Catherine Houssa, Partner in our Digital Finance Team, was interviewed on the latest FinTech trends by La Libre Belgique in a special edition dedicated to the take-off of tech in Brussels.
An opportunity to also highlight the advantages of Brussels as a set-up point for FinTechs willing to reach all of Europe.
The full article is available here.
In the era of digital banking, does it still make sense to use the localisation of a bank account to settle conflicts of jurisdiction?
In its recent case “Löber”, the ECJ decided that tort claims against the issuer of a misleading prospectus may be brought before the courts of the investor’s domicile provided that his or her investment originated from a bank account localised in the same jurisdiction and that ‘other specific circumstances’ also contribute to the jurisdiction of these courts. A decision which goes against the current digital flow? Discover Thomas Derval‘s opinion on this case in the Journal de droit européen: http://bit.ly/lober-ecj (in French – reserved to subscribers).
An important update of the UBO Register FAQ document has been published by the Federal Public Service Finance on 2 April 2019. It provides a number of clarifications on the scope of the regulations, notably with respect to the notion of senior managing official, the situation in case of a usufruct / bare ownership, co-ownership, shareholders’ agreements… It also confirms that UBOs will have the right to know who consults their data. The updated FAQ document is available here: http://bit.ly/QandA-ubo
On 26 March 2019, a fierce battle took place in the arena of the EU Parliament. Arguments flowing back and forward resulted in a close majority in favour of the supporters of the new Directive (EU) 2019 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (hereinafter: the New Copyright Directive). You may find the debate here and the final text as adopted here.
The fact that the European Commission launched the proposal back in September 2016 with a legislative process lasting nearly two and a half years and only 348 Members of the European Parliament (hereinafter: MEP) voting in favour, while 274 MEP voted against and 36 MEP abstained, illustrates the controversial nature of the New Copyright Directive. This led to the adoption of the current text containing merely 32 articles to be accompanied with almost three times that amount of recitals, i.e. 86.
Closing the value gap
The biggest battle was fought over the new obligations and the personal scope of Online Content-Sharing Service Providers (hereinafter: OCSSP). When reading between the lines of the personal scope, the thresholds and the exemptions, it seems that the new rules on the internet are tailored towards big information society service providers such as YouTube, Facebook and similar platforms. The goal of the New Copyright Directive is clear: the EU only intends to regulate the internet to the extent necessary to tackle the famous “value gap” and ensure appropriate remuneration for rightholders for the use of their protected works on the internet.
Under the New Copyright Directive, an OCSSP means “a provider of information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes”.
Despite clear indications, the New Copyright Directive still leaves room for interpretation of this new key concept. It will be interesting to see how courts will define the boundaries and interpret the open notions like “main” and “large”. What is certain, is that activities of providers of services like Wikipedia (online encyclopaedia), Dropbox (online storage), eBay (online marketplace) and Telenet or Belgacom (electronic communication services) are not included in the scope as they are explicitly excluded for the reason that they do not have as their main purpose to give to the public access to a large amount of copyright-protected works.
The new obligations on OCSSP flowing from the New Copyright Directive include amongst others that OCSSP must now obtain an authorisation in exchange for an appropriate remuneration from the rightholders in order to communicate the protected works to the public. In the event that they cannot obtain such authorisation, they must demonstrate best efforts to obtain it, demonstrate best efforts to make unavailable unauthorised content for which relevant and necessary information was provided and organise an expeditious notice, take down and stay down mechanism for unauthorised content. The latter must include an effective and expeditious complaint and redress mechanism with a human review in the event of disputes. At the same time, the OCSSP must refrain from general monitoring and over-blocking.
Other key features of the New Copyright Directive
Besides the above-mentioned, other key features of the New Copyright Directive include:
- New exceptions and limitations covering text and datamining, the use of works in digital and cross-border teaching activities and copies made for the preservation of cultural heritage
- Measures to ensure wider access to out-of commerce works by providing the grant of non-exclusive licences to cultural heritage institutions for non-commercial purposes, together with measures to ensure transparency and stakeholder dialogue
- Measures to facilitate collective licensing and rules governing collective management organisations offering such collective licenses
- Negotiation mechanism to assist parties facing difficulties related to the licensing of rights for the purpose of making available audiovisual works on VOD platforms
- New publisher’s rights with regard to online uses of their press publications
- A right for authors and performers to receive information as well as appropriate and proportionate remuneration when they license or transfer their exclusive rights
- A right of revocation for authors and performers in case of a lack of exploitation after transferring or licensing their rights on an exclusive basis
The journey is far from over. The Council of Ministers still has to give its final opinion over the New Copyright Directive and it is expected that it will accept the final text on 9 April 2019. After that, the text will be published in the Official Journal and the Member States will have 2 years after the date of entry into force of the directive to transpose it into their national laws.
The rules laid down in this new directive aim at creating a fair balance between access to creative works and appropriate remuneration for the rightholders. It would be in the interest of all stakeholders that users and rightholders come to a mutual understanding and conclude the necessary licenses to keep contents available while at the same time ensuring appropriate remuneration of the rightholders, and ultimately prove the sceptics wrong.
We will keep monitoring the progress of the New Copyright Directive and its implementation and keep you updated.
