Proposition 53K2218

Projet de loi relatif à certaines formes de gestion collective de portefeuilles d'investissement.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

May 29, 2012

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive European Economic Area mutual recognition principle investment company venture capital securities financial instrument financial legislation investment transaction takeover bid issue of securities freedom to provide services

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Abstained from voting

Groen Ecolo ∉ N-VA LDD VB

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

Contact form ¶

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Discussion ¶

July 5, 2012 | Plenary session (Chamber of representatives)

Full source

by Mr. Guy Coëme, rapporteur, refers to his written report.

The draft law on certain forms of collective management of investment portfolios is primarily aimed at facilitating the cross-border movement within the European Union for investment funds.

The draft law is therefore a transposition of European directives, better known as the UCITS Directives.

It aims to further unify the European capital market so that the costs of managing investment funds can be reduced, both for instance and for instance.

The draft law is therefore primarily focused on the supervision and management of that European fund industry.

This is indeed a whole European industry from around and around the 35 000 funds, which is dominated mainly by Luxembourg. In the first quarter of 2012 alone, no less than 8,439 funds were housed there.

As a result of the introduction of UCITS IV, more than 1,000 funds have already been merged in 2011, demonstrating that this Directive is primarily aimed at this fund industry.

The late transposition of the Directive is therefore detrimental to the Belgian funds.

The first thing I want to talk about is the protection of investors. Since the consumer has long ceased to see the trees through the funds forest, the UCITS IV Directive also aims to better inform consumers.

The simplified prospectus shall be replaced by a standardised document containing essential investor information. However, investor protection will only be effective if the investor receives this document containing this essential investor information effectively in advance.

Everyone knows that financial institutions in practice often do not hand over the prospectus in advance and that they often have the client sign that he is considered to have received. Thus, these institutions are legally covered.

If the investor already receives the document containing essential investor information, it is of course also very important that that information is understandable and at least drawn up in a language that he understands.

During the discussion in the committee, we also pointed out that the minimum transposition of the Directive in this area is not sufficient.

Article 150 of this bill requires collective investment institutions to distribute the document in at least one of the national languages or in a language approved by the FSMA.

As a result, it is perfectly possible that the document with essential investor information is offered in only one language throughout Belgium. In order to protect that investor, N-VA therefore wishes that such information be provided in the language or languages of the language area. In Flanders, investors will be informed in Dutch, in Wallonia in French, in the Eastern Cantons in German and in Brussels in Dutch and French. Since this is very essential investor information, we also consider it essential that Article 150 be amended in accordance with our amendment presented here at the plenary session.

A second point in which I would like to stop is the interpretation given by the Minister – unfortunately absent – of the criteria that individuals must meet in order for the King to recognize them as professional or institutional investors. The King has not yet exercised this power. When asked why the King has not used this since 2004, the Minister replies that institutional or professional investors are considered to have sufficient knowledge of the financial markets. We have to give the Minister the right. Professional investors are less well protected under this legal framework. On the other hand, they have access to investment products which are accessible only to institutional or professional investors and which exclude natural persons.

According to the minister, there are also very few investors interested in being recognized as a professional investor. In this context, the Minister points out the heavy fiscal consequences. In this argument, we cannot follow the Minister. In order to be recognised as a professional investor, the private investor must meet two of three criteria, in particular carrying out ten large-scale transactions per quarter, holding a securities portfolio of more than 500 000 euros or having worked or been in the financial sector for at least one year. In the personal tax, income from the portfolio value that is not considered as normal management of private assets is considered as different income. The Minister seems to want to give these vague words a concrete fulfillment.

The N-VA cannot agree with this, because also the management of a securities portfolio of more than 500 000 euros, with ten transactions per quarter, and preferably even with knowledge of affairs, does not constitute speculation, but simply falls within the normal management of private assets.

In a third point of consideration, I will summarize the comments that we have formulated in the committee regarding the derogations provided for in this draft law in relation to the company law. In our view, it is wrong to derogate from the provisions relating to the maintenance of capital of investment firms, as the government relies in these provisions on the FSMA, the supervisory authority of those investment firms, to impose timely recovery measures. However, the financial crisis has shown that the controlling governments, such as the FSMA, have not seen the collapse of the two Belgian big banks arrive on time. We believe that it is better not to deviate from corporate law at this point and in the first instance to transfer the responsibility to the board of directors of the investment company.

In addition, unlike the Company Code, this bill does not provide for elaborate rules that apply in the event of a conflict of interest. This draft law is too short.

Colleagues, finally, this bill provides for numerous authorizations to the King to develop further rules in the field of management, structure and conflicts of interests. The King is also empowered to impose obligations and prohibitions under ICBs. Like the Council of State, we also believe that these powers are far too broad and that the legislature should at least create a framework within which the King can act. This is not the case in these.

Our group will therefore abstain from voting on this bill. First, because of the minimum transposition of the Directive as regards the language in which the essential investor information should be provided and because it does not adequately protect the investor. Second, because the bill erroneously deviates from the company law. Third, because the legislator gives the King a far too wide authority on various points.