Does an unclear contract clause automatically make an agreement with the bank unlawful?

When you terminate your relationship with a bank as a consumer, may the bank charge unexpected transfer fees if the terms and conditions are unclear? The Court of Cassation ruled in a ruling of Jan. 29, 2026 that a lack of transparency in a contract clause does not automatically mean that the clause is unlawful and therefore void. Courts must always go one step further and examine whether this lack of clarity actually creates a “manifest imbalance” between the rights and obligations of the bank and the consumer.

The facts

The case revolves around a dispute between a consumer and BNP Paribas Fortis.

• The consumer had entered into an account agreement with the bank for a securities account in 2017.
• In 2022, the consumer decided to cancel this securities account and have the securities transferred to another bank.
• For this, the bank charged a transfer fee of 150 euros per security line, totaling 2,100 euros.
• The consumer refused to pay this, arguing that the termination of the banking relationship should not be contingent on these charges.
• Pending payment, the bank exercised a lien on the securities.

The Antwerp Court of Appeal initially agreed with the consumer. The court ruled that a normally informed consumer could not possibly make the link between the article guaranteeing free cancellation and the individual articles (and the tariff list) that stipulated that the transfer of securities was considered a paying ‘service. Because the clauses violated the transparency requirement, the appeal court declared them null and void immediately.

The decision of the Court of Cassation.

However, the Court of Cassation overturned this ruling of the court of appeal. To this end, the Court relies on the provisions of the Code of Economic Law (CEL).

• According to Article VI.84, § 1, CEL, any illegal clause is prohibited and void.
• An unfair term is defined in Article I.8, 22°, CEL as a term that creates a manifest imbalance between the rights and obligations of the parties, to the detriment of the consumer.
• Article VI.82 CEL states that to assess this illegality, one must consider all the circumstances, including the clarity and intelligibility of the clause (Article VI.37 CEL

The Court of Cassation ruled clearly: the transparent nature of a clause is only one of the elements the court must take into account. The examination of illegality must be an overall assessment. The Court of Appeal had annulled the clauses based solely on the lack of transparency, without actually examining whether there was a manifest imbalance in the concrete circumstances. That was a legal error.

Legal analysis and interpretation

The Court of Cassation's decision goes to the heart of European and Belgian consumer law, in particular the interplay between the transparency requirement on the one hand and the substantive test of illegality on the other. The ruling offers a strict and dogmatically pure reading of Book VI of the CEL and the underlying European Directive 93/13/EEC on Unfair Terms.

From the ruling we can distill the following legal principles:

• The strict separation between transparency and illegality: Article 5 of Directive 93/13/EEC (transposed in Article VI.37, §1 CEL) requires that terms in consumer contracts be clear and understandable. This is a formal transparency requirement. However, the question of whether a term is actually ‘unlawful’ (or in European terms ‘unfair’) is governed by Article I.8, 22° CEL (based on Art. 3(1) of the Directive). A clause is only unlawful if it creates “a manifest imbalance” between the rights and obligations of the parties, to the detriment of the consumer. These are two distinct concepts.
• No legal automatism: The Court of Cassation explicitly confirms that a lack of transparency does not automatically lead to the illegality and subsequent nullity of the clause. While the lack of clarity is an important element of assessment (in accordance with Article VI.82, second paragraph CEL), the judge is still obliged to examine, in concrete terms, whether this lack of clarity actually leads to a significant disturbance of the contractual balance. The balance test should not be skipped.
• Conservation of the contra proferentem-rule: The ruling also protects the logic behind the specific penalty for unclear terms. Article VI.37, § 2 CEL provides that in case of doubt about the meaning of a term, the interpretation most favorable to the consumer prevails. If any ambiguity would immediately and automatically lead to absolute nullity due to ‘illegality,’ this interpretation rule would lose all raison d'être.

With this ruling, the Court of Cassation sets the stage for lower courts. Although the Court of Justice of the European Union (ECJ) has set the bar for pre-contractual and contractual transparency particularly high in recent years (including in rulings such as BNP Paribas Personal Finance and Occidental), the ECJ invariably delegates the final assessment of the “manifest imbalance” to the national court. Here, the Belgian Court of Cassation rules perfectly in accordance with the directive: the court may penalize the lack of transparency, but only after it has been established that this lack places the consumer in a disproportionately disadvantageous position vis-à-vis the business.

What this specifically means

This ruling has important implications for both consumers and financial institutions:

• For consumers: You cannot get out from under a cost or fee simply by claiming that the general terms and conditions are unclear or complex (which is often the case with banks). You will also have to prove that this lack of clarity results in a disproportionate disadvantage (a manifest imbalance) vis-à-vis the bank. However, you can always demand that the clause be interpreted in your favor if it is unclear.
• For the business / bank: While this ruling seems like a victory for freedom of contract, it is not a free pass for drafting incomprehensible general terms and conditions. Ambiguity remains a weighty element that can turn against the business when assessing imbalance. Transparency at the pre-contractual stage remains crucial.

Frequently asked questions (FAQ)

What is an illegal term?
An illegal term is a clause in a contract between a business and a consumer that creates a clear (apparent) imbalance between the rights and obligations of both parties, to the detriment of the consumer. Such clauses are prohibited by law and void.

Are transfer fees when changing banks legal?
Yes, in principle a bank may charge for the services it provides when transferring a securities portfolio to another institution. However, these charges must be transparently communicated in the terms and conditions and must not be so high as to constitute an undue barrier to switching banks.

What happens if a clause in a contract is unclear?
An ambiguous contract term in a consumer contract should be interpreted primarily in the manner most favorable to the consumer. It does not automatically lead to the complete nullity of that clause unless it also creates a significant imbalance.

Conclusion

The Court of Cassation confirms that consumer protection is not a blind automatism. A lack of transparency in the small print of a contract only leads to the annulment of that clause if there is also a manifest imbalance of rights and obligations. This requires a thorough, factual analysis of the entire contract and circumstances in legal disputes in Belgium.