I OVERVIEW OF RECENT ACTIVITY

As a result of the implementation of the Alternative Investment Fund Managers Directive (AIFMD), Belgian fund laws have been substantially restructured and reshaped. Currently, there are two important fund laws: the Law of 19 April 2014 on alternative investment funds and their managers (AIFMD Law), which covers alternative investment funds (AIFs) and the AIFMs, and the Law of 3 August 2012 on undertakings for collective investment in transferable securities and securitisation vehicles (UCITS Law), which covers UCITS and collective investment undertakings investing in receivables. In addition to these two laws, a number of other fairly recent regulations have significantly impacted the way that funds can be distributed in Belgium. These include:

  • a the Belgian moratorium on the commercialisation of particularly complex products to non-professional clients (which prohibits or limits the commercialisation of certain funds by distributors that have acceded to the moratorium);
  • b the Royal Decree of 25 April 2014 on certain information requirements when commercialising financial products to non-professional clients (which adopts a ‘transversal’ approach towards financial products); and
  • c a ban on certain ‘exotic’ funds (which prohibits the commercialisation to retail investors of certain funds, such as funds that have virtual currency or wine stocks as the underlying commodity).2

To the extent that funds are distributed via an insurance wrapper, such funds must comply with Article 20 of the Law of 4 April 2014 on insurances. Finally, fund distributions must comply with the consumer protection rules of Book VI of the Code of Economic Law.

Over the past years, the Belgian asset management industry has tried to grasp the impact (and interplay) of these new laws. Another focus point has been the obtaining of the required AIFMD authorisations or registrations with the competent authority, the Financial Services and Markets Authority (FSMA). As of 1 July 2016, eight Belgian entities have been registered with the FSMA as AIFMs governed by Belgian law, while 48 funds have been authorised as a self-managed sub-threshold AIFMs and 21 entities licensed as sub-threshold-AIFMs governed by Belgian law. Moreover, 85 (10 French, three Luxembourg, five Dutch, one German, one Maltese and 65 British) AIFMs governed by the law of another Member State of the European Economic Area (EEA) have notified the FSMA of their intention to carry out activities in Belgium under the freedom to provide services, while five EU AIFMs are active in Belgium via the establishment of a branch.

II GENERAL INTRODUCTION TO the REGULATORY FRAMEWORK

The regulatory framework governing Belgian asset management activities consists of the UCITS Law, the AIFMD Law and the Royal Decree of 12 November 2012 on certain public undertakings for collective investment (UCI Royal Decree).

i The UCITS Law

The UCITS Law implements the UCITS Directive3 in Belgium, and also introduces a framework of provisions applicable to securitisation vehicles.

First, the UCITS Law contains rules applicable to Belgian UCITS4 and foreign UCITS fulfilling the conditions of the UCITS Directive of which the shares are publicly offered in Belgium.5 As such, the UCITS Law is not applicable to foreign UCITS of which the shares are offered within the context of a private placement. In derogation from the UCITS Directive, the UCITS Law further distinguishes between Belgian UCITS of which the shares are offered within the framework of a public offering; and Belgian UCITS of which the shares are offered within the framework of a private placement. Publicly offered UCITS are subject to a list of additional requirements, such as registration with the FSMA. Moreover, all communications, advertisements and other documents that are related to a public offering of the shares in a UCITS6 must be pre-approved by the FSMA and must be complete, accurate and consistent with the prospectus.

Second, the UCITS Law imposes a set of obligations and rules applicable to the management companies of UCITS. In this regard, the applicable rules differ between management companies of Belgian UCITS,7 and management companies of UCITS operating in Belgium under the freedom to provide services or via a branch, which are governed by the law of another Member State of the EEA:8

  • a management companies of Belgian UCITS must comply with a list of licensing requirements to obtain a licence from the FSMA (including minimum capital requirements, governance, organisational requirements, etc.);
  • b EEA management companies intending to operate in Belgium through a branch must notify the FSMA of the registration of the branch concerned in their home Member State; and
  • c EEA management companies intending to operate in Belgium under the freedom to provide services must notify the information mentioned in Article 18 of the UCITS Directive to the competent authorities of their home Member State.

