Belgium: Can Judgments By The Court Of Justice Have The Same Effects In The National Legal System As Judgments By The Belgian Constitutional Court?

When the Belgian Constitutional Court pronounces a judgment, in response to a preliminary question, whereby it finds a Belgian (tax) law unconstitutional, every citizen has the right to bring the law before the Constitutional Court again to have it declared null and void.

When the law is declared null and void, the law is revoked retroactively. After such nullification judgment, the law is deemed to have never existed so that all that is decided based on that law becomes unfounded. When it concerns a tax law, a nullification judgment by the Constitutional Court reopens the term for filing complaints, even for tax assessments where all terms for appeal had already expired. Every taxpayer has the right to ask the non-application of the law.

A judgment by the Court of Justice can declare a national Belgian law inconsistent with European law. The question arises whether such judgment also gives citizens the opportunity to have the law declared null and void by the Belgian Constitutional Court, and as such also reopens the term for filing complaints.

We feel a positive answer would be in order here. It is generally accepted that a judgment by the Court of Justice, as a judgment by the Constitutional Court, constitutes a valid ground for requesting automatic relief (art. 376 ITC).

The same reasoning might apply to administrative complaints (art. 366 ITC). Moreover, various authors argue that the principle of "equivalence" would be at stake if such appeal procedures would be possible after a national judgment and not after a judgment by the Court of Justice.

The latter argument was recently brought forward before the Constitutional Court. (Constitutional Court 16 September 2010, nr. 105/2010, Belgian Official Gazette 16 December 2010) The taxpayer argued that the Cobelfret judgment of the Court of Justice, that declared a Belgian provision on DRD in breach of EU Law, should be sufficient to have that Belgian provision declared null and void. However, the Court refrained from ruling on this matter and only declared the appeal inadmissible.

Due to lack of a specific position on the concerned question, we hope the Constitutional Court is granted the opportunity to shine its light on the matter once again in the near future.

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