1 Belgium, Prime Location for Pan-European Pension Funds Invest in Belgium, increase your prits
2 Table Contents Foreword 1. Introduction 2. Legal framework: Structure organization OFP 2.1 Separate legal entity 2.2 Autonomous legal framework 2.3 Simple flexible structure 2.4 Comply host country social labor legislation 2.5 Creation OFP authorization to act as a fund 2.6 Conclusion 3. Financial framework 3.1 Conditions operation 3.2 Qualitative rules as opposed to quantitative rules 3.3 Technical provisions 3.4 Coverage technical provisions 3.5 Investments 3.6 Financing plan 3.7 Statement investment policy principles - SIP 3.8 Balance sheet OFP: assets liabilities 3.9 Dynamics financing framework 3.10 Asset management custody 3.11 Information to plan participants beneficiaries 3.12 Supervision 3.13 Conclusion 4. Tax regime 4.1 Corporate income tax zero taxation on prit 4.2 International taxation: benefiting from double taxation treaties 4.3 VAT 4.4 Or indirect taxes 4.5 Conclusion 5. Some data Contacts 2
3 ageing population will boost development funded schemes, complementary to statutory state. This me will enlarge fund market on an unprecedented scale. In coming decades y will change from net asset accumulators to institutions paying out more than y are receiving. recent turbulence on global financial markets demonstrated importance pan-european funds. Pension promises have a more more pround impact on corporate balance sheets multinationals. sharp decline in financial markets falling interest rates has led to unexpected deficits a growing concern as to how to mitigate volatility coverage ratios. Pension funds get management attention a strong dem for centralized risk management control assets liabilities. Pooling enables businesses to bundle assets liabilities from various jurisdictions under a single licensed Pension Fund. In line Single Market, recent European directives now allow cross-border funds to be set up in European Union. Today, Belgium is only European country fering multinationals a complete comprehensive dedicated framework for establishing both pan-european international funds. Belgium has already facilitated establishment pan-european funds. Pooling is in practice not a big bang but a step-by-step approach leading to a fully operational pan-european fund. This brochure sets out benefits this very effective advantageous legal, fiscal prudential framework. It also points out broad range modern treaties for avoidance double taxation which our country has concluded, reby fering substantial savings regard to portfolio each fund. Our situation in heart Europe furr strengns our position on fund market. European headquarters many multinationals are already located in our country. It is refore to be expected that y should also set up ir pan-european or international funds here. Belgium is positioning itself as a prime centre shared services for international businesses Belgian government is committed to facilitate an attractive sustainable framework for long term investors, such as funds. I trust that this brochure will be a useful document for decision-makers in business community. Yves Leterme Prime Minister 3
4 4 1. Introduction Belgium recently implemented implemented EU EU Directive 2003/41 1 ( so-called IORP Directive) by by adopting a a new new transparent flexible flexible legal framework, legal framework, which which promotes promotes Belgium Belgium as as as prime prime location location for in- for international pan-european funds. funds. Act 27 October on supervision IORPs (Institutions for Occupational Retirement Pro- vision) defines legal structure, organization functioning functioning funds. funds. Moreover, prudential legal framework Moreover, prudential legal framework applies applies prudent person principle grants prudent person principle grants optimization opportunities to fund, its sponsoring optimization opportunities to fund, its sponsoring undertakings plan undertakings plan participants. participants. Act fers a flexibility which allows Act fers a flexibility which allows fund to fund to best respond to specific best respond to specific needs wishes needs wishes multinational or group companies. multinational or group companies. A fund located in Belgium may have cross-border activities operate several plans applicable to employees working in different countries (host countries). fund will, however, solely be subject to Belgian legal regulatory prudential framework. If employees affiliated to fund are working in countries belonging to European Economic Area (EEA), relevant legal provisions 3 3 ir ir country s country s social social labour labor laws laws must must be respected. be respected. Belgian pruden- Belgian prudential framework framework fers, on fers, one on h one a guarantee h a guarantee solid management solid securing management, interests securing rights interests plan rights participants, plan on participants or, on or h, provides a high degree h, provides a high degree flexibility in level flexibility in level funding by sponsoring funding by sponsoring undertakings. justification on a case by case basis relates to specific undertakings. justification on a case by case basis relates to specific characteristics characteristics plans ir participants. plans ir participants. 1 Directive Directive 2003/41/EC European Parliament Council on activities activities supervision supervision Institutions Institutions for Occupational for Occupational Retirement Retirement Provision (IORPs) Provision (IORPs) 3 June 3 June Most provisions entered into force on 1 January Most provisions entered into force on January Matory legal provisions host countries ( host country is Matory legal provisions host countries ( host country is country whose social labor legislation applies to relationship country whose social labour legislation applies to relationship between sponsoring undertaking plan participants), in between sponsoring undertaking plan participants), in limits EU/international law. limits EU/international law. 4 Act 27 December 2006 relating to diverse provisions. 4 Act 27 December 2006 relating to diverse provisions. 