Third, the UCITS Law governs the rules applicable to institutional securitisation vehicles. In accordance with Article 271/3 of the UCITS Law, securitisation vehicles are defined as ‘investment undertakings with the exclusive goal of investing in receivables held by third parties, which are transferred to the investment undertaking in accordance with the provisions of the UCITS Law’. Part III-bis of the UCITS Law imposes a set of rules and obligations, including the obligation to register the securitisation vehicle on a list held by the Federal Public Service Finance, and provisions relating to the required organisational form of the securitisation vehicle, and the requirement to manage the vehicle in accordance with the principle of risk spreading in the interest of the security holders.

ii The AIFMD Law

The AIFMD Law is a complete and accurate transposition of the AIFMD,9 introducing a regulatory framework for AIFs and their managers. In addition, the Belgian legislator has moved all provisions of the UCITS Law, which were applicable to AIFs whose units are publicly offered and to AIFMs of such public AIFs, to the AIFMD Law.

Part I of the AIFMD Law10 contains introductory provisions, including the AIFMD Law’s scope of application. In accordance with Article 6 of the AIFMD Law,
its provisions apply to AIFs governed by Belgian law and foreign AIFs that are marketed in Belgium.11

Moreover, the AIFMD Law applies to the following AIFMs:

  • a AIFMs governed by Belgian law, managing one or more AIFs12 (Belgian AIFMs);
  • b AIFMs governed by the law of another EEA Member State (EU AIFMs),13 managing Belgian AIFs; and
  • c AIFMs with their registered office in a third country (non-EU AIFMs) that are:

• managing one or more EU-AIFs for which Belgium is the EU Member State of reference; or

• marketing one or more Belgian AIFs for which Belgium is not the Member State of reference.

Further, Part II of the AIFMD Law transposes the Directive’s provisions applicable to AIFMs, and imposes obligations relating to authorisation and passporting, organisation, (risk) management and reporting to AIFMs governed by Belgian law14 on one hand, and foreign AIFMs (both EU AIFMs15 and non-EU AIFMs16) on the other hand. Moreover, it provides a ‘light regime’ for smaller sub-threshold AIFMs,17 which are only required to register with the FSMA and are not subject to the other requirements of the AIFMD Law unless they choose to opt in. The Belgian legislator has decided not to make use of the possibility provided in the Directive to impose stricter rules on these sub-threshold AIFs unless these are publicly offered.

Part III of the AIFMD Law contains the non-harmonised provisions applicable to AIFs, which originated from the UCITS Law. In this part of the AIFMD Law, a distinction is made between publicly offered AIFs,18 and non-public AIFs governed by Belgian law that have opted for the status of an institutional19 or private20 AIF.21 The obligations imposed by the AIFMD Law differ depending on whether the shares of the AIF concerned are offered within the framework of a public offer or a private placement.

An offer will be deemed to be public if:

  • a the AIF, or any persons acting for its account or capable of placing its shares, make any communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the shares that are offered so as to enable an investor to decide to purchase or subscribe to these shares. Any person who receives, directly or indirectly, a remuneration or advantage in the framework of the offer is presumed to be acting for the account of the AIF or any persons capable of placing its shares; or
  • b the shares are admitted to trading on a publicly accessible Belgian multilateral trading facility or a Belgian regulated market.22

However, there will be (by definition) no public offer if one or more of the following conditions apply:

  • a the shares are exclusively offered to professional investors;
  • b the shares are offered to less than 150 physical or legal persons who are not professional investors;
  • c the shares require a minimum investment of €250,000 per investor and per class of securities if the AIF is open-ended;
  • d the shares require a minimum investment of €100,000 per investor and per class of securities if the AIF is closed-ended;
  • e the nominal value of each share exceeds €100,000; and/or
  • f the total value of the offer in the EEA, as calculated over a period of 12 months, does not exceed €100,000.23

The AIFMD Law imposes a number of additional obligations on publicly offered AIFs, including:

  • a organisational requirements;
  • b the obligation to submit a registration file to the FSMA before the start of any activities in Belgium in order to be registered on a list of publicly offered AIFs;24
  • c the restriction to only invest in assets that belong to one of the six admitted categories of investments;25 and
  • d a requirement to distribute a number of pieces of offer documentation26 in at least one of the national Belgian languages.

