Proposition 53K2431

Projet de loi modifiant la loi du 21 décembre 2009 relative au statut des établissements de paiement, à l'accès à l'activité de prestataire de services de paiement et à l'accès aux systèmes de paiement et d'autres législations dans la mesure où elles sont relatives au statut des établissements de paiement et des établissements de monnaie électronique et des associations de crédit du réseau du Crédit professionnel.

General information ¶

Submitted by

PS | SP the Di Rupo government

Submission date

Oct. 2, 2012

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive administrative check banking consumer protection electronic money electronic banking financial instrument financial institution financial transaction single market regulation of transactions freedom to provide services

Voting ¶

Voted to adopt

CD&V Vooruit LE PS | SP Open Vld MR

Voted to reject

∉ N-VA LDD VB

Abstained from voting

Groen Ecolo

Party dissidents ¶

• Peter Luykx (CD&V) voted to reject.
• Olivier Maingain (MR) abstained from voting.
• Damien Thiéry (MR) abstained from voting.

Contact form ¶

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Discussion ¶

Nov. 14, 2012 | Plenary session (Chamber of representatives)

Full source

These bills were discussed in the Committee on Finance and Budget during the meetings of 23 October and 6 November 2012. Both bills enable the transposition of Directive 2009/210/EC of the European Parliament and of the Council, better known as the e-Money Directive.

The e-Money Directive consists of two parts. The first part provides for the conditions for access to the activities of electronic money institutions and the prudential supervision thereof. The second part provides for a number of obligations of the issuers with respect to the holders of electronic money.

The definition of electronic money is quite broadly understood in the Directive and in the draft law and is rather in abstract terms, making it possible to be unclear at first glance which payment instruments exactly fall under the legal definition.

In the considerations is clearly stated why. A definition should be sufficiently broad, precisely so as not to hinder technological innovations, and not only to cover electronic money products currently available on the market, but also those that could be developed in the future.

The applications of electronic money can therefore be very diverse and are strongly linked to technological development. Hence also the abstract definition of electronic money in the directive and the law to keep this technology neutral. In fact, we must note that regulation often follows technological development.

The legislature also established the legal framework concerning the access to, the exercise of, and the economic supervision of the activities of institutions providing this electronic money.

Why was the Directive amended here? Because certain provisions of the Directive would have hindered the creation of a genuine internal market for these services.

The main changes that have been made are about simplifying the statute. The initial capital required to obtain an authorisation for an electronic money institution shall be reduced. It will also be possible to carry out other business activities that do not necessarily relate to the issuance of electronic money. In addition, the exemption, already included in the previous directive, is being revised.

The second bill amends Article 36/22 of the Law of 22 February 1998. The draft law regulates the appeal to the Council of State, in accordance with the accelerated procedure against certain decisions of the National Bank of Belgium.

So I am going to close my general explanation.

Colleagues, at the general discussion there were presentations by Veerle Wouters of N-VA, by Carl Devlies of CD&V, by Georges Gilkinet of the Ecolo-Groen group and by Josy Arens of CDH.

Mrs. Veerle Wouters, who will undoubtedly discuss her comments later, noted that the very technical drafting of this legislation makes it hardly possible to explain the social significance and the yet very broad scope of this draft law.

Mr Carl Devlies expressed his group’s satisfaction with the bills. With the transposition of the Directive, he believes that market players will finally be given equal conditions. It will also increase flexibility and promote legal certainty for the sector. At the same time, the bill will lead to a decrease in the administrative burden for companies, which is not insignificant.

Mr. Arens also wants to overcome the digital divide. We must be careful that the gap does not increase. At the same time, he also points out the potential positive consequences for rural areas, which are facing, for example, the closure of bank offices.

Mr Gilkinet, after asking a number of technical questions, focused on the royal decrees that should lead to the implementation of these draft laws.

Following the reply of the Deputy Prime Minister, the committee proceeded to the article-by-article discussion. The following were presentations by Ms. Wouters and Mr. Gilkinet and answers from the Deputy Prime Minister and subsequently from the State Secretary of Public Affairs.

For details on the article-by-article discussion, I would like to refer to the written report.

