Belgium: FinReg Monitoring - March 2023

ESMA has published a supervisory briefing on firms offering copy trading services.

This briefing includes guidance on the qualification of copy trading services as an investment service and it sets out supervisory expectations with regard to MiFID II requirements on

• information requirements (including on marketing communications and costs and charges);
• product governance;
• suitability and appropriateness assessment;
• remuneration and inducements; and
• qualifications of traders whose trades are being copied.

A draft bill to reduce the current ceilings for the different types of filing fees for mortgage loans has been introduced in the Belgian Parliament.

The draft bill also foresees the inclusion of the ceilings in the Code for Economic Law. The draft bill also provides for a mandate to establish by royal decree a method for determining the maximum appraisal costs and for their possible adjustment.

The NBB's AML/CFT site has been updated

• the NBB's comments and recommendations on the pages "Governance", "Belgian parent companies", "Performance of obligations by third parties" and "Training and education of staff" have been (slightly) modified to take into account the EBA's Guidelines of 14 June 2022 on the AMLCO function;
• the information to be provided in point 4 of the AMLCO activity report template has also been (slightly) modified to take into account the specific duties and responsibilities of AMLCOs at group level.

This Bill aims to transpose European Directive (EU) 2019/1023 into Belgian insolvency law.

In addition, Book XX of the Code of Economic Law will also be adapted to the requirements set by the Court of Justice of the European Union in the Plessers rulings of 16 May 2019 and Heiploeg of 28 April 2022 that impose certain changes to the reorganisation by transfer of companies.

Furthermore, bankruptcy laws are being amended and it will become easier to liquidate companies in certain circumstances. Post-bankruptcy debt discharge will be relaxed and brought in line with Constitutional Court case law. The second-chance policy, which encourages entrepreneurship and enables a fresh start, is central to this.

ESMA has published its Final Report on Guidelines on MiFID II product governance guidelines.

The main amendments introduced to the guidelines concern

• the specification of any sustainability-related objectives a product is compatible with;
• the practice of identifying a target market per cluster of products instead of per individual product ("clustering approach");
• the determination of a compatible distribution strategy where a distributor considers that a more complex product can be distributed under non-advised sales; and
• the periodic review of products, including the application of the proportionality principle.

The Guidelines will be translated into the official languages of the EU and published on ESMA's website.

The publication of the translations will trigger a two-month period during which national competent authorities must notify ESMA whether they comply or intend to comply with the Guidelines. The Guidelines will apply two months after the date of the publication on ESMA's website in all EU official languages.

The EU Commission has adopted a proposal for a Directive on green claims – the "Green Claims Directive".

This proposal aims to

• make green claims reliable, comparable and verifiable across the EU
• protect consumers from greenwashing
• contribute to creating a circular and green EU economy by enabling consumers to make informed purchasing decisions; and
• help establish a level playing field when it comes to environmental performance of products.

To ensure consumers receive reliable, comparable and verifiable environmental information on products, the proposal includes

• clear criteria on how companies should prove their environmental claims and labels
• requirements for these claims and labels to be checked by an independent and accredited verifier; and
• new rules on governance of environmental labelling schemes to ensure they are solid, transparent and reliable.

The proposal targets explicit claims that (1) are made on a voluntary basis by businesses towards consumers, (2) cover the environmental impacts, aspects or performance of a product or the trader itself and (3) are not currently covered by other EU rules.

This draft Law makes amendments to the Value Added Tax Code to introduce certain information requirements for certain payment service providers, following the transposition of Council Directive (EU) 2020/284 of 18 February 2020 amending Directive 2006/112/EC as regards the introduction of certain requirements for payment service providers.

This Directive introduces an obligation on payment service providers to keep sufficiently accurate records of relevant cross-border payments per calendar quarter and to then provide that information to the tax administrations of the relevant Member States.

A Royal Decree has been published in the Belgian State Gazette that introduces a strict framework for any advertising of virtual currencies to consumers.

The requirements shall apply when advertising virtual currencies in Belgium to consumers both as a regular professional activity and on an occasional basis for a remuneration.

Commercialisation is broadly defined as any communication specifically aimed at promoting the purchase or subscription of one or more virtual currencies, regardless of the medium used or the measing of diffusion.

The Royal Decree contains content requirements and a series of mandatory mentions but also foresees that the advertisements need to be notified to the FSMA at least 10 days before diffusion.

A draft law transposing Directive (EU) 2019/2121 with respect to cross-border conversions, mergers and divisions and also contains various provisions on restructuring (merger and division) of companies (the Mobility Directive) has been introduced in the Belgian Parliament.

Directive 2019/2121 aims to promote freedom of establishment within the EU by making it easier for companies to participate in cross-border mergers, divisions and conversions, while strengthening the rights of stakeholders (shareholders, creditors and employees).

To this end, Directive 2019/2121 amends the already existing Directive (EU) 2017/1132 on certain aspects of company law. Directive 2019/2121 contains harmonized rules for cross-border conversions and divisions, on the one hand, and amendments to the existing cross-border merger procedure, on the other, in order to increase its effectiveness and efficiency.

The EDPB adopted its opinion on the draft adequacy decision regarding the EU-U.S. Data Privacy Framework in which it welcomes substantial improvements such as the introduction of requirements embodying the principles of necessity and proportionality for U.S. intelligence gathering of data and the new redress mechanism for EU data subjects.

At the same time, the EDPB expresses concerns and requests clarifications on several points. These relate in particular, to certain rights of data subjects, onward transfers, the scope of exemptions, temporary bulk collection of data and the practical functioning of the redress mechanism.

Negotiators of the Council and the European Parliament reached a provisional agreement on the creation of European green bonds (EuGB).

This regulation lays down uniform requirements for issuers of bonds that wish to use the designation 'European green bond' or 'EuGB' for their environmentally sustainable bonds that are aligned with the EU taxonomy and made available to investors globally.

It also establishes a registration system and supervisory framework for external reviewers of European green bonds.

To prevent greenwashing in the green bonds market in general, the regulation also provides for some voluntary disclosure requirements for other environmentally sustainable bonds and sustainability-linked bonds issued in the EU.

The agreement is provisional as it still needs to be confirmed by the Council and the European Parliament, and adopted by both institutions before it is final. It will start applying 12 months after its entry into force.