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31 JULY 2013. - Act to strengthen the protection of users of financial products and services as well as the competencies of the Autorité des services et marchés financiers (II) (1)

PHILIPPE, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1^er. - Introductory provision
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
CHAPTER 2. - Amendments to the Financial Operations and Financial Markets Act of 4 December 1990
Art. 2. In Book VII, Title I^erAct of 4 December 1990 on financial transactions and financial markets, Chapter I^er, having articles 220 to 223, last amended by the Royal Decree of 3 March 2011, is repealed.
CHAPTER 3. - Amendments to the Financial Sector Supervision and Financial Services Act of 2 August 2002
Art. 3. Section 87 of the Financial Sector Supervision and Financial Services Act of August 2, 2002, renumbered by the Act of May 2, 2007, is supplemented by a paragraph 4, which reads as follows:
Ҥ4. When the facts submitted to the court are the subject of a cessation action based on section 125, it can only be decided on criminal action after a decision in force of a finding has been made with respect to the termination action. "
Art. 4. In the title of Chapter V of the same Act, comprising sections 120 to 124 and renumbered by the law of 2 May 2007, the words "and intervention of the MSDS before the repressive courts" are replaced by the words ", intervention of the MSDS before the repressive courts and action on termination".
Art. 5. In section 122 of the Act, last amended by the Royal Decree of 12 November 2012, the 21° to 25° are replaced by the following:
"21° to the applicant, against the refusal of registration decided by the MSDS pursuant to section 32 of the Act of August 3, 2012 on certain forms of collective investment portfolio management, or where the ADMDS has not ruled within three months of the introduction of a complete file. In the latter case, the application for registration is supposed to be rejected. The same appeal is open to the investment agency against the refusal of registration decided by the MSDS under section 162, paragraph 2, of the Act of 3 August 2012 referred to above;
22° to the collective investment agency, against refusal of approval, refusal of approval or refusal of acceptance decided by the MSDS under sections 34, 36, paragraph 1^er, 45, paragraph 1^er, 47, paragraph 2, or 51, paragraph 4, of the Act of 3 August 2012 referred to above, or where the MSDS has not ruled within three months of the introduction of a complete file. In the latter case, the application for approval, approval or acceptance is expected to be rejected;
23° to the collective investment agency, against the decisions of the FSMA taken under Article 111, § 1^er, paragraph 2, 3° and 6°, section 157 and section 164 of the Act of 3 August 2012 referred to above. The appeal suspends the enforcement of the decision unless the ADMSP decides otherwise in the event of a serious threat to creditors or participants;
24° to the applicant, against the decisions made by the MSDS regarding approval under sections 191 and 192 of the Act of 3 August 2012 referred to above. The same appeal shall be open to the applicant when the ADMSP has not decided within the time limits set out in paragraph 1^er of Article 191 above. In the latter case, the appeal is treated as if the application had been rejected;
25° to the collective investment management company, against the decisions of the MSDS made under paragraph 3 of section 227 of the Act of 3 August 2012 referred to above; "
Art. 6. Chapter VI, of the Act, comprising sections 125 to 128, is repealed.
Art. 7. Section 125 of the Act, repealed by the Royal Decree of 25 March 2003, is reinstated in the following wording and inserted in Chapter V:
"Art. 125. The President of the Commercial Court notes the existence and orders the cessation of an act or activity, even criminally punishable, that:
1° is referred to in section 86bis;
2° is an offence under the Act of August 3, 2012 on certain forms of collective investment portfolio management, the Act of June 16, 2006 on public tenders of investment instruments and admissions of investment instruments to negotiations on regulated markets or the Act of 1^er April 2007 relating to public tenders, or to the provisions made pursuant to these laws, or ignores the decisions of the FSMA made on the basis of the above-mentioned laws;
3° constitutes an offence in the head of enterprises or persons referred to in Article 45, § 1^erParagraph 1^er, 2° or 3°, to the rules referred to in Article 45, § 1^erParagraph 1^er3°, or § 2;
4° is, for the purpose of protecting public savings or users of financial products or services, reserved for persons determined or subject to specified conditions, and is qualified by the King, on the advice of the FSMA, of an act or activity that may be ordered to cease under this section.
It may order the prohibition of such acts or activities when they have not yet begun, but are imminent.
The offender may be granted a time limit to terminate the offence, where the nature of the offence requires it. He or she may grant termination when he or she has been terminated.
The President of the Commercial Court is not competent when the Brussels Court of Appeal is exclusively competent by application of Article 41 of the Law of 1^er April 2007 on public tenders. »
Art. 8. Section 126 of the Act, repealed by the Royal Decree of 25 March 2003, is reinstated in the following wording and inserted in Chapter V:
"Art. 126. Where the offence relates to an advertisement or publication, the termination action may be brought against the person who initiated the advertisement or publication in question.
