Banking and financial law

Banking and Finance

We advise our clients in the following banking and financial fields:

• Regulated credits (consumer credit, mortgage credits and loans to SMEs)
  • The department assists credit institutions in complying with the regulations on consumer credit and mortgage credits (obtaining the lender’s license from the FSMA, compliance of the distribution officer and persons in contact with the public, review of ESIS and SECCI, validation process of contract models with the FPS Economy) and on loans to SMEs.

  • The department is regularly consulted on matters relating to funding loss indemnities claimed for loans agreed before the adoption of the new law on loans to SMEs or for loans above EUR 2,000,000.

  • We also assist Belgian and foreign credit institutions in conducting cross-border transactions.

• Usual banking contracts, payment and investment services 
  • The department supports credit/payment institutions in the review of their T&Cs applicable to all types of bank accounts (including the compliance of their offers and advertising of regulated savings accounts) and of their general T&Cs of (distance) payment services. With PSD 2, we assist new actors operating in Fintechs in relation to their access to business and to the implementation of new payment services.
  • We are also consulted by investment advice and portfolio management firms for the review of their general T&Cs in light of the MiFID II regulation.
  • Belgian or foreign companies planning to develop a business in Belgium regularly consult our department for the supply of banking, payment and investment services on a cross-border basis.

• Distribution of financial products 
  • The distribution of financial products (including life insurance) is subject to a growing number of increasingly complex rules: regulated markets, public offerings (prospectus), rules specific to certain investment instruments (such as UCITS/AIF, structured products, financial derivatives, prohibited products), qualified intermediaries, rules of conduct (MiFID, IDD, AIFM), the KIDs (UCIT, Priips, etc.), advertising, market practices in regard to consumers (joint tender, abusive clauses, etc.).
  • We assist regulated entities from the design of these financial products to the compliance with marketing procedures, the organisation of distribution networks, and with the advertising rules applicable to these products. We also advise all of these intermediaries on the rules of conduct that apply to them (MiFID, IDD, AIFM, etc.).

• Alternative investment funds (AIF) and UCITs 
  • Our department assists different financial actors with the structuring of alternative investment funds (mainly in property, private equity and venture/start-up capital linked in particular to Fintechs) and with their distribution. We advise these structures in relation to the obligations linked to public offerings and marketing documents. We work with our tax department in regard to the tax aspects of these structures.
  • We also have expertise in traditional UCITS funds and assist investment funds with regulatory matters.
  • We assist AIFM management companies in obtaining their authorization and in concluding management contracts that are consistent with the funds they will manage. We also review the aspects related to the managers’ remuneration policy.

• Regulatory framework (access and conduct of business)

  • Our department assists all regulated entities in the financial sector (especially credit establishments, investment companies, portfolio management and investment advice firms, insurers, lenders and their respective intermediaries, UCIT and fund manager, independent financial planner, regulated real estate companies ‘SIR’) to ensure that their status and activities comply with the applicable regulations. We support these companies in the following aspects in particular:

    • Access/status and maintaining the operating conditions in Belgium or on a cross-border basis
    • Compliance with the rules of conduct for each sector
    • Approval of regulated contracts
    • Marketing of financial products
    • Remuneration policies, in team with the labour law department
    • Governance
    • Prevention of money laundering (drawing up AML policies)
    • Assistance to the compliance officer and data protection officer in the financial sector
    • Disputes with the supervising authorities

     

• Judicial and administrative disputes and arbitration
  • Our department defends its private and professional clients in the event of litigation in the financial and banking sector before judicial, administrative and arbitration bodies in Belgium, France and Luxembourg. These cases may have an international dimension (we act in Belgium, France and Luxembourg), and concern the following issues in particular:
    • Responsibility of the lending banker
    • Early and abusive termination of a loan
    • Funding loss, early repayment indemnity
    • Fraudulent use of payment methods (credit card fraud, bank transfer fraud, social engineering fraud, fraudulent wire transfers)
    • disputes related to the distribution of structured financial products
    • Market abuse (insider trading, market manipulation, etc.)
    • Liability of intermediaries and investment firms vis-à-vis retail clients, particularly in the context of their duty to advise and/or provide information

• Christophe Steyaert

Life insurance and financial products

The department regularly advises Belgian and foreign insurance companies and intermediaries on their operations in Belgium, the distribution of life insurance (branches 21 and 23) and capitalisation products (branch 26) and all their obligations in terms of internal and prudential organisation, compliance with the rules of conduct (Twin Peaks II and AssurMiFID reform, transposition of the IDD directive).

We especially assist Luxembourg insurers with the distribution of Luxembourg products under the free provision of services in Belgium, which includes the review of the general T&Cs, the (pre-)contractual documentation, any marketing document, and compliance with regulatory obligations (duty of diligence, inducement, anti-laundering procedure, etc.) and the GDPR.

We work in team with our tax experts for the tax aspects concerning life insurance and wealth planning.

• Christophe Steyaert
• Aurélien Vandewalle
• Antoine Dayez

Financing of private and public companies

Financing of start-ups and crowdfunding

We assist our clients with the structuring and financing of start-ups (by venture capital, etc.), particularly dynamic with regard to Fintechs, whether or not in the context of setting up an on-line crowdfunding platform for financing purposes (authorization to be obtained as a crowdfunding platform from the FSMA, obligation to publish a prospectus, applicable rules governing liability, etc.).

We work in team with our tax experts on all tax-related issues, in particular the tax shelter.

Financing of acquisitions and bank guarantees 

We draft loan agreements (whether syndicated or not) for Belgian and foreign credit institutions intended to support major acquisitions (companies, real estate property, including Regulated Real Estate Companies, yachts, etc.) or cash requirements, or in the context of cash pooling transactions.

In that respect, we are frequently requested to establish complex guarantees in an international context (on-demand guarantees, personal property securities, real estate securities, mortgage on boats, pledge over business and receivables, pledge of insurance policies, etc.).

Foreign credit institutions and law firms regularly request us to provide them with legal opinions on the validity and the enforceable nature in Belgium of loans and guarantees subject to foreign law.

• Christophe Steyaert

Compliance in the financial sector

Our department provides assistance in relation to internal compliance functions, such as those required by the financial regulations. We assist compliance officers or other internal committees with the identification and assessment of risks, the advice on regulatory matters, the development of internal policies (remuneration, conflicts of interest, AML, governance) and providing in-house training for staff.

We also offer a legal watch service in all areas of banking and financial law.

We likewise support our clients and their data protection officer (DPO) to ensure compliance of their processing of personal data with the GDPR. We can also act as external DPO for our clients.

• Christophe Steyaert