Advocaten / Avocats / Lawyers

Monday, 10 August 2020

European law restrictions on the temporal effect of national juidicial decisions: the case of the Belgian Constitutional Court

The Belgian Constitutional Court is a court of law watching over the observance of the Constitution by the legislative authorities of Belgium. It has the power to annul, to declare unconstitutional and suspend laws, decrees and ordinances infringing on important titles and articles of the Constitution, including some pertaining to taxation.

Annulment judgments have absolute binding force (erga omnes) from the moment they are published in the Belgian Official Journal. Such annulment has in principle retroactive effect, which means that the annulled act must be deemed never to have existed. This also applies when the Constitutional Court annuls a tax law. Unlike in most other countries with a Constitutional Court, an ex nunc effect of an annulment judgment was not considered sufficient in Belgium. From the outset, the Belgian (special) legislator has been aware that the retroactive annulment can have farreaching consequences for legal certainty. To address this, he has conferred on the Constitutional Court the power to identify – ‘if it judges this necessary’ – ‘by general decision, those consequences of the annulled provisions which should be considered as being maintained or being provisionally maintained for the period it sets’.

The Constitutional Court makes frequent use of this power also in tax matters.6 In doing so, the Court not only upheld the effects that had already occurred before the delivery of the judgment, but sometimes also allowed later effects, for example up to the end of the current calendar year7 or until the legislator has restored the legislative gap, which would arise from the annulment.

Click here to read the full article that was published in EC Tax Review, 2020-3.

Tiberghien Brussels

Tour & Taxis

Havenlaan|Avenue du Port 86C B.419
BE-1000 Brussels
T +32 2 773 40 00
F +32 2 773 40 55

info@tiberghien.com

Tiberghien Antwerp

Grotesteenweg 214 B.4
BE-2600 Antwerp
T +32 3 443 20 00
F +32 3 443 20 20

info@tiberghien.com

Tiberghien Ghent

Esplanade Oscar Van de Voorde 1
BE-9000 Gent
T +32 9 265 95 51

info@tiberghien.com

Tiberghien Hasselt

Koningin Astridlaan 35
BE-3500 Hasselt
T +32 11 57 00 13

info@tiberghien.com

Tiberghien Luxembourg

23, Boulevard Joseph II
LU-1840 Luxembourg
T +352 27 47 51 11
F +352 27 47 51 10

info@tiberghien.com