The qualification as a public offer also impacts the AIFM. Part IV of the AIFMD Law, which contains the non-harmonised provisions on AIFMs, imposes a list of additional obligations on AIFMs managing publicly offered AIFs. These obligations include licensing and organisational requirements.

To the extent that the offering of the shares in an AIF is qualified as a private placement, no other requirements are imposed by the AIFMD Law. However, within the category of non-public AIFs, Part III of the AIFMD does provide specific provisions for institutional AIFs and private AIFs, mainly relating to the internal management of the AIF and a similar restriction of admitted investment categories.

The notification procedures for UCITS in Belgium are laid down in FSMA Circulars 2013–0427 and 2014–05.28

iii The UCI Royal Decree

The UCI Royal Decree, which has been amended pursuant to the adoption of the AIFMD Law, provides detailed rules applicable to publicly offered Belgian undertakings for collective investment (UCIs), relating to the licensing requirements, the key investor information document (KIID), advertisements, master-feeder constructions and periodic reporting requirements. Moreover, the UCI Royal Decree also contains provisions applicable to UCIs governed by the law of an EEA Member State.

III COMMON ASSET MANAGEMENT STRUCTURES

The Belgian market traditionally is an open market, with mostly foreign UCITS and AIFs being marketed to Belgian retail and professional investors. Those funds can be either open-ended or closed-ended.

The Belgian state also intends to promote investments in non-listed as well as young growing companies, which often experience difficulties in obtaining finance while representing a significant economic potential. A Royal Decree relating to AIFs investing in such companies was adopted on 10 July 2016.

IV MAIN SOURCES OF INVESTMENT

During the course of 2015, the net assets of UCIs that are publicly traded on the Belgian market have increased by 14.2 per cent, amounting to €172.65 billion on 31 December 2015.29

The growth of the Belgian sector of UCIs in the course of 2015 can be attributed to a combination of net new cash and price gains on the securities portfolios. In comparison to 2004–2013, when the Belgian sector of UCIs as a whole registered very volatile net sales with an average net redemption of €0.15 billion, 2015 was a good year with net inflows of €17.35 billion.30

The table below shows the total amount of net assets per investment strategy in 2014 and 2015.31

Net assets of Belgian and foreign UCIs (in € billion)

   

2014

2015

   

Billion €

%

Billion €

%

Bond UCIs

 

35.55

23.52

31.07

18

 

Sovereign bonds

5.79

3.83

3.37

1.95

 

Corporate bonds

4.32

2.86

3.34

1.94

 

Sovereign/corporate bonds

6.18

4.09

7.72

4.47

 

Other bonds

19.26

12.74

16.64

9.64

Monetary UCIs

 

2.16

1.43

18.52

10.73

 

In €

1.14

0.76

10.59

6.14

 

In other currencies

1.02

0.68

7.93

4.59

Equity UCIs

 

47.88

31.68

45.27

26.22

 

Belgium

1.29

0.85

1.39

0.80

 

€ countries

6.80

4.50

7.34

4.25

 

Europe

14.52

9.60

13.75

7.97

 

US

6.19

4.09

4.80

2.78

 

Asia

2.71

1.79

2.71

1.57

 

Worldwide

16.29

10.78

14.51

8.40

 

Other shares

0.09

0.06

0.77

0.45

Mixed UCIs

 

53.45

35.36

66.93

38.77

 

Pension funds

15.61

10.33

16.91

9.79

 

CCPI funds

1.60

1.06

1.43

0.83

UCIs with capital guarantee

 

11.90

7.88

10.36

6.00

Linked to equity

 

9.51

6.29

8.66

5.02

Linked to interest rates, loans and currencies

 

2.40

1.59

1.70

0.98

Real estate UCIs (pm)

 

8.37

     

Other

 

0.19

0.13

0.50

0.29

Total

 

151.14

100

172.65

100

The amount of assets of bond UCIs decreased by €4.48 billion (-12.6 per cent) during the course of 2015. This downward trend can be explained by the net repayments given the underlying currency gains, while the increase in the amount of net assets invested in monetary UCIs by 755.9 per cent was mainly caused by a high amount of subscriptions as a result of the application of floor monitoring in mixed UCIs. For the same reason, the net assets of equity UCIs and mixed UCIs have decreased by 5.4 per cent and risen by 25.2 per cent, respectively. Finally, the net assets of UCIs with capital guarantee have decreased by 13 per cent, and net assets of pension funds have increased by 8.4 per cent.