5 EET: exempt-exempt-taxation : (E): tax exemption for contributions 5 EET : exempt-exempt-taxation : (E) : tax exemption for contributions paid into a fund for accrual benefits (tax relief for paid into a fund for accrual benefits (tax relief for contributions paid by sponsoring undertakings by plan contributions paid by sponsoring undertakings by plan participants); (E): tax exemption income generated by contributions, gains participants) realized ; (E) by : tax exemption fund, income capital gains generated during by accrual contributions, period prior gains to realized payment by benefit; fund, capital (T): taxation gains during accrual benefits period upon prior to payment payment benefits. benefit ; (T) : taxation benefits upon payment benefits. Furrmore, new tax provisions were adopted on 27 December to to create a a new new favourable favorable tax regime in in line EET-principle 5. Thanks 5. Thanks to se to se provisions, provisions, a well-designed a well-designed fund located fund in located Belgium in can Belgium benefit can from benefit a zero from corporate a zero income corporate tax. income tax. 2. Legal framework : Structure organization 2. Legal OFP framework - Structure organization OFP 2.1. Separate legal entity 2.1. Separate legal entity A fund established in Belgium takes 6 legal form an OFP : A fund established in Belgium takes legal form an OFP: Organization for Financing Pensions - Organization for Financing Pensions Organisme voor de Financiering van Pensioenen - Organisme voor de Financiering van Pensioenen Organisme de Financement de Pensions. - Organisme de Financement de Pensions. Autonomy. OFP is separate legal entity solely Autonomy. OFP is a separate legal entity solely liable liable for for its its funds funds obligations obligations distinct distinct from from sponsoring undertakings 7 6. It is is specifically specifically designed designed to allow to allow for a flexible for a flexible gover- governance structure structure organization. organization Autonomous legal framework Unique. Since OFP is a new legal entity, it is not subject to laws applicable to or legal entities. Act October is is transparent go- governs OFP s OFP s structure structure organization organization but also but its also activities its activities its functioning. its functioning. Act is available in English, French, Dutch German on on website website Belgian Belgian competent competent Supervision Supervision Authorities, Authorities, CBFA FSMA (www.cbfa.be). (www.fsma.be). Act is implemented by Royal Decrees, which are Act is implemented by Royal Decrees, which are also also available on FSMA-website. Furrmore, available on CBFA-website. Furrmore, FSMA issues circulars memora CBFA issues circulars memora 8 commenting 7 commenting on practical implications on practical implications legislation. legislation Simple flexible structure 2.3. Simple flexible structure Governance. Governance. In In accordance accordance OECD OECD Guidelines Guidelines for for fund fund governance governance 8, 9, governance structure OFP ensures an appropriate division operational responsibilities as well as oversight supervision responsibilities. 6 Act 27 October 2006 provides for a transitional period 5 years (until 1 January 2012) to benefit already existing funds which, pursuant to previously applicable legislation, took legal form a nonprit association (vzw-asbl) or mutual fund (ovv-aam). 6 Hence, safeguarding accrued benefits entitlements 7 Hence, safeguarding accrued benefits entitlements plan participants against bankruptcy ir employer, plan participants against bankruptcy ir employer, sponsoring sponsoring undertaking. 7 Also undertaking. available on FSMA s website, 8 OECD Also available guidelines on for CBFA s website, fund governance, adopted by OECD 9 Council OECD on guidelines 28 April for fund governance, adopted by OECD Council on 28 April 2005.
5 Consequently, OFP must consist at 2 (at least least) 2 bodies : bodies: or more - a A general assembly sponsoring undertakings whose plans are operated by OFP are are members general general assembly general general assembly has has overall assembly supervision oversight responsibility may be granted broad powers (to be defined in bylaws ). - a A board board directors directors OFP must have at least one operational body: OFP must have at least one operational body : board directors. latter defines board directors. latter defines general general policy OFP is responsible for policy OFP is responsible for operational activities OFP. operational activities OFP. - Or operational bodies (under control Contractual Freedom. new legal framework is board directors) based on principles flexibility contractual Contractual Freedom. new legal framework is based freedom on : parties principles setting flexibility up OFP can contractual structure freedom: it according to parties ir setting own needs up OFP wishes can structure provided it according basic double to ir structure own needs is complied wishes. provided basic double structure is complied Comply host country social 2.4. Comply labour legislation host country social Respect labor legislation local social regulation. One or more socalled Respect social committees local social may regulation. be set up to allow parties involved OFP to meet in requirements plan can set host up country s one or more social committees labour legislations to enable applicable OFP to to meet plans which it operates. host country s social labor requirements Employee involvement. Social committees will prove useful to involve different groups plan 9 Voting rights can be determined in bylaws. 10 Bylaws Voting rights or certificate can be determined incorporation ( statuten bylaws. statuts ). 