VEGOTEX INTERNATIONAL S.A. proti Belgii

GRAND CHAMBER

CASE OF VEGOTEX INTERNATIONAL S.A. v. BELGIUM

(Application no. 49812/09)

JUDGMENT

STRASBOURG

3 November 2022

This judgment is final but it may be subject to editorial revision.

In the case of Vegotex International S.A. v. Belgium,

The European Court of Human Rights, sitting as a Grand Chamber composed of:

Robert Spano,

Jon Fridrik Kjølbro,

Síofra O’Leary,

Gabriele Kucsko-Stadlmayer,

Ksenija Turković,

Paul Lemmens,

Ganna Yudkivska,

Aleš Pejchal,

Valeriu Griţco,

Yonko Grozev,

Armen Harutyunyan,

Stephanie Mourou-Vikström

Lado Chanturia,

Ivana Jelić,

Gilberto Felici,

Arnfinn Bårdsen,

Raffaele Sabato, Judges,

and Johan Callewaert, Deputy Grand Chamber Registrar,

Having deliberated in private on 7 July 2021 and 25 May 2022,

Delivers the following judgment, which was adopted on the last‑mentioned date:

INTRODUCTION

1. The application concerns proceedings for the recovery of taxes and a surcharge which the applicant company had been ordered to pay. Relying on Article 6 § 1 of the Convention, the applicant company complained of the intervention by the legislature during the proceedings, and of a breach of its right of access to a court and of the adversarial principle on account of the fact that the Court of Cassation had substituted its own grounds for those of the contested judgment. It also complained of a failure to comply with the reasonable-time requirement.

PROCEDURE

2. The case originated in an application (no. 49812/09) against the Kingdom of Belgium lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Belgian public limited company based in Antwerp, Vegotex International S.A. (“the applicant company”), on 10 September 2009.

3. The applicant company was represented by Mr P. Wouters and Mr D. Van Belle, lawyers practising in Louvain and Antwerp respectively. The Belgian Government (“the Government”) were represented by their Agent, Ms I. Niedlispacher, of the Federal Justice Department.

4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). On 14 May 2018 the Government were given notice of the complaints under Article 6 § 1 of the Convention, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3. The parties exchanged observations on the admissibility and merits of the application.

5. On 10 November 2020 a Chamber of that Section composed of Georgios A. Serghides, President, Paul Lemmens, Helen Keller, Georges Ravarani, María Elósegui, Darian Pavli, Peeter Roosma, judges, and Milan Blaško, Section Registrar, delivered its judgment. It unanimously declared the application admissible and held, unanimously, that there had been no violation of Article 6 § 1 of the Convention on account of the legislature’s intervention during the proceedings, no violation of Article 6 § 1 on account of the substitution of grounds by the Court of Cassation, and a violation of Article 6 § 1 for failure to comply with the reasonable-time requirement.

6. On 9 February 2021 the applicant company requested the referral of the case to the Grand Chamber. On 8 March 2021 the panel of the Grand Chamber granted that request.

7. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.

8. The applicant company and the Government each filed further written observations on the merits (Rule 59 § 1).

9. A hearing took place in the Human Rights Building, Strasbourg, on 7 July 2021 (Rule 59 § 3); owing to the public‑health situation resulting from the COVID-19 pandemic, it was held via videoconference. The webcast of the hearing was made public on the Court’s Internet site on the same day.

There appeared before the Court:

(a) for the Government
Ms I. Niedlispacher, Agent,
Mr R. Jafferali, lawyer, Counsel,

(b) for the applicant company
Mr P. Wouters, lawyer, Counsel.

The Court heard addresses by them and also their replies to judges’ questions.

THE FACTS

10. The applicant is a Belgian public limited company with its registered office in Antwerp.

1. THE ADMINISTRATIVE PHASE

11. On 5 October 1995 the applicant company was informed that the tax authorities intended to rectify its tax return for the 1993 fiscal year, on the grounds that the deduction for tax purposes of certain expenses relating to a stock‑exchange transaction by the applicant company had not been allowed because the expenditure in question did not satisfy the criteria laid down in the 1992 Income Tax Code. The deduction of investment costs could not be allowed either. The applicant company was informed that it would be required to pay a surcharge of 50%, in a notification marked with the words “First offence of attempting to evade payment of tax”.

12. On 2 November 1995 the applicant company expressed its disagreement.

13. On 11 December 1995 the tax office assessed the corporation tax payable by the applicant company at 12,054,089 Belgian francs (BEF) (298,813.06 euros (EUR)), to which a 50% surcharge of BEF 6,027,045 (EUR 149,405.54) was added. A notice of assessment was issued to the applicant company on 15 December 1995.

14. On 22 February 1996 the applicant company lodged an objection with the Antwerp regional director of direct taxation against the tax assessment and the surcharge, giving reasons.

15. On 19 September 2000 the objection was rejected by the regional director.

16. On 24 October 2000 the tax authorities served the applicant company with a demand for payment interrupting the limitation period (commandement de payer interruptif de prescription/verjaringstuitend bevel tot betaling – see paragraph 38 below). The document stated specifically that it was not aimed at enforcing payment of the tax debt, as the latter had been disputed by the applicant company, but served solely to interrupt the limitation period.

2. THE JUDICIAL PHASE

17. On 14 December 2000 the applicant company brought proceedings in the Antwerp Court of First Instance seeking, in particular, the setting‑aside of the tax surcharge imposed on it for the 1993 fiscal year.

18. On 8 March 2004 the Court of First Instance declared the application admissible and, to a very limited extent, well-founded. With sole reference to the deduction of investment costs, the court considered that it was clear from the case file that there were no grounds to apply a 50% tax surcharge, with the result that the surcharge should be reduced to 10% as provided for by law. The remainder of the application was dismissed. In particular, the 50% tax surcharge concerning the expenses linked to the stock-exchange transaction was upheld.

19. On 15 April 2004 the applicant company appealed. It sought, in particular, a finding that the State’s entitlement to recover the tax for the 1993 fiscal year was time-barred. In that connection it argued that the debt had become time-barred five years after the date on which it became due. In the applicant company’s view, the five-year period had started to run on 15 February 1996, two months after the notice of assessment of 15 December 1995 had been sent. As the period had not been interrupted the debt had become time-barred on 15 February 2001. The applicant company referred to the line of case-law established by the Court of Cassation in 2002, according to which service of a demand for payment in respect of a disputed tax debt did not interrupt the limitation period (see paragraph 40 below).

20. On 9 July 2004 a Miscellaneous Provisions Act was enacted. It entered into force on 25 July 2004 (see paragraph 45 below).

21. On 6 February 2007 the Antwerp Court of Appeal upheld the first‑instance judgment. It held at the outset that the “demand for payment interrupting the limitation period” issued on 24 October 2000 had not stopped the running of that period, as it did not constitute a “demand for payment” (commandement/bevel tot betaling) within the meaning of Article 2244 of the Civil Code. A demand could only have the effect of stopping time running if it was based on an authority to execute. The demand in question had not been based on any authority to execute, since the notice of assessment issued on 11 December 1995 had been contested by the applicant company. The Court of Appeal went on to find that as the “demand for payment interrupting the limitation period” did not constitute a “demand for payment” within the meaning of Article 2244 of the Civil Code, the interpretative legal provision contained in section 49 of the Miscellaneous Provisions Act of 9 July 2004, which referred only to a “demand” (commandement/dwangbevel), was not applicable. However, the Court of Appeal considered that the limitation period had been suspended under Article 2251 of the Civil Code. In accordance with that provision, the limitation period did not run in respect of persons “covered by one of the exceptions provided for by statute” (see paragraph 51 below). For such time as the tax debt was contested, the State was prevented from requiring payment. The limitation period in respect of that debt was therefore suspended pending a final decision in the tax dispute. Accordingly, recovery of the tax in question was not time-barred. Ruling on the merits, the Court of Appeal dismissed all the complaints in respect of the impugned judgment.

22. On 22 August 2007 the applicant company lodged an appeal on points of law. It relied on a single ground of appeal, relating to the Court of Appeal’s finding that the limitation period had been suspended under Article 2251 of the Civil Code.

23. On 19 November 2007 the State likewise appealed on points of law, relying on a single ground of appeal concerning the Court of Appeal’s finding that the limitation period had not been interrupted under section 49 of the Miscellaneous Provisions Act of 9 July 2004.

24. On 17 October 2008 the advocate-general at the Court of Cassation made written submissions. He concluded that the ground of appeal relied on by the applicant company was inadmissible for lack of interest, since the impugned decision would in any event continue to have a proper legal basis if the Court of Cassation substituted for the grounds of the impugned judgment a new ground to the effect that the limitation period, in accordance with section 49 of the Miscellaneous Provisions Act of 9 July 2004, had been interrupted by the service of the demand for payment of 24 October 2000. The advocate-general referred to the case-law of the Constitutional Court (judgments of 7 December 2005 and 1 February 2006) and of the Court of Cassation (judgments of 17 January 2008) (see, respectively, paragraphs 47 and 48 below).

25. The applicant company stated that it had received the advocate‑general’s submissions on 5 March 2009; that assertion was not disputed by the Government.

26. On 9 March 2009 the applicant company submitted a memorandum under Article 1107 of the Judicial Code (see paragraph 54 below). It argued that if the Court of Cassation substituted its own grounds for those of the contested judgment, as proposed by the advocate-general, it would be in breach of Article 6 of the Convention, as the applicant company would be deprived of any opportunity to challenge the proposed new grounds. It also alleged that the criteria for the substitution of grounds were not met. It added that a number of objections remained which had been raised before the lower courts but had not been addressed by them, in particular the fact that the application of section 49 of the Miscellaneous Provisions Act of 9 July 2004 would amount to a violation of Article 6 of the Convention. That matter should be discussed before the lower courts, given that the parties had no means of debating the issue in an admissible manner in the Court of Cassation.

27. In a judgment of 13 March 2009 (F.07.0085.N-F.07.105.N) which echoed the advocate-general’s submissions, the Court of Cassation held that, in accordance with section 49 of the Miscellaneous Provisions Act of 9 July 2004, a demand for payment interrupted the limitation period in a valid manner even where there was no amount that was “indisputably due”. It went on to find as follows:

“11. Section 49 of the Miscellaneous Provisions Act is ... not an interpretative legal provision.

Nevertheless, this new provision must be applied retrospectively by the courts, in accordance with the legislature’s wishes. It is clear from the parliamentary drafting history of this provision that the legislature’s aim in enacting a retrospective measure was to protect the rights of the Treasury in the context of pending proceedings in which tax debts disputed on the basis of the position taken in the case-law were about to become, or had already become, time-barred.

