Numerous articles compare different European countries or compare Europe and the US when it comes to financial regulation, the IPO market or the types of FinTech applications that are easily adopted (or not) by the public. We decided to take a look in a different direction and together with the Japanese law firm Keiwa Sogo Law Offices, Simont Braun’s Digital Finance team examined the FinTech trends in both Belgium and Japan. Interesting resemblances, but also surprising differences came out from this analysis and showed that there are different means to the same end, especially when it comes to payments.
Associations and foundations are not immune to the upcoming reforms: the Code of Economic Law has already made enterprises liable to be declared bankrupt, and it is now a question of endowing them with a new set of rules, partly common to companies.
What are the changes to expect from the new Companies’ and Associations’ Code, currently discussed at the Parliament?
1. The Law of 18 September 2017 implementing the 4th EU Anti-Money Laundering Directive of 20 May 2015 (Directive EU 2015/849) has established a register of beneficial owners, namely the “UBO register” (Ultimate Beneficial Ownership). The Royal Decree of 30 July 2018 on the operating procedures of the UBO register has been published in the Belgian Official Journal on 14 August 2018 and will enter into force on 31 October 2018.
The required information on the beneficial owners shall have to be communicated for the first time to the UBO register on 30 November 2018 at the latest.
The public offer of investment instruments and their admission to trading on a regulated market used to be governed by the law of 16 June 2006 implementing the Directive 2003/71/EC of 4 November 2003 (the Law of 2006).
While mandatory disclosure of information is vital to protect investors and constitutes a necessary step towards completion of the so-called ‘EU Capital Markets Union’, the rules laid down in Directive 2003/17/EC led to divergent approaches across Europe and resulted in significant impediments to cross-border offers of securities, multiple listings on regulated markets and to EU consumer protection rules.
Therefore, the EU legislator repealed the Directive 2003/71/EC and adopted the Regulation 2017/1129 of the European Parliament and of the Council dated 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market (the “Prospectus Regulation”). The Prospectus Regulation imposes obligations having a direct effect on persons involved in the offering or listing of securities.
The FSMA recently released a short Q&A summarising the key steps and requirements of the process for a registration application as an insurance intermediary in Belgium. This document, drafted in English, is intended to attract and inform potential newcomers, be them established insurance professionals fleeing the potential consequences of Brexit or new market entrants such as InsurTech companies.
This provides us with an opportunity to put our two-cents on the application process.
The transposition of the second Payment Services Directive (the “PSDII”) should have been completed on 13 January 2018. With a delay of a few months, a Belgian draft law implementing the PSDII rules of conduct into the Economic Law Code (the “Rules of Conduct (draft) Law”) has finally been released and is likely to be adopted in its final version very soon.
On 25 May 2018, the Council of Ministers approved the draft new Companies and Associations Code which aims at modernising the regime applicable to companies and associations.
The draft Code will now be submitted to the Federal Parliament for discussion and vote. We expect the parliamentary approval in the autumn of this year.
The 2nd E-money Directive’s ambitions
The first e-money directive 200/46/EC was not as successful as initially expected. Some of its provisions limited the development of the European e-money market, notably due to certain over-demanding prudential requirements and uncertainties about its scope of application. The second e-money directive 2009/110/EC of 16 September 2009 (“2EMD”) was meant to solve these shortcomings and to give a fresh start to the e-money market. This objective was pursued through facilitating the application process for e-money licenses and bringing its provisions in line with the payment service directive 2007/64/EC (“PSD1”).
Article 17 of the 2EMD required the European Commission to present a report on the implementation and impact of this directive, accompanied, where appropriate, by a proposal for its revision. The deadline imposed by the 2EMD for this review was 1 November 2012.
The EU should work on “a more future-oriented regulatory framework embracing digitalisation, with the aim of creating an environment where innovative FinTech products and solutions can be rapidly rolled out across the EU to benefit from the scale economies of the Single Market” (EU Commission draft FinTech Action Plan)
And to attain this ambitious objective, the EU Commission conducted a public consultation which highlighted three goals and the measures to be taken to reach them: the Fintech Action Plan (still under development).