26-07-2022

In the context of financial law, the current definition of a "person in contact with the public" ("PCP") will be expanded as of August 1, 2022. It will also include persons who are not in contact with the public. This is due to the Law of 27 June 2021 containing various financial provisions that will amend article 1.9, 79° of the Economic Code.

The present and future definition

Currently, the definition of a PCP encompasses any natural person who is in contact with the public at a lender or credit intermediary for the purpose of proposing credit agreements or providing information about them. As a result of the amendment to the law, this definition will broaden to include persons who are directly involved in intermediary activities. They do not even have to be in contact with the public.

Specifically, for the qualification as a PCP, it must be examined whether the person directly involved in the mediation work plays an important role in the procedure of the offer or the conclusion of a credit agreement. A supporting function is insufficient. One should not take into account the official job description, but rather the concrete activity that the person performs.

A few illustrations

The Financial Services and Markets Authority (FSMA) gives some examples of what constitutes a support function. Like:

- the person who prepares commercial and legal documents;

- the person who merely enters data into an IT tool without making any appreciation;

- the person who creates an automatic credit process and thereby determines the criteria to be taken into account by the automatic process in order to grant a credit automatically;

- the person who follows up on the repayments of previously granted credits;

- the person who manages the collection of debts;

- the person who examines the credit file and verifies that it is complete, without performing a credit analysis or an analysis of repayment capacity;

- the person who reviews the file to detect any fraud;

- the employee of the human resources and information technology department.

Examples of important functions, on the other hand, are:

- the person who proposes to the borrower to enter into a credit agreement;

- the person who assists the borrower in completing a new credit application;

- the person who makes the credit decision and decides whether or not to make a credit offer;

- the person who verifies the decision of an automatic credit process and may make a different credit decision in the process;

- the person who responds to customer inquiries and handles the requests related to an amendment to the existing credit agreement. However, it is required that the amendment economically leads to a similar situation as when "proposing", "offering" or "concluding" a new credit agreement. For instance, a drawdown of credit, the constitution of additional surety or a change to the contractually agreed periodic interest rate.

The importance of qualifying as a PCP

Astrea recommends that you thoroughly review the positions of your employees. After all, if an employee is qualified as a PCP, that person is subject to examination and retraining obligations.

For more information, you can always contact Astrea. Please find below the relevant sources.

- Article 367 Act of 27 June 2021 containing various financial provisions

- Article 1.9, 79° Economic Code

- https://www.fsma.be/nl/tussenpersonen-kredietgevers/wie-kwalificeert-als-pcp-kredietbemiddeling-hiermee-gelijkgesteld