11 Bylaws or certificate incorporation ( statuten statuts ). participants legislations applicable beneficiaries to in management plans which it ir operates. plans by OFP. creation, composition, powers powers functioning functioning social se committee(s) can be can decided be decided upon by upon by parties parties involved. involved. No legal No requirements legal requirements or than or than establishment establishment a written a written document document are imposed are imposed by Belgian by Belgian law. law Creation Creation OFP OFP authorization authorization to act as a fund to act as a fund Adopt bylaws. OFP can simply be created by Adopt bylaws. OFP can simply be created by adopting bylaws. One ordinary member-sponsoring adopting bylaws. One ordinary member-sponsoring undertaking suffices to that end. bylaws do not undertaking suffices to that end. bylaws do not need to be drafted by a notary nor do y require need to be drafted by notary nor do y require court approval. bylaws will be published in court approval. bylaws will be published in Belgian State Gazette. Belgian Apply State for authorization. Gazette. Prior to commencing its Apply for authorisation. fund activities, Prior OFP to commencing must apply for its IORP-authorization fund activities, from OFP Belgian must (home apply country) for IORP-authorization competent authority, from FSMA. Belgian (home request country) file to competent be submitted authority, to that end CBFA. can be downloaded request file to from be submitted FSMA s to website. that end can be downloaded from CBFA s Amongst website. most important documents to be Amongst remitted to most FSMA important are: documents to be remitted - to bylaws CBFA are : - financing bylaws plan - statement financing plan investment policy principles (SIP), - A description statement investment policy plans principles which (SIP), OFP - intends a description to administer plans which OFP intends to administer 5
6 6 - management agreement Information information regarding sponsoring undertakings members operational bodies. FSMA CBFA decides upon application in 3 months following remittance complete file. If OFP OFP envisages engaging engaging cross-border in cross-border acti- activities in in EEA, EEA, notification notification procedure procedure 13 fo- 12 foreseen by by IORP IORP Directive must be be complied. This notification can be introduced simultaneously authorization authorization request. request Conclusion 2.6. Conclusion legal framework sets forth simple principles for legal framework sets forth simple principles for organization governance structure organization governance structure OFP allows parties to adapt organization OFP allows parties to adapt organization functioning to ir specific situation. functioning to ir specific situation. 3. Financial Prudential framework framework 3.1. Conditions operation When authorized by FSMA CBFA OFP may start operating plans providing for retirement benefits No Belgian activity is required. Belgian law does not require that that one one or more more sponsoring sponsoring un- undertakings be be located in in Belgium, nor nor that at least one plan which OFP operates applies to If If any. any. management management agreement agreement is is concluded concluded between between OFP OFP its members sponsoring undertakings, determining its terms conditions operation rules rules its its functioning. functioning. If se If se rules rules are are defined defined in bylaws, bylaws, law does law not does impose not impose conclusion conclusion a mana- a management agreement.13 Notify intention to accept sponsorship from a 12 sponsoring Notify undertaking intention to accept established sponsorship in anor from EEA-member a sponsoring undertaking state (host established country). in notification anor EEA-member must addressed state (host to country). home country s notification competent be authorities addressed (i.e. to for Belgium home country s : CBFA). competent OFP may authorities also engage (i.e. for in must Belgium: cross-border FSMA). activities OFP outside may also EEA. engage A simplified in cross-border notification activities procedure applies EEA. to that A simplified end. notification procedure applies to that end. outside In In event event cross-border cross-border activities, activities, OFP OFP can can start start its its activities activities after completing cross-border activities notification procedure (i.e. after completing cross-border activities notification procedure (i.e. in 2 months for cross-border activities in EEA following in months for cross-border activities in EEA following principal 3 months FSMA-review authorization period). principal 3 months CBFA-review authorization period). 14 For non-belgian plans (i.e. plans not applicable to 15 For non-belgian plans (i.e. plans not applicable to salaried self-employed workers in Belgium), Belgian legislation salaried self-employed workers in Belgium), Belgian legislation does not impose any restrictions or conditions for content does not impose any restrictions or conditions for content plans. Indeed, if plan can be considered in host EEA- plans. Indeed, if plan can be considered in host EEA-member state as a plan in meaning IORP member state as a plan in meaning IORP Directive Directive (for non EEA-member states : same definition retirement (for non EEA-member states : same definition retirement benefits benefits as one used in Directive), OFP is authorized to operate it. as For one used plans in applicable Directive), to salaried OFP is authorized workers to operate self-employed it. For persons plans working applicable in Belgium, to salaried a different workers definition self-employed retirement benefits persons is working retained to Belgium, better correspond a different definition to Belgian retirement situation. benefits is retained to better correspond to Belgian situation. workers in Belgium. Hence, a multinational group out a company basis in Belgium may decide to set up its pan-european or international fund in Belgium. Adequate liabilities covered by appropriate assets. In respect plans which it is operating, OFP must must establish an adequate an adequate amount amount liabilities liabilities (i.e. technical (i.e. technical provisions) provisions) corresponding corresponding to financial to financial obligations obligations which result which from result from plans. se plans. technical se provisions technical provisions must be covered must be by appropriate covered by appropriate assets (cf. infra assets 3.3). (cf. infra 3.3). Global management/netting. Different Global management/netting. Different plans plans may be managed may be managed globally 16 globally. However, 15. However, OFP is free OFP is free to decide differently organize a to decide differently organize a ring-fencing on ring-fencing on a voluntary basis between different voluntary basis between different plans. plans. Solidarity. OFP can also determine itself Solidarity. OFP can also