2. How do we determine the treatment of advertising or marketing material for a financial product distributed to retail clients?

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.

¹ Article 60 of the Law of 16 June 2006 on public offers of investment instruments and admissions of investment instruments to trading on regulated markets and Articles 60, § 3 and 155, § 1 of the Law of 3 August 2012 on undertakings for collective investment meeting the conditions of Directive 2009/65/EC and undertakings for investment in receivables, and Article 225, § 2 of the Law of 19 April 2014 on alternative investment funds and their managers.

² Article 26, § 1 of the aforesaid Royal Decree of 25 April 2014.