. In section 381 of the Act, the following amendments are made:
1° in paragraph 1^er, the words "as soon as possible" are inserted between the words "inform" and the words "the Guarantee Fund";
2° in the first sentence of paragraph 2, the words "determining the failure of a Belgian credit institution" are replaced by the words "determining that, for reasons directly related to its financial situation, a Belgian credit institution does not appear in a position to return the deposits and that the establishment has no close prospect that it can do so";
3° in the second sentence of paragraph 2, the words "as soon as possible and in any case" are inserted between the words "is done" and the words "at the latest";
Paragraph 3 is replaced by the following:
"The Guarantee Fund shall ensure that refundable amounts are made available within seven business days from the date of the decision referred to in paragraph 2 or the date of the bankrupt declaration of the credit institution. The King may authorize a longer refund period, which may not exceed three months, when the applicant is not entitled to the amounts deposited on an account. The King may also defer reimbursement when there is no certainty that a person is legally authorized to receive a refund, where the deposit is the subject of a dispute or restrictive measures imposed by national governments or international bodies, when the deposit has not been the subject of any transaction during the last twenty-four months, when the amount to be refunded is considered to be part of a temporarily high balance, or when the deposit is paid ";
5° the first sentence of paragraph 4 is replaced by the following:
"The credit institution or, if it is in bankruptcy, the curator shall, at any time and at the request of the Guarantee Fund, disclose all the data it needs to refund the deposits, including the markings made under section 381/1 and the total amount of the eligible deposits of each applicant.".
Art. 6. In the same Act, an article 381/1, which reads as follows:
"Art. 381/1. Credit institutions mark eligible deposits in a manner that allows them to be identified immediately. The King develops more precise rules for these markings. ".
Art. 7. Section 382 of the Act is replaced by the following:
"Art. 382. The deposit protection system established by the Guarantee Fund provides for the reimbursement of deposits, up to a maximum of 100,000 euros per depositor and institution acceding to this system, regardless of the currency in which they are denominated. The King adapts this amount to align it with the amount that the European Commission sets to take inflation into account in the European Union.
In addition to paragraph 1^er, the following deposits shall be covered above 100,000 euros for a period determined by a royal decree deliberated in the Council of Ministers, at least three months and up to twelve months after the amount has been credited or from the time that such deposits may be legally transferred:
(a) deposits resulting from real estate transactions relating to private housing property;
(b) deposits that are related to specific events of the life of a applicant and that meet the social objectives, designated by Royal Decree deliberated in the Council of Ministers.
(c) deposits resulting from the payment of insurance or compensation benefits granted to victims of criminal offences or legal errors and that meet the objectives designated by a Royal Decree deliberated in the Council of Ministers.
The King shall determine, with a deliberate order in the Council of Ministers, the amount, terms and conditions for granting this additional protection, for the categories of deposits mentioned in the preceding paragraph."
Art. 8. Section 383 of the Act is supplemented by two paragraphs written as follows:
"The advertising use of the information referred to in paragraph 1^er is limited to a simple mention of the deposit guarantee system that guarantees the deposit referred to in the advertisement. The King may authorize the communication of additional information.
FSMA ensures compliance with the application of this article and the orders taken for its execution. For the exercise of this monitoring mission, it has the skills referred to in articles 34, § 1^er, 1°, 35, §§ 1^er and 2, 36, 36 and 37 of the Act of 2 August 2002. "
Art. 9. Section 384 of the Act is repealed.
Art. 10. Section 419 of the Act is replaced by the following:
"Art. 419. For the period from the date of entry into force of section 419/2 to 31 December 2023, the reimbursement period referred to in section 381, paragraph 3, shall be determined as follows:
(a) 20 working days for the period of the effective date of section 419/2 to December 31, 2018;
(b) 15 working days for the period 1^er January 2019 to December 31, 2020;
(c) 10 working days for the period 1^er January 2021 to December 31, 2023. ".
The King may, by derogation from the preceding paragraph, determine that the refund period shall be reduced, by December 31, 2023, to that referred to in section 381, paragraph 3.".
Art. 11. (former art. 12). In the same Act, article 419/1 is inserted, as follows:
"Art. 419/1. During the transitional period set out in section 419 of this Act until December 31, 2023, where the deposit protection system established by the Guarantee Fund is not in a position to make available the amount to be refunded within seven working days, the Security Fund shall ensure that the depositors have access to a sufficient amount of their insured deposits to cover the cost of life within five working days of a request.
