Our Digital Finance Team interviewed on the latest FinTech Trends

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.

Is Brexit a regulatory opportunity for Belgian InsurTechs and the insurance market as a whole?

In theory, insurance services are harmonised at the EU level. Insurance companies and intermediaries alike may easily ‘passport’ their domestic licences across the entire EEA, thereby servicing the entire European market, either through the freedom to provide services or the freedom of establishment (e.g. through branches).

In practice, however, the insurance market is not (yet?) as harmonised as the banking and investment industries. This is especially true at the distribution level, where various intermediary statuses and licences exist and where practices may vary significantly from one country to another.

For instance, whereas Belgium is often considered as broker-centred, the UK’s insurance market knows alternative distribution channels in which Managing General Agents (‘MGAs’) play a central role in connecting insurers and distributors (such as brokers or agents).

Typically, UK MGAs are backed by one or more insurers and have an underwriting capacity. They can develop their business in niche areas and create specific products. Their business model is not very well-known in Belgium and does not really fit in any of the three Belgian traditional intermediary licences (broker, agent, and sub-agent).

This has been noticed by the Belgian Government.

Brexit as a trigger for regulatory innovations

Willing to make Belgium an attractive Brexit destination, the Belgian Government has adopted a dedicated Brexit Act (Law of 3 April 2019 on the exit of the United Kingdom from the European Union).

Amongst various Brexit-oriented reforms, the Government has created a brand new insurance intermediary licence, more or less mirroring that of the UK MGA’s. The Belgian MGA (known as the “souscripteur mandaté / gevolmachtigde onderschrijver”) is defined as “the insurance intermediary which, in its capacity of proxy-holder of one or more insurance companies, has the power to accept to cover risks and to conclude and manage insurance contracts in the name and for the account of these insurance companies”.

It is not the first time that the Belgian Government adapts the national legislative and regulatory framework to the needs of Brexiteers. The Insurance Law of Control (Law of 13 March 2016 relating to the status and control of insurance and reinsurance companies) goes as far as expressly referring to the Lloyd’s of London (and Brussels?) in its definition of the reinsurance activity – one could even question the constitutionality of a legal provision dedicated to a specific private entity.

Clearly, Brexit has led to Belgian regulatory innovations. Although the new MGA status is first and foremost targeted to existing UK intermediaries willing to anticipate the consequences of a too-hard Brexit, it might also offer opportunities for other insurance actors.

Amongst other changes, the digitalisation of the insurance sector has seen the rise of many insurtechs attempting to disrupt existing distribution channels. The need for these insurtechs to fit in one of the traditional broker or agent licences has sometimes raised regulatory challenges.

The creation of a brand new intermediary status offers new opportunities for these disruptors.

By the same token, it may also represent an opportunity for insurance companies looking for the development of new distribution channels and it will certainly offer comfort to UK insurance companies replicating their business model in Belgium.

The Belgian MGA regulatory status in a nutshell

The Belgian Government has done little more than creating the new MGA status and defining its core activities.

With regards to the rules of conduct, the Brexit Act essentially provides that MGAs are subject to the same requirements as insurance brokers.

On top of that, there are three specific requirements applicable to MGA’s activities:

  1. MGAs must have an appropriate organisation in light of the nature, size and complexity of their activities and associated risks;
  2. Their website must list all the insurance companies which granted them an underwriting power as well as the insurance branches covered by this power; and
  3. They must indicate the name of the underlying insurance companies on every insurance policy concluded on their behalf.

In addition to these legal requirements, the supervisor (FSMA) has also made clear that Belgian MGAs could not cumulate their activities with “traditional” insurance intermediation services. Although the FSMA’s position is not perfectly clear, it seems that the supervisor is of the opinion that direct contacts with policyholders will be reserved to broker and (sub-)agents. However, the FSMA considers (See FSMA’s newsletter of April 2019) that sister companies from a same group could apply for different insurance intermediary licences (e.g. company A1 being an MGA and company A2 being an insurance broker).

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Thomas Derval
thomas.derval@simontbraun.eu
+32 (0)2 533 17 09

UBO Register – Important updates in the FAQ document

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

For any question, please contact Sandrine Hirsch or Nikita Tissot.

The final text of the new Companies Code has been published

Today has been published the Law of 23 March 2019 introducing the Code of companies and associations and amending certain other regulations (notably the Law on takeover bids). The final text is now available here.

For any assistance, please contact Sandrine Hirsch or Nikita Tissot.

Catherine Houssa takes part in Belgian State visit in South Korea

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.

Register of Beneficial Owners – Obligation to identify UBOs

1) INTRODUCTION

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:

  1. 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);
  2. Individual(s) who control via other means (such as via a shareholders’ agreement) ;
  3. 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:

  1. 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),
  2. the relevant category of UBO to which he/she belongs,
  3. if he/she is a direct or indirect UBO (via one or more other entities),
  4. if the individual(s) meets the criteria alone or in coordination with others,
  5. for indirect beneficial owners, full identification of each of the intermediary entities is required,
  6. the percentage of shares or voting rights owned and,
  7. 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.

6) DEADLINE

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.

7) FORMALITIES

Companies are required to take the following measures:

  1. Set up internal procedures to facilitate the collection of the requested information and communication of any potential changes relating to it;
  2. 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).
  3. 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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Sandrine Hirsch and Nikita Tissot

For any question, do not hesitate to contact the authors:
sandrine.hirsch@simontbraun.eu – +32 2 533 17 64
nikita.tissot@simontbraun.eu  – +32 2 533 17 06

 

Our Digital Finance Team hosted the Vlerick FinTech Bootcamp

Yesterday, Simont Braun’s Digital Finance Team hosted the Vlerick FinTech Bootcamp. Philippe De Prez highlighted the impact of regulation on FinTech ventures and the students had the chance to hear 8 FinTechs pitching: Ibanity, DigiTribe, Accountable, POM, Itsme Belgian Mobile ID, 0smosis and GAMBIT.

Thank you to Bjorn Cumps from Vlerick Business School and FinTech Belgium for their trust.

The new Belgian Code of Companies and Associations has been voted

It’s official: the new Belgian Code of companies and associations has been approved yesterday in its final version by the Belgian Parliament. It will be published in the official gazette in the coming weeks and will gradually come into force as from May 1st, 2019.

For an insight into the reform, please refer to a recent presentation by Paul Alain Foriers: https://bit.ly/2FQ4445.

The full text is available here: https://bit.ly/2GTGvXH For more information on how to comply with the new Code, do not hesitate to contact a member of our corporate team.

Le droit du procès civil – Colloque et parution du Volume 2

Le colloque « Le droit du procès civil – Etat actuel et analyse des réformes à venir » a attiré plus de 300 participants ce lundi 28 janvier à l’ULB.

Fanny Laune et Marc Baetens-Spetchinscky – Le droit du Procès civil

 

Les interventions de Fanny Laune et de Marc Baetens-Spetschinsky sont disponibles ici :

pdfLa déformalisation de l’acte juridictionnel et le régime des nullités par Fanny Laune
pdfIncertitude concernant les conditions de recevabilité de l’appel incident et actualités en matière de délai d’appel par Marc Baetens-Spetschinsky

Ce colloque s’est tenu à l’occasion de la parution du volume 2 du Précis « Droit du Procès civil » (Anthémis), un outil résolument orienté sur la pratique essentiel pour tout praticien de la procédure, auquel Fanny Laune et Marc Baetens-Spetschinsky ont contribué.