Although no detailed figures are available yet, it has been confirmed that by the end of March 2016, the net assets of UCIs publicly traded on the Belgian market decreased by 2.7 per cent, amounting to €168.06 billion. This decrease of the Belgian market during January–March 2016 can be fully explained by the evolution of the financial markets. The mixed UCIs were the only asset class to show a slight growth during the first quarter of 2016.32

V KEY TRENDS

We see three key trends impacting and reshaping the Belgian asset management industry (which, given the large number of foreign funds active in Belgium, is to a large extent a distribution industry):

  • a there is a clear trend towards simplicity – fuelled in part by a number of regulatory initiatives undertaken by the FSMA – with many complex fund structures either being simplified or restricted to professional investors only;
  • b another trend to note is the recent extension of a number of consumer laws to fund regulation. This impacts the way funds are designed and distributed (as certain terms and conditions in the prospectus may be considered as unfair);
  • c a third trend concerns the increased compliance and enforcement risks. Belgium has recently introduced a class action that may in certain events apply to fund mis-selling. Furthermore, since the end of 2013, increased civil sanctions (including a number of automatic nullities) apply in cases of violation of fund regulations.

VI SECTORAL REGULATION

i Insurance

The Law of 4 April 2014 on insurances (Insurance Law), which entered into force on 1 November 2014, is a partial transposition of Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II Directive) and consolidates the existing legislation with regard to the offering and conclusion of insurance contracts, insurance mediation and distribution, and supervision. Moreover, the Insurance Law introduces a number of new provisions, while also further clarifying the division of supervisory competences between the FSMA and the National Bank of Belgium.

The Insurance Law has introduced several new provisions with regard to investment funds that form the underlying of unit-linked life insurances (Branch 23).

As such, the cash benefits resulting from life insurance agreements of which the investment risks are directly or indirectly borne by the policy holder, may only be linked to certain types of assets of which the risk can be adequately assessed by the insurer.33 Moreover, important new restrictions have been introduced as to which types of assets the insurance benefits may be linked directly or indirectly, to the extent that the policyholder is a retail client (in the sense of the MiFID Law)34 and the place of engagement is Belgium.35 The following assets may be linked:

  • a shares in Belgian or foreign UCITS or AIFs registered in Belgium with the FSMA and, generally speaking, shares in Belgian or EEA UCITS governed by the UCITS Directive;
  • b assets that are part of the allowed investment categories for UCITS governed by Belgian law, to the extent that the provisions of the UCITS Directive relating to investment policy and general obligations are complied with; and
  • c assets that are part of the allowed investment categories open for public collective investment undertakings governed by Belgian law, to the extent that the funds’ investment policies do not differ from the policies applicable to Belgian undertakings. In this respect, the securities and financial assets:

• must be liquid; and

• must be listed or traded on a regulated or secondary market in the EEA (and under certain conditions, on the markets of a non-EEA Member State), shares of other UCITS (maximum 10 per cent) or financial derivatives (under certain conditions).

The law of 13 March 2016 on the status and supervision of insurance and reinsurance undertakings (Supervisory Law), which entered into force on 23 March 2016, recast the previous supervisory law dated 9 July 1975 and complements the partial transposition of the Solvency II Directive by the Insurance Law.

Prior to the publication of the Supervisory law in the Belgian Official Gazette, it was expected that the above-mentioned provision of the Insurance Law regarding which types of assets the insurance benefits may be linked would be amended or removed, since there is disagreement as to whether this provision complies with the Solvency II Directive. It has been argued, among other things, that in accordance with Article 133, 3 of the Solvency II Directive, ‘any such rules shall be applied only where the investment risk is borne by a policy holder who is a natural person’ and Article 20 of the Insurance Law applies to unit-linked life insurances where the investment risk is borne by a policy holder who is a retail client. Nevertheless, the Belgian government decided that Article 20 of the Insurance law remains in force to date.

ii Real property

A specific real estate company structure, the SIR/GVV, was introduced in Belgium by the Law of 12 May 2014 on Regulated Real Estate Companies (REITs Law). The introduction of the SIR/GVV provides the opportunity for real estate companies with a commercial activity to opt for a legal framework outside the scope of the AIFMD Law.

