Belgian transposition of CRD VI: M&A provisions, governance and third-country branches

1. Introduction

With the transposition of Directive (EU) 2024/1619 ("CRD VI”), Belgium introduces far-reaching amendments to the Law of 25 April 2014 on the status and supervision of credit institutions (the “Banking Law”). This client alert discusses this European regime and the Belgian implementation thereof with respect to mergers, acquisitions and other material operations, the governance of credit institutions, and the regime for third-country branches.

CRD VI entered into force on 9 July 2024 and was required to be transposed into national law by Member States by 10 January 2026 at the latest. The Belgian legislator submitted the bill transposing CRD VI (DOC 56 1489/001) to the Belgian House of Representatives on 12 May 2026, well after the expiry of the transposition deadline.

Although most provisions of CRD VI became applicable from 11 January 2026, the regime for third-country branches will only become applicable on 11 January 2027. Furthermore, it is explicitly provided that the new requirements shall be without prejudice to existing contracts that were entered into before 11 July 2026, which are safeguarded as acquired rights.

The Belgian bill largely transposes the European rules faithfully, but deviates on a number of points; particularly through the retention of existing national rules that go beyond CRD VI, and through additional requirements inspired by IMF recommendations and soft law EBA and Basel Committee that are now being enshrined in hard law.

 

2. M&A provisions: acquisitions of material holdings, mergers, divisions and material transfers

2.1 Acquisitions of material holdings (new: Articles 76/1 – 76/6 Banking Law)

European key change (CRD VI, Articles 27a – 27e): CRD VI introduces a new, harmonised regime for the prior notification of acquisitions of material holdings by credit institutions. A holding shall be deemed material where it is equal to or more than 15% of the eligible capital of the institution.

Belgian transposition and deviations: The Belgian legislator fully transposes this regime through the new Articles 76/1 to 76/6 of the Banking Law. The materiality threshold of 15% and the assessment criteria are adopted. Where the Belgian text deviates, however, is in the interaction with Article 77 of the Banking Law, asdecisions for which a harmonised prior approval already applies under the new Articles 76/1 and 76/8 no longer fall within the additional Belgian regime of Article 77. Decisions that under CRD VI only require a prior notification (but not prior approval) – such as the divestiture of a material holding (Article 76/5)¹ –may, on the other hand, additionally fall within the scope of Article 77 and thus be subject to prior approval by the competent authority, where they also qualify as a strategic decision. This constitutes Belgian gold-plating of CRD VI - where the Directive only prescribes a notification in such cases, Belgian national law requires actual approval.²

2.2 Mergers and divisions (new: Articles 76/7 – 76/14 Banking Law)

European key change (CRD VI, Articles 27h – 27l): CRD VI treats mergers and divisions as material operations in all cases, without a materiality threshold. Mergers and divisions are subject to a prior notification obligation and mandatory approval by the competent authority, except for intragroup operations where a tacit approval (nihil obstat) applies.

Belgian transposition and deviations: The Belgian transposition in Articles 76/7 to 76/14 closely follows the Directive. An important consequence is that mergers and divisions, which were subject to prior consent under the former Article 77, first paragraph, 3° of the Banking Law, will now be governed by the harmonised European regime. As such, they will no longer fall within the national regime of Article 77, and the former point 3° of Article 77 (mergers of credit institutions) is accordingly repealed. The competent authority may only oppose the transaction where the European criteria are not met; there is no longer room for additional national assessment standards. Furthermore, the competent authority assessing the merger or division may be an authority of another Member State, which may result in a merger or division involving a Belgian credit institution being assessed by a non-Belgian authority.

2.3 Material transfers of assets and liabilities (new: Articles 76/15 – 76/16 Banking Law)

European key change (CRD VI, Articles 27f – 27g): CRD VI introduces a notification obligation for material transfers of assets or liabilities which are equal to at least 10% of the total assets or liabilities of the entity (15% for intragroup operations). The Directive only prescribes minimum harmonisation in this regard, through the prior notification to the competent authority, thereby allowing Member States to require prior approval.