Finally, following this draft law, the Government also submitted amendments relating to the statute of professional loans. With its amendments, the Government aims to facilitate the temporary withdrawal from the status of the professional credit, provided that payment of an exit fee to the State.

Following the opinion of the State Council and the discussion in the committee, the amendments were adjusted and approved in accordance with the opinion of the State Council.

For further substantive and procedural observations, I refer again to the written report.

Mr. Speaker, Mr. Minister, colleagues, instead of running with small money on the pocket, one can also go on with an electronic money bag. On the Belgian market, the most well-known brands of such an electronic money bag are PingPing, Hipay and Proton. The Proton payment system is issued by the credit institutions, but it ceases to exist in 2014 because the number of transactions that run through Proton has been declining for several years. Electronic money bags are therefore very limited in success in Europe. With PingPing and Hipay, Belgium has only two licensed institutions for electronic money.

In order to stimulate the development of the issuance of electronic money, the e-Money Directive provides for a number of amendments that will be thoroughly implemented in the present draft law. With the revised Directive, the European legislator aims to stimulate the development of the electronic money market, but all this with the preservation of an adequate protection for consumers.

In order to be able to issue electronic money, institutions in principle need a prior authorisation. The statute and supervision of electronic money institutions will no longer be aligned with the system of credit institutions, but with that of payment institutions. However, the National Bank of Belgium continues to supervise a sound and prudent policy with adequate risk management of those institutions.

In order to protect the cash money that the consumer pays to an issuer of electronic money in exchange for electronic money, that issuer should keep that cash money on a separate account so that in the event of a bankruptcy of the issuer of electronic money, the creditors cannot claim that cash money. Electronic money institutions shall not grant credit from the funds they receive or hold for the issuance of electronic money. However, lending by those institutions becomes possible, as this should increase the profitability of those institutions and thus attract more issuers of electronic money. Consumer loans are now protected by the Consumer Credit Act.

In order to initiate the issuance of electronic money, less initial capital will be required. To obtain the authorisation, it will be sufficient to have a corporate capital of 350 000 euros instead of the current 1 million euros.

In order to adequately protect the consumer, capital must be ⁇ ined permanently.

Finally, the National Bank of Belgium may grant an exemption to an issuer of electronic money if the outstanding amount of electronic money remains limited to 5 million euros and the electronic money bag itself is up to 150 euros.

In the committee, however, I have once again pointed out the danger that institutions may remain under the supervisory radar if they issue electronic banknotes up to a maximum of 150 euros, with a linked credit up to 200 euros. In that case the consumer is much less protected because then the law on consumer credit is still only partially applied. Nevertheless, we believe that the Directive and this draft law find a sufficient balance between the interests of electronic money issuers, on the one hand, and the interests of consumers, on the other.

The future will have to show whether the success of the issuance of electronic money by the new directive and this law will now be greater and, above all, whether it will also be a safe success. Let us not create misunderstandings: this part of the bill enjoys the approval of our group. You know, however, that after us usually follows a “but”.

That “but” this time concerns a whole bundle of amendments submitted by the government regarding the professional loan.

Those amendments provide, subject to the payment of a special contribution, for a temporary withdrawal arrangement for credit associations from the net of professional credit and from the scope of the Public Credit Act. Until now, credit associations wishing to withdraw from the net of professional credit have to pay a separate fee of 34 % on the reserves accumulated until 1994. That separate charge is therefore a compensation for the tax favourable regime that those credit associations have ⁇ in the past.

Even when they exit the net of professional credit, these credit associations remain subject to very significant restrictions imposed by the Public Credit Act. Those limitations are as follows: they must retain the legal form of a limited liability cooperative, they must limit the amount of the dividends, in case of liquidation the liquidation surplus must be paid to the Participation Fund and also the possibilities of restructuring are limited to the associations which are part of the net of the professional loan.

In the event of non-compliance with these conditions and when they fall out of the scope of the Law on Public Credit, these credit associations must pay the accumulated reserves, the revaluation measures, the provision funds for future risks and the transferred positive or negative result to the Participation Fund.

