Sales Without Seasons? The Belgian Council of State Strikes Down the Ban on Advertising “Sales” Outside the Official Sales Periods

Although the cases concerned administrative fines imposed on three clothing retailers, the judgments have implications extending well beyond the textile sector. They illustrate the far-reaching effects of the maximum harmonisation principle established by Directive 2005/29/EC on Unfair Commercial Practices (“UCPD”) and raise broader questions regarding the future of several traditional features of Belgian promotional law, including the waiting periods preceding the official sales seasons.

Belgian law has traditionally reserved the use of the term “sales” to the statutory winter and summer sales periods. Outside those periods, retailers remained free to organise promotional campaigns but were prohibited from describing them as “sales”. This regime aimed to preserve the significance of the official sales periods, protect consumers and ensure fair competition between traders. Breaches could give rise to administrative sanctions imposed by the Economic Inspection of the FPS Economy.

The proceedings originated from inspections of clothing retailers that advertised discounts using the word “sales” before the official sales period. The retailers challenged the fines before the Council of State.

The decisive legal issue was whether Article VI.25 of the Belgian Code of Economic Law (“CEL”) falls within the scope of the UCPD. If so, Belgium cannot maintain stricter national rules unless expressly authorised by EU law, given the Directive’s maximum harmonisation character.

The Belgian State argued that the provision pursued only a business-to-business objective and therefore fell outside the UCPD. The Council of State rejected that argument, holding that, in light of the legislation, its legislative history and the relevant case law, the prohibition also pursues consumer-protection objectives. Since consumer protection need only constitute one of the objectives of a national measure for the UCPD to apply, the Court, relying on the case law of the Court of Justice of the European Union (Mediaprint, Wamo, INNO and Cdiscount) and earlier judgments of the Belgian Court of Cassation, concluded that Article VI.25 falls within the scope of the Directive.

Once Article VI.25 was found to fall within the scope of the UCPD, its incompatibility with EU law became unavoidable. The Directive contains an exhaustive list of commercial practices that may be prohibited automatically. A general prohibition on using the term “sales” outside statutory periods does not appear on that list and therefore cannot be maintained by national legislation.

By annulling the fines, the Council of State confirmed that Belgian authorities may no longer enforce Article VI.25 against traders using the term “sales” outside the statutory sales periods. Although the provision formally remains in the Code of Economic Law, it has become largely unenforceable.

The judgments also cast serious doubt on the future of the Belgian waiting-period regime. Applicable during the month preceding the sales periods in the clothing, footwear and leather goods sectors, these restrictions are intended to preserve the effectiveness of the official sales periods by limiting certain forms of discount advertising. Although the Council of State did not expressly rule on their legality, its reasoning appears readily transposable, as the waiting period pursues objectives comparable to those underlying Article VI.25, namely consumer protection, market transparency and fair competition. Since the Belgian Court of Cassation had already recognised those consumer-protection objectives, the compatibility of the waiting-period regime with the UCPD is now open to serious question.

The judgments do not, however, amount to a general deregulation of promotional advertising. The rules governing price reductions, including the reference-price regime introduced by Directive (EU) 2019/2161 (the Omnibus Directive), remain fully applicable.

Retailers must therefore ensure that reference prices are genuine, that discounts are not based on artificial price increases or misleading comparisons with recommended retail prices, and that claims of scarcity or urgency accurately reflect reality. Failure to comply may still give rise to administrative sanctions for misleading commercial practices.

The judgments may also extend beyond sales terminology. In particular, the Belgian rule allowing retailers to maintain the same reference price during progressive discount campaigns for up to thirty days may itself become vulnerable to challenge, as this limitation does not expressly appear in the Omnibus Directive.

Finally, the decisions could have repercussions beyond Belgium. Several Member States continue to regulate the use of sales terminology through statutory sales periods. The reasoning adopted by the Belgian Council of State may therefore prompt similar challenges elsewhere within the European Union. Whether these judgments ultimately mark the beginning of a broader dismantling of national promotional rules remains to be seen. They nevertheless confirm that Member States can no longer maintain restrictions falling within the scope of the UCPD unless expressly permitted by EU law, reinforcing once again the far-reaching effects of maximum harmonisation in European consumer law.