This amount cannot exceed the amount of the insured deposits and will be deducted from the amount to be refunded as defined in section 382. The King determines the amount and terms and conditions of attribution of this payment."
Art. 12. In the same Act, article 419/2 is inserted, as follows:
"Art. 419/2. As part of the application of section 382, the obligations and other bank receivables that were insured by the deposit guarantee system prior to the effective date of section 419/2 and which have an initial maturity, remain covered by the deposit guarantee system until the initial maturity date of the deposits was established or issued before 2 July 2014. This coverage may not result in a exceedance of the limit set out in section 382, paragraph 1^er, and only applies to applicants who received coverage before the effective date of the provision that inserts section 419/2 into that Act. The King may set the terms and conditions for this transitional coverage regime. ".
CHAPTER 3. - Amendments to the Royal Decree of 14 November 2008 implementing the Act of 15 October 2008 on measures to promote financial stability and in particular establishing a State guarantee on the credits granted and other transactions carried out in the context of financial stability, with regard to the protection of deposits, life insurance and capital of registered cooperative companies, and amending the Act of 2 August 2002 on the supervision of the financial sector and services
Art. 13. The title of the Royal Decree of 14 November 2008 enforcing the Act of 15 October 2008 on measures to promote financial stability and, in particular, establishing a State guarantee on the credits granted and other transactions carried out in the context of financial stability, with regard to the protection of deposits, life insurance and capital of registered cooperative companies, and amending the Act of 2 August 2002 on the supervision of the sector replaced
"Royal Decree of 14 November 2008 on the execution of anti-crisis measures taken in the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium with regard to the establishment of the Guarantee Fund for Financial Services. ".
Art. 14. The title of Chapter I^er the same Royal Decree, amended by the Royal Decree of 10 October 2011, is replaced by the following:
"CHAPITRE I^er. - Enforcement of anti-crisis measures in the Act of 22 February 1998 establishing the organic status of the National Bank of Belgium with regard to the creation of the Guarantee Fund for Financial Services. ".
Art. 15. Article 1^er the same Royal Decree shall be replaced by the following:
Article 1^er. The articles of this Royal Decree transpose certain provisions of Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee systems. References made, in the existing legislative, regulatory and administrative provisions, to the directives repealed by Directive 2014/49/EU agree as made in Directive 2014/49/EU.".
Art. 16. Section 2/1 of the same Royal Decree, inserted by the Act of 29 December 2010, is repealed.
Art. 17. In Article 3 of the same Royal Decree, as amended by the Royal Decree of 10 October 2011, the following amendments are made:
1° the words "Special Fund for the Protection of Deposits, Insurance on the Life and Capital of Chartered Cooperative Corporations" are replaced by the words "Safety Fund for Financial Services", below referred to as "Safety Fund";
2° in paragraph 2, the word "funds" is replaced by the words "Safety Funds".
Art. 18. In Article 4, § 2, paragraphs 2 and 4, § 3, paragraphs 4, 7, 9, of the same Royal Decree, last amended by the Royal Decree of 10 October 2011, in Article 5, paragraph 1^er, of the same Royal Decree, amended by the Royal Decree of 10 October 2011, in Article 7, of the same Royal Decree, last amended by the Royal Decree of 10 October 2011, in Article 8, § 1^erParagraph 1^er paragraph 1^er, of the same Royal Decree, last amended by the Royal Decree of 10 October 2011, in Article 9, § 1^erParagraphs 1^er 2. § 2, paragraph 1^er, and § 6, of the same Royal Decree, last amended by the Royal Decree of 10 October 2011, in article 9/1, paragraph 1^er and paragraph 3, of the same Royal Decree, inserted by the law of 29 December 2010 and last amended by the Royal Decree of 10 October 2011, and article 11, of the same Royal Decree, amended by the Royal Decree of 10 October 2011, the words "Special Fund for the Protection of Deposits, Insurance on the Life and Capital of Certified Cooperative Societies" are replaced by the words "Safety Fund".