The SIR/GVV structure targets real estate companies engaged in commercial activities, such as the construction, rebuilding, renovating, developing, acquiring, selling, managing and operating of real estate, while the Sicafi/Vastgoedbevak structure is reserved for companies possessing the characteristics of an AIF (investment undertakings that raise capital from a number of investors with a view to investing it in accordance with a defined investment policy for the benefit of those investors).

In order to be considered a SIR/GVV, a licence from the FSMA is required. Further, the company must be established for an indefinite period, and the company’s commercial activity must exclusively consist of the placing of real estate, directly or through a company in which it participates, at the disposal of its users;36 and, within certain limits, as the case may be, the holding of shares in public real estate investment companies and of real estate certificates. The company must also pursue a strategy of possessing the acquired real estate in the long term.

The REITs Law distinguishes between public SIR/GVVs (of which the shares are admitted to trading on a regulated market and that raise capital in Belgium or abroad by means of a public offer of shares) and institutional SIR/GVVs (which are under the exclusive or joint control of a public SIR/GVV and that exclusively raise capital from eligible investors acting for their own account, and whose shares may only be acquired by such investors). Further, the Law contains a framework of rules with regard to:

  • a capital requirements (the minimum required share capital is €1.2 million);
  • b amendments to the articles of association (a quorum of 50 per cent of the shares and 80 per cent of the votes is required);
  • c the management structure;
  • d exit rights;
  • e administrative, accounting, financial and technical aspects;
  • f the appointment of an independent real estate expert:
  • g diversification of the company’s assets; and
  • h remuneration of directors and management, which rules are similar to the rules that previously applied to the Sicafi/Vastgoedbevak before the entering into force of the AIFMD Law.

All Sicafis/Vastgoedbevaks existing at the introduction of the SIR/GVV have transferred to the status of SIR/GVV.

The REITs Law is about to be amended so as to inter alia qualify as institutional SIR/GVVs any SIR/GVVs where more than 25 per cent capital is held by a public SIR/GVV (instead of requiring an exclusive or joint control), and to explicitly allow SIR/GVVs to enter into public-private partnership and infrastructure agreements.

A new real estate investment fund, the FIIS/GVBF, will shortly be introduced under Belgian law.

The FIIS/GVBF will be dedicated to institutional investors as a platform facilitating real estate investments in Belgium and abroad. The FIIS/GVBF will be limited in time and be particularly attractive from a tax point of view.

The law providing for specific tax rule has been voted by the Parliament, and the adoption of the Royal Decree creating the FIIS/GVBF regime is expected in the summer of 2016.

VII TAX LAW

This brief description provides an overview of the main principles of the current tax treatment of asset management funds in Belgium, without unravelling the many technical details and exemptions that this tax regime entails.

i Taxation of the asset management funds

The Belgian tax treatment of asset management funds and their investments largely depends on the manner the investment vehicle is structured:

  • a a collective investment fund without legal personality holding its assets on a contractual basis (contractual fund);
  • b a regulated collective investment company with separate legal personality (regulated investment company); or
  • c a Belgian company not qualifying as a regulated investment company (holding company).

Contractual funds are in principle considered to be tax transparent and are thus not subject to corporate income tax in Belgium. The income received by a contractual fund is, for tax purposes, as a rule considered to be received directly by the investors.

However, an annual subscription tax (subscription tax) on the net outstanding assets of the contractual fund in Belgium will be due by the management company as from the year following registration with the FSMA. The tax rate currently equals 0.0925 per cent, and is decreased to 0.01 per cent with respect to compartments or classes that exclusively attract financing from institutional and professional investors acting for their own account.

A ‘semi-transparent’ tax regime is applicable to regulated investment companies, being, inter alia, open-ended and closed-ended investment companies that have a public or institutional character (as defined in the AIFMD Law) and the SIR/GVV (see Section V.iii, supra).

