Will stores be allowed to announce ‘sales’ all year long from now on?

With three rulings of May 20, 2026, the Council of State annuls the administrative fines that the FPS Economy had imposed on three fashion chains of The Fashion Society group (ZEB, Point Carré and The Fashion Store) for using the term “sales” outside the legally established sales periods. The court ruled that art. VI.25, § 1 of the Code of Economic Law (CEL) conflicts with the European Unfair commercial practices directive and should be disapplied. On paper, the ban remains in place, but in practice it becomes unenforceable: anyone who is now fined for “sales” outside of January or July can count on annulment with great certainty.

The facts

In June 2023, inspectors from the Economic Inspectorate found that a fashion chain advertised “sale now until -50%” through a flyer and through a Facebook post about “summer sale until -50%.” The offer ran from June 14 to June 25, 2023 - more than two weeks before the start of the legal sales period on July 1.

The Department of Sanctions and Legal Disputes imposed an administrative fine of 24,000 euros on Sept. 10, 2024, for violating Article VI.25, § 1 CEL, which reserves the use of the terms “sales”, “clearance sales”, “solds” or “Schlussverkauf” to two fixed periods per year (Jan. 3-31 and July 1-31). Two sister companies received similar fines on the same day. The three decisions were appealed to the Council of State.

Central to the defense was one argument: article VI.25, § 1 CEL aims - among other things - to protect consumers and therefore falls within the maximum harmonized scope of Directive 2005/29/EC. Since that Directive does not prohibit the use of the term “sales” outside well-defined periods, Belgium cannot impose such an additional restriction.

The decision

The Council of State follows the defense of the fashion chains and annuls the three penalty decisions.

The court recalls that the Unfair Commercial Practices Directive establishes full harmonization: Member States may not introduce stricter measures within the harmonized field, even with a view to increasing consumer protection. A national regulation falls within the personal scope of the Directive as soon as it includes - even if only indirectly or in collateral order - the protection of consumers. Only provisions that “exclusively” protect the economic interests of competitors or regulate purely B2B transactions are excluded.

To determine whether a national provision actually seeks to protect consumers, it is not enough to look at the formal purpose or nature of the measure. The Council of State uses five criteria: the general purpose and nature of the measure, its genesis, parliamentary preparation, case law and legal doctrine.

In each of these areas, the Council of State concludes that Article VI.25 CEL does have a consumer protection purpose in part. The condition that the term “sales” may only be used for goods at a genuinely reduced price offers consumers a guarantee. Its placement in Book VI WER (“Market practices and consumer protection”) points in the same direction. The preparatory works before the 2013 reform show unequivocally that the legislator historically pursued a dual objective - both fair competition between companies and consumer protection. The Court of Cassation confirmed this dual objective for the related pre-sales period in its rulings of November 2, 2012 and October 29, 2015, and for the sale at a loss in Euronics of Sept. 16, 2016. The majority of legal doctrine also endorses that the purpose of the solvency regime is consumer protection.

The arguments of the Belgian State - that in 2013 the legislator explicitly inscribed “in order to ensure fair market practices between undertakings” in the preamble to Article VI.25, § 1, and that the explanatory memorandum to that legislative amendment made it clear that the prohibition was no longer aimed at protecting consumers - do not convince the Council of State. A mere formal adaptation of the ratio legis, without a substantive change to the rule itself, is not sufficient to escape the directive's maximum harmonization field. Otherwise, a mere adaptation of the Explanatory Memorandum would allow each Member State to retain national restrictions that the Directive precisely sought to exclude.

Since article VI.25 CEL falls within the personal scope of the Unfair Commercial Practices Directive and that directive does not prohibit the use of the term “sales” outside defined periods, the Belgian provision is contrary to Union law. The Council of State should disapply it. As a result, there is no legal basis for the fine decisions, which are therefore annuled.

Legal analysis and interpretation

A long-announced end

The incompatibility of the Belgian sales regulation with Union law is no surprise. The Legislative Section of the Council of State warned as early as 2009 (opinion no. 47.034/1) and again in 2013 (opinion no. 53.085/1) for its tension with the Unfair Commercial Practices Directive. The ECJ already condemned the regulation around announcements of price reductions in 2014 in case C-421/12. For the related pre-sales period, the Court in 2011, in the rulins Inno and Wamo and the Court of Cassation reached the same conclusion in its 2012 and 2015 rulingss. Legal doctrine (e.g. Janssens, De Meese, Vanhoyland, Baes, Bruloot) had been pointing out the untenability of the Belgian position for years; only Stuyck defended the formalist reading on which the FPS Economy also relied.

