{"id":10025,"date":"2026-08-26T10:12:58","date_gmt":"2026-08-26T08:12:58","guid":{"rendered":"https:\/\/droitbancaire.be\/?p=10025"},"modified":"2026-08-26T10:13:34","modified_gmt":"2026-08-26T08:13:34","slug":"unfair-terms-transparency-manifest-imbalance-belgian-cassation","status":"publish","type":"post","link":"https:\/\/droitbancaire.be\/en\/unfair-terms-transparency-manifest-imbalance-belgian-cassation\/","title":{"rendered":"Unfair Terms and Transparency: No Nullity Without a Manifest Imbalance (Belgian Cassation, 29 January 2026)"},"content":{"rendered":"

Is an opaque banking clause unfair \u2014 and therefore void \u2014 for that reason alone? The Belgian Court of Cassation answered no in a judgment of 29 January 2026<\/strong>, setting aside a much-noticed ruling of the Antwerp Court of Appeal. A lack of transparency feeds into the assessment, but it does not relieve the court of the duty to find a manifest imbalance<\/strong>. A useful clarification \u2014 and less reassuring for banks than it first appears.<\/p>\n

The dispute: \u20ac2,100 in fees to transfer securities<\/h2>\n

A consumer closed his securities account and asked for his holdings to be transferred to another institution. The bank charged transfer fees \u2014 \u20ac75, then \u20ac150 per line<\/em> of financial instruments, i.e. \u20ac2,100 for fourteen lines<\/strong> \u2014 and exercised a right of retention pending payment.<\/p>\n

The Antwerp Court of Appeal (14 October 2024) found the relevant clauses \u2014 article 9.1 of the general terms for investment services, articles 10 and 14 of the general banking terms, and the cross-reference to the fee schedule \u2014 to be scattered and contradictory<\/strong>. It held that they breached the transparency requirement, declared them void under article VI.84, \u00a7 1, of the Belgian Code of Economic Law, and ordered the bank to return the securities free of charge, subject to a penalty payment.<\/p>\n

The ruling: transparency is one factor, not a standalone test<\/h2>\n

The appeal on a point of law argued that the appellate judges had inferred unfairness from the mere<\/em> finding of a lack of transparency, without examining, in the light of all the circumstances, whether there was a manifest imbalance within the meaning of article I.8, 22\u00b0, of the Code.<\/p>\n

The Court agreed. It recalled the structure of the legislation: article VI.84, \u00a7 1, prohibits unfair terms and renders them void; article I.8, 22\u00b0, defines an unfair term as one creating a manifest imbalance<\/strong> to the detriment of the consumer; article VI.82, first paragraph, requires an assessment in the light of all the circumstances<\/strong>; and article VI.82, second paragraph, provides that the plain and intelligible language requirement of article VI.37, \u00a7 1, is taken into account<\/em> in that assessment.<\/p>\n

It follows that transparency is one of the factors<\/strong> in an assessment that must, in principle, be global. Judges who declare terms void on the sole basis of a lack of transparency, without finding a manifest imbalance, do not give their decision a proper legal basis. The case was referred to the Ghent Court of Appeal.<\/p>\n

In line with EU case law<\/h2>\n

The solution follows the Court of Justice. In D.V.<\/em> (12 January 2023), the CJEU held that a term is not to be regarded as unfair merely because it fails to meet the transparency requirement \u2014 unless the Member State has expressly provided for that consequence under article 8 of Directive 93\/13. Belgian law contains no such equivalence: article VI.82, second paragraph, provides that the court takes account<\/em> of the clarity requirement, not that a failure to meet it entails nullity in itself.<\/p>\n

A procedural lesson for litigators<\/h2>\n

The consumer raised three objections to admissibility, all rejected. The Court recalled that both the assessment of the interpretation most favourable to the consumer (article VI.37, \u00a7 2) and the finding of a manifest imbalance are questions of fact<\/strong>: they cannot support a substitution of grounds on cassation. In other words, the absence of a finding of manifest imbalance in the contested decision cannot be repaired after the event<\/strong>. That finding must appear in the judgment on the merits.<\/p>\n

What banks should not conclude<\/h2>\n

The judgment clarifies that opacity does not automatically<\/em> render a contractual framework void. But the lesson is less comfortable than it looks. The Court did not validate the clauses at issue; it merely required that any finding of nullity rest on the correct reasoning.<\/p>\n

Opacity remains dangerous on two counts: it may lead to the interpretation most favourable to the consumer<\/strong>, and it may support a finding of manifest imbalance<\/strong>. In a banking relationship governed by general terms, specific investment-service terms and evolving fee schedules, transparency remains essential: it must allow the average consumer to grasp not only the legal scope of the commitment, but also its concrete economic consequences<\/strong>.<\/p>\n

On referral: the debate shifts<\/h2>\n

Before the Ghent Court of Appeal, the discussion will turn on the manifest imbalance, in the light of all the circumstances: the wording of article 14 of the general banking terms, the dispersal and contradiction of the clauses, the nature of the fees, their amount per line of securities and the right of retention exercised. The bank may argue that the fees remunerate a service distinct from termination \u2014 the actual transfer of the securities. The consumer may reply that, as presented, they effectively restricted his right to end the banking relationship. That, rather than opacity alone, will decide the outcome.<\/p>\n

This page is a summary; the full version (in extenso) is published in the journal: G. Laguesse, \u00ab D\u00e9faut de transparence et clauses abusives : pas de nullit\u00e9 sans d\u00e9s\u00e9quilibre manifeste \u00bb, Droit bancaire et financier \/ Bank- en Financieel Recht<\/strong><\/a>, 2026\/15, 1 August 2026. The case note also concerns Antwerp, 14 October 2024, 2023\/AR\/1117.<\/em><\/p>\n

This article is provided for general information only and does not constitute legal advice.<\/em><\/p>\n

This article is a translation of the French original published on droitbancaire.be. In case of discrepancy, the French version prevails.<\/em><\/p>\n

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