12. It follows from all of the above that, in view of the factual findings of the appellate judges, the demand for payment of 24 October 2000 interrupting the limitation period stopped the running of that period, with the result that entitlement to recover the income tax surcharge in respect of the fiscal year in question was not time-barred.

13. The decision contested by the applicant company has a proper legal basis in the new ground set out by the Court. Thus, irrespective of the wording used by [the appellate judges], [that decision] is not in breach of the provisions referred to in the ground of appeal [on points of law].

The ground of appeal is inadmissible for lack of interest.”

Accordingly, the Court of Cassation dismissed the applicant company’s appeal and declared the appeal lodged by the State inadmissible for lack of interest, as it related to a decision in the State’s favour.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. DOMESTIC LAW AND PRACTICE
   1. Assessment of tax and legal remedies

28. Corporation tax is assessed on the basis of an entry in the tax roll. In order to collect the tax, the authorities must have a claim against the taxpayer, which they establish unilaterally by means of an entry in the tax roll, an officially recorded document. The assessment is entered in the roll in the name of the taxpayer, who is then informed by means of a notice of assessment, once the roll has become enforceable.

29. The taxpayer concerned may “lodge an objection in writing with the director of taxation against the tax assessment, including any additional amounts, increases and penalties” (Article 366 of the Income Tax Code of 30 July 1992 (“the 1992 Income Tax Code”), which replaced the Income Tax Code of 26 February 1964).

30. The taxpayer subsequently has the possibility of challenging the decision on the administrative objection in the court of first instance (Article 375 of the same Code).

31. Since the entry into force of the Act of 23 March 1999 on the organisation of the courts in tax matters, court proceedings may also be brought if the director of taxation fails to take a decision within six months of the administrative objection being lodged (Article 1385 undecies of the Judicial Code). However, this provision does not apply where the objection relates to taxes payable in respect of the 1998 fiscal year or earlier, as regards income tax (section 11 of the Act of 23 March 1999 referred to above).

32. Neither the objection nor the application to the courts acts as a bar to attachment or other measures aimed at ensuring recovery of the full amount of the disputed tax, including the principal, together with any additions, increases, interest and costs (Article 409 of the 1992 Income Tax Code).

33. However, Article 410 of the 1992 Income Tax Code stipulates that in the event of an objection or an application to the courts, the amount due (the principal, together with any additions and increases and the corresponding interest) is deemed to constitute a debt that is certain and of a fixed amount and that can be recovered by means of enforcement procedures only in so far as it corresponds to the amount of income declared or, when it has been assessed of the authorities’ own motion (in the absence of a tax return), in so far as it does not exceed the most recent finally assessed amount payable by the taxpayer concerned in respect of a previous fiscal year.

34. Only amounts that are “indisputably due”, according to the usual terminology, may be the subject of enforcement procedures pending a decision on the objection or court action. This means, for instance, that where an objection has been lodged against an assessment and the amount indisputably due is zero, enforcement of the debt is not possible until such time as the dispute has been determined.

35. Under Article 444 of the 1992 Income Tax Code, if no tax return is filed or it is filed late, or in the event of an incomplete or inaccurate return, the tax due on the portion of income that has not been declared is subject to an increase based on the nature and seriousness of the offence, according to a sliding scale determined by royal decree and ranging from 10% to 200% of the tax due on the undeclared portion of the income. Where there is no evidence of bad faith, the minimum 10% increase may be waived. The total amount of tax due on the portion of the income that has not been declared, and the corresponding increase, may not exceed the amount of undeclared income.

2. Limitation periods in taxation matters
   1. Interruption of the limitation period

36. In accordance with Article 145 of the Royal Decree of 27 August 1993 implementing the 1992 Income Tax Code, tax debts become time-barred five years after the date on which the taxes became due. The running of the limitation period may be interrupted in the manner provided for in Articles 2244 et seq. of the Civil Code or by a waiver of the part of the period that has already elapsed. Where the limitation period is interrupted, a fresh period starts to run which can be interrupted in the same way and which expires five years after the last action stopping the running of the preceding period if no legal proceedings are brought.

37. At the relevant time, under Article 2244 of the Civil Code, the limitation period was interrupted when the taxpayer concerned by the attempt to prevent its expiry was served with a court summons, a demand for payment or an attachment order.

38. Prior to the entry into force of the Miscellaneous Provisions Act of 22 December 2003 (see paragraph 42 below), the lodging of an objection did not interrupt the limitation period for recovery of the tax debt. In order to interrupt the limitation period, the administrative authorities had adopted a practice of issuing the taxpayers concerned with a demand for payment (as was done in the present case – see paragraph 16 above). In a judgment of 28 October 1993, the Court of Cassation held that the attachment of assets following such a demand was null and void in the absence of an “amount indisputably due”. However, the court left open the question whether the demand for payment preceding the attachment had the effect of interrupting the limitation period where there was no amount indisputably due (Pasicrisie, 1993, I, no. 433). The tax authorities subsequently clarified their practice in two circulars (CI.RH.884/458.433 of 25 August 1994, and CI.R14/469.194 of 29 February 1996). The circulars instructed tax offices to state clearly when issuing demands that these merely interrupted the limitation period and did not constitute a threat of enforcement (except in cases where an amount was indisputably due).

39. As the Court of Cassation did not address the issue whether the tax demands in question had the effect of stopping time running, the matter continued to be raised by taxpayers. Thus, it was noted subsequently that the relevant administrative practice had “for some considerable time now [sinds geruime tijd] given rise to numerous disputes as to the validity of such a demand served in respect of disputed tax debts where no portion of the debt [could] be regarded as certain and of a fixed amount” (explanatory memorandum to the bill culminating in the Miscellaneous Provisions Act of 22 December 2003, Documents parlementaires, Chamber, 2003-2004, DOC 51‑0473/001 and 51-0474/001, p. 147).

40. In judgment C.01.0157.F of 10 October 2002 (confirmed by judgments C.01.0287.N of 21 February 2003, C.02.0024.F of 27 February 2004 and C.02.0596.F of 12 March 2004), the Court of Cassation ruled against this practice. It found that a demand for payment was “a step in the judicial proceedings which require[d] an authority to execute and [was] the prelude to attachment”, with the result that, when served by the State in the absence of an amount of tax that was indisputably due, it could not “have the effect of stopping time running”. This position meant that a demand for payment could not interrupt the limitation period where the tax assessment was disputed.

41. This new line of case-law prompted a response from the legislature. It took the view that action was essential “in order to prevent a situation in which, owing to the administrative authorities’ inability to validly interrupt the limitation period for the recovery of disputed tax debts that [were] not certain and of a fixed amount, and immediately payable, many of them [would] be declared time-barred”. The legislature considered that the need for action was “particularly compelling in the light of the data concerning the income tax backlog, which show[ed] that disputed tax assessments account[ed] for more than 40% of that backlog” (p. 148 of the above‑mentioned explanatory memorandum). The document specified that “in accordance with the principles governing the application of the law over time, those provisions appl[ied] to ongoing proceedings” (ibid.).

42. The legislature therefore introduced a mechanism for suspending the limitation period (see, in this connection, paragraph 52 below) and a mechanism for interrupting the limitation period. Accordingly, when enacting the Miscellaneous Provisions Act of 22 December 2003, it inserted new provisions in the 1992 Income Tax Code. The new Article 443 bis incorporated the provisions previously contained in Article 145 of the Royal Decree of 27 August 1993 implementing the 1992 Income Tax Code (see paragraph 36 above), with particular reference to the manner in which the limitation period was interrupted.

43. When asked by a member of parliament whether the legislation would create a legal vacuum between the delivery of the Court of Cassation judgment of 21 February 2003 (see paragraph 40 above) and the entry into force of the provisions referred to above, the Minister of Finance stated that a certain number of tax debts might become time-barred but that it was virtually impossible to quantify this in terms of loss of tax revenue. In his view, “a relatively small number of cases” would be concerned. The Minister added that these provisions “[were] not applicable with retrospective effect because this [was] a major issue with regard to limitation periods with public-policy implications, a fact which could have very significant repercussions for taxpayers” (Documents parlementaires, Chamber, 2003-2004, DOC 51‑0473/027, p. 20).

44. In its opinion on draft Article 443 ter of the 1992 Income Tax Code, the Conseil d’État had expressed doubts as to the applicability of this provision to tax debts which had already become time-barred before the entry into force of the legislation, in accordance with the above-mentioned case‑law of the Court of Cassation. The Conseil d’État emphasised in that connection that “if the authors of the preliminary draft wish[ed] to prevent the risk of taxpayers invoking the statute of limitations in such cases, an explicit transitional provision [would] be required” (opinions of 7 and 12 November 2003, Documents parlementaires, Chamber, 2003-2004, DOC 51-0473/001 and 51‑0474/001, p. 464).

45. On the basis of this observation among other considerations, the legislature subsequently included in the Miscellaneous Provisions Act of 9 July 2004 an “interpretative legal provision applicable to the cases referred to in the Court of Cassation judgments of 10 October 2002 and 21 February 2003” (reasons for government amendment no. 7, Documents parlementaires, Chamber, 2003-2004, DOC 51-1138/015, p. 2). The provision in question was section 49 of the Act, which read as follows:

“Notwithstanding the fact that the demand for payment constitutes the first step in the proceedings proper ..., [it] must also be interpreted as an act interrupting the limitation period within the meaning of Article 2244 of the Civil Code even where the disputed tax debt is not certain and of a fixed amount.”

46. A number of taxpayers, including the applicants in the case of Optim and Industerre v. Belgium ((dec.), no. 23819/06, 11 September 2012), lodged applications with the Administrative Jurisdiction and Procedure Court (Cour d’arbitrage) (now the Constitutional Court) seeking the repeal of section 49 of the Miscellaneous Provisions Act of 9 July 2004.

47. In a judgment of 7 December 2005 (no. 177/2005; see also judgment no. 20/2006 of 1 February 2006), the Constitutional Court rejected the applications, finding as follows:

“B.19.1. ... the justification given for the provision in issue was the fact that the limitation period in respect of disputed taxes had always been interrupted by the serving of a demand for payment, and the validity of such demands had always been recognised, until the Court of Cassation judgments of 10 October 2002 and 21 February 2003 ...

While there was some disagreement as to the nature of the demand for payment within the meaning of Article 2244 of the Civil Code, there were no grounds, prior to [those] judgments, for rejecting the argument advanced by the administrative authorities regarding the dual effect of such demands, according to which a demand for payment, although invalid as an enforcement measure, could nevertheless retain its effects as an act interrupting the limitation period.

