Financial services generally require a license if offered in Belgium (either directly or on a cross-border basis). Whether the provision and marketing of financial services to Belgian clients trigger the applicability of Belgian law should be analyzed on a case-by-case basis.

According to the Belgian regulators, financial services are being offered in Belgium under either of the following circumstances: 

• The financial services are delivered/carried out in Belgium.
• The financial institution actively solicits orders from customers in Belgium by means of remote sales and marketing techniques or advertising.

The Belgian regulators hold the view that financial services are offered in Belgium not only when the actual service takes place on Belgian territory but also if the foreign financial institution solicits orders from Belgian customers in Belgium by means of remote sales techniques (e.g., cold calling or email), advertising, or visits of relationship managers soliciting “services” or “orders.”

Performing financial services on Belgian territory on a purely cross-border basis will, therefore trigger licensing requirements, even if carried out from locations outside the Belgian territory, except in the following cases:

• Provision of financial services to existing Belgian clients, who were not actively solicited for such financial services in the past, under the following circumstances:
  • The performance of financial services to existing Belgian clients takes place outside of Belgium (without prior active solicitation in Belgium). In particular, any execution of account-opening documents or agreements or any amendments thereof should take place outside of Belgium. Practically, the Belgian clients would have to come to the financial service provider without being solicited to sign such documents.
  • No documents other than periodic account statements are sent from the financial institution to Belgian clients.
  • If meetings do take place in Belgium or phone calls are made to clients in Belgium, such meetings and phone calls should be limited to the general strategy of the account (maintenance of an existing relationship established without active solicitation) and in no case relate to specific investment decisions that may be made in relation to the account or selling or offering of new financial services.
• Marketing efforts with respect to financial services not targeting Belgian residents
• Notoriety marketing, that is, general and non-specific advertisements
• Acceptance of unsolicited calls from new Belgian clients and acceptance to serve such clients (“passive servicing” or “reverse solicitation”) – This would require the relationship with the customer to be established outside Belgium and all account opening documents be executed outside Belgium. Belgian residents may also be approached outside of Belgium without triggering licensing requirements.
• Acceptance of deposits from consumers and/or corporate customers under the private placement exemption – To the extent the custody of cash by a foreign financial institution qualifies as the receipt of deposits or other repayable funds from Belgian residents, deposits or other repayable funds are only deemed received from the public, triggering licensing or registration requirements under the following circumstances:
  • Advertisements (defined very broadly) are used to announce or recommend the receipt of deposits and other repayable funds, and these advertisements are directed to more than 50 persons in Belgium.
  • Intermediaries are used.
  • More than 50 persons are contacted in Belgium by the company trying to receive deposits.
• Provision of brokerage and investment advisory services to “permitted investors” in Belgium (light-touch notification procedure to be complied with before the FSMA)

A different regime exists for the offer of insurance in Belgium since Belgian regulators generally rule that a non-Belgian insurance company will be considered to exercise insurance activities in Belgium as soon as it enters into an insurance contract with a Belgian resident, regardless of whether it actively or passively solicited orders for the subscription of insurance agreements in Belgium. Accordingly, non-EEA insurance undertakings can only enter into insurance agreements with Belgian residents who are not expatriates if they are duly licensed under Belgian law.

Even if financial services can be provided in Belgium, the applicability of Belgian product regulations should be assessed separately.

The public offering of investment instruments (such as stocks, bonds and options) or of foreign public open-end and closed-end investment funds (including UCITS and AIFs) may trigger a registration and/or prospectus requirement unless a private placement exemption is available. 

Furthermore, persons issuing or disseminating investment research are subject to regulations and must comply with certain information obligations.

The granting of payment services is also regulated, as well as the granting of consumer and mortgage credit.

Moreover, in case the financial institution would be deemed to be providing regulated financial services in Belgium, it might have to comply with applicable conduct of business rules.