Belgian Council of State, judgments nos. 266.735, 266.736, and 266.737 of May 20, 2026
What happened?
In three parallel judgments dated May 20, 2026, the Council of State sent a clear signal: the Belgian ban on using the term “sales” (or equivalent terms such as Solden, Opruiming, Soldes or Schlussverkauf) outside the statutory sales periods is incompatible with European law and can no longer be enforced.
The Background
Under the current Code on Economic Law (Art. VI.25 CEL), the sales periods are legally established: from January 3 to 31 and from July 1 to 31 (with adjustments for Sundays).
Outside these periods, the use of the term “sales” or equivalent terms is prohibited by law. Violations are identified by the Economic Inspectorate (FPS Economy) and may result in administrative fines.
Three clothing retail chains were caught in June 2023—the so-called “restricted period.” During the restricted period in June 2023, they had prematurely announced discounts or promotions as a joint offer under the heading “solden” (sales) both online and in physical stores. The Economic Inspectorate found violations, which resulted in fines in decisions dated September 10, 2024. The retailers filed an appeal with the Council of State.
The reasoning of the Council of State
The core of the dispute revolved around a question that had been simmering for years: does the Belgian ban on sales fall within the scope of the European Unfair Commercial Practices Directive (Directive 2005/29/EC)?
That directive mandates full harmonisation: Member States may not impose stricter national rules that restrict commercial practices toward consumers unless the directive expressly permits it. A ban on announcing sales outside the sales period, such as the Belgian one, is not provided for in the Unfair Commercial Practices Directive.
Following earlier rulings, the Belgian legislator had attempted in 2013 to keep the ban on early announcements of sales outside the scope of the directive by emphasising that the regulation aims to protect competition between businesses (B2B)—not consumer protection (B2C). However, the Council of State does not follow this reasoning.
The Council of State finds that the Belgian sales regulation—given its history, general context, and existing case law—also aims to protect consumers. It therefore does fall within the scope of the Unfair Commercial Practices Directive.
The Court of Cassation applied the same reasoning regarding the scope of the directive in its judgment of September 16, 2016, concerning the prohibition on selling at a loss.
In accordance with the case law of the Court of Justice of the European Union, a national provision that conflicts with the Directive must be disregarded.
What does this mean in practice?
The administrative fines were overturned due to an unlawful legal basis. Furthermore, the Council of State makes it clear that national authorities, including the FPS Economy—and its Economic Inspection—are bound by this reasoning since it stems from European law.
Consequently, the ban on advertising sales outside the statutory sales periods can no longer be enforced.
Indeed, retailers who, from now on, run promotions outside of January and July under the name “sales” can challenge the administrative sanctions or other complaints that would be based on these grounds.
Point to note: the reference price rule remains in effect
The freedom to advertise “sales” does not mean that all pricing rules are off the table. The reference price rule of Article VI.18 WER—introduced to implement the Omnibus Directive 2019/2161—remains fully applicable.
When announcing a price reduction to consumers, you must state the reference price: this is the lowest price you charged in the 30 days prior to the price reduction.
Some exceptions:
- Progressive discounts (e.g. -10% → -20% → -50%) may always refer to the initial reference price. However, Belgian law has limited such progressive promotions to a continuous period of no more than thirty days—a restriction that is not provided for in the European directive and therefore appears legally disputable.
- For goods that have been on the market for less than 30 days, the reference price period is 7 days.
- Goods that spoil quickly or have a limited shelf life are excluded from the regulation.
Conclusion
The Council of State’s rulings of May 20, 2026, put an end to a long-standing legal uncertainty. The Belgian ban on sales outside the statutory periods has been set aside on grounds of European law. This gives retailers greater freedom in planning and communicating promotions—provided they correctly comply with the reference price rule when reducing prices.
Do you have questions about the impact of these rulings on your promotional practices, or would you like to have your current communications reviewed? Please feel free to contact the authors of this article, Eric De Gryse or Michaël De Vroey.
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This newsletter does not constitute legal advice or a legal opinion. Please consult with a legal counsel of your choice before taking any action based on the information provided.