Art. 19. In Article 4, § 2, paragraph 2, of the same Royal Decree, last amended by the Royal Decree of 10 October 2011, and Article 8, § 1^er, 1° bis, of the same royal decree, inserted by the law of 28 December 2011 and amended by the programme law of 22 June 2012 and article 9, § 2, paragraphs 1^er and 2, the same Royal Decree, amended by the Royal Decree of 10 October 2011, and Article 9/1, paragraph 1^er, of the same royal decree, inserted by the law of 29 December 2010 and amended by the Royal Decree of 10 October 2011, the words "Special Protection Fund" are replaced by the words "Safety Fund".
Art. 20. In Article 6, § 2, paragraph 4, 2°, of the same Royal Decree, amended by the Royal Decree of 3 March 2011, the words "Special Fund for the Protection of Deposits and Insurance on Life" are replaced by the words "Safety Funds".
Art. 21. Article 6, § 3, paragraph 2, of the same Royal Decree, amended by the Royal Decree of 10 October 2011, and Article 8/1, paragraph 3, of the same Royal Decree, inserted by the law of 23 December 2009, and Article 9, § 1^er, paragraph 2, paragraph 2, of the same Royal Decree, last amended by the Royal Decree of 10 October 2011, and article 9/1, paragraph 3, of the same Royal Decree, inserted by the law of 28 July 2011 and amended by the Royal Decree of 10 October 2011, the word "Fonds" is replaced by the words "Safe Fund".
Art. 22. Article 4, § 1^erof the same Royal Decree, as amended by the Act of 29 December 2010, the following amendments are made:
(a) 1°, is replaced by the following:
"1° credit institutions referred to in Article 380, paragraph 1^erthe Act of 25 April 2014 on the Status and Control of Credit Institutions;"
(b) the 3rd is repealed;
(c) the 4th is replaced by the following: "4° the management companies of collective investment organizations and the management companies of OPCA, referred to in Article 112 of the Act of 6 April 1995 relating to the status and control of investment companies, provided that they provide the individual portfolio management investment service. ".
Art. 23. In Article 5 of the same Royal Decree, as amended by the Royal Decree of 10 October 2011, the following amendments are made:
(a) in paragraph 1^er, the 1° is replaced by the following: "1° deposits whose nominal cash vouchers and dematerialized cash vouchers and registered in nominal accounts, as defined in Article 3, 68°, of the Act of 25 April 2014 relating to the status and control of credit institutions";
(b) in paragraph 1^er, the 2° is replaced by the following: "2° as long as they are not included under 1°, deposits of funds held on behalf of investors pending assignment to the acquisition of financial instruments or pending restitution;"
(c) Paragraph 3 is replaced by the following:
"The King defines the categories of assets and depositors that are excluded from the scope of protection of the Guarantee Fund.".
Art. 24. In the same Royal Decree, an article 5/1 is inserted, as follows:
"Art. 5/1. The King defines the payment of refunds.
Depositors from branches established in Belgium by law credit institutions of another Member State of the European Economic Area shall be reimbursed by the Guarantee Fund on behalf of and in accordance with the instructions of the deposit guarantee system of the Member State where the credit establishment is established.
The Guarantee Fund only makes these refunds when it has received the necessary pre-financing and instructions from the deposit guarantee system of the Member State concerned. The liability of the Guarantee Fund is not incurred when carrying out operations in accordance with these instructions.
Depositors of branches created by a Belgian credit institution in another Member State shall be informed and reimbursed by the deposit guarantee system of the Member State where the branch is established, on behalf of and in accordance with the instructions of the Guarantee Fund.
To facilitate cooperation with deposit guarantee systems of other States, the Guarantee Fund concludes agreements with them.".
Art. 25. In Article 6 of the same Royal Decree, last amended by the Royal Decree of 10 October 2011, the following amendments are made:
1° paragraph 1^er is replaced by the following:
§ 1^er. In case of bankruptcy of an institution referred to in Article 4, § 1^er, 1°, or a decision relating to that institution taken by the supervisory authority in accordance with section 381, paragraph 2 of the Act of 25 April 2014 relating to the status and control of credit institutions, the maximum amount of intervention of the Guarantee Fund is determined in section 382 of that Act.
In case of failure of an establishment referred to in Article 4, § 1^er, 2° and 4°, § 2 and § 3, the Guarantee Fund acts up to 100,000 euros. The King adapts this amount to align it with the amount that the European Commission sets to take inflation into account in the European Union. ".
2° in paragraph 2, paragraph 4, 2°, the words "the Authority of Financial Services and Markets" are replaced by the words "the National Bank of Belgium".