When the Civil Code was enacted in 1804 a demand for payment was not regarded as an enforcement measure, but rather as a preparatory step expressing the creditor’s wish to obtain payment of the sums due.

Following the entry into force of the Judicial Code, and more specifically Articles 1494 et seq. thereof, disagreement arose as to the nature of demands for payment, with some taking the view that such demands were no longer a preparatory step but an enforcement measure. While the demand for payment referred to in Articles 148 and 149 of [the Royal Decree of 27 August 1993 implementing the 1992 Income Tax Code] constitutes an enforcement measure the validity of which depends on the debt being certain and of a fixed amount, the effects of the demand for payment within the meaning of Article 2244 of the Civil Code are not subject to any statutory validity criteria.

However, neither the above-mentioned provisions of the Judicial Code nor any judgment of the Court of Cassation ruled out the validity of a demand for payment as an act interrupting the limitation period where the debt was not certain and of a fixed amount.

On the contrary, some decisions of the lower courts found demands for payment to interrupt the limitation period irrespective of their validity as enforcement measures.

B.19.2. This approach guided administrative practice regarding income tax and prompted numerous taxpayers to sign a document waiving the part of the limitation period that had elapsed.

B.19.3. Furthermore, in a judgment of 28 October 1993 the Court of Cassation quashed a judgment of the Liège Court of Appeal on the ground that the latter had not replied to the arguments of the Belgian State to the effect that demands for payment were ‘aimed in particular at interrupting the limitation period, in accordance with Article 194 of the Royal Decree on the Income Tax Code ...’. The Brussels Court of Appeal, to which the case was remitted, held in a judgment of 24 June 1997 that ‘such demands are to be deemed to constitute acts interrupting the limitation period for the purposes of Article 2244 of the Civil Code and are not affected by the invalidity of the subsequent attachment, as the demand for payment stops time running irrespective of the effects of the enforcement measure as such’ (Brussels, 24 June 1997, J.T., 1998, pp. 458-59).

B.19.4. Having served a demand for payment, the State could therefore legitimately consider that it had interrupted the limitation period in a valid manner, even where the tax debt was disputed.

B.19.5. Moreover, the Minister of Finance observed as follows with regard to the impugned provision: ‘[It] prevents arbitrary discrimination between those taxpayers who have signed a document waiving the part of the limitation period that has elapsed and those who refused to sign such a waiver and awaited the service of a demand for payment. If the taxpayer does not sign a document waiving the part of the limitation period that has elapsed, serving a demand for payment is the sole means for the tax collector to stop the limitation period running. The recent case-law of the Court of Cassation would mean that this possibility too would be lost, with the result that the debts would inevitably become time-barred. Given that the taxpayers themselves disputed the taxes, they could not have a legal expectation that the tax debt would become time‑barred on that account. It would not appear reasonable for a taxpayer to expect to be released from his or her debts by lodging an appeal, while the State is unable to recover the tax due’ (Documents parlementaires, Chamber, 2003-2004, DOC 51‑1138/015, pp. 2-3).

B.19.6. Although from a legal viewpoint the res judicata effects of the Court of Cassation judgments of 10 October 2002 and 21 February 2003 are only relative, the fact that these judgments determined the legal issue relating to the nature and effects of demands for payment confers on them a de facto authority to which all the courts are subject, since any ruling departing from the approach taken by the Court of Cassation would be liable to be quashed as being in breach of the law as interpreted by the Court of Cassation. Moreover, it is clear from the case-law relied on by the applicants that the lower courts agreed with the approach taken in the two Court of Cassation judgments cited above.

B.19.7. Hence, the judgments of 10 October 2002 and 21 February 2003 deprived of effect, retrospectively, the means of interrupting the limitation period that had been commonly used in relation to income tax ... As a result, one category of taxpayers was released from debts which they had disputed but which could not be assumed not to be payable. The legislature’s aim in enacting a retrospective provision in its turn was to counteract the retrospective effect of the case-law established by the above‑mentioned judgments.

B.19.8. The use of a retrospective provision is also explained in the present case by the absence of any provision allowing an application to be made to the Court of Cassation to limit in time the effects of the positions of principle adopted in its judgments, whereas the Court of Justice of the European Communities (Article 231, second paragraph, of the EC Treaty), the Administrative Jurisdiction and Procedure Court (section 8(2) of the Special Law of 6 January 1989 on the Administrative Jurisdiction and Procedure Court) and the Conseil d’État (section 14 ter of the consolidated Laws on the Conseil d’État of 12 January 1973) can maintain the effects of decisions they have declared void.

B.19.9. The initial response of the legislature to the above-mentioned Court of Cassation judgments, in the Miscellaneous Provisions Act of 22 December 2003, entailed the insertion in [the 1992 Income Tax Code] of Articles 443 bis and 443 ter in a new Chapter IX bis entitled ‘Time-barring of Treasury rights’.

The legislature elaborated on its response in the impugned provision of the Miscellaneous Provisions Act of 9 July 2004.

Given that these provisions were enacted within a short time of each other they should be deemed to constitute together the legislature’s response to the above‑mentioned judgments.

B.19.10. It was also noted during the preparatory work that ‘disputed tax assessments account[ed] for more than 40%’ of the income tax backlog and that some cases that stood to benefit from the position taken by the Court of Cassation ‘concerned large‑scale tax fraud’ ... The measure was deemed to meet the requirements of the general interest in so far as it protected the Treasury’s rights with regard to the disputed assessments without adversely affecting taxpayers’ rights.

B.19.11. Lastly, the retrospective effect of the impugned provision does not restrict to a disproportionate extent the rights of those taxpayers who believed, prior to the Court of Cassation judgments, that the demand for payment served on them had stopped the running of the limitation period in a valid manner. The fact that they hoped to benefit, contrary to expectations, from the above-mentioned case-law of the Court of Cassation does not render the legislature’s intervention unjustified.

B.20. The measure is therefore justified by specific, exceptional circumstances and is based on compelling grounds of the general interest.”

48. In two judgments of 17 January 2008 (F.06.0082.N and F.07.0057.N), the Court of Cassation confirmed that it was clear from section 49 of the Miscellaneous Provisions Act of 9 July 2004 that a demand for payment served in respect of a disputed tax debt constituted a valid act interrupting the limitation period even where no part of the debt was indisputably due. In the second of these judgments it also held that section 49 did not constitute an interpretative provision but that it should nevertheless be applied retrospectively, in accordance with the legislature’s intentions.

49. In a judgment handed down on 21 November 2013 (F.11.0175.N), that is, after the judgment in the applicant company’s case, the Court of Cassation held that section 49, “which [was] designed to prevent some taxpayers from securing an advantage not intended by the legislature, and which [was] in accordance with the general interest and necessary in order to secure the payment of taxes – the rules on the assessment of which [had] not been amended by the legislature – [was] compatible with Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms”.

50. In an Act of 13 April 2019 which entered into force on 1 January 2020, a number of provisions concerning tax proceedings were harmonised and incorporated in a new Code on the Settlement and Forced Recovery of Tax‑related and Other Debts (Code du recouvrement amiable et forcé des créances fiscales et non fiscales – “CRAF”). The provisions of Article 443 bis of the 1992 Income Tax Code concerning the interruption of the running of time by measures to recover taxes (see paragraph 41 above) are now contained in Article 24 of the CRAF (see also, as regards suspension, paragraph 53 below). In the context of that codification, section 49 of the Miscellaneous Provisions Act of 9 July 2004 was repealed.

2. Suspension of the limitation period

51. Article 2251 of the Civil Code provides that “the limitation period shall run in respect of all persons save for those covered by one of the exceptions provided for by statute”.

52. When the Miscellaneous Provisions Act of 22 December 2003 was enacted (see paragraph 42 above), the legislature inserted a new provision, Article 443 ter, in the 1992 Income Tax Code. In accordance with that provision, any administrative or judicial appeal against the assessment or collection of taxes and withholding tax henceforth suspended the running of the limitation period.

53. Since the entry into force of the CRAF (see paragraph 50 above), the content of Article 443 ter of the 1992 Income Tax Code has been incorporated in Article 25 of the CRAF.

3. Procedure in the Court of Cassation

54. Under Article 1107, second paragraph, of the Judicial Code, where State Counsel makes written submissions the parties may, at the latest during the hearing and solely in reply to those submissions, submit a memorandum in which they may not raise any new grounds of appeal. In accordance with the next paragraph of that Article, each party may request an adjournment at the hearing in order to reply orally or by means of a memorandum to State Counsel’s written or oral submissions. The Court of Cassation then sets the time-limit for submission of the memorandum.

2. EUROPEAN UNION LAW

55. In a case concerning the compatibility with European Union (“EU”) law of the retrospective application of legislation on value-added tax – a matter harmonised at EU level – the Court of Justice of the European Union (“the CJEU”) held that although in general the principle of legal certainty precluded a measure from taking effect from a point in time before its publication, it could exceptionally be otherwise where the purpose to be achieved so demanded and where the legitimate expectations of those concerned were duly respected (see the Grand Chamber judgment of 26 April 2005, “Goed Wonen”, C-376/02, EU:C:2005:251, paragraph 33; see also, to similar effect, the judgment of 13 February 2019, Human Operator, C‑434/17, EU:C:2019:112, paragraph 36, and the judgment of 7 October 2019, Safeway, C-171/18, EU:C:2019:839, paragraph 38). In the circumstances of the case before it, the CJEU ruled that the principles of the protection of legitimate expectations and legal certainty did not preclude a member State, on an exceptional basis and in order to avoid the large-scale use, during the legislative process, of contrived financial arrangements intended to minimise the burden of VAT that an amending law was specifically designed to combat, from giving that law retroactive effect when economic operators carrying out economic transactions such as those referred to by the law had been warned of the impending enactment of that law and of the retroactive effect envisaged, in a way that enabled them to understand the consequences of the legislative amendment planned for the transactions they carried out (see the “Goed Wonen” judgment, cited above, paragraph 45).

3. COMPARATIVE-LAW MATERIAL

56. The information set out below is drawn from a comparative survey of the legislation of thirty-seven Council of Europe member States.

57. Depending on the State concerned, limitation periods may be regarded as substantive or procedural rules or a mixture of both. The principles of legal certainty, strict interpretation and the non-retrospective nature of rules generally apply to those governing limitation periods. Any changes to the limitation period usually apply immediately.

58. Furthermore, the issue of retrospective legislation is dealt with in a wide variety of ways in the countries surveyed. Some States prohibit the enactment of retrospective legislation in general or in certain areas of the law, while in others retrospective legislation may be allowed, subject to close supervision by the courts. Prohibition is more widespread in the criminal-law sphere, while in the areas of civil and tax law States take a more nuanced approach. The comparative-law survey shows that the question whether legislative intervention is justified in the general interest is decided on a case‑by-case basis.