What makes this ruling special is that it now explicitly extends the reasoning previously developed by the Court of Cassation for the pre-sales period and sales at a loss to the prohibition of the use of the term “sales”. The Council of State refuses to artificially distinguish between the various provisions of Section 3 of Book VI (“Clearances or sales on sale”). Articles VI.25 to VI.28 CEL form a single coherent whole and must be assessed on an integrated reading.

The methodology of the five criteria

The Council of State establishes a methodological framework that extends beyond this case. When the legislator tries to escape the scope of a directive seeking full harmonization through a modification of the ratio legis, this cannot be sufficient: the court must look at the actual purpose of the regulation, determined on the basis of five criteria - general nature of the measure, genesis, parliamentary preparation, case law and doctrine. In doing so, the Council of State follows the Opinion of Advocate General Van Ingelgem before the Court of Cassation: it is “artificial to say the least” that a legislature could withdraw a rule from a harmonized scope by a simple amendment to the explanatory statement.

This methodology can be invoked in the future against any national provision where the Belgian legislator has sought to evade Union law through a reformulated ratio legis. In this sense, the ruling is a statement of principle against what has been considered a Belgian “trick” in legal doctrine for years.

What about the pre-sales period and selling at a loss?

The ruling concerns only Article VI.25 CEL, not the pre-sales period (Article VI.29-30 CEL) or sale at a loss (Article VI.116 CEL). For the pre-sales period, the Court of Cassation and Ghent Court of Appeal (Feb. 3, 2020), however, already found incompatibility with the Directive insofar as it seeks to protect consumers. For sales at a loss, the Court of Cassation ruled in Euronics that the rule also aims to protect the consumer and is therefore covered by the Directive. Both regulations are under increased pressure following this ruling: the Council of State explicitly reiterates that they must be read in inseparable connection with the rules on sales on sale. Anyone sued today under those provisions can invoke the same reasoning.

Specifically, what does this mean?

For retailers and e-commerce. Anyone wishing to announce discounts under the terms “sales”, “clearance sales”, “sale”, “summer sale”, “winter sale” or similar terms can now reasonably do so throughout the year without any real risk of an enforceable fine. The FPS Economy can in theory still draw up official reports, but any decision based solely on Article VI.25, § 1 of the CEL will fail before the Council of State. Anyone who does receive a fine would do well to actively appeal - the precedent is up for grabs. However, the obligation to disclose the actual discount remains in full force: under Art. VI.18 CEL (reference price rule), the announced reduced price must effectively be lower than the price applied in the 30 days prior to the price reduction. Misleading discounts remain sanctionable, not through the sales regulation but through the general prohibition of unfair trade practices.

For government and lawmakers. The FPS Economy will have to review its enforcement policy: new penalty decisions under Art. VI.25, § 1 CEL make little sense. At the legislative level, a revision is imminent. If the legislator wishes to retain fixed sales periods, this will have to be done via a European legal basis - for example, via an amendment to the directive itself - or via a regulation that purely targets B2B relations between enterprises without any impact on consumers. Both courses of action are difficult. More realistic is for the Belgian legislator to formally eliminate the sales regulation or limit it to a purely informative role.

For consumers. Consumer protection shifts entirely to art. VI.18 CEL and the general ban on misleading commercial practices. Those who, as consumers, suspect that an announced discount is not real can continue to challenge it - no longer by arguing that the store announced “sales” outside the sales period, but by arguing that the real price reduction is missing or that the reference price has been inflated.

Frequently asked questions (FAQ)

From now on, may a store always say “sales” even in March or October?
In practice, yes. The prohibition in Article VI.25 CEL remains formally in the Code, but now that the Council of State has declared it inapplicable because of conflict with Union law, any fine imposed on its basis will fall before the same Council. Enforcement without real enforceability is a dead letter.

Does this ruling apply only to the three chains that brought the case?
Strictly legally, yes - an annulment ruling by the State Council only works between parties. But the ruling creates a precedent that any other company can invoke when faced with a similar fine. Moreover, a Council of State ruling cannot be appealed in cassation; it is final.

What will change for consumer protection against false discounts?
Nothing substantial. The reference price rule from Art. VI.18 CELR remains fully intact: announced discounts must be calculated relative to the lowest price applied in the 30 days prior to the discount. Misleading discount claims remain sanctionable through the general ban on unfair trade practices.

Conclusion

The three rulings of May 20, 2026 draw a line under thirty years of Belgian sub-European experimentation with the sales regime. By declaring Article VI.25 CEL inapplicable for conflict with the Unfair Commercial Practices Directive, the Council of State is de facto depriving the FPS Economy of its enforcement power on this issue. The methodology of the five criteria used by the court goes beyond this case: it constitutes a warning against any attempt to escape the maximum harmonization field of a European directive through a formal adaptation of the ratio legis. For commercial cases, the ruling means considerable commercial flexibility; for consumers, the essential protection via the reference price rule remains in full force.