- Leo Peeters - Pieter Dierckx
- financial leasing , corporate credit , register , lease-agreement , leasing
Companies that have already been acknowledged will have until 25 September 2013 to comply with
the new requirements.
The recognition obligation is due to the implementation of Article 22 of the Law of 4 March 2012 regarding the Central Corporate Credit Register.
This law stipulates that companies, which enter real estate lease-agreements, are currently also subject to recognition. Due to this, the aforementioned M.D. was laid down in execution of the amended Royal Decree nr. 55 (hereinafter referred to as “R.D. nr. 55”).
The new M.D. also provides for the review of the recognition granted to companies specialized in leasing of movable goods.
1. Leasing activities envisaged by R.D. nr. 55
Before taking a closer look at the altered recognition requirements, the essential characteristics of movable financial lease or “equipment leasing”, as well as the essential characteristics of the immovable financial lease or “real estate leasing”, as defined in the R.D. nr. 55, are briefly summarized.
In Article 1 of the R.D. nr. 55, the equipment leasing is defined as follows:
(i) It relates to goods, which the lessee uses exclusively for business purposes;
(ii) The equipment is purchased by the lessor for the sole purpose of being leased to the lessee and in accordance with the latter’s specifications;
(iii) The term of the lease must correspond to the expected economic life of the equipment;
(iv) The rental must be fixed in such way that the equipment to be leased is fully depreciated within the lease term laid down in the contract;
(v) The lease agreement must contain a purchase option, which means that the lessee must be given the opportunity to purchase the equipment at the end of the contractual period at the residual value fixed in advance of the lease agreement.
In accordance with the same Article, real estate leasing is defined as follows:
(i) It relates to built-on immovable property;
(ii) The contract shall be concluded for a fixed term;
(iii) The rental must be fixed in such way that the investment in the built-on immovable property is fully restored by the sum of the rentals;
(iv) The enjoyment of the buildings and of the land on which they are built must be granted by the lessor to the lessee on the basis of an agreement, which shall not automatically transfer the rights in rem disposed by the lessor;
(v) The lease agreement must contain a purchase option, which means that the lessee must be given the opportunity to purchase the rights in rem relating to the leased property at the end of the contractual period against payment of an amount determined in the lease agreement.
2. Request for recognition
Companies specialized in financial lease (movable or immovable) who whish to pursue their activities in this field must have a “recognition” from the Minister of Economic Affairs. The application for recognition must be submitted in writing to the FPS Economy, SME’s, Self-Employed and Energy.
Upon its request for recognition, the company must demonstrate that:
- it is incorporated in the form of a commercial company;
- it has a fully paid up capital of al least:
- EUR 750,000 for movable financial lease;
- EUR 750,000 for immovable financial lease;
- EUR 1,500,000 for both transactions.
It should be noted that if the company has yet other activities than financial leasing, for which a minimum capital is required, the highest required amount of capital shall apply.
- It is registered with the Crossroad Bank of Enterprises or a similar register, which allows to identify the company if the latter is established abroad;
- It meets the requirements of Article 78 of the Law of 12 June on consumer credit.
In addition, the company must commit itself to:
- maintain the fully paid up minimum capital;
- to have separate accounts for the financial leasing activities, that is if the company practices activities other than financial leasing activities. The company must also, based on the financial lease agreements that were contracted and according to the categories set out in the annual account, be able to report regarding the financial leasing activities, the amounts receivable after one year and the amounts receivable within one year;
- the fact that the category ‘ Amounts receivable after one year‘, would according to the categories that are set out in the annual account, be financed for at least 80 % by the sum of the equity capital and the debts that are due after one year;
- to present to the officials of the “ Services of Credit and Debts “ with the “ General Direction of Regulation and Organisation of the Market “ of the FOD Economy, each document proving that the requirements for recognition, set out in Article 78 of the law of 12 June 1991 regarding consumer credit has been met;
- to send to the ‘ Service of Credit and Debts “ the approved annual accounts, in order to take note that a company responds to the requirements that were set out in the aforementioned three points. If from the annual accounts it appears that the company doesn’t meet all the requirements, than the company will upon request of the “ Service of Credit and Debt “ give the necessary explanations and if necessary submit a remediation plan;
- to give access to the “Service of Credit and Debt“ to the financial lease agreements and to all the accounting documents related to those financial lease agreements, of which the access is necessary to fulfil their assignment.
The ministerial decree granting the recognition shall be published by excerpt in the Belgian
Annually, the FPS Economy establishes a list as per 31 December of the on that date recognized companies offering financial leasing, and publishes this list in the Belgian Official Gazette one month afterwards (i.e. January).
If the companies do not longer fulfil the conditions of the M.D. and also no remediation plan in this respect is submitted, the recognition is revoked by ministerial decree. In that case, the decision to withdraw is notified in writing to the company concerned not later than 1 month before the publication by excerpt in the Belgian Official Gazette.
4. The fate of the already recognised financial leasing companies
The M.D. of 20 September 2012 fully cancels out the previously applicable M.D. of 23 February
1968 determining the companies specialized in financial leasing, and of which the legal status is
regulated by the R.D. nr. 55.
The companies already recognized under the M.D. of 23 February 1968 have until 25 September 2013 to comply with the new requirements for recognition. To this end they have to submit a new application for recognition, which meets the new requirements. In case of default, the recognition granted to the company concerned shall be automatically rendered void.