THE LAW

1. APPLICABILITY OF ARTICLE 6 OF THE CONVENTION

59. The Government did not dispute the applicability of the criminal limb of Article 6 of the Convention in the present case. However, the applicability ratione materiae of the Convention defines the scope of the Court’s jurisdiction. This question must therefore be examined by the Court of its own motion at every stage of the proceedings (see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006-III).

1. The Chamber judgment

60. The Chamber held, in accordance with the settled case-law and notwithstanding the applicant company’s submissions, that the civil limb of Article 6 § 1 was not applicable to the collection of the taxes or to the tax surcharge in issue. However, applying the “Engel criteria” (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22), it found that the criminal limb of that provision was applicable, in view of the fact that the tax surcharge pursued an aim that was both deterrent and punitive and of the severity of the penalty imposed on the applicant company.

2. The parties’ observations
   1. The Government

61. The Government submitted that the debt which the State had sought to recover in the instant case was a tax debt based on fiscal legislation that had been properly enacted. Hence, in their view, the dispute fell outside the sphere of “civil rights and obligations”.

62. Nevertheless, the Government acknowledged that Article 6 § 1 of the Convention was applicable in so far as the tax surcharge imposed on the applicant company implied the existence of a “criminal charge”. They took the view that the Engel criteria were met in the present case.

2. The applicant company

63. The applicant company submitted that the case concerned a dispute over “civil rights and obligations” within the autonomous meaning of that concept in Article 6 § 1 of the Convention. It argued that the State’s interference with its rights related solely to the time-barring of the claim for recovery of a disputed debt in the taxation sphere. The dispute did not concern the State’s right to impose tax on a citizen. In the applicant company’s submission, there were therefore no grounds to exclude the case from the scope of Article 6 under its civil head. It pointed out that in Belgium tax‑related cases were assigned to the ordinary courts, where they followed the same procedure as any other civil case. It emphasised that the three complaints raised in its application were unrelated to the fiscal nature of the underlying proceedings and could have been presented in the same way in any other civil case.

64. The applicant company further noted that the Government did not dispute that the criminal limb of Article 6 of the Convention was applicable. It reiterated that the tax surcharge pursued a purpose that was both deterrent and punitive; this was sufficient to establish the criminal nature of the penalty. The applicant company also stressed the severity of the penalty it had been liable to incur, pointing out that under Article 444 of the 1992 Income Tax Code (see paragraph 35 above), tax surcharges were imposed in proportion to the amount of the unpaid taxes and could amount to 200% of that sum, there being no statutory ceiling.

3. The Court’s assessment
   1. Civil limb

65. In its judgment in the present case the Chamber held that the civil limb of Article 6 of the Convention was not applicable, basing its finding on the following reasoning:

“46. As regards the civil limb of Article 6, the Court has held on numerous occasions that it is not applicable to the assessment of tax and the imposition of surcharges (see, among other authorities, Ferrazzini v. Italy [GC], no. 44759/98, § 29, ECHR 2001‑VII; Jussila v. Finland [GC], no. 73053/01, § 29, ECHR 2006‑XIV; and, more recently, Formela v. Poland (dec.), no. 31651/08, § 127, 5 February 2019).

47. The Court reached the same conclusion in the case of Optim and Industerre v. Belgium ((dec.), no. 23819/06, §§ 24-26, 11 September 2012) which, like the present case, concerned proceedings instituted by the applicants in the ordinary courts to challenge a supplementary tax assessment. The Court sees no reason to depart from that conclusion in the present case, since the proceedings brought by the applicant company in the domestic courts were aimed at contesting the assessment of the tax. The fact that, in practice, the issue of the time-barring of the debt was central to the proceedings does not alter that conclusion.

48. The case of National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society [v. the United Kingdom (23 October 1997, Reports of Judgments and Decisions 1997-VII)], to which the applicant company referred, concerned a situation different from that in the present case in so far as the domestic proceedings were aimed at obtaining repayment of tax that had been wrongly paid by the applicant companies under tax legislation that was subsequently struck down.”

66. The Grand Chamber sees no reason to depart from that finding. Tax matters form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the community remaining predominant, despite the pecuniary effects which tax disputes necessarily produce for the taxpayer (see Ferrazzini, cited above, § 29). It follows that Article 6 § 1 of the Convention is not applicable under its civil limb.

2. Criminal limb

(a) General principles established in the Court’s case-law

67. The concept of a “criminal charge” in Article 6 § 1 is an autonomous one (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 122, 6 November 2018). The Court’s established case-law sets out three criteria, commonly known as the “Engel criteria”, to be considered in determining whether or not there was a “criminal charge” (see Engel and Others, cited above, § 82, and Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], nos. 68273/14 and 68271/14, § 75, 22 December 2020), including in tax-related cases, as is clear from the Jussila judgment (cited above, §§ 30-31 and 36; see also, from the standpoint of Article 4 of Protocol No. 7, A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 107, 15 November 2016). The first of these criteria is the legal classification of the offence under national law, the second is the very nature of the offence, and the third is the degree of severity of the penalty that the person concerned risks incurring. The second and third criteria are alternative, and not necessarily cumulative. This, however, does not exclude a cumulative approach where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see, among other authorities, Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 82, ECHR 2003-X; Jussila, cited above, §§ 30-31; and Gestur Jónsson and Ragnar Halldór Hall, cited above, §§ 77‑78). The fact that an offence is not punishable by imprisonment is not by itself decisive for the purposes of the applicability of the criminal limb of Article 6 of the Convention since, as the Court has stressed on numerous occasions, the relative lack of seriousness of the penalty at stake cannot deprive an offence of its inherently criminal character (see Ramos Nunes de Carvalho e Sá, cited above, § 122, and Gestur Jónsson and Ragnar Halldór Hall, cited above, § 78).

(b) Application of those principles in the present case

68. The present case concerns judicial proceedings relating to the tax authorities’ decision to issue a supplementary tax assessment in respect of the applicant company, together with a tax surcharge representing 50% of the tax for which it was considered liable (see paragraph 13 above). In ruling on the applicant company’s application to set aside the administrative decision, the domestic court upheld the 50% surcharge in respect of one part of the tax and, with regard to the remainder, reduced the surcharge to 10% of the tax deemed to be payable (see paragraph 18 above).

69. It is true that the tax surcharge imposed did not fall within the scope of Belgian criminal law but was covered by fiscal legislation. Nevertheless, as in the case of Jussila (cited above), the surcharge was based on a general provision applicable to taxpayers generally (Article 444 of the 1992 Income Tax Code – see paragraph 35 above) and served a purpose that was both deterrent and punitive. Furthermore, the penalty which the applicant company was liable to incur was substantial: in view of the administrative decision, the applicant company risked incurring a surcharge of up to 50% of the tax it had been found to owe, a figure that could not be increased by the domestic courts.

70. It follows that the criminal limb of Article 6 of the Convention is applicable.

(c) Implications of the applicability of the criminal limb of Article 6 of the Convention in examining the present case

(i) Taking into account the proceedings for recovery of the tax

71. The proceedings in question concerned both the recovery of the tax, which does not per se come within the scope of the criminal limb of Article 6 § 1, and the tax surcharge, which is covered by that provision. In principle, the Court must examine the proceedings only in so far as they related to a “criminal charge” against the applicant company.

72. Nevertheless, as explained by the applicant company (see paragraph 63 above), under Belgian law the proceedings relating to these two aspects form a whole, at both the administrative and the judicial stage. Belgian law makes no distinction, in procedural terms, between the challenging by the taxpayer of the tax assessment on the one hand and of the surcharge on the other. In the present case, if the domestic courts had found that recovery of the tax debt had become time-barred, this would have necessarily meant that no tax surcharge was due.

73. Thus, it is particularly difficult to distinguish the aspects of the proceedings concerning the “criminal charge” from those that concerned other matters. Accordingly, examining the proceedings in relation to the tax surcharge will inevitably require the Court to take into consideration the aspects of the proceedings concerning the supplementary tax assessment (see Jussila, cited above, § 45; see also, to similar effect, Georgiou v. the United Kingdom (dec.), no. 40042/98, 16 May 2000; Janosevic v. Sweden, no. 34619/97, § 79, ECHR 2002‑VII; and Sträg Datatjänster AB v. Sweden (dec.), no. 50664/99, 21 June 2005).

74. The Court must therefore consider whether the supplementary tax assessment proceedings relating to the tax surcharge imposed on the applicant company complied with the requirements of Article 6, having due regard to the facts of the individual case, including any relevant features flowing from the taxation context (see Jussila, cited above, § 39).

(ii) Scope of Article 6 in tax matters

75. The Court will also have regard to the fact that the present case concerns tax proceedings. Unlike criminal fines in the strict sense, a sum due by way of a tax penalty represents in a sense an extension of the tax debt, since it is calculated on the basis of that debt. In the instant case the tax surcharge, in accordance with the applicable legislation (see paragraph 35 above), constituted a percentage of the unpaid tax.

76. Furthermore, in accordance with the case-law of the Court, as tax surcharges differ from the hard core of criminal law, the guarantees of Article 6 do not necessarily apply with their full stringency (see Jussila, cited above, § 43; see also, to similar effect, Segame SA v. France, no. 4837/06, §§ 56-60, ECHR 2012 (extracts); Chap Ltd v. Armenia, no. 15485/09, §§ 41 and 44, 4 May 2017; and, from the standpoint of Article 4 of Protocol No. 7, A and B v. Norway, cited above, § 133).

2. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LEGISLATURE’S INTERVENTION DURING THE PROCEEDINGS

77. The applicant company complained of the intervention by the State while the proceedings before the domestic courts were pending, in breach of the principles of the rule of law and legal certainty and of the right to a fair hearing as guaranteed by Article 6 § 1 of the Convention. The relevant parts of that provision read as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”

1. The Chamber judgment

78. The Chamber observed that when the applicant company had appealed against the first-instance judgment on 15 April 2004 it could legitimately have expected that its tax debt would become time-barred in accordance with the case-law of the Court of Cassation dating back to its judgment of 10 October 2002 (see paragraph 40 above). Accordingly, by determining with retrospective effect the issue of the interruption of the limitation period through section 49 of the Miscellaneous Provisions Act of 9 July 2004, the legislature had intervened to influence in the State’s favour the outcome of the proceedings to which the latter was a party.