Paragraph 4 is replaced by the following:
§ 4. The use of information for advertising purposes is limited to a simple mention of the deposit guarantee system that guarantees the product covered in the advertising message.
The King may authorize the communication of additional information. ".
Art. 26. In section 7 of the same Royal Decree, replaced by the Act of 23 December 2009 and amended by the Royal Decree of 10 October 2011, the following amendments are made:
1° the words "by annual contributions" are replaced by the words "by regular and extraordinary contributions";
2° the words "1° to 3°" are replaced by the words "1° and 2°".
Art. 27. In section 8 of the same Royal Decree, last amended by the Act of 22 June 2012, the following amendments are made:
1° in paragraph 1^erParagraph 1^er, 1°, the words "and 3°" are deleted;
2° in the table in paragraph 1^erParagraph 1^er, 1° bis, the words "Value of liquidity of the National Bank of Belgium" are replaced by the words "European Requirement of Coverage of Liquidity Requirements under the Delegate Regulation (EU) No. 2015/61 of the Commission of 10 October 2014 supplementing Regulation (EU) No. 575/2013 of the European Parliament and the Council with regard to the requirement to cover liquidity needs for credit institutions. ";
3° in paragraph 1^erParagraph 1^er, 1° bis, after the table containing the key indicators, a sentence is inserted as follows:
"The King may, by a deliberate decree in the Council of Ministers, determine additional risk indicators to be used in calculating risk-based contributions. ";
4° in paragraph 1^erParagraph 1^er, is inserted a 1° ter, as follows:
"1° ter. For the establishments referred to in Article 4, § 1, 1° and 2°, with the exception of the wealth management and investment consulting companies, the basis is formed by the deposits covered, as defined by Article 3, 68°, of the law of April 25, 2014 relating to the status and control of credit institutions. Until May 31, 2016, the basis remains formed by eligible deposits, as determined before the effective date of section 5/1.
No later than 3 July 2024 the available means of the Guarantee Fund resulting from the contributions referred to in paragraph 1 shall reach at least one target level of 0.8 p.c. of the amount of the deposits covered. This date is extended by six years if, after the target level has been reached for the first time, the available financial resources of the Guarantee Fund, as a result of reimbursements, are reduced to less than two thirds of the target level.
The King may defer the date referred to in paragraph 2 to a maximum of four years if the Guarantee Fund has made cumulative refunds greater than 0.8 p.c. of the deposits covered.
The King may decide that the available financial means to be taken into account to achieve the target level include payment commitments and determine their terms and conditions of application. The total of these commitments may not exceed 30 p.c. of the total available financial resources formed by the contributions set out in that section. ";
5° in paragraph 1^erParagraph 1^er, it is inserted a 1° quater written as follows:
"1° quater. In derogation from Article 8, § 1, 1° ter, paragraph 2, the King may, if warranted and with the approval of the European Commission, authorize by a deliberate decree in the Council of Ministers, a minimum target level lower provided that the following conditions are met:
(a) the reduction is based on the assumption that it is unlikely that a significant portion of the available financial resources will be used to protect covered applicants, as described in section 380, paragraph 1^erbefore the last sentence of the Act of 24 April 2014 on the Status and Control of Credit Institutions, and
(b) the banking sector in which credit institutions affiliated to the deposit guarantee system exercise their activities is highly concentrated, with a large amount of assets held by a small number of credit institutions or banking groups, subject to consolidated monitoring and which, given their size, will likely be subject to a resolution procedure in the event of a failure.
The revised target level cannot be less than 0.5 p.c. of guaranteed deposits. ";
6° in paragraph 1^erParagraph 2 is replaced by the following:
"In case of participation in the Guarantee Fund in a year, the amounts referred to in paragraph 1^er are due to pro rata temporis and calculated on the basis of the assets covered at the time of accession. ";
7° in paragraph 2bis, the words "in section 7 of the Act of 22 March 1993 on the Status and Control of Credit Institutions" are replaced by the words "in section 7 of the Act of 25 April 2014 on the Status and Control of Credit Institutions";
8° in paragraph 3, paragraph 2 is replaced by the following:
"The King determines the method of assessment and calculation of the input contribution to be paid by credit institutions and investment companies referred to in paragraph 1^eracceding for the first time from 16 December 2010 and for which insufficient contributions are made by a system for the protection of deposits to which they have previously acceded. It can determine the terms and conditions for payment of this input contribution.".
