In three judgments of 20 May 2026, the Council of State has put an end to the Belgian sales regulation. Article VI.25, §1 of the CEL, which restricts the use of the terms 'solden', 'opruimingen', 'soldes', 'Schlussverkauf' and similar terms to January and July, is incompatible with the Unfair Commercial Practices Directive and must be disapplied. The fines imposed on retailers by the FPS Economy on the basis of this provision were annulled.
Full harmonisation as a stumbling block
The Unfair Commercial Practices Directive fully harmonises the rules on unfair commercial practices towards consumers. Member States may not maintain stricter or additional national measures within the harmonised area. Crucially, the Directive applies as soon as a national regulation is even partially or indirectly aimed at consumer protection. A rule that primarily serves the interests of businesses but also protects consumers is therefore equally covered by the Directive.
The key question for the Council of State was whether the sales regulation in Article VI.25 CEL is intended to protect consumers and thus falls within the scope of this Directive. The retailers argued that this was indeed evident from various elements, such as the legislative history and the connection with other provisions. The FPS Economy, on the other hand, relied on the formal objective set out in the provision itself: following a judgment of the Court of Justice of the EU, the words "In order to ensure fair market practices between businesses" were added to the provision at that time, in an attempt to prevent any incompatibility with the Directive. This legislative manoeuvre was strongly criticised in legal doctrine.
The judgments of the Council of State
The Council of State concurs with this criticism and rules against the FPS Economy. The Council states in clear terms that the formal objective in the text of the law is not in itself sufficient to determine the scope of the Directive: the actual objective must be examined on the basis of all relevant factors, including the legislative history and the parliamentary preparatory work. The Council rules that the sales regulation does indeed aim to protect consumers, in particular by ensuring that businesses comply with fair trading practices. The regulation does not benefit businesses, let alone exclusively so: through the sales, businesses seek to avoid being left with unsaleable stock, and they have every interest in generating liquidity to renew their product range.
Consequently, the sales regulation falls within the scope of the Directive. Since the Directive itself does not provide for such a prohibition, Article VI.25 CEL, as a stricter national measure, is incompatible with EU law and must therefore be disapplied under the principle of the primacy of EU law. A purely pro forma objective in the text of the law or the explanatory memorandum is therefore not sufficient to exclude a rule from the harmonised sphere.
The practical consequences
For the retailers in question, the immediate consequence of the judgments is that the fines imposed have been annulled. Since judgments of the Council of State relate only to the specific cases before it and do not annul statutory provisions, Article VI.25 CEL is formally still in force. Nevertheless, this case law sets a strong precedent: the Council has expressly confirmed that Article VI.25 CEL must be disregarded, making it untenable in practice for the Economic Inspectorate to continue imposing fines for breaches of that provision in the future.
In practice, this means that the term 'sales' and similar terms can now be used throughout the year, although the other rules regarding the announcement of price reductions remain in full force. In addition, the 'blackout period' – the period prior to the statutory sales period during which businesses are not permitted to implement price reductions – largely loses its practical significance. After all, that blackout period is inextricably linked to the sales regime.
The question also arises as to whether other provisions in the CEL with the same pro forma objective, such as the ban on selling at a loss, could withstand such scrutiny. After all, the Court of Cassation has already confirmed in the past that the ban on selling at a loss is intended to protect the economic interests of competitors as well as consumers, and is therefore covered by the Directive and incompatible with it. The judgments of 20 May 2026 may therefore mark not only the end of the sales regulation, but also the starting point for a broader review of the CEL.
Council of State, 20 May 2026, judgments nos. 266.735, 266.736 and 266.737.
Authors: Nathalie De Weerdt (Senior Associate, Brussels) and Fien Vandepitte (Junior Associate, Brussels).