Regulated investment companies are formally subject to corporate income tax with a general corporate income tax rate of 33.99 per cent, but their tax base is substantially reduced and is limited to non-deductible business expenses (not including write-downs and capital losses on shares) and received abnormal or gratuitous advantages. Payments made to regulated investment companies generally benefit from withholding tax exemptions in Belgium, and any Belgian withholding tax that would be deducted is creditable and refundable. As a consequence, such investment companies are, as a rule, not taxable in Belgium on income from or capital gains on their investments. An important exception to this rule is the 27 per cent withholding tax due on Belgian source dividends, which constitutes an actual financial cost for the investment company as this withholding tax is not creditable or refundable.

Any source state withholding tax is not creditable or refundable in Belgium. However, from a Belgian perspective, regulated investment companies are considered to qualify as tax residents for the purposes of double taxation conventions, and should thus be eligible to benefit from potential exemptions or reductions from taxation in the source state (which is, however, not undisputed).

Subscription tax is also applicable to regulated investment companies.

All income received (including capital gains, dividends and interest) by holding companies are in principle subject to the general corporate income tax rate of 33.99 per cent. However, 95 per cent of the dividends may be exempt if the conditions of the participation exemption are fulfilled.37 Specific rules apply to capital gains taxation on shares (which depend on the tax status of the company in which the investment is made, the compliance with a one-year holding period and the size of the investment company).

Holding companies are, however, not subject to subscription tax.

ii Taxation of investments by foreign investors (without taxable presence in Belgium)

Foreign investors investing in contractual funds are generally considered to have directly invested in the assets of the fund, and their tax position should be determined as if they held the assets without the interposition of the fund. Dividends paid by the fund or capital gains realised at the occasion of the sale of parts in the fund are as such in principle not taxable in Belgium (although conditions apply).

Dividends paid by certain regulated investment companies to foreign investors are (subject to several conditions) exempt from Belgian withholding tax, except to the extent the payments come from dividend payments received by the fund from Belgian companies. Capital gains realised on the shares of regulated investment companies by foreign investors are, as a rule, not taxable in Belgium.

Dividends received by foreign investors from holding companies are in principle subject to the Belgian withholding tax rate of 27 per cent, unless an exception applies (e.g., participation exemption, reduction or exemption based on double taxation conventions). Capital gains realised by foreign investors do not (under normal circumstances) attract taxation in Belgium.

A specific withholding tax exemption exists with respect to dividends paid by Belgian companies to non-resident pension funds.

In all circumstances, derogating rules apply to funds the asset portfolio of which consists directly or indirectly of at least 25 per cent of debt instruments owned by individuals.

iii VAT

The applicable Belgian VAT rate on services provided by asset managers is 21 per cent. However, a particular exemption for the management of collective investment funds exists.

iv Anti-avoidance measures

The Belgian general anti-abuse rule allows the tax authorities to disregard a legal act or series of legal acts carrying out one and the same transaction, provided that the tax authorities demonstrate that ‘tax abuse’ is at issue, which means (in general terms) that the taxpayer is acting in contradiction to the objectives of a certain tax rule.

Payments that are made directly or indirectly by Belgian companies above a cumulative threshold of €100,000 to non-cooperative jurisdictions and tax havens must be mentioned on a separate form that is joined to the payer’s corporate income tax declaration. The deduction of such payments from the taxable income of the payer is in principle refused if no such declaration is made or, even if a declaration is made, if the payer does not demonstrate that such payments are framed within real and genuine transactions and that the counterparty is not a wholly artificial arrangement.

v Announced reform of the corporate income tax system

The Belgian government is currently preparing a fundamental reform of the corporate income tax system, which also might have an effect on the applicable withholding tax rates.

Footnotes

1 Thierry Tilquin, Tom Van Dyck and Laurence Pinte are partners, Thérèse Loffet and Steven Peeters are senior attorneys and Karolien Decoene is an associate at Liedekerke Wolters Waelbroeck Kirkpatrick.

2 Royal Decree of 24 April 2014 approving a regulation of the FSMA banning the marketing of certain financial products to non-professional clients.