Art. 28. In section 8/1 of the same Royal Decree, inserted by the law of 23 December 2009 and amended by the Royal Decree of 10 October 2011, the following amendments are made:
1st paragraph 1^er is replaced by the following: "The receivables of the Main Guarantee Fund, interest and accessories, on a participant in the Guarantee Fund for the resources of the protection systems referred to in Article 7, are privileged on the generality of the personal property of that participant";
2° in paragraph 2, the word "hypothequary" is replaced by the word "hypothecaire".
Art. 29. In Article 9 of the same Royal Decree, last amended by the Royal Decree of 10 October 2011, the following amendments are made:
Paragraph 3 is replaced by the following:
§ 3. In the event of an insufficiency of assets of the Guarantee Fund and in the event of a failure of a portfolio management and investment consulting company or a corporation referred to in Article 4, § 1^er, 4°, the Caisse des Dépôts et Consignations advances the funds to repay the clients of the failing institution. ";
2° in paragraph 4, paragraph 1^er, is replaced by the following:
§ 4. In the event of an insufficiency of assets of the Guarantee Fund, following the reimbursement of customers of a failing establishment referred to in Article 4, § 1^er, 1° and 2°, excluding portfolio management and investment consulting companies, extraordinary contributions are due by these institutions in order to cover the cost of the intervention of the Guarantee Fund or to clear the advance made by the Caisse des Dépôts et Consignations, including the financing interests, calculated at the market rate in effect for the corresponding refund period.
Extraordinary contributions shall be calculated, as the case may be, on deposits or on inventory reserves of protected contracts, used to calculate the regular contributions referred to in Article 8.
The King shall determine, with a deliberate order in the Council of Ministers, the level of extraordinary contributions on the basis of the level of financial means required to cover the intervention concerned of the Guarantee Fund.
The King also determines the methods of calculation and payment applicable to extraordinary contributions.
Extraordinary contributions may not, by calendar year, exceed more than 0.5 p.c. of the calculation bases used. ";
Paragraph 5 is replaced by the following:
§ 5. In the event of an insufficiency of assets of the Guarantee Fund, following the reimbursement of customers of a failing establishment referred to in Article 4, § 2, 50 p.c. of subsequent contributions are used to clear the advance made by the Caisse des Dépôts et Consignations. ".
Art. 30. In section 9/1 of the same Royal Decree, inserted by the law of 29 December 2010, and amended by the Royal Decrees of 28 July 2011 and 10 October 2011, paragraph 2 is replaced by the following:
"It is an exception to the prohibition under paragraph 1^er for communications of information to the national authorities and the authorities of the European Union and other States which are responsible for the prudential control of the institutions and enterprises covered by this decree, the Fund for the Protection of Deposits and Financial Instruments and the management bodies of systems for the protection of deposits or insurance on the life of other States, within the framework of the necessary collaboration with these bodies. ".
Art. 31. Chapter 2 of the same Royal Decree, including section 12, is repealed.
CHAPTER 4. - Amendment to the Act of 17 December 1998 creating a deposit and financial instruments protection fund and reorganizing deposit protection systems and financial instruments
Art. 32. In section 3 of the Act of 17 December 1998 creating a deposit and financial instruments protection fund and reorganizing deposit and financial instruments protection systems, (a) is repealed.
CHAPTER 5. - Amendment of the Act of 2 August 2002
Financial Sector Monitoring and Financial Services
Art. 33. Article 45, § 1^er, 3°, of the Act of 2 August 2002 on financial sector surveillance and financial services, last amended by the Act of 25 April 2014, is supplemented by a j), which reads as follows:
"j. Article 383 of the Act of 25 April 2014. ".
CHAPTER 6. - Final provisions
Art. 34. This Act comes into force on the day of its publication to the Belgian Monitor, with the exception of:
1° of Article 10, the entry into force of which shall be determined by the King but shall be held no later than May 31, 2016;
2° of Article 27, 2°, which comes into force on 1^er January 2017.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 22 April 2016.
PHILIPPE
By the King:
Minister of Finance,
J. VAN OVERTVELDT
Seal of the state seal:
Minister of Justice,
K. GEENS
____
Note
(1) House of Representatives (www.lachambre.be):
Documents: 54-1656
Full report: 13-14 April 2016.