Disclosure Requirements - Belgium
Disclosure Category 2
In order to comply with the legislation as mentioned below, customers entering into transactions in the Belgian domestic market consent and are hereby deemed to consent to disclosure and to the appointment of the requestor (for example, the National Bank of Belgium) as their attorney-in-fact, under power of attorney to collect from Clearstream Banking such information as is required to be disclosed.
Customers who do not want to grant such authority to Clearstream Banking should refrain from holding such bonds in their account with Clearstream Banking.
Background and legal basis
The basis for the disclosure obligation is the Title II Disclosure of Major Holdings of the Law of 2 May 2007 on disclosure of major holdings in issuers whose shares are admitted to trading on a regulated market and laying down miscellaneous provisions. These provisions are also contained in new legislation to be entered into force on 1 September 2008 following royal approval (via Royal Decree AR 14 February 2008 relative to the disclosure of major holdings).
The disclosure obligation falls on the beneficial owner. The obligation of secrecy forbids Belgian banks (in this case, Clearstream Banking’s asset servicers: BNP Paribas S.A., Paris and KBC Bank, Brussels) from disclosing the names and/or shareholdings of clients.
Directive (EU) 2017/828 of 17 May 2017 amending Directive 2007/36/EC with regard to the encouragement of long-term shareholder engagement (the second shareholder’s rights directive “SRD II”) has been transposed and published in the Moniteur Belge on 28 April 2020 (SDR II Law).
Obligation to report threshold crossings
The acquisition or transfer (or crossing of the threshold in a passive or indirect way) of securities of a company whose member state of origin is Belgium, listed on a regulated market of the European Economic Area (EEA), representing 5% or more of the actual or potential voting rights by a legal entity or individual must be declared to the issuer and to the Financial Services and Markets Authority (FSMA).
Note: The law allows companies to change the first threshold of 5% to 1%, 2%, 3%, 4% or 7.5% (without abolishing the 5% threshold) and some transactions are assimilated to this change.
Beneficial owners that do not comply with this law on threshold crossing may be subject to between one and 12 months imprisonment and/or a fine of between EUR 50 and EUR 10,000).
Reporting to the National Bank of Belgium (“NBB”)
Based on the ECB regulation No 1011/2012 of 17 October 2012, the NBB requests all direct participants (including Clearstream Banking) to disclose, on a monthly basis, the income amounts received by Belgian customers from NBB-eligible securities. This disclosure includes a report by type of instrument, payment date, identity of the direct customer of Clearstream Banking (who is a resident of Belgium for tax purposes) and the total income amounts received by the respective Clearstream Banking customer. Nevertheless, in cases where the securities are held by the Clearstream Banking customer on behalf of a third party, the identity of the underlying beneficial owners remains undisclosed.
Furthermore, based on the Royal Decree of 23 January 1991 (as amended by the Royal Decree of 11 June 2001) and by other provisions of Belgian law, the NBB requests all direct participants (including Clearstream Banking) to disclose, on a quarterly basis and for localisation purposes only, all their global holdings in the different NBB-eligible securities. This disclosure includes a report by type of instrument and resident nationality of bondholder. Nevertheless, the identity of holders within Clearstream Banking, and of the underlying beneficial owners, remains undisclosed. This allows the NBB to publish quarterly statistics of financial investment in Belgium.
Shareholder identification as set out in the SRD II Law
The SRD II Law provides for the right of issuers to identify their shareholders.
Issuers can request intermediaries at each level of a custody chain to promptly provide relevant information to facilitate such identification.
In accordance with SDR II Law as amended, an intermediary (in this case, Clearstream Banking) shall, upon receipt of the shareholder identification disclosure request, transmit a similar request to the next intermediaries in the custody chain (that is, Clearstream Banking customers with holdings in the requested securities). A response to the shareholder identification disclosure request shall be sent by every intermediary in the custody chain directly to the recipient's address defined in the request and without delay. Clearstream Banking will generate the response as required, with information regarding the shareholder's identity, limited to Clearstream Banking books only.