BELGIUM Law and Practice Contributed by: Joan Carette, Philippe De Prez and Thomas Derval, Simont Braun
The SMEs Law is not applicable to loans granted through crowdfunding platforms. Crowdfunding platforms (ie, platforms providing matchmaking services between project owners and investors) are regulated under the Law of 18 December 2016 regulating the recognition and definition of crowdfunding and containing various provisions on finance on crowdfunding (the “Crowdfunding Law” ) and the EU Regula - tion 2020/1503 of 7 October 2020 on European crowdfunding service providers for business (the “Crowdfunding Regulation” ). Under the Crowd - funding Regulation, crowdfunding platforms must obtain a licence before they start operating within the EU; once obtained in one EEA country, their licence enables them carry out their activi - ties across the EU on a cross-border basis. Loans and forms of credit offered by CIs or other lenders to enterprises other than SMEs If credit/a loan does not fall in one of the four above-mentioned categories, it is regarded as unregulated. General contract law applies and only a few specific provisions (Articles 1905– 1914) of the Belgian (former) Civil Code must be taken into account, as well as general consumer protection law (as contained in Book VI of the CEL) when offering B2C credits that fall outside the scope of the consumer credit regime (eg, “Buy Now Pay Later” products). 4.2 Underwriting Processes The underwriting processes will mainly depend on the type of credit and customer. AML Obligations The common feature of all underwriting pro - cesses of regulated credit is that all lenders (or crowdfunding platforms) are subject to the AML Law which transposes AMLD5.
Typical AML obligations are therefore applicable (ie, identification and verification of the identity of the borrower/ultimate beneficial owners, risk- based assessment, ongoing surveillance, report - ing of suspicious transactions, etc). An increas - ing number of market participants make use of innovative means for identification in a remote environment (eg, facial likeness detection, vide - oconferencing or other biometric data, Belgian eID (electronic identity card), other electronic identification means or relevant trust services as set out in the EU Regulation 910/2014 of 23 July 2014 on electronic identification and trust services for electronic transactions in the inter - nal market ( “eIDAS Regulation” )). Additional Obligations Besides the AML obligations, the online onboard - ing of clients must also comply with specific obligations laid down in the CEL, the SMEs Law, the Crowdfunding Law and the Crowdfunding Regulation. These pieces of legislation usually impose that specific information about the lender and the credit be provided to the customer (usually on “durable medium” ). These obligations have an important impact on the onboarding of clients, especially in a B2C context. Signature Obligation Lastly, it must be noted that credit contracts concluded with consumers require a written or a qualified electronic signature. This obligation also has a significant impact on the conclusion of online credit agreements with consumers. Belgians can easily sign electronic contracts using their Belgian eID, or even completely elec - tronically using a mobile application of qualified trust service providers such as itsme®. These signatures are both qualified electronic signa -
61
CHAMBERS.COM
Powered by FlippingBook