79. However, the Chamber considered that the legislature’s intervention had been based on compelling grounds of the general interest. By enacting the retrospective provision in question, the legislature had sought to counteract the retrospective effect of the 2002 Court of Cassation judgment itself, and to reaffirm the legality of an administrative practice that had been followed hitherto and the legitimacy of which had not seriously been called into question. In the Chamber’s view, the legislature’s intervention had thus been aimed at restoring legal certainty after the latter had been undermined by the 2002 Court of Cassation judgment.

80. The Chamber also considered – regard being had to the circumstances of the case – that the applicant company had hoped rather than expected to benefit from the case-law of the Court of Cassation. Hence, it could not have been surprised by the legislature’s response.

81. Lastly, the Chamber took note of the fact that its finding concerning the existence of compelling grounds of the general interest matched the assessment made by the Court of Cassation and the Constitutional Court. The Chamber concluded that there had been no violation of Article 6 § 1 of the Convention on this account.

2. The parties’ observations
   1. The applicant company

82. The applicant company alleged that the interference in the form of the retrospective application of section 49 of the Miscellaneous Provisions Act of 9 July 2004 had been aimed at influencing the outcome of proceedings to which the Belgian State was a party, in breach of the principle of legal certainty and the rule of law, and also of the right to a fair trial under Article 6 § 1 of the Convention. In its submission, there were no compelling general‑interest grounds justifying that interference, the sole aim of which had been to enable the State to win a case that had been lost from the outset in the light of the domestic case-law.

83. The applicant company referred to the parliamentary drafting history in order to demonstrate, firstly, that the Miscellaneous Provisions Act of 22 December 2003, enacted to counteract the effects of the Court of Cassation judgments of 10 October 2002 and 21 February 2003 (see paragraphs 40-42 above), had been intended to apply only to future cases and, secondly, that the legislature’s clear intention in passing the Miscellaneous Provisions Act of 9 July 2004 had been to interfere in the judicial process.

84. In the applicant company’s view, it had not been a question of restoring legal certainty as the Government claimed. It maintained that legal certainty had not been undermined, as the Court of Cassation judgments of 10 October 2002 and 21 February 2003 did not constitute a change in the case-law but had simply followed logically from a judgment of 28 October 1993 (point B.19.3 of the reasoning of the Constitutional Court judgment – see paragraph 47 above). Moreover, the administrative authorities had been perfectly aware of this, since in the wake of those judgments they had established the “demand for payment interrupting the limitation period” by means of a circular dated 25 August 1994 (see paragraph 38 above).

85. The fact that the legislature had sought to reassert the administrative authorities’ original intention did not alter the fact that this intention did not “constitute positive law”. The legislation had merely confirmed a subjective and biased administrative position which had no statutory force since it was based only on a circular issued by the administrative authorities themselves.

2. The Government

86. The Government referred to Constitutional Court judgment no. 177/2005 (see paragraph 47 above). In their submission, the reasoning of that judgment demonstrated that the retrospective application of section 49 of the Miscellaneous Provisions Act of 9 July 2004 had been wholly justified on compelling general-interest grounds.

87. They stressed in particular that prior to the Court of Cassation judgments of 10 October 2002 and 21 February 2003 it had been a matter of settled case-law and administrative practice that a demand for payment interrupted the limitation period in a valid manner, even in relation to disputed tax debts. In the Government’s view, the applicant company was mistaken in referring to the Court of Cassation judgment of 28 October 1993, which had related only to the lack of reasoning of a Court of Appeal judgment. The legislature had therefore had to take retrospective action to counteract the effect of the change in the case-law resulting from the judgment of 10 October 2002, which itself was retrospective. There were therefore no grounds to criticise the State’s decision to restore legal certainty by reaffirming, by means of retrospective legislation, the previously predominant line of case‑law.

88. The Government added that the State had acted swiftly, less than two years after the Court of Cassation judgment in question. Thus, the retrospective effect of the legislation had not restricted the applicant company’s rights in a disproportionate manner; until the Court of Cassation judgments, the applicant company had believed that the demand for payment served on it had interrupted the running of the limitation period in a valid manner. Hence, the applicant company’s initial expectations had not been frustrated.

89. The Government further argued that the retrospective effect of the Miscellaneous Provisions Act of 9 July 2004 had prevented arbitrary discrimination between those taxpayers who had signed a document waiving the part of the limitation period that had elapsed and those who had refused to sign such a waiver.

90. The Government emphasised that without retrospective legislation it would have been impossible for the Belgian State to stop the running of the limitation period in respect of taxpayers who contested a tax debt, who would have been released from their debt merely by dint of lodging an appeal, given the income-tax backlog. Moreover, some of the cases that stood to benefit from the position taken by the Court of Cassation in its judgments of 10 October 2002 and 21 February 2003 had concerned large-scale tax fraud.

91. Lastly, the Government maintained that since tax surcharges differed from the hard core of criminal law, the guarantees of Article 6 of the Convention should be applied in a more flexible manner.

3. The Court’s assessment
   1. General principles established in the Court’s case-law

92. In the context of civil disputes, the Court has repeatedly ruled that although, in principle, the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force, the principle of the rule of law and the notion of fair trial enshrined in Article 6 preclude any interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute, save on compelling grounds of the general interest (see Stran Greek Refineries and Stratis Andreadis v. Greece, 9 December 1994, § 49, Series A no. 301-B; Zielinski and Pradal and Gonzalez and Others v. France [GC], nos. 24846/94 and 9 others, § 57, ECHR 1999-VII; Scordino v. Italy (no. 1) [GC], no. 36813/97, § 126, ECHR 2006-V; and, more recently, Dimopulos v. Turkey, no. 37766/05, § 45, 2 April 2019, and Hussein and Others v. Belgium, no. 45187/12, § 60, 16 March 2021).

93. There are dangers inherent in the use of retrospective legislation which has the effect of influencing the judicial determination of a dispute to which the State is a party, including where the effect is to make pending litigation unwinnable (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 112, Reports of Judgments and Decisions 1997‑VII – hereafter “Building Societies”). Respect for the rule of law and the notion of a fair trial therefore require that any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection (ibid., and see also Maggio and Others v. Italy, nos. 46286/09 and 4 others, § 45, 31 May 2011).

94. The Court has found that those principles, which are essential elements of the concepts of legal certainty and protection of litigants’ legitimate trust, are also applicable to criminal proceedings (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 132, 17 September 2009; see also, to similar effect, Biagioli v. San Marino (dec.), no. 8162/13, §§ 92-94, 8 July 2014, and Chim and Przywieczerski v. Poland, nos. 36661/07 and 38433/07, §§ 199-207, 12 April 2018). In the Court’s view, this applies equally in a tax‑related case such as the present one, in which only the part relating to the tax surcharge comes within the scope of the criminal limb of Article 6 of the Convention.

2. Application of those principles in the present case

95. The question arises whether the legislature’s intervention through section 49 of the Miscellaneous Provisions Act of 9 July 2004 undermined the fairness of the proceedings brought by the applicant company by influencing the outcome of the dispute between the applicant company and the State while the proceedings were ongoing.

96. The Court observes at the outset that it is not in dispute between the parties that when the applicant company was served with the demand for payment in October 2000 and when it brought proceedings in the Court of First Instance in December 2000, the limitation period had been interrupted in accordance with Belgian practice as it then applied. Before the Court of First Instance ruled in March 2004 the applicant company could have argued that the limitation period had expired, relying on the case-law of the Court of Cassation commencing with the judgment of 10 October 2002 (see paragraph 40 above), but it did not do so. It was only when it appealed against the first‑instance judgment on 15 April 2004 that the applicant company raised the issue of the time-bar and relied on that Court of Cassation judgment. At that point the applicant company might indeed have expected that the Court of Appeal, in the light of this new case-law, would hold that the limitation period in respect of its tax debt had not been interrupted.

97. However, in 2003, before the ruling at first instance and the lodging of an appeal by the applicant company, the legislature had begun to examine how to temper the effects of the Court of Cassation’s new case-law. Following the entry into force of the Miscellaneous Provisions Act of 22 December 2003 and the opinion of the Conseil d’État concerning the need for an explicit transitional provision (see paragraphs 42-44 above), section 49 of the Miscellaneous Provisions Act of 9 July 2004 was enacted. That provision entered into force while the applicant company’s case was pending before the Court of Appeal, and settled the issue of interruption of the limitation period in ongoing tax proceedings, including those brought by the applicant company.

98. In that regard the Court notes that the provision in question regulated only the issue of the interruption of the limitation period and not that of its possible suspension. Indeed, in the instant case the Court of Appeal found that the limitation period had been suspended under Article 2251 of the Civil Code, as applicable at the material time (see paragraph 51 above), and that it had therefore not expired (see paragraph 21 above). However, the Court of Cassation replaced that ground with a different ground based on the interruption of the limitation period in accordance with section 49 of the Miscellaneous Provisions Act of 9 July 2004 (see paragraph 27 above).

99. It follows that, in the present case, the application by the Court of Cassation of section 49 of the Miscellaneous Provisions Act of 9 July 2004 requires the Grand Chamber to continue its reasoning on the basis of the sole premise that, had the case-law commencing with the Court of Cassation judgment of 10 October 2002 been applied to the applicant company’s case, the tax debt in question, comprising the taxes payable by the applicant company and the corresponding surcharge, would have had to be considered time-barred.

100. Moreover, it is very clear from the parliamentary drafting history and from the Court of Cassation judgment in the applicant company’s case that the legislature’s aim had been “to protect the rights of the Treasury in the context of pending proceedings in which tax debts disputed on the basis of the position taken in the [Court of Cassation ruling of 10 October 2002] ... had already become ... time-barred” (see paragraph 27 above). In its judgment of 7 December 2005 the Constitutional Court, for its part, noted that the 2002 and 2003 Court of Cassation judgments in issue had deprived of effect, retrospectively, the means of interrupting the limitation period that had been commonly used in relation to income tax. In the absence of any provision allowing an application to be made to the Court of Cassation to limit in time the effects of the positions of principle adopted in its judgments, the Constitutional Court explained that the legislature’s aim in enacting a retrospective provision had been to counteract the retrospective effect of the case-law established by those judgments (see points B.19.7 and B.19.8 of the Constitutional Court’s reasoning, set out at paragraph 47 above).

101. The Court must therefore ascertain whether, in the circumstances of the present case, the legislative intervention in question was based on compelling grounds of the general interest.

102. The Court reiterates that only compelling grounds of the general interest can justify interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute (see paragraphs 92-94 above).