3 Directive 2009/65/EU.

4 Part 2, Book 2 of the UCITS Law (Articles 6–115).

5 Part 2, Book 3 of the UCITS Law (Articles 148–159).

6 The obligation of pre-approval by the FSMA applies to publicly offered Belgian UCITS, as well as to foreign UCITS fulfilling the conditions of the UCITS Directive, of which the shares are publicly offered in Belgium.

7 Part 3, Book 2 of the UCITS Law (Articles 188–255).

8 Part 3, Book 3 of the UCITS Law (Articles 256–271).

9 Directive 2011/61/EU of 8 June 2011 on Alternative Investment Fund Managers.

10 Articles 1–9 of the AIFMD Law.

11 When determining whether ‘marketing in Belgium’ takes place, it is of no significance whether the AIF belongs to the open-ended or closed-ended type; or whether the AIF is constituted under the law of contract, under trust law, under statute or has any other legal form.

12 This is irrespective of whether such AIFs are authorised or registered in an EU Member State or not.

13 The AIFMD Law’s use of the terms ‘European Economic Area’ and ‘European Union’ is not cohesive: Article 3, 22° of the AIFMD Law defines the manager of an EU AIFM as ‘a manager of an AIF with its registered office in a member state of the European Economic Area’.

14 Articles 10–112 of the AIFMD Law.

15 Articles 114–133 of the AIFMD Law.

16 Articles 134–179 of the AIFMD Law. In accordance with Article 493 AIFMD Law, these Articles will only enter into force on the date determined in the European Commission’s delegated act, which will be adopted by 22 October 2015 at the latest. Until the date of entry into force, the system of private placements provided in Articles 497–499 AIFMD Law applies. With regard to public offerings, the provisions of Articles 503 and 504 AIFMD Law apply.

17 AIFMs managing AIFs with total assets under their management of a value of less than €100 million; or AIFMs managing AIFs with total assets under their management of a value of less than €500 million (if the AIFs portfolios are unlevered and no redemption rights exist during a period of five years following the date of initial investment in each AIF).

18 Part III, Book 1 of the AIFMD Law (Articles 180–280).

19 AIFs raising capital solely from eligible investors acting on their own behalf and whose securities may only be acquired by such investors.

20 AIFs raising capital solely from eligible investors acting on their own behalf and whose securities may only be acquired by such investors.

21 Part III, Book 2 of the AIFMD Law (Articles 281–305).

22 Article 3, 27° of the AIFMD Law.

23 Article 5, Section 1.

24 As such, the passport provided in Part II of the AIFMD Law does not apply to AIFs of which the shares are publicly offered in Belgium.

25 In accordance with Article 183 AIFMD Law, the admitted categories of investments are financial instruments and liquid assets; options and forwards, currencies and exchange index contracts; real estate; high-risk capital; financial instruments issued by non-listed companies; and any other permitted categories of investments (as specified in the relevant Royal Decree).

26 The following documents must be distributed the prospectus; the KIID; the annual and semi-annual reports; the fund rules or instruments of incorporation; and all communications and notifications to the shareholders.

27 FSMA Circular 2013–04 of 14 February 2013 relating to the notification procedure for undertakings for collective investment governed by Belgian law and fulfilling the conditions of Directive 2009/65/EU.

28 FSMA Circular 2013–05 of 14 February 2013 relating to the notification procedure for undertakings for collective investment governed by the law of another Member State of the European Economic Area and fulfilling the conditions of Directive 2009/65/EU.

29 Belgian Asset Managers Association (BEAMA) Annual Report 2015, 10.

30 BEAMA Annual Report 2015, 2.

31 BEAMA Annual Report 2015, 12.

32 BEAMA press release of 15 July 2016.

33 Article 19 of the Insurance Law.

34 Article. 2 29° of the Law of 2 August 2002 on the supervision of the financial sector and on financial services (the MiFID Law).

35 Article 20 of the Insurance Law.

36 In accordance with Article 2, 6° of the REITs Law, the activity of ‘placing real estate at the disposal of its users’ is defined as ‘the granting of rights by the SIR/GVV to the user of an immovable good, in accordance with a lease-, or superficies agreement, usufruct, or in accordance with any other agreement granting a right of use or occupation’.

37 More flexible conditions apply to certain non-regulated investment companies.