Belgian transposition and deviations: In the Belgian transposition (separate draft Article 76/15), the notification obligation is adopted with the same thresholds of 10% and 15% respectively. Again, the Belgian top-up arises as material transfers which also qualify as a strategic decision remain additionally subject to the prior approval procedure of Article 77, going beyond what CRD VI requires. In practice, this may mean that for material transfers both a notification (Article 76/15) and a prior approval (Article 77) will be required.

2.4 Amendment of Article 77: strategic decisions

The amended Article 77 of the Banking Law now expressly provides that the prior consent regime does not apply to decisions that already fall within a harmonised approval procedure on the basis of the Banking Law, the CRR or the legislation transposing CRD in another Member State. This relates namely to acquisitions of material holdings (Article 76/1) and mergers and divisions (Article 76/8), as discussed above. The national regime of Article 77 does, however, continue to coexist with the harmonised CRD VI regimes for transactions for which the Directive only prescribes a notification (and not an approval), namely the divestiture of a material holding (Article 76/5, as discussed under 2.1) and material transfers of assets and liabilities (Article 76/15, as discussed under 2.3). In those cases, Article 77 may, as Belgian gold-plating, impose the requirement for an additional prior approval where the transaction also qualifies as a strategic decision.

Furthermore, the definition of a “strategic decision" in Article 3, 63° of the Banking Law is broadened to clarify that decisions made in combination with other decisions may also have an overall impact on the financial situation of the institution.

 

3. Governance provisions

3.1 Harmonised fit & proper assessment (amendment of Articles 19, 26/1, 60 Banking Law)

European key change (CRD VI, amendment of Article 91 and introduction of Article 91a CRD): CRD VI harmonises the framework for the suitability assessment (fit & proper) of members of the management body and introduces for the first time a harmonised framework for key function holders (including the chief financial officer).

Belgian transposition and deviations: The Belgian transposition enshrines the permanent nature of the suitability assessment requirements. A number of elements that already existed on the basis of soft law (e.g. EBA Guidelines) are codified, namely (i) that, in the context of the suitability assessment, the competent authority also consults the EBA’s central AML/CFT database (Article 19, § 1 Banking Law, third paragraph supplement), and (ii) the obligation for credit institutions to draw up individual statements of responsibilities for all members of the management committee, senior management and key function holders, with an overview of reporting lines and responsibilities, which must be made available to the competent authority at all times (new Article 26/2 of the Banking Law). Such statements of responsibilities put pressure on the collective suitability of the members of the board of directors by clearly identifying individuals with a specific set of duties. Although such obligations already existed on the basis of EBA guidelines, they are now a formal supervisory assessment tool for the NBB.

3.2 Independent directors and composition of advisory committees

European key change: CRD VI does not contain specific harmonised rules on the precise number of or majority requirement for independent directors on advisory committees, but contains more general requirements regarding diversity, independence of mind and the avoidance of conflicts of interest.

Belgian deviation (gold-plating / transposition of soft law into hard law): Belgium goes considerably further by transposing soft law principles from the EBA Guidelines, the ESMA/EBA Joint Guidelines and the Basel Committee recommendations into hard law, inter alia in Article 27 of the Banking Law:

• Each advisory committee (audit, risk, remuneration, nomination) must consist of at least three members and no single member may sit on more than three committees.
• The audit committee shall consist of a majority of independent directors. For significant credit institutions, this majority requirement applies to all advisory committees.
• The chair of the risk committee may not simultaneously serve as chair of the management body or of another committee.
• The audit committee must consist of a majority of independent directors; for significant credit institutions, this requirement applies to all advisory committees.

These rules go beyond the requirements set out in CRD VI,and are partly influenced by the 2023 IMF FSAP, which noted that these international standards were not sufficiently embedded in the Belgian legislative framework.

3.3 Intragroup transactions: ad hoc committee of independent directors

European key change: CRD VI does not contain a specific requirement for an ad hoc committee of independent directors to assess intragroup transactions.