103. With regard, firstly, to the protection of the Treasury’s rights, relied on by the Government, the Court has ruled repeatedly that the State’s financial interests alone do not, in principle, justify the retrospective application of legislation (see, for instance, Zielinski and Pradal and Gonzalez and Others, cited above, § 59; Scordino, cited above, § 132; Lilly France v. France (no. 2), no. 20429/07, § 51, 25 November 2010; and Maggio and Others, cited above, § 47). Nor did the Government argue that the impact of the impugned case-law of the Court of Cassation would be so great as to threaten the financial stability of the State (compare Cabourdin v. France, no. 60796/00, § 37, 11 April 2006, and Arnolin and Others v. France, nos. 20127/03 and 24 others, § 76, 9 January 2007). On the contrary, it transpires from the parliamentary drafting history that the Minister of Justice stated that the limitation period had expired on the basis of the relevant case-law of the Court of Cassation only in “a relatively small number of cases” (see paragraph 43 above).

104. Secondly, as regards efforts to combat large-scale tax fraud, another objective advanced by the Government, the Court considers that this constitutes a relevant general-interest ground (see, mutatis mutandis, with reference to combating tax fraud as a legitimate aim in the public interest, in the context of a case examined by the Court under Article 1 of Protocol No. 1, Hentrich v. France, 22 September 1994, § 39, Series A no. 296-A, and, to similar effect, S.C. Service Benz Com S.R.L. v. Romania, no. 58045/11, §§ 32‑33, 4 July 2017). That remains true even though the Government did not allege that the present case concerned large-scale tax fraud and there is nothing in the case file to suggest that this was the case (see, in this connection, paragraphs 11 and 18 above). By their nature, legislative initiatives regulate situations in general and abstract terms, such that the reasons that motivated the legislature do not lose their legitimacy merely because they may not be relevant in respect of each of the persons potentially affected.

105. Furthermore, the Court also regards as relevant the objective referred to by the Government of not creating arbitrary discrimination between those taxpayers who had waived of their own accord the part of the limitation period that had elapsed by paying their tax debt, and those who had not done so (see, in this connection, point B.19.5 of the reasoning of the Constitutional Court judgment cited at paragraph 47 above).

106. Lastly, the Government maintained that the enactment of section 49 of the Miscellaneous Provisions Act of 9 July 2004 had been necessary to correct the Court of Cassation’s case-law and thus ensure legal certainty.

107. The Court has indeed accepted that, in exceptional circumstances, retrospective legislation may be justified, especially in order to interpret or clarify an older legislative provision (see, for example, Hôpital local Saint‑Pierre d’Oléron and Others v. France, nos. 18096/12 and 20 others, 8 November 2018), to fill a legal vacuum (see, for instance, OGIS-Institut Stanislas, OGEC Saint-Pie X and Blanche de Castille and Others v. France, nos. 42219/98 and 54563/00, 27 May 2004), or to offset the effects of a new line of case-law (see, for instance, Building Societies, cited above, in which the Court accepted the enactment of legislation with retrospective effect aimed at limiting the effects of a House of Lords ruling that had highlighted a defect in the legislation, which the legislature sought to remedy).

108. The Court will assess the compelling nature of the relevant grounds referred to above as a whole and in the light of the following elements: whether or not the line of case-law overturned by the legislative intervention complained of had been settled (see paragraphs 109-112 below); the manner and timing of the enactment of the legislation (see paragraphs 113-114 below); the foreseeability of the legislature’s intervention (see paragraphs 115-119 below); and the scope of the legislation and its effects (see paragraphs 120-122 below).

109. The Court notes at the outset that prior to the Court of Cassation judgment of 10 October 2002, the administrative practice that was followed consisted in issuing the taxpayers concerned with a “demand for payment interrupting the limitation period” (see paragraph 38 above). That practice was subsequently clarified in two circulars issued by the tax authorities in 1994 and 1996 (ibid.).

110. The parties disagreed as to whether there had been a settled line of domestic case-law concerning the interruption of the limitation period by such demands. It is not the Court’s task to interpret domestic law or the way in which the domestic courts’ case-law has developed in this regard. It suffices for the Court to note that it is clear from the Constitutional Court’s judgment that the limitation period in respect of disputed tax debts had always been interrupted by the serving of a demand for payment and that the validity of such demands had always been recognised until the Court of Cassation judgments of 10 October 2002 and 21 February 2003. While there was some controversy as to the nature of the demand for payment, neither the provisions of the Judicial Code nor any judgment of the Court of Cassation ruled out the validity of a demand for payment as an act interrupting the limitation period. On the contrary, some decisions of the lower courts found demands for payment to interrupt the limitation period irrespective of their validity as enforcement measures (see point B.19.1. of the Constitutional Court’s reasoning, cited in paragraph 47 above). This is also clear from the decisions of the lower courts provided by the parties.

111. Thus, the parties did not dispute that in its judgment of 10 October 2002 the Court of Cassation had ruled for the first time on the specific issue whether the demand for payment interrupted the limitation period in a valid manner where there was no amount indisputably due. The Court of Cassation judgment of 28 October 1993 to which the applicant company referred had not ruled on the validity of such demands for payment (see paragraph 84 above). Hence, the judgment of 10 October 2002 may have been in line with the role of a supreme court to resolve possible contradictions or uncertainties resulting from judgments containing divergent interpretations (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 123, 29 November 2016, and the case-law cited therein).

112. Nevertheless, the Court of Cassation’s interpretation did not correspond to the administrative practice followed previously and therefore had a significant impact on cases, such as the one in issue here, in which the tax assessment had been disputed by the taxpayer in the competent courts. As pointed out by the Constitutional Court in point B.19.8. of its reasoning – see paragraph 47 above), unlike other supreme courts the Belgian Court of Cassation is not empowered to limit the temporal effects of its judgments by ruling exclusively with effect for the future; this was one of the reasons for enacting the legislation with retrospective effect (compare Petko Petkov v. Bulgaria, no. 2834/06, 19 February 2013, in which the supreme court had the power – of which it did not avail itself – not to apply a novel interpretation of a legislative provision to pending cases). Thus, it was because of the retrospective effect of the Court of Cassation judgment of 10 October 2002 on all pending proceedings concerning these matters that the legislature felt compelled to act.

113. In that connection the Court attaches importance to the fact that, shortly after the delivery of the Court of Cassation judgment of 10 October 2002, the legislature clearly signalled its intention not to allow the effects of that judgment to continue over time. Accordingly, it enacted, within a relatively short period for a parliament, first the Miscellaneous Provisions Act of 22 December 2003 (see paragraphs 41-42 above) and then, just over a year and a half after the Court of Cassation ruling in issue, the Miscellaneous Provisions Act of 9 July 2004 (see paragraph 45 above).

114. The Court is mindful of the fact that in taking this action the legislature expressly departed from the Court of Cassation’s interpretation of the former Article 2244 of the Civil Code. Nevertheless, the judgment of 10 October 2002 and the subsequent rulings along similar lines could not have had binding force for the legislature. Indeed, in a State governed by the rule of law, the legislature may amend legislation in order to correct an interpretation of the law given by the judiciary, subject however to compliance with the legal rules and principles which are binding even on the legislature, including those set out above (see paragraphs 92-94) and elaborated upon in the paragraphs below.

115. As regards the principle of legal certainty invoked by both the applicant company and the Government in support of their opposing arguments (see paragraphs 82 and 88 above respectively), the Court reiterates that this principle, which is inherent in all the Articles of the Convention, manifests itself in different forms and contexts, such as requiring the law to be clearly defined and foreseeable in its application, or requiring that where the courts have finally determined an issue, their ruling should not be called into question (see Guðmundur Andri Ástráðsson v. Iceland [GC], no. 26374/18, § 238, 1 December 2020, and the case-law cited therein). The principle that the law, and in particular the criminal law, does not have retrospective effect is likewise intended to ensure legal certainty.

116. In this context it should be reiterated that limitation periods serve several important purposes, namely to ensure legal certainty by setting a time‑limit on bringing judicial proceedings, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice that might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time (see Oleksandr Volkov v. Ukraine, no. 21722/11, § 137, ECHR 2013, and the Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture [GC], request no. P16-2021-001, Armenian Court of Cassation, § 72, 26 April 2022 (“Advisory opinion P16-2021-001”)).

117. However, it cannot be said in the present case that legal certainty, and hence the protection of litigants’ legitimate trust as relied on by the parties, was undermined by the legislature’s intervention (compare Pressos Compania Naviera S.A. and Others v. Belgium, 20 November 1995, Series A no. 332, and the case-law of the Court of Justice of the European Union cited at paragraph 52 above). On the contrary, the legislature sought, in view of the unexpected development in the case-law of the Court of Cassation, to restore legal certainty by re‑establishing the previous administrative practice, which had been followed at the time the applicant company brought proceedings in the domestic courts. This was a settled practice which had apparently not been challenged until shortly before the Court of Cassation judgment of 28 October 1993 (see paragraphs 38 and 47 above, citing point B.19.1 of the Constitutional Court judgment). Moreover, the examples provided by the parties appear to show that despite being challenged this practice continued to be upheld by most of the lower courts.

118. Thus, the applicant company could not have expected – or hoped – that its tax debt and the corresponding tax surcharge would be declared time‑barred when it commenced proceedings on 14 December 2000. On the contrary, the applicant company did not raise the issue of the limitation period until the proceedings before the Court of Appeal, after the Court of Cassation judgment of 10 October 2002 (see paragraph 19 above).

119. Hence, it would appear that the applicant company hoped rather than expected to benefit from the “windfall” resulting from the development in the Court of Cassation’s case-law following the judgment of 10 October 2002 (see point B.19.11 of the Constitutional Court’s reasoning, cited in paragraph 47 above). While the applicant company cannot be criticised for taking advantage, in the process of exhausting the remedies available to it under domestic law, of a new line of case-law that was favourable to it (compare Legrand v. France, no. 23228/08, §§ 36-40, 26 May 2011), the intervention by the legislature in the form of the Miscellaneous Provisions Act of 9 July 2004 cannot be said to have put an end to a legitimate expectation on the applicant company’s part that had existed when it commenced proceedings.

120. As regards the effects of the impugned legislation, the Court notes that in the present case the legislature’s intervention made it possible to continue with a “prosecution” notwithstanding the fact that, following the Court of Cassation case-law originating in the judgment of 10 October 2002, the limitation period could have been considered to have expired (see paragraph 99 above). Such intervention undoubtedly requires stronger justification than in the case of the extension of a limitation period that is still running (compare, from the standpoint of Article 7 of the Convention, Coëme and Others v. Belgium, nos. 32492/96 and 4 others, § 149, ECHR 2000‑VII; Previti v. Italy (dec.), no. 1845/08, § 80, 12 February 2013; and Borcea v. Romania (dec.), no. 55959/14, § 64, 22 September 2015). In this regard, and in a different context, the Court held recently that the revival of criminal responsibility after the expiry of a limitation period was incompatible with the overarching principles of legality and foreseeability enshrined in Article 7 of the Convention (see Advisory opinion P16-2021-001, § 77; see also, for a case in which the applicants had been convicted of an offence whose prosecution had become time-barred, Antia and Khupenia v. Georgia, no. 7523/10, 18 June 2020).

