The status of specialised real estate investment fund is organised by the Act of 19 April 2014 on alternative undertakings for collective investment (“AIFs”) and their managers and by the Royal Decree of 9 November 2016 on the specialised real estate investment fund (“FIIS/GVBF”).
On 25 April 2019, a law containing various financial provisions (the “Law”) was adopted by the Belgian Parliament. The Law amends some provisions of the Act of 19 April 2014 on AIFs and their managers applicable to FIIS/GVBF.
The main amendments are summarised in this note.
Clarification of the status of FIIS/GVBF for joint ventures and club deals
The FIIS status is currently available to all institutional AIFs and to certain entities specifically mentioned in Article 281 of the Act of 19 April 2014, i.e.:
- investment undertakings with only one investor;
- entities listed in Article 2(3) of Directive 2011/61/EU (AIFMD), which the AIFMD excludes from its scope (such as holding companies); and
- AIFs that did not appoint a management company benefiting from the group exemption (as per Article 3(1) of the AIFMD).
The Law adds a fourth category to this list: “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 “joint ventures” or “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 the AIFMD[1] published by the 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.
This clarification is an important development for the real estate sector and the partnership structures between institutional investors.
Minimum share capital requirement
A FIIS/GVBF is no longer required to have a minimum share capital of EUR 1.2 million. Instead, it will be subject to the minimum capital requirements applicable in accordance with the Belgian Companies and Associations Code, for instance EUR 61,500 for public limited liability companies (NVs/SAs).
Until now, initiators/sponsors of FIIS/GVBF needed to pre-finance the minimum share capital of 1.2 million before registration of the FIIS/GVBF with the Belgian Ministry of Finance. This amendment will allow initiators and sponsors more flexibility in this respect. This does not prevent the FIIS/GVBF from complying with the obligation to have real estate assets of a minimum value of EUR 10 million (after a 2-year delay as from its registration with the Ministry of Finance).
Furthermore, some derogations to the BCAC will no longer be applicable to FIIS/GVBF and, consequently, the FIIS/GVBF will have to meet the following requirements:
- a legal reserve must be set up;
- a financial plan must be drawn up at the time of its incorporation;
- its annual accounts must be consolidated if the FIIS/GVBF 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 FIIS/GVBF with the provisions of the Act of 19 April 2014 and the Royal Decree of 9 November 2016.[3]
To that end, the Law makes available to the Ministry of Finance the following new tools:
- the Ministry of Finance will have the power to request FIIS/GVBF, 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 FIIS/GVBF to report on such compliance and will have the power to determine the frequency and the form of such reporting;
- auditors of FIIS/GVBF will have the obligation to promptly inform the Ministry of Finance of any violation of the Act of 19 April 2014 or the Royal Decree of 9 November 2016 they became aware of; and
- the Ministry of Finance may request auditors of FIIS/GVBF to report on specific matters.
Today, with more than 60 registered FIIS/GVBF since the beginning of 2017, the FIIS/GVBF regime is a resounding success and a great development for the real estate sector. We welcome the above amendments, which will contribute to the continuous growth of FIIS/GVBF.
For more information, do not hesitate to contact Grégory Jurion, Tax Partner and Real Estate Leader, and Maya Van Belleghem, Legal and Regulatory Senior Manager.
[1] Alternative Investment Funds Directive 2011/61/EU.
[2] The European Securities and Markets Authority (ESMA/2013/611).
[3] This includes the AIFM law and its implementing royal decrees and regulations, including the FIIS/GVBF Royal Decree.