determine itself degree solidarity it wishes to apply amongst its degree solidarity it wishes to apply amongst its sponsoring sponsoring undertakings. undertakings. se se rules rules need need to to be be laid down in so-called management agreement. This agreement is is concluded concluded between between OFP OFP sponsoring sponsoring undertakings undertakings defines defines rules rules OFP s functioning. OFP s functioning. management management agreement may agreement allow compensation may allow ( netting ) compensation to be ( netting ) organized out to be organized prejudice to out relevant prejudice applicable to social relevant labour applicable legislations social labor provided legislations minimum provided vested rights minimum plan vested participants rights plan beneficiaries participants are safeguarded. beneficiaries are safeguarded Qualitative rules rules as as opposed opposed to quantitative rules rules prudential legal framework framework new Belgian Belgian legislation legislation describes rules which OFP must respect describes rules which OFP must respect in relation to technical provisions, investments in relation to technical provisions, investments management. law sets qualitative rar management. law sets qualitative rar than quantitative rules, both for determination than quantitative rules, both for determination technical provisions for investments. technical provisions for investments. 3.3 Technical provisions 3.3. Cross-border Technical provisions activities if fully funded. In event Cross-border cross-border activities activities, if fully funded. IORP In Directive event requires cross-border that activities, technical IORP provisions Directive are requires fully that funded at technical all times provisions in respect are fully total funded range at all times in plans respect operated total by range fund. plans operated Prudent by but dynamic fully fund. funding requirement. Prudent Belgian but legislator dynamic has fully not adopted funding a requirement. quantitative approach Belgian in legislator this respect has not but adopted requires a quantitative a prudent approach calculation in this method, respect based but requires on economical a prudent calculation method, based on economical actuarial as- 15 Act only imposes as exceptions to this rule: separate 16 Act only imposes as exceptions to this rule : separate management management plans applicable to salaried workers plans applicable plans applicable to self-employed to salaried workers workers separate plans management applicable to self-employed plans which workers are subject separate to recovery management decided upon by plans FSMA. which are subject to recovery measures decided measures upon by CBFA.
7 actuarial sumptions assumptions which OFP which needs to be OFP able needs to justify. to be able Coherent. to justify. OFP must establish, as technical provisions, Coherent. an amount OFP sufficient must to establish, guarantee as technical provisions, benefits already an amount in payment sufficient to accrued guarantee benefits benefits in accordance already in a payment prudent valuation accrued method. calculation benefits basis in accordance technical provisions must valuation form part method. financing calculation plan which basis a prudent OFP technical sponsoring provisions undertakings must form agree part upon. financing DC. For defined plan which contribution OFP plans, sponsoring provisions to accrue agree are upon. equal to sum vested undertakings DC. For defined rights as contribution defined by plan rules plans, by pro visions to accrue are equal to sum vested host countries social labour legislation, if any. rights as defined by plan rules by DB. In respect plans providing for defined host countries social labor legislation, if any. benefits, for a guaranteed return or for biometrical DB. In respect plans providing for defined risks 17, calculation method technical provisions may take into account prudent interest rates benefits, for a guaranteed return or for biometrical risks 16, calculation method technical which may e.g. consider expected investment returns. provisions may take into account prudent interest rates Flexible. which may OFP e.g. may consider define its expected own rules investment calculation method provided y may be justified by returns. Flexible. specifics OFP OFP may define its own rules plans administered. method OFP provided thus disposes y may a be high justified degree by calculation flexibility, specifics subject OFP only to a reasonable justification plans administered. basis. OFP thus disposes a high degree Minimum flexibility, = vested subject only to a rights. reasonable technical justification provisions may not, however, be lower than so-cal- basis. led Minimum minimum = vested rights. 18 defined technical by provisions plan rules, may if not, applicable, however, host be lower country s than social so-called labour minimum legislation. vested Provided this rights minimum defined is respected, plan rules law, allows if applicable, a long-term view host in respect country s by social calculation labor method legislation. to be Provided applied. this minimum is respected, law allows a long-term view in respect calculation method to be applied Coverage technical provisions Prudent Investments. technical provisions must 3.4 Coverage technical provisions be covered by assets invested according to prudent person principle. Prudent Investments. technical provisions must be covered by assets invested according to only quantitative restriction which applies prudent person principle. which is imposed by IORP Directive relates to investments only quantitative restriction which applies which is imposed in sponsoring by undertakings IORP Directive (limited relates to to 5 % investments portfolio in as a whole) sponsoring or undertakings group (limi- (limited to 10 to % 5 % portfolio portfolio as a as whole) a whole) sponsoring or group undertakings. (limited to 10 % portfolio as a whole) sponsoring undertakings Investments Prudent Consistent. Assets are to be invested 3.5 prudently, Investments in line investment policy as defined Prudent in statement Consistent. investment Assets are policy to be principles invested prudently, in line investment policy as defined 17 Risks linked