On 6 February 2017, Belgium's financial regulator (Belgian Financial Services and Markets Authority ("FSMA")) moved to fortify the protection of investors, publishing a position paper ("Position Paper") on the application of Belgium's rules on unfair contract terms ("Rules") to offers of investment instruments in Belgium. The Position Paper provides guidelines and recommendations in connection with the FSMA's review and eventual approval of such documentation.
In particular, the Position Paper indicates that various commonly used clauses applicable to financial instruments offered to investors who qualify as "consumers" in Belgium may be construed as "abusive". This could result in such clauses, or even the entire contract between the issuer and the investor, becoming null and void.
The Position Paper takes a broad scope of protection for consumers under the Rules. "Consumers" are defined as natural persons acting for purposes outside of their trade, business, craft or profession. All financial instruments are implicated by the Position Paper—not only structured notes, but also plain vanilla bonds. Application of the Rules is irrespective of the minimum investment per investor and the denomination of the instruments (whether €1,000 or €100,000).