Belgium – Combined offers comprising a financial service – Prohibition confirmed by ECJ
On 23 April 2009, the general prohibition on combined offers contained in Article 54 of the former Belgian law of 14 July 1991 on commercial practices and consumer protection was declared illegal by the European Court of Justice (“ECJ”) . The ECJ ruling was rendered on the ground that Directive 2005/29/EC concerning unfair business-to-consumer commercial practices provides for a maximum and full harmonisation of business-to-consumer commercial practices and that Member States cannot adopt more restrictive rules (such as the one contained in Article 54). The general prohibition on combined offers has thus disappeared from Belgian law.
The Belgian law of 6 April 2010 on market practices and consumer protection (“MPCP Law”) nonetheless still contains a prohibition on combined offers which contain at least one financial service (Article 72 of the MPCP Law). Although this prohibition is subject to certain exceptions, its principle was maintained in the MPCP Law despite the 2009 ECJ ruling.
On 18 July 2013, the ECJ ruled on the legality of Article 72 of the MPCP Law . The ECJ noted that Article 3(9) of Directive 2005/29/EC allows Member States to impose requirements which are more restrictive or prescriptive than the Directive in relation to financial services (i.e. any service of a banking, credit, insurance, personal pension, investment or payment nature) for the purpose of protecting the economic interests of consumers. The ECJ confirmed that Article 72 of the MPCP Law was such an authorised exception to the principle of maximum harmonisation. In addition, the ECJ noted that Article 72 of the MPCP Law did not constitute an inappropriate or disproportional restriction on the freedom to provide (financial) services. In conclusion, the ECJ confirmed the legality of Article 72 of the MPCP Law.
This recent ECJ ruling reminds financial institutions doing business in Belgium that jointly offering goods or services, whether for free or not, together with other goods or services where at least one of the elements is a financial service, remains, subject to certain exceptions, prohibited under Belgian law.