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For any question, do not hesitate to contact the authors:
email@example.com – +32 2 533 17 52
firstname.lastname@example.org – +32 2 533 17 13
email@example.com – +32 2 533 17 58
Catherine Houssa took part in the Belgian State Visit to the Republic of Korea, presenting the Belgian FinTech regulatory landscape to Korean FinTech companies and startups in Seoul. An opportunity to place Belgium at the centre of Europe, and to discover striking differences between the Belgian and Korean most popular FinTech activities.
Our Digital Finance Team has authored the Belgian chapter of the FinTech Global Guide 2019 released by Chambers & Partners, providing practical insight on key FinTech topics, such as Payments, Open Banking, Robo-advisory and InsurTech. The guide is available here: http://bit.ly/2UfuBxy
The Belgian anti-money laundering regulations (the Law of 18 September 2017 and the Royal Decree of 30 July 2018) require all companies, non-profit-making organisation and foundations, as well as trusts, fiduciaries and other similar legal entities managed from Belgium, which are the responsible “information providers”, to obtain and hold adequate, accurate and up to date information on their “beneficial owners” (UBO) and to transmit it to the UBO Register, managed by the General Administration of the Treasury.
2) DEFINITION OF UBO
UBO are individuals who directly or indirectly exercise effective control over information providers. There are different categories of UBO depending on the type of control exercised and on the type of information provider.
For companies, the following are considered as beneficial owners:
- Individual(s) who directly or indirectly has/have ownership of a sufficient percentage of voting rights or own sufficient shares in the company (an indication of a sufficient percentage is the possession, directly or via ownership interest held by one or more companies, of more than 25% of voting rights or of shareholding);
- Individual(s) who control via other means (such as via a shareholders’ agreement) ;
- In the case no individual(s) is/are found under the first two categories, the senior manager.
Others persons qualify as UBO for non-profit-making organisations, foundations, trusts, fiduciaries or other similar legal entities. If your entity corresponds to one of those, we will provide you with further details.
3) INFORMATION TO PROVIDE
As mentioned in the Royal Decree, the following information regarding each beneficial owner must be communicated to the UBO Register by the company which is the information provider:
- last name, first name, date of birth (day/month/year), citizenship(s), country of residence, complete address of permanent residence, date on which they became the UBO of the company, national registry number or registration number with the Crossroads-Bank for Companies (or overseas equivalent),
- the relevant category of UBO to which he/she belongs,
- if he/she is a direct or indirect UBO (via one or more other entities),
- if the individual(s) meets the criteria alone or in coordination with others,
- for indirect beneficial owners, full identification of each of the intermediary entities is required,
- the percentage of shares or voting rights owned and,
- in case of indirect holding or control, the percentage of shares or weighted voting rights held in the company.
4) ACCESS TO THE REGISTER
The UBO Register is an online register accessible on the FPS Finance website.
UBO Register data are accessible not only to the competent authorities and obliged entities (notably the Ministry of Finance, the tax authorities, the Belgian Financial Intelligence Processing Unit (CTIF), the police, the National Bank of Belgium, the FSMA, company auditors, accountants, lawyers, notaries, bailiffs, etc.), but also, for companies, to all members of the “general public”, in line with the increased transparency principle enshrined in the 5th Anti-Money Laundering directive.
However, those persons will not have access to the first name, the exact date of birth, the complete address of residence, the national registry number or equivalent of the beneficial owners.
All consultations of the register made by those persons will be recorded and kept for a period of 10 years.
The data held in the register will also be kept for a period of 10 years after the date of loss of legal personality of the information provider or the date on which it ceased its activities.
5) REQUEST FOF DEROGATION
A request for derogation can be made via the UBO Register online platform. In this case, access for the general public to the information is suspended until the General Administration of the Treasury grants or declines to accept the derogation.
In principle, a derogation may only by granted under exceptional circumstances, expressed as follows under in the directive:
“in the event the beneficial owner concerned demonstrates that this access exposes him/her to disproportionate risk, to risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation, or in the event the beneficial owner is a minor or incapacitated”.
A specific request may also be made directly via the General Administration of the Treasury.
Supporting documents which evidence the derogation request must be attached to the official request.
The different entities must transmit the information to the UBO Register before 30 September 2019.
Administrative or criminal fines will apply in case of non-compliance by companies and more particularly by the directors of their obligations. The fines range between 250 EUR and 50,000 EUR.
Thereafter, all modifications must be recorded within a one month period.
Moreover, the information recorded in the Register must be confirmed annually by the information providers. The companies are required to establish a procedure which ensures it is possible to make information available and to keep up to date and correct information, clearly identifying their beneficial owners.
Companies are required to take the following measures:
- Set up internal procedures to facilitate the collection of the requested information and communication of any potential changes relating to it;
- Identify the beneficial owners and their corresponding category(ies), and where necessary compile the documents testifying to the veracity of the information communicated (e.g.: a copy of an identity card, a shareholder register, a notarial deed, articles of association of the intermediary company in case of indirect ownership).
- Appoint the legal representative or an external representative with an E-ID card who will be responsible for providing the information listed in the Royal Decree via MyMinFin on behalf of the information provider. In the scenario an external representative is chosen, it may be either an internal agent to the information provider or an external agent (e.g. an accountant, a legal advisor, a natural or legal person).
Practical information is available on the website of the Federal Public Service Finance, particularly under the FAQ document.
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