However, where the person who took the initiative is not domiciled in Belgium and has not designated a responsible person with his or her home in Belgium, the termination action may also be taken by:
- the publisher of publicity or written publication or the producer of advertising or audiovisual publication;
- the printer or director, if the publisher or producer does not have their domicile in Belgium and did not designate a responsible person with his domicile in Belgium;
- the distributor as well as any person who knowingly contributes to the fact that the advertisement or publication produces its effect, if the printer or director do not have their domicile in Belgium and did not designate a responsible person with his domicile in Belgium. "
Art. 9. Section 127 of the Act, last amended by the Royal Decree of 3 March 2011, is replaced by the following and inserted in Chapter V:
"Art. 127. § 1^er. Action based on Article 125, paragraph 1^er, 1°, is formed upon request:
1° of FSMA;
2° of the Minister with Finance in his or her powers, the Minister with the Economy in his or her powers, the Minister with the Pensions in his or her powers or the Minister with the Consumer Protection in his or her powers;
3° of interested persons;
4° of an association whose purpose is to defend the interests of consumers and to enjoy the legal personality, provided it is represented on the Consumer Council;
5° of a professional or interprofessional group with legal personality.
By derogation from the provisions of articles 17 and 18 of the Judicial Code, the associations and groups referred to in the 4th and 5th may take legal action for the defence of their legally defined collective interests.
§ 2. Action based on Article 125, paragraph 1^er, 2°, 3° or 4°, is formed exclusively at the request of the FSMA.
§ 3. The action based on section 125 can no longer be brought one year after the facts before us have ended. "
Art. 10. Section 128 of the Act, repealed by the Royal Decree of 25 March 2003, is reinstated in the following wording and inserted in Chapter V:
"Art. 128. § 1^er. The President may, in any case, request the advice of the MSDS, unless the action has been formed by the MSDS.
The President may, in any case, request the Bank's opinion, if the following conditions are met:
1° the action on termination has been taken by an institution referred to in section 36/2 of the Bank's organic law or the action on termination shall involve the exercise of activities reserved for establishments referred to in that provision; and
2° the cessation action was formed by the FSMA or the president also solicits the opinion of the FSMA.
Such notices shall be rendered within fifteen days, unless the President has extended this period. In the event that the notice would not be rendered within that period, the procedure shall be continued. A copy of the application and the notices received is provided on the record of the proceedings.
§ 2. The action based on Article 125 is formed and instructed according to the forms of the referee.
It is decided on the action, notwithstanding any prosecution due to the same facts before a criminal court.
The judgment is enforceable by provision, notwithstanding any appeal and without bail.
§ 3. Any decision made on an action based on section 125 is, in the eighteen, and the clerk's diligence, communicated to the MSDS, unless the decision was made at its request.
In addition, the Clerk is required to promptly inform FSMA of the appeal against any decision made pursuant to section 125.
§ 4. The President may authorize the posting of his or her decision or the summary that he or she prepares, during the period that he or she determines, both outside and inside the offender's institutions, and authorize the publication of his or her judgment or summary by press or in any other way at the offender's expense.
These advertising measures may, however, be permitted only if they are likely to contribute to the cessation of the act or activity in question or its effects.
The Chairperson shall determine the amount that the party to whom an advertising measure has been granted in accordance with paragraph 1^er and who has executed the measure in spite of a timely appeal against the judgment, will have to pay the party to the detriment of which the advertising measure has been executed, if it is cancelled on appeal. "
CHAPTER 4. - Amendments to the Judicial Code
Art. 11. In section 589 of the Judicial Code, last amended by the Act of 13 August 2011, the second is replaced by the following:
"2° to section 125 of the Financial Sector Supervision and Financial Services Act of 2 August 2002; "
Art. 12. in section 605ter of the same Code, inserted by the Act of 2 August 2002, the words "section 18ter of the Act of 2 March 1989 relating to the advertising of important stakes in publicly traded companies and regulating public procurement" are replaced by the words "section 41 of the Act of 1^er April 2007 on public tenders. "
Art. 13. Section 633ter of the same Code, inserted by the Act of 2 August 2002, is repealed.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 31 July 2013.
PHILIPPE
By the King:
Deputy Prime Minister and Minister of Consumers,
J. VANDE LANOTTE
Deputy Prime Minister and Minister of the Interior,
Ms. J. MILQUET
The Minister of Justice,
Ms. A. TURTELBOOM
Minister of Finance,
K. GEENS
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2012-2013.
House of Representatives.
Documents. - Bill, 53-2873 - No. 1. - Report, 53-2873 - No. 2. - Text corrected by the commission, 53-2873 - No. 3. - Text adopted in plenary and transmitted to the Senate, 53-2873 - No. 4.
Full report. - 16-17 July 2013.
Senate.
Documents. - Project transmitted by the House of Representatives, 5-2215 - No. 1. - Report, 5-2215 - No. 2. - Text adopted in plenary and subject to Royal Assent, 5-2215 - No. 3.
Annales of the Senate. - 18 July 2013.
See also:
House of Representatives.
Documents. - Bill, 53-2872 - No. 1. - Annexes, 53-2872 - No. 2. - Amendments, 53-2872 - No. 3. - Report, 53-2872 - No. 4. - Text adopted by the commission, 53-2872 - No. 5. - Text adopted in plenary and transmitted to the Senate, 53-2872 - No. 6.
Full report. - 16-17 July 2013.
Senate.
Documents. - Project referred to by the Senate, 5-2214 - No. 1. - Report, 5-2214 - No. 2. - Decision not to amend, 5-2214 - No. 3.
Annales of the Senate. - 18 July 2013.