121. Nevertheless, the present case is to be distinguished from the situation described in Advisory opinion P16-2021-001. While the limitation period had not been interrupted and could therefore have been considered to have expired following the Court of Cassation ruling of 10 October 2002, that fact had not yet been established by a judicial decision, still less one with res judicata effect. Furthermore, unlike in Antia and Khupenia (cited above), the limitation period had not expired either when the tax surcharge was imposed on the applicant company in the context of the supplementary tax assessment, or when the applicant company challenged it in the Court of First Instance. It was only during the Court of Appeal proceedings, and especially as the result of an unexpected development in the case-law of the Court of Cassation, that the applicant company alleged that the limitation period had not been interrupted in a valid manner and that it had therefore expired (see paragraphs 118-119 above).

122. Lastly, the Court observes that the present case concerns Article 6 of the Convention and not Article 7, and that, as tax surcharges fall primarily within the sphere of tax law and differ from the hard core of criminal law, the guarantees of Article 6 will not necessarily apply with their full stringency (see paragraph 76 above).

123. Having regard to the specific circumstances of the present case, the Court finds that in seeking to combat large-scale tax fraud, avoid arbitrary discrimination between taxpayers and offset the effects of the Court of Cassation judgment of 10 October 2002 in order to restore legal certainty by re‑establishing the settled administrative practice, reflected furthermore in the predominant case‑law of the lower courts in the matter, the foreseeable intervention by the legislature was justified on compelling grounds of the general interest.

124. Accordingly, there has been no violation of Article 6 § 1 of the Convention on this account.

3. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE SUBSTITUTION OF GROUNDS

125. Under Article 6 § 1 of the Convention, the applicant company complained of the substitution of grounds by the Court of Cassation. In its view, this was in breach of the right of access to a court and of the principle of equality of arms and the adversarial principle.

1. The Chamber judgment

126. After finding that no issue arose with regard to the principle of equality of arms, the Chamber went on to hold that there had been no violation in the present case of the right to adversarial proceedings or the right of access to a court.

127. In the Chamber’s view, only the omission by the Court of Cassation to inform the parties of its intention to raise the ground in question of its own motion was capable of giving rise to an issue under the Convention. In that regard the Chamber found that the applicant company could not be said to have been taken by surprise. Firstly, the appeal on points of law lodged by the State had specifically concerned the Court of Appeal’s decision regarding section 49 of the Miscellaneous Provisions Act of 9 July 2004. Secondly, the parties had received a copy of the advocate-general’s written submissions to the Court of Cassation in which he had called on that court to substitute its own grounds for those of the contested judgment. The applicant company had had the possibility, under Article 1107 of the Judicial Code, of submitting a memorandum in reply to the advocate-general’s submissions and requesting that the hearing be adjourned so that it could reply orally or in a memorandum to those submissions.

2. The parties’ observations
   1. The applicant company

128. In the applicant company’s view, the criteria for the substitution of grounds had not been met and the Court of Cassation could not validly address the issue of the interruption of the limitation period. In dismissing its appeal on points of law by applying an unforeseeable, artificial and unlawful barrier, the Court of Cassation had made it impossible for the applicant company to assert its complaints, and in particular to submit arguments in relation to the key issue determined by the Court of Cassation of its own motion, concerning the compatibility of section 49 of the Miscellaneous Provisions Act of 9 July 2004 with Article 6 § 1 of the Convention. The applicant company therefore alleged that it had been deprived of access to a court.

129. The applicant company further alleged a breach of the principle of equality of arms and the adversarial principle, as the ground of appeal raised by it concerning the Court of Appeal’s application of Article 2251 of the Civil Code had not been examined by the Court of Cassation. It added that it had not received the advocate-general’s written submissions until 5 March 2009, just a few days before the hearing of 13 March 2009, giving it very little time to respond to those submissions. In the applicant company’s view, it would have been pointless and impossible, in that space of time, to present serious substantive arguments on a matter as complex as the effects of section 49 of the Miscellaneous Provisions Act of 9 July 2004. It had therefore concentrated in its reply on the procedural aspects, arguing that the Court of Cassation did not have jurisdiction to examine this issue, which fell within the discretion of the courts below, to which the case would be remitted if the contested judgment were quashed.

2. The Government

130. In the Government’s view, the substitution of grounds by the Court of Cassation was not open to criticism. Firstly, there was nothing to suggest that the Court of Cassation had breached the procedural rules in force in Belgium regarding the circumstances in which the substitution of grounds was permitted. This was especially so given that in the present case the substitution of grounds by the Court of Cassation had not entailed any change to the Court of Appeal’s finding that the limitation period had not expired.

131. Secondly, with regard to the right to adversarial proceedings, the Government asserted that the substitution of grounds had taken place after the applicant company had been given an opportunity to make known any evidence needed for its claims to succeed, and to have knowledge of and comment on all the evidence adduced or observations filed, in accordance with the Court’s case-law. They added that the issue of the applicability of section 49 of the Miscellaneous Provisions Act of 9 July 2004 had constituted the subject matter of the State’s appeal on points of law, that the advocategeneral at the Court of Cassation had made written submissions which had been sent to the applicant company and that, in its memorandum under Article 1107 of the Judicial Code, the applicant company had not referred to any difficulty regarding the length of time it had been given to reply to the advocate‑general’s submissions. Furthermore, under the third paragraph of Article 1107 of the Judicial Code, it had been open to the applicant company to request additional time in order to submit a memorandum in reply to the advocate-general’s submissions.

132. Lastly, with regard to the right of access to a court, the Government did not dispute that the substitution of grounds constituted a limitation of that right. However, they maintained that this was not open to criticism since it pursued a legitimate aim – that of procedural economy and hence the proper administration of justice – and that it was proportionate in that the technique of substitution of grounds was tightly regulated and accompanied by procedural safeguards. Furthermore, in the Government’s submission, compliance with Article 6 § 1 of the Convention should be assessed in a less stringent manner in the present case because tax surcharges differed from the hard core of criminal law. Hence, the very essence of the right to a court had not been impaired.

3. The Court’s assessment
   1. General principles established in the Court’s case-law

133. The right to a court enshrined in Article 6 of the Convention, of which the right of access is one aspect (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18), is not absolute; it may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved (see Guérin v. France, 29 July 1998, § 37, Reports 1998-V; see also, in a civil context, Zubac v. Croatia [GC], no. 40160/12, §§ 76-78, 5 April 2018, and Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, §§ 192 and 195, 25 June 2019).

134. The concept of a fair hearing in Article 6 of the Convention also includes the right to adversarial proceedings, according to which the parties must have the opportunity to make known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision (see Lobo Machado v. Portugal, 20 February 1996, § 31, Reports 1996-I, and Vermeulen v. Belgium, 20 February 1996, § 33, Reports 1996-I).

135. The court itself must respect the adversarial principle, for example if it dismisses an appeal or decides a case on the basis of a ground which it has raised of its own motion (see Skondrianos v. Greece, nos. 63000/00 and 2 others, §§ 29-30, 18 December 2003; Clinique des Acacias and Others v. France, nos. 65399/01 and 3 others, § 38, 13 October 2005; Čepek v. the Czech Republic, no. 9815/10, § 45, 5 September 2013; Les Authentiks and Supras Auteuil 91 v. France, nos. 4696/11 and 4703/11, § 50, 27 October 2016; and Rivera Vazquez and Calleja Delsordo v. Switzerland, no. 65048/13, § 41, 22 January 2019). The decisive factor is therefore whether one of the parties was “taken by surprise” by the fact that the court based its decision on a ground raised of its own motion (see Villnow v. Belgium (dec.), no. 16938/05, 29 January 2008; Clinique des Acacias and Others, cited above, § 43; Čepek, cited above, § 48; Les Authentiks and Supras Auteuil 91, cited above, § 50; and Rivera Vazquez and Calleja Delsordo, cited above, § 41).

136. Courts must exercise special diligence where the dispute takes an unexpected turn, especially where it concerns a matter that is left to the discretion of the court concerned. The principle of adversarial proceedings requires that courts should not base their decisions on elements of fact or law which have not been discussed during the proceedings and which give the dispute an outcome which not even a diligent party would have been able to anticipate (see Čepek, cited above, § 48; Les Authentiks and Supras Auteuil 91, cited above, § 50; and Rivera Vazquez and Calleja Delsordo, cited above, § 41).

2. Application of those principles in the present case

137. The question to be addressed is whether the substitution of grounds by the Court of Cassation (see paragraph 27 above) was in breach of the right of access to a court, the principle of equality of arms and the adversarial principle.

138. In that connection the Court observes that the substitution of grounds is a judicial construct by means of which the Court of Cassation examines the ground of appeal submitted to it, compares it with the operative provisions of the allegedly unlawful decision under challenge, and replaces the contested grounds on which the lower court based those provisions with new grounds apt to demonstrate the lawfulness of the decision.

139. First of all, in the Court’s view, no issue arises as regards the principle of equality of arms relied on by the applicant company. This principle requires each party to the proceedings to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports 1997‑I, and Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017). There is nothing in the case file or in the parties’ submissions to indicate that the applicant company and the Belgian State were placed in different situations with regard to the advocate-general’s written submissions or the substitution of grounds by the Court of Cassation (see, to similar effect, Clinique des Acacias and Others, cited above, § 39). In fact, these procedural steps were performed in the same way in respect of both parties. Hence, the principle of equality of arms is not at stake in the present case.

140. Next, as regards the adversarial principle, the Chamber, in its judgment in the present case, took into account the following considerations:

“89. In the present case the Court of Cassation made use of its power to determine the case on the basis of a ground raised of its own motion (see, to similar effect, Clinique des Acacias and Others, cited above, § 39). The Court does not propose to examine the technique of substitution of grounds as such, but solely to consider whether the use made of that technique by the Court of Cassation breached the applicant company’s right to adversarial proceedings (see Les Authentiks et Supras Auteuil 91, cited above, § 51).

90. It is not the Court’s task to examine whether the criteria defined by the Court of Cassation’s case-law regarding the substitution of grounds were satisfied in the present case, since it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999‑I, and López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, § 149, 17 October 2019).

91. Accordingly, only the possible omission by the Court of Cassation to inform the parties of its intention to raise the ground in question of its own motion is capable of giving rise to an issue under the Convention (see, to similar effect, Cimolino v. Italy, no. 12532/05, § 45, 22 September 2009).

