Marktenhof exposes a structural gap in financial enforcement

A recent ruling by the ‘Marktenhof’ (Court of Appeal) highlights a critical gap in Belgium’s financial enforcement system. Minority shareholders challenged a decision by the financial watchdog FSMA, but were denied a substantive review. The court held that it lacks jurisdiction to reassess the case on its merits. The outcome raises serious concerns about accountability and judicial oversight in market abuse cases.

Palace of Justice of Brussels

A controversial FSMA decision

In September 2025, the Sanctions Committee of market regulator FSMA ruled that zinc smelter Nyrstar NV had engaged in market manipulation and imposed an administrative fine of €80,000. Remarkably, the company’s directors were cleared of any wrongdoing. The Committee justified this outcome by pointing to insufficient evidence regarding their individual roles in the manipulation. This conclusion is difficult to reconcile with the fact that the FSMA’s own auditor had spent four years investigating the case and had produced a detailed report addressing the directors’ involvement. The decision therefore appears to call into question the completeness and effectiveness of the regulator’s own investigative work.

Minority shareholders seek redress

During the proceedings before the Sanctions Committee, minority shareholders were not given the opportunity to be heard, while Nyrstar NV and its directors were granted ample time to challenge the auditor’s findings. In response, the shareholders brought an appeal before the Marktenhof, seeking to overturn the FSMA’s decision and to obtain a ruling establishing that the directors had indeed participated in the market manipulation. Their aim was not only to challenge the outcome, but also to ensure that the alleged misconduct would be fully assessed. The minority shareholders were well aware that an appeal before the ‘Marktenhof’ was not an obvious course of action. But it was the only possible way to have the FSMA’s decision reviewed by a court of law.

A court without jurisdiction

In its judgment of 18 March 2026, the ‘Marktenhof’ dismissed the appeal, but did so without examining the substance of the case. The court held that it does not have the jurisdiction required to impose new sanctions or to determine, for the first time, whether infringements have occurred. As a result, it ruled it could not substitute its own assessment for that of the FSMA’s Sanctions Committee. The dismissal of the appeal is therefore based solely on procedural grounds, rather than on any evaluation of the arguments put forward by the minority shareholders. The implication is sobering: investors, who are supposed to be protected against illicit practices of market manipulation are effectively denied a meaningful voice in the proceedings.

No ruling on the merits

The court’s decision is notable for what it does not say. It does not question the shareholders’ interest in bringing the appeal, nor does it reject their factual or legal arguments. Instead, it refrains entirely from engaging with the merits of the case. This means that the shareholders’ claims remain unresolved. At the same time, the ruling does not affect other ongoing proceedings. A criminal investigation into Nyrstar NV and its directors is still pending, and its potential consequences extend far beyond the administrative framework of the FSMA.

A systemic flaw in oversight

The practical consequence of the ruling is that interested parties such as minority shareholders have no effective means of appealing acquittal decisions issued by the FSMA’s Sanctions Committee. In effect, there is no judicial mechanism available to verify whether such decisions are legally sound, even where a clear and legitimate interest in challenging them exists.

Hence, investors who are victims of market manipulation by a listed company are required to defer entirely to the determinations of the financial regulator, without being heard and without any possibility of appeal, even in situations where the FSMA’s own auditor and Sanctions Committee have reached diametrically opposed conclusions.

This reveals a deeper structural weakness within Belgium’s system of financial supervision. By limiting judicial oversight in this way, the current framework risks undermining accountability and leaving important decisions beyond meaningful review.