Belgian addition: The bill introduces, through Article 27 paragraph 5, the statutory basis for the management of intragroup conflicts of interest. Intragroup transactions that may have material consequences for a credit institution must be assessed by an ad hoc committee consisting exclusively of independent directors. This mechanism aims to strengthen governance in credit institutions that form part of a group and are not themselves the overarching parent undertaking.

3.4 ESG risks, training and remuneration policy

European key change: CRD VI requires that the management body collectively possesses knowledge of ESG factors (Article 91) and that the remuneration policy takes into account ESG risks (Article 74).

Belgian transposition: Belgium adopts these requirements and provides that the remuneration policies and practices must take into account the institution’s risk appetite in terms of ESG risks (Article 21 Banking Law). The collective knowledge of the management body and the management committee must encompass the impacts of business activities over the short, medium and long term, taking into account ESG factors (Article 26/1 Banking Law). Credit institutions are required to devote adequate human and financial resources to the induction and training of members of the management body, including on ESG risks and ICT risk.

 

4. Provisions regarding third-country branches

European key change: CRD VI introduces a new, harmonised framework governing access to the EU market for third countrycredit institutions with an aim of eliminating existing fragmentation across national regimes. CRD VI requires that undertakings established in a third country which seek to carry out “core banking activities" in the EU establish an authorised branch in a Member State. These core banking services are namely the taking of deposits and other repayable funds, the granting of credit or loans, and the provision of guarantees and commitments.

This will significantly restrict the cross-border provision of such services without a local presence in the EU, which is why these provisions are sometimes referred to as 'Brexit 2.0'. The Directive does, however, provide for a limited number of exceptions to this establishment requirement, namely for services provided at the own exclusive initiative of the client or counterparty (reverse solicitation), interbank activities, intragroup activities, and certain ancillary services within the meaning of MiFID. These exceptions give rise to many questions in practice, particularly in the context of activities where accounts or loans are provided incidentally, such as the provision of cash accounts or the granting of intraday credit in institutional banking contexts such as custody or other safekeeping activities.

Additionally, the harmonised framework comprises common requirements regarding the authorisation of the branch, prudential requirements, internal governance of the branch, supervision and reporting.

Belgian transposition: The Belgian transposition of the CRD VI framework for third-country branches in the new Articles 333 to 340/1 of the Banking Law closely follows the harmonised minimum requirements of the Directive.

The Belgian legislator supplements the harmonised framework only to a very limited extent, namely by retaining in Article 339/2, §1, 4° an additional ground for subsidiarisation that already existed under the previous regime (protection of depositors or investors, sound and prudent management, or stability of the financial system). It also maintains in Article 336/2 the existing national obligation to hold assets in Belgium that are subject to seizure up to the amount of the covered deposits.

 

5. Conclusion

The Belgian transposition of CRD VI largely follows the European harmonised framework as regards M&A provisions. However, through Article 77 of the Banking Law Belgium maintains an additional national regime of prior approval for transactions qualifying as strategic decisions, even where CRD VI only requires a notification. This leads to a coexistence of the national and the European regime. As regards governance, Belgium deliberately goes beyond CRD VI by transposing existing soft law rules regarding independent directors and the composition of advisory committees into hard law.

In relation to third-country branches, the Belgian transposition closely follows the harmonised CRD VI framework, with only limited national additions regarding subsidiarisation and the holding of assets subject to seizure. Although these provisions will only become applicable in early 2027, we recommend that our clients carefully map the extent to which they are exposed to such services or products from a third country and seek timely advice should there be concerns regarding the continuity of such service provision after that date.

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¹ In that case, by following the procedure of prior consent pursuant to Article 77 of the Banking Law, the obligation of prior notification, as introduced by CRD VI and transposed in draft Articles 76/5 or 76/15 of the Banking Law, shall also be deemed to have been fulfilled.
² See Explanatory Memorandum, pp. 105-107.