The limitation of the dividend and the obligation to pay the liquidation surplus or the equivalent thereof when a credit association does not comply with the law on public credit, have primarily their origins in the social purpose of this law. Shareholders knew, and still know today, and know in advance that the return on their capital is or will be limited. Now the government offers the credit associations the opportunity to temporarily escape these restrictions, and all this on the condition of payment of a special contribution which is only a fraction of the accumulated reserves, thus a lot lower than the current contribution. Thus, it rewards the shareholders of these credit associations, who knew well and knew that they normally never claim to those reserves.

In addition, it is actually only four credit associations, in particular BKCB, the Onderling Beroepskrediet, the Antwerp Beroepskrediet and Crédit Professionel du Hainaut. BKCB and Onderling Occupational Credit are owned by the French company Caisse Fédérale du Crédit Mutuel du Nord-Europe. The Antwerp Professional Credit was acquired last year by the group Ackermans & van Haaren. The shareholding of the Crédit Professionel du Hainaut is difficult to find out, but I am certain that the governor of Henegouwen is the manager of this.

All this brings me to the next point. Not only is this special contribution much lower than it is today, nor can we get rid of the impression that this special contribution has also been written on its own. Indeed, the calculation base is reduced by 150 % of the capital, as well as by half of subordinated loans. These corrections on that calculation basis are contrary to any logic of the Public Credit Act. Credit associations can choose to raise capital or to issue outstanding loans.

Therefore, shareholders are not entitled to 150 % but only to 100 % of the deposited capital on which they receive a limited dividend return. However, when they issue disadvantaged loans, they can easily bypass the dividend limit. We ask ourselves why the avoidance of these restrictions is rewarded through the special contribution of the government. This is in sharp contrast to the policy of this government towards taxpayers who sometimes try to avoid the high tax burden but are persecuted for it.

Furthermore, the analysis of the financial statements of 2011 shows that only the Onderling Beroepskredit issued a disadvantaged loan. The calculation base is therefore adjusted in favor of the Intermediate Occupational Credit. On the basis of that annual report, we come to the conclusion that the OBK will not have to pay any special contribution to the State when it is now postponing. That is very strange.

This brings me to my last point of criticism. The special contribution is another one-off budget measure that allows the government to push structural savings a little further. For purely budgetary reasons, the €102 million of this special contribution should not be paid to the Participation Fund but to the State. In the event of a payment to the Participation Fund, the amount would not be included in the consolidation account of the budget.

Finally, Mr. Minister, on the insistence of colleague Almaci – who today, unfortunately, has been apologized – and me, the committee eventually agreed to seek the opinion of the State Council. You must agree with me that the State Council opinion proved to be ⁇ useful. The original amendments submitted by your government, without the advice of the State Council, were drawn up in such a way that even credit associations from 2014 could step out of the scope of the Public Credit Act without paying a liquidation surplus. Minister Vanackere, we once again urge the Government to consult the State Council in a timely manner. When submitting amendments to the committee, that opinion must be accompanied, ⁇ and firmly when it is a bundle of amendments that in fact constitute an independent draft law and have absolutely nothing to do with the original draft law.

Don’t come here stating that you were under time pressure. We discussed this in the committee in March. So you knew since March that you had to change the law. It is now end of November. It is not appropriate that you want to do this through amendments to an arbitrary bill.

Because of the gap over professional credit, we will still vote against the first bill. The second bill, which concerns the supervision of institutions for electronic money, can be approved.

I will be relatively short.

The original draft law was intended to transpose a European directive into national legislation. The Directive aims to revise the legal framework for electronic money institutions.

We had nothing against this, if it were not that the government would take advantage of the opportunity, or rather abuse it to attract, through an amendment, a very different problem, namely a new regulation concerning the credit associations from the net of professional credit. This has nothing to do with the European Directive. The problem of the credit associations from the net of professional credit could have perfectly poured the government into a separate bill, but then it probably came too strong that the amendment should only serve to help the budget formulation.

The budgetary impact of the amendment amounts, say and write, to EUR 102 million annually. It is a one-off measure, the proceeds of which do not go to the Participation Fund, but directly benefit the budget. That is the true content of the bill that is now being discussed. As we have seen in recent weeks, the government is hopelessly looking for new income. This camouflaged amendment to the draft law was intended to help close the budget deficit gap on the head of the credit institutions.

That is why the Flemish Interest will vote against.