The status of private pricaf is organised by the act of 19 April 2014 on alternative investment funds (“AIF”) and their managers (the “AIFM Law”) and by the Royal Decree of 23 May 2007 on private pricaf (“pricaf privée”/private privak”), as amended.
On 25 April 2019, a law containing various financial provisions was adopted by the Belgian Parliament (the “Law”). The Law amends some provisions of the AIFM Law applicable to private pricafs.
The main amendments are summarised in this note and will apply as from 10 days following the publication of the Law in the Belgian Official Gazette.
Extension of the status of private pricaf to club deals
The status of private pricaf is open to all private AIFs and to certain entities which do not qualify as AIFs and are specifically listed in article 281 of the AIFM Law. For private pricafs the only relevant category of this list was entities listed in Article 2(3) of Directive 2011/61/UE (the “AIFMD”), but these forms of entities were not used in practice for private pricafs.
The Law adds a new category to this list, which is of relevance for private pricafs: “entities used as investment vehicles in which the shareholders, as a collective group, are granted day-to-day discretion or control“.
The Law’s preparatory works confirm that this includes “club deals”, in which investors typically have such day-to-day discretion or control. For the notion of “day-to-day discretion or control”, reference is made to the guidelines on the key concepts of AIFMD[1] published by ESMA.[2] It entails, for example, the power to decide on investments and divestments, the appointment and dismissal of the asset manager or the determination of the maximum debt ratio of the investment vehicle. Agreements entered into between the shareholders will of course need to be assessed on a case-by-case basis.
As a consequence private pricafs constructed as club deals (i.e. with a minimum of 6 shareholders (not related to each other) having collectively a day-to-day discretion and control on the management of the private pricaf) will not have to appoint a registered / authorised AIFM with respect to their management.
Extension of investments to non EEA private companies
Private pricafs are only permitted to invest in financial instruments issued by non-listed companies. A “non-listed company” is defined by the AIFM Law as “a company having its registered office in the European Economic Area (EEA) and whose shares are not admitted to trading on a regulated market”. The Law extends this definition of “non-listed company” to companies located outside the EEA, but exclusively for the application of the provisions on private pricafs. By broadening the scope of the possible investments by private pricafs, the legislator returns to its position before the AIFM Law, when investments both inside and outside the EEA were allowed.
Clarification on minimum share capital requirement and alignment with certain general corporate rules
The Law clarifies that the minimum share capital for a private pricaf will be the one foreseen by the Belgian companies and associations code (the “BCAC”). For instance, the minimum share capital of a private pricaf under the legal form of a public limited liability companies (NV/SA) will be EUR 61,500. The Law also clarifies that, in case of compartments, each compartment of the private pricaf will have to comply with such minimum capital requirement.
Furthermore, some derogations to the BCAC will no longer be applicable to private pricafs and consequently a private pricaf will have to comply with the following requirements:
- a legal reserve must be established;
- a financial plan must be drawn at its incorporation;
- its annual accounts must be consolidated if the private pricaf is part of a consortium within the meaning of the BCAC;
- at least ¼ of its share capital must be paid-up.
Clarification of the supervision powers of the Belgian Ministry of Finance
The Law clarifies that the Belgian Ministry of Finance (Service Public Fédéral Finances / Federale Overheidsdienst Financiën) will be competent to monitor the compliance by private pricafs with the provisions of the AIFM Law and the Royal Decree of 23 May 2007 on private pricafs.
To monitor the compliance by private pricafs with the legislative framework applicable, the Law makes available to the Ministry of Finance the following new tools:
- the Ministry of Finance will have the power to request private pricafs, on a case-by-case basis, to provide all information and documentation relating to their organisation, operation and transactions, including the type of investments made;
- the Ministry of Finance may also require private pricafs to report on such compliance and will have the power to determine the frequency and the form of such reporting;
- auditors of private pricafs will have the obligation to promptly inform the Ministry of Finance of any violation of the AIFM Law or the Royal Decree 9 November 2016 they became aware of; and
- the Ministry of Finance may request auditors of private pricafs to report on specific matters.
Furthermore, the Law includes a few provisions regarding the digitalisation of the exchange of information between a.o. the private pricaf and the Ministry of Finance. These provisions will enter into force at a date determined by Royal Decree.
For more information, do not hesitate to contact Patrice Delacroix, Tax Partner and Maya Van Belleghem, Legal and Regulatory Senior Manager.
[1] Alternative Investment Fund Managers Directive 2011/61/EU.
[2] The European Securities and Markets authority (ESMA/2013/611).