to death, disability longevity in statement investment policy principles (SIP) 18 minimum vested rights plan participants in accordance assumptions used in financing as determined plan by applicable a continuity host country test social that labour proves legislation, if any. For IORP plans applicable in long to salaried run. workers in solvability Belgium, 16 se Risks are linked determined to death, on disability basis a longevity maximum 6 % discount rate mortality tables MR/FR. (SIP) Derivates in may accordance be used provided assumptions y contribute used to in reducing financing plan. investment risks or facilitate efficient Derivates portfolio management. may be used provided key message y contribute is again: to reducing if you can justify investment a different risks use or facilitate derivatives efficient as portfolio reasonable management. prudent, considering key message all elements, is again : if it you will can in principle justify a be different allowed. use derivatives as reasonable prudent, considering all elements, it will in principle be allowed. 3.6 Financing plan 3.6. Financing OFP must planestablish a financing plan in agreement OFP must establish all sponsoring a financing undertakings plan in agreement all sponsoring undertakings which commit which commit mselves to execute it to pay contributions pursuant reto. mselves to execute it to pay contributions financing plan determines calculation pursuant reto. method contributions to be paid per financing plan determines calculation plan to ensure appropriate funding method contributions to be paid per liabilities solvency margin, as well as to plan to ensure appropriate funding cover all costs expenses. It must be submitted liabilities to FSMA. solvency margin, as well as to cover OFPs all which costs mselves expenses. (as It must opposed be submitted to to sponsoring CBFA. undertakings) undertake to guarantee OFPs which mselves obligation (as well opposed as OFPs to which sponsoring cover undertakings) biometrical risks undertake must establish to guarantee a solvency margin obligation (defined by as Royal well Decree). as OFPs which cover biometrical risks must establish a solvency margin (defined by Royal Decree). 3.7 Statement investment policy principles SIP OFP Statement must establish investment a written policy statement principles - SIP in- vestment OFP must policy establish principles a written SIP statement describing in- investment policy risk principles measurement SIP methods, - describing risk investment management risk processes measurement methods, strategic asset risk almanagement location, considering processes nature strategic asset duration allocation, considering nature duration liabilities. OFP must review this statement at least every 3 years. liabilities. OFP must review this statement at least every 3 years. 7
8 Balance sheet OFP : assets liabilities Assets General rules In line prudent person principle Valued at market value Ensure security, quality, liquidity pritability Only quantitative restriction: max 5 % in sponsoring undertaking (max 10 % for a group) Investments for coverage technical provisions : Invested in best interest plan participants plan beneficiaries In line nature duration expected future retirement benefits Invested mainly on regulated markets Investments in derivative instruments if compliant prudential objective or if justified orwise Properly diversified Or investments Flexibility (except 5 % in sponsoring undertaking, 10% in group) Alternative for coverage so-called solvency margin : guaranteed claim on employer Liabilities Technical provisions 17 : Amount has to be sufficient to guarantee s already in payment accrued rights In line a prudent actuarial valuation No quantitative rules but prudent choice economical actuarial assumptions i.e. : Discount rate has to be chosen taking into account : a) return investments covering technical provisions future investment returns /or b) market yields bonds a Member State or or high-quality bonds ; Biometric tables (life expectancy/mortality, disability) adjusted to plan participants beneficiaries method assumptions remain in principle unchanged from one financial year to anor chosen method assumptions have to safeguard sustainability commitments May not be lower than minimum vested rights defined by social labor law Solvency margin (if needed - see 3.6) : for coverage death disability benefits (biometrical risks) based on quantitative rules (may be reduced by using (re)insurance risk coverage) Balance Balance Balance sheet sheet OFP OFP: : assets assets liabilities liabilities Summarized under form a balance sheet, Summarized under form a balance sheet, se se main principles apply in relation to assets main principles apply in relation to assets ir ir investments as well as to liabilities. investments as well as to liabilities. 3.9 Dynamics financing framework 3.9. Dynamics prudential financing main goal Belgian prudential framework is framework creation a prudent coherent management model main in which goal investments Belgian prudential are in framework harmony is characteristics creation a prudent coherent plans management plan participants model in which in which investments investments are harmony match underlying characteristics technical provisions. This plans model grants plan autonomy participants in in management which investments policies, which match are to underlying be prudent technical solid. provisions. Moreover, This this model framework grants allows autonomy for significant in management flexibility in policies, level which funding are to insar be prudent as technical solid. Moreover, provisions this are framework fully covered. allows for significant flexibility in level funding Explanatory insar as technical comments provisions on Scheme are fully 1: covered. characteristics plans ir Explanatory participants comments highly on Scheme influence 1 : funding characteristics investments determine plans technical ir provisions. participants highly influence funding investments determine technical provisions. plans plans ir ir participants participants are are a given a given are key drivers for investments, determination are key drivers for investments, determination technical provisions technical provisions funding. funding. Scheme 1. Prudent management model Funding Investments (Asset Mix) Pension Plan & participants Key is : prudence coherence Technical provision + Solvency margin
