A three-step reasoning is to be followed:
a) First, the applicable legal framework must be identified; this will depend in particular on the financial product in question. Doing so will make it possible to determine whether the FSMA's supervision, if any, is to be ex ante or ex post. In the current state of legislation (given the postponement of the entry into force of Title 2 of the Royal Decree of 25 April 2014 imposing certain information obligations when distributing financial products to retail clients), ex ante supervision of advertising is required for:
- investment instruments and UCI units offered to the public that are subject to the requirement of a prospectus1 ,
- regulated savings accounts for which a key information document for savers must be approved by the FSMA2.
b) Next, it must be determined whether the document in question constitutes an 'advertisement/marketing communication' or an 'other document or announcement' falling within the scope of the applicable legislation referred to under a). If it is so determined, the requirements laid down in the legislation must be complied with. If not, question c) below does not apply.
c) Lastly, it must be verified whether or not the document is disseminated among retail clients when financial products are distributed in Belgium on a professional basis by the manufacturer, regulated distributor or regulated intermediary (which is in a position to issue, transfer or open the product) or by a person acting on behalf of one of the above. If it is to be used for that purpose, the requirements laid down by the aforementioned Royal Decree of 25 April 2014 must be complied with, unless one of the exemptions provided for in the Decree should apply.
It is possible that the answer to the second question (point b) above) is positive (and therefore that a document must receive the prior approval by the FSMA) but that Title 3 of the said Royal Decree of 25 April 2014 does not apply, for example because the document in question will be disseminated after the distribution properly speaking and not 'when' the product is distributed.