Professionals

9. Where an independent financial planner is a legal person, the persons who exercise control over the undertaking shall be named in the application for authorization. What does 'control' of the undertaking mean?

The concept of 'control' applies to shareholders or partners who directly or indirectly exercise control over the legal person, persons who have de jure or de facto authority to exercise a decisive influence on the appointment of the majority of the members of the company’s board or of the managers or on the company’s policy orientation.

Pursuant to Article 5, § 2, of the Belgian Companies Code, control over an undertaking is de jure and irrefutably presumed where:

  • such control arises from the ownership of the majority of voting rights attached to all the shares or partners’ rights in the undertaking in question;
  • a partner has the right to appoint or to dismiss the majority of the members of the board or of the managers;
  • a partner has controlling power by virtue of the articles of association of the undertaking, or of agreements signed with it;
  • by effect of agreements entered into with other partners of the undertaking in question, a partner owns the majority of the voting rights attached to all the shares or partners’ rights in the latter.

Depending on whether the undertaking is a natural or legal person, such shareholders or partners shall fill in annex 3 or 4 to the memorandum on the procurement of an authorization as an independent financial planner under Belgian law (French or Dutch only).