9 choice demographic assumptions assumptions (e.g. (e.g. life life expectancy/mortality, retirement retirement age ) age ) must must be be in line line characteristics plans plans ir ir participants. plans ir participants influence investments. To simplify, it is advisable to invest in a conservative way if average remaining duration liabilities is short vice versa. use use ALM ALM (Asset (Asset Liability Liability Management) Management) techniques allows techniques allows aligning aligning investment investment strategy strategy characteristics plan characteristics plan population (i.e. duration ). population (i.e. duration ). investments influence technical provisions. investments influence technical provisions. discount rate for calculation technical discount rate for calculation technical provisions can be determined taking into account provisions can be determined taking into account return underlying investments. return underlying investments. This return may be set e.g. by reference to following This return simplified may be approach: set e.g. by reference to following returns simplified which approach were achieved : in past - - returns expected which long-term were achieved consensus in past return (see example - expected in Scheme long-term 2); this consensus model must return be (see adjusted example in asset Scheme mix 2) ; this relevant model must financial be adjusted markets. to to A asset more mix sophisticated relevant approach financial consists markets. defining A more return sophisticated on basis approach expected consists return in defining pattern generated return on by an basis ALM study expected (see example return in pattern Scheme generated by an ALM study (see example in Scheme 3). 3). Scheme 2. Example expected long-term consensus return LT consensus expected return on equities (e.g. 4.5 % % = 7 %) LT consensus equity risk premium (e.g. 2.5 %) LT consensus expected return on fixed income investment (e.g. 2.0 % % = 4.5 %) LT consensus real growth (e.g. 2.5 %) LT consensus inflation (e.g. 2.0 %) Example above-mentioned consensus model : Asset mix : 0 % equities 100 % bonds expected LT return = 4.5% Asset mix : 25 % equities 75 % bonds expected LT return = 25% x 7.0 % + 75% x 4.5 % = 5.125% Asset mix : 75 % equities 25 % bonds expected LT return = 75% x 7.0 % + 25% x 4.5 % = 6.375% model to be used can be freely determined by OFP in agreement sponsoring undertakings, provided it meets prudent person criterion. R E T U R N % Average expected return over 10 years 0 % equities 100 % bonds Probability intervals Scheme 3. Example expected long-term return on basis ALM techniques % equities 75 % bonds 75 % equities 25 % bonds 5-25 % % % % Global impact on on funding. Belgian legislation fers fers a high a high degree degree flexi- flexibility in setting setting target target funding funding level, level, provided provided technical technical provisions provisions are covered. are covered. OFP may OFP consi- may consider creating creating a cushion a cushion for e.g. for absorbing e.g. absorbing short-term term return volatility. volatility. A fund an average remaining duration 15 years may consider that a decrease / increase 11 %% in in expected expected return return thus in thus discount in return rate discount results rate respectively results respectively in roughly 15 in % roughly higher/lower 15 % provisions. higher/lower provisions Asset management custody 3.10 Asset management custody OFP may freely appoint investment managers OFP may freely appoint investment managers for for management its portfolio. management its portfolio. OFP may also appoint a custodian established OFP may also appoint custodian established authorized in any EEA member state. authorized in any EEA member state. As regards underlying assets covering As technical regards provisions, underlying Belgian assets legislation covering requires, technical as a rule, provisions, that y be Belgian deposited legislation in requires, EEA. as If a not, rule, a certificate that y be deposited an authorized in institution EEA. must If not, be a certificate provided to justify an authorized non-eea-deposits. institution must be provided to justify non-eea-deposits Information to plan participants beneficiaries Belgian legislation fully complies information obligations IORP Directive. It thus aims at creating more transparency. 17 For defined contribution plans, provisions to accrue equal to 19 For sum defined social contribution vested reserves. plans, provisions to accrue equal to 18 This sum scheme is social only illustrative vested reserves. results from underlying economical 20 This financial scheme assumptions is only illustrative results from underlying economical financial assumptions. 9
10 Information plan participants to receive planannually a benefit participants statement describing beneficiaries situation OFP detailing Belgian legislation current level fully complies financing ir information accrued individual obligations entitlements. IORP Directive. It thus aims SIP at will creating also be more made transparency. available to all plan participants beneficiaries plan participants or ir representatives receive annually upon a ir benefit request. statement describing situation OFP Or information detailing can be current requested, level aiming financing at providing accrued individual plan participants entitlements. ( beneficiaries) ir accurate SIP will information also be made regarding available ir to benefits. all plan participants beneficiaries or ir representatives upon ir request Supervision Or information can be requested, aiming at CBFA oversees supervises OFP. providing plan participants ( Within CBFA, specific division Supervision beneficiaries) accurate information regarding supplementary s is in charge overseeing ir benefits. OFPs. This division consists a high expertise level team multilingual actuarial, legal, financial 3.12 Supervision economic FSMA experts. oversees division supervises is easily accessible OFP. Within applies an open FSMA, discussion specific philosophy. division Supervision supplementary s is in charge overseeing 3.13 Conclusion OFPs. This division consists a high Belgian expertise prudential level team framework multilingual sets qualitative actuarial, rules financial grants flexibility economic in investment experts. strategy, division legal, is determination easily accessible technical applies provisions an open (by discussion e.g. taking into account expected investment return), philosophy. funding involvement sponsoring undertakings Conclusion as well as plan participants beneficiaries, 3.13 by using, Belgian for example, prudential social framework committees. sets qualitative rules qualitative grants rules flexibility for in determination investment strategy, technical determination provisions do not impose technical stringent provisions dems (by e.g. on taking sponsoring into account undertakings expected in respect investment ir return), funding level assets to accrue in OFP, funding involvement sponsoring undertakings as well as plan participants whereas governance structure compliance beneficiaries, by using, for example, committees. prudent person rule guarantee a solid management securing interests rights qualitative rules for determination technical provisions do not impose prescriptive plan participants. dems on sponsoring undertakings in respect ir funding level assets to accrue 4. Tax in regime OFP, whereas governance structure 4.1 Corporate compliance income tax zero-taxation prudent person rule on guarantees benefits a solid management securing interests OFPs are subject to Belgian rights corporate plan participants. income tax. This does not, however, imply that an OFP will be 4. taxed Tax as an regime ordinary corporation. To contrary, an OFP is taxed according to special income tax regime Corporate applicable to income open-ended tax investments zero-taxation funds 4.1 UCITS-type on prit 21. OFPs This special are subject tax regime to Belgian implies corporate that taxable income basis tax. 22 This does OFP only not, encompasses however, imply that following an OFP items will : be taxed as an ordinary corporation. On contrary, an Abnormal OFP is taxed or benevolent according benefits to special received income tax regime wording applicable abnormal to open-ended or benevolent investments refers to funds UCITS-type Belgian legal terminology 19. indicating income which This derived special from tax not regime at arm s implies length that transactions taxable which basis 20 is to be considered OFP only encompasses taxable income. following items: By only engaging in at arm s length transactions, OFP can avoid addition Abnormal or benevolent this type advantages income. received wording abnormal advantages refers to Belgian Non-deductible legal terminology costs or indicating than reduction income in which is value derived from capital not loss at arm s on shares length transactions. Under But Belgian duly respecting tax law, certain generally costs made applicable by legal fiscal entity at are arm s not length fully tax principle, deductible OFP or are can not avoid tax deductible, becoming even if it taxable concerns on pressional such income. expenses. Examples such non deductible costs are : non-deductible taxes, fines, non-deductible car expenses, Non-deductible expenses Under Belgian tax law, certain expenses made by restaurant representation costs, certain social legal entity are not fully tax deductible wher or not benefits granted to employees it concerns pressional expenses. Examples such OFP should in principle be in a position non-deductible expenses are: non-deductible taxes, to avoid se costs. fines, non-deductible car expenses, restaurant representation costs, certain social benefits granted to Secret employees commissions paid This part Generally, taxable an basis OFP does is formed not have by payments for which tax non-deductible reporting formalities expenseshave not been complied. In or words : payments have been made Secret but commissions beneficiaries paid have not been identified to This tax part authorities. taxable Since basis this non-reporting is formed by payments prevents for which tax authorities proper from tax taxing reporting formalities beneficiary, have grantor not been is complied sanctioned. taxed. In or words: payments have This been tax made can easily but beneficiaries avoided by have complying not been identified to tax legislation tax authorities. on reporting Since salaries, this nonreporting prevents fees commissions. tax authorities from taxing beneficiary, grantor is sanctioned taxed. Investments By complying : zero - taxation. ordinary OFP reporting is not liable obligations for salaries, fees commissions, to capital gains tax. Likewise, (Belgian foreign) dividend income interest income will not be taxed in an OFP can avoid becoming taxable on secret commissions. hs OFP. If Belgian holding tax on income has been applied Investments: zero - taxation. upon payment income to OFP, this tax will be OFP is not liable to capital gains tax. Likewise, credited against corporation tax which may be (Belgian foreign) dividend income interest due income (cf. supra). is not taxed In those in cases, hs only tax OFP. remainder which If Belgian has not holding been set f tax will on be income reimbursed. has been This results applied in upon a favourable payment tax income treatment to where OFP, gross this tax income credited mostly against becomes corporation net income. tax which may be is due (cf. new supra) income tax any regime excess credit OFP is reimbursable. will certainly lead This to results a higher in flexibility a favorable more tax treatment choices in respect where gross investment income decisions. mostly becomes Whereas in net income. past, Belgian new funds income ten tax turned regime to UCITS-investments OFP provides to a increase higher flexibility return more investments choices in respect to avoid 21 E.g. BEVEK / SICAV commonly used in Belgium. 19 E.g. BEVEK / SICAV commonly used in Belgium applicable applicable corporate corporate tax tax rate rate is is % % (i.e. (i.e % % increased increased 3 % 3 crisis % crisis surcharge), surcharge), except except for for secret secret commissions commissions paid which paid which are subject are subject to a tax rate to a tax 309 rate %. 309 %. latter tax is deductible, whereas ordinary corporate tax % is not.
11 taxes, investment this will decisions. no longer Whereas be necessary in since past, Belgian OFP itself benefits funds from ten turned same to favourable UCITS-investments tax regime. to increase return investments to avoid taxes, 4.2. International this is no longer taxation necessary : benefiting since from double OFP itself taxation benefits treaties from same favorable tax regime. Very extensive double taxation treaty network. Since 4.2 it is subject International to corporate taxation: income benefiting tax, an OFP from will, in general, double be able taxation to claim treaties benefits double Since taxation it is treaties subject concluded to corporate by income Belgium. tax, Belgium an OFP is, has in one general, able most to extensive claim double benefits taxation double treaty taxation networks. treaties This will concluded result in a by higher Belgium. net Belgium dividend has one most extensive double taxation treaty income Belgian OFP versus most or countries. networks. This will result in a higher net dividend income Belgian OFP in comparison to most This implies that, if source state provides for or countries. application a domestic tax at source, an OFP will This implies that, if source state provides for in principle be able to claim treaty exemption or reduction foreign holding tax on dividends application a domestic tax at source, an OFP will in principle be able to claim treaty exemption or reduction interest, provided foreign holding treaty conditions tax on dividends are met. interest, Belgium provided recently renewed treaty its conditions double taxation are met. treaty Belgium USA renewed 23. its Belgian double OFP taxation is explicitely treaty mentioned USA in in 2006 treaty 21. so that Belgian no local OFP holding is explicitly tax mentioned will be due as on eligible dividends for treaty US resident benefits companies (subject to if received meeting by a Belgian treaty conditions OFP. However, on limitations this benefit is benefits ) subject to treaty resulting conditions in zero which US holding imply limitation tax on dividends benefits. from US equity VAT Exempt. VAT VAT exemption exemption applicable applicable to to mana- management by UCITS UCITS has been has extended been extended to management by OFPs. OFPs. to management Based Based on on case case law law European European Court Court Justice, Justice, exempted management activities exempted management activities 24 should 22 should encompass : encompass: financial management an OFP: services financial management an OFP : services consisting management financial consisting management financial or assets OFP 23, as well as or assets OFP 25, as well as administrative management : services administrative management : services administrative administrative management for operation OFP, to management extent that for y are operation specific to essential OFP, to for extent that OFPs, y e.g.: are establishment specific to essential for report, OFPs, information e.g. : establishment to plan participants, annual annual reporting to competent authorities, etc. If fees for VAT- exempted services are charged by a Belgian 24 Treaty 27 November 2006 still to be ratified. service provider, exemption applies ordinarily. 24 For definition management activities falling in scope If service provider is located outside Belgium, VAT-exemption, guidance can be found in case law, including case preliminary question as to localization ir law European Court Justice (ECJ), as well as in comments dealing management UCITS (although latter cannot be trans- services for VAT-purposes needs to be looked into. If fees for VAT-exempted services, as defined, are posed as such since mission activities both entities, OFPs charged to OFP by a service provider established UCITS, differ). notion management OFP is specific to VAT, in EU but outside Belgium, no VAT should, as a general which is an rule, autonomous be due concept in EU-law. EU-member Consequently, state definitions where set forth service for financial provider law purposes is established, may not necessarily nor be would decisive. VAT be due 25 Asset in Belgium management 24 does. not include actual financial depositary activities on securities by OFP. report, 4.4 Or information indirect to taxes plan participants, reporting to OFP competent itself is not authorities, subject to etc. UCITS-taxes. If fees for VATexempted means that services OFP s are charged direct investments by a Belgian are service tax- This provider, exempt 25, whereas exemption OFP applies may ordinarily. indirectly encounter If se service taxes when provider it opts is located for participation outside Belgium, in certain preliminary investment question funds which as to are subject localization to tax. ir services No subscription for VAT-purposes tax or stamp needs to duty be taxes looked are into. due If fees on a for Belgian VAT-exempted OFP. services, as defined, are charged to OFP by a service provider established in EU but outside Belgium, no VAT should, as a general rule, 4.5. Conclusion be due in EU-member state where service provider is established, nor would VAT be due in OFP enjoys a favorable tax regime, both for direct Belgium 26 indirect taxes.. Provided OFP avoids being taxed on non-deductible costs, to extent foreign investments are 4.4. Or indirect taxes well-chosen or well-structured, OFP can aim at OFP itself is not subject to UCITS-taxes. This an overall zero-taxation. means that OFP s direct investments are taxexempt Thus, Belgium can boast particularly advantageous 27, whereas terms which OFP may are quite indirectly unparalleled encounter in se taxes when or it opts EEA-countries. for participation in certain investment funds subject to tax. No subscription tax or stamp duty taxes are due on a Belgian 5. Some OFP. data 4.5. On April Conclusion 1st, 2011 re were six IORP from 3 countries OFP enjoys a European favourable Economic tax regime, Area both active for direct indirect taxes. in Belgium. Provided On same OFP date avoids 9 OPFs to located be taxed in on Belgium non-deductible activities costs, in 7 countries to extent in foreign European investments Union. are have well-chosen complete or list well-structured, different OFP Pan can European aim at an Pension overall Funds zero-taxation. located in Belgium can be consulted on website Thus, Belgium FSMA can boast (www.fsma.be). particularly advantageous characteristics quite unparalleled in or EEA-countries. 21 Treaty 27 November For definition management activities falling in scope VAT-exemption, guidance can be found in an extensive administrative Circular (N AOIF 22/2008 ET ) June 17, Asset management does not include actual financial depositary activities on securities by OFP. 24 Since nature services rendered needs to be examined on a case-by-case basis, since national legislations must also be 26 Since nature services rendered needs to be examined on a considered in light EU law to determine localization service, case-by-case each contract basis, fee for since services national will require legislations a separate must analysis. also be considered 25 As in regards light Belgium, EU law to determine yearly 0.01 localization % UCITS tax (for service, shareclasses each contract intended for pressional fee for services investors). will require a separate analysis. 27 As regards Belgium, yearly 0.08 % or 0.01 % UCITS tax 11
12 Contacts Federal Public Service Finance For more information Fiscal Department for Foreign Investments on or incentives Parliament Corner reasons to invest Rue de la loi Wetstraat 24 in Belgium, please visit B-1000 Brussels, Belgium T : F : E : Financial Services Markets Authority Rue du Congrès - Congresstraat B-1000 Brussels, Belgium T : F : E : Belgian Association Pension Institutions Boulevard A. Reyerslaan 80 B-1030 Brussels, Belgium T : F : E : Responsible Editor: Françoise Audag- Dechamps, Federal Public Service Chancery Prime Minister Rue de la Loi/ Wetstraat Brussels D/2011/9737/1
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