92. In the instant case the Court notes that the issue of the application of section 49 of the Miscellaneous Provisions Act of 9 July 2004 was not raised by the applicant company in its appeal on points of law, as the Antwerp Court of Appeal had found that this provision was not applicable ... Consequently, the applicant company had no interest in submitting arguments on this point in its appeal to the Court of Cassation.

93. Nevertheless, the applicant company cannot be deemed to have been ‘taken by surprise’ in the present case (see, conversely, among other authorities, Clinique des Acacias and Others, cited above, § 43, and Liga Portuguesa de Futebol Profissional v. Portugal, no. 4687/11, §§ 61-62, 17 May 2016).

94. Firstly, the Court notes that the Court of Appeal’s decision concerning section 49 of the Miscellaneous Provisions Act of 9 July 2004 formed the subject matter of the appeal on points of law lodged by the State ... It cannot therefore be said that the applicability of that provision did not form part of the proceedings (see, to similar effect, Les Authentiks and Supras Auteuil 91, cited above, § 52, and Ndayegamiye‑Mporamazina v. Switzerland, no. 16874/12, § 39, 5 February 2019; see also, conversely, Prikyan and Angelova v. Bulgaria, no. 44624/98, § 46, 16 February 2006), even though the two appeals were not formally joined at that stage.

95. Secondly, and most importantly, the parties had received a copy of the advocate‑general’s written submissions to the Court of Cassation in which he had called on that court to substitute its own grounds for those of the contested judgment ... Even though the Government did not dispute the fact that the applicant company had not received those submissions until a few days before the Court of Cassation hearing ..., the fact remains that it was open to the applicant company, under Article 1107 of the Judicial Code, to submit a memorandum in reply to the advocate-general’s submissions and to request that the hearing be adjourned so that it could reply orally or in a memorandum to those submissions ...”

141. The Grand Chamber agrees with this reasoning and sees nothing in the parties’ submissions to the Grand Chamber that would cause it to depart from it. The Court therefore considers that the substitution of grounds by the Court of Cassation was not in breach of the right to adversarial proceedings.

142. Lastly, as regards the right of access to a court, the Court accepts that, as asserted by the Government, the possible limitation of that right on account of the substitution of grounds pursued a legitimate aim, namely that of procedural economy and hence the proper administration of justice. It also considers that the use of this device did not impair the very essence of the right in question in the present case in that, as stated above (see paragraph 140), the applicant company was not deprived of the right to a hearing by a court since it had an opportunity to put forward its arguments regarding the ground raised by the Court of Cassation of its own motion.

143. Accordingly, there has been no violation of Article 6 § 1 of the Convention on this account.

4. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF FAILURE TO COMPLY WITH THE REASONABLE-TIME REQUIREMENT

144. Relying on Article 6 § 1 of the Convention, the applicant company also alleged a breach of the reasonable-time requirement.

1. The Chamber judgment

145. The Chamber held, in accordance with the criteria established in the case-law and having regard to the circumstances of the case, that the domestic proceedings, taken overall, had been unreasonably long. It found a violation of Article 6 § 1 of the Convention on that account.

2. The parties’ observations
   1. The applicant company

146. According to the applicant company, the starting-point for the purposes of the reasonable-time requirement was the notice of rectification of its tax return for the 1993 fiscal year, dated 5 October 1995. It submitted that the administrative phase alone, before the regional director, had lasted for four years and seven months, well in excess of the “normal” length of time allowed for giving an administrative decision. In the applicant company’s submission, there were no circumstances capable of justifying such a delay, for which the State was entirely responsible. The subsequent judicial phase had lasted for almost nine years, across three levels of jurisdiction; this could not be regarded as reasonable either.

147. The applicant company submitted that, contrary to the Government’s assertion (see paragraph 148 below), it had had to await the administrative decision before being allowed to start judicial proceedings. Under section 11 of the Act of 23 March 1999 on the organisation of the courts in tax matters, the possibility of bringing an action six months after the date of receipt of the administrative objection in the absence of a decision on the latter did not apply where, as in the instant case, the objection related to taxes payable in respect of the 1998 fiscal year or earlier (see paragraph 31 above).

2. The Government

148. The Government accepted that the period to be taken into consideration had begun on 5 October 1995 and ended on 13 March 2009. However, in their view, the period of one year and nine months between 6 April 1999 and 14 December 2000 should be deducted from this, as the applicant company could have applied to the domestic courts during that time under the Act of 23 March 1999 on the organisation of the courts in tax matters, without awaiting the outcome of the administrative proceedings, but had omitted to do so. Therefore, the period to be taken into consideration was eleven years and nine months. The Government considered this to be reasonable in view of the complexity of the case and what was at stake in the dispute. They added that compliance with Article 6 § 1 of the Convention should be assessed in a less stringent manner since tax surcharges differed from the hard core of criminal law.

149. In particular, the Government argued that the applicant company had submitted a large number of documents at the appeal stage, including a third set of additional observations and a summary of its position, running to fifty‑four pages; in their view, this demonstrated the complexity of the dispute and the fact that the company was partly responsible for the length of time taken to prepare the case. The Court of Appeal judgment, which contained a detailed analysis of the legal theory and case-law on the interruption of limitation periods by demands for payment, also testified to the complexity of the case.

3. The Court’s assessment
   1. General principles established in the Court’s case-law

150. In criminal matters, the “reasonable time” referred to in Article 6 § 1 begins to run as soon as a person is “charged”. A “criminal charge” exists from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence, or from the point at which his situation has been substantially affected by actions taken by the authorities as a result of a suspicion against him (see Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35; Eckle v. Germany, 15 July 1982, § 73, Series A no. 51; and Simeonovi v. Bulgaria [GC], no. 21980/04, § 110, 12 May 2017). This period covers the whole of the proceedings in question, including appeal proceedings (see König v. Germany, 28 June 1978, § 98, Series A no. 27).

151. The reasonableness of the length of proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

152. Only delays attributable to the State may justify a finding of failure to comply with the reasonable-time requirement (see Idalov v. Russia [GC], no. 5826/03, § 186, 22 May 2012).

2. Application of those principles in the present case

153. It is not in dispute between the parties that the starting-point for calculating the “reasonable time” is 5 October 1995, the date on which the applicant company was informed of the tax authorities’ intention to rectify its tax return and impose a surcharge (see, to similar effect, Janosevic, cited above, § 92). The proceedings ended with the Court of Cassation judgment of 13 March 2009.

154. Contrary to the Government’s assertion (see paragraph 148 above), it is clear from section 11 of the Act of 23 March 1999 on the organisation of the courts in tax matters that it was not open to the applicant company to apply to the Court of First Instance without awaiting the decision on its administrative objection (see paragraph 31 above). Hence, the period between 6 April 1999 and 14 December 2000 should not be deducted from the period to be taken into consideration.

155. The proceedings brought by the applicant company therefore lasted for over thirteen years and six months: the administrative phase lasted for four years and seven months at one level of decision-making, while the subsequent judicial phase lasted for almost nine years across three levels of jurisdiction.

156. The Government cited the complexity of the case and the importance of what was at stake in the dispute as explanations for the length of the proceedings. In particular, they criticised the conduct of the applicant company in the Court of Appeal proceedings. However, they offered no explanation for the length of the administrative proceedings (four years and seven months) or for the fact that over three years and three months had elapsed between the application to the ordinary courts and the first-instance judgment, despite the fact that the issue of the possible time-barring of the tax debt and the corresponding surcharge was not raised by the applicant company until the appeal stage. Thus, the complexity surrounding this issue did not concern either the administrative phase or the proceedings before the Court of First Instance. The Government offered no justification for their particularly lengthy nature, and indeed acknowledged that there had been a backlog of income-tax cases (see paragraph 90 above).

157. The Court accepts that the complexity of the present tax-related case may justify lengthier periods than in other types of cases, especially those which call for particular expedition owing to their subject matter. This is particularly so given that the State has a greater interest than the individual in prompt recovery of the tax. Nevertheless, even assuming that the reasonable‑time guarantee should not apply with its full stringency (see paragraph 76 above), the Court considers that, taken overall and in the circumstances of the case, the proceedings brought by the applicant company exceeded a reasonable time.

158. There has therefore been a violation of Article 6 § 1 of the Convention on that account.

5. APPLICATION OF ARTICLE 41 OF THE CONVENTION

159. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

1. Damage

160. The applicant company sought compensation in respect of pecuniary damage comprising the taxes paid, together with costs and interest for late payment, totalling 606,712.94 euros (EUR), plus default interest as of 1 March 1997, the mean payment date. It also claimed EUR 1 in respect of non-pecuniary damage for each violation found, plus default interest as of 15 February 2001, the date on which the limitation period had allegedly expired.

161. The Government argued that there was no causal link between the alleged pecuniary damage and the complaints concerning the supposed breach of the reasonable-time requirement and the substitution of grounds by the Court of Cassation. As to the complaint concerning the legislature’s intervention during the proceedings, the Government submitted that compensation equal to the amount of tax paid did not meet the definition of “just satisfaction”, as exempting the applicant company completely from payment of the tax could not be considered just.

162. The Court has found no violation in respect of the complaints concerning the legislature’s intervention and the substitution of grounds. Hence, no award for just satisfaction can be made on that account.

163. The only violation found in the present judgment is a violation of Article 6 § 1 of the Convention on account of the failure to comply with the reasonable-time requirement. Hence, any award of just satisfaction can be made solely under this head. In that connection the Court cannot discern any causal link between the violation found and the pecuniary damage alleged. It therefore dismisses the claim under this head.

164. As to non-pecuniary damage, regard being had to the amount claimed by the applicant company and the specific circumstances of the present case, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicant company.

2. Costs and expenses

165. The applicant company claimed EUR 31,973.07 in respect of the costs and expenses incurred in the proceedings before the Court of First Instance and the Court of Appeal, and EUR 10,250 for those incurred before the Court of Cassation. It also claimed EUR 19,875 in respect of the costs and expenses incurred before the Court, and a provisional award of one euro for the Grand Chamber proceedings. The applicant company also claimed interest on these amounts as of the date of payment. It requested that any award made under this head be paid directly into the bank account of its representative, Mr Van Belle.

166. With regard to the reasonableness of the costs and expenses claimed for the proceedings before the Court, the Government left the matter to the Court’s discretion. As to the proceedings before the Court of First Instance and the Court of Appeal, they observed that there was no causal link between the expenses claimed and the complaints raised by the applicant company, and that the latter would have had to pay those expenses in any event. The same was true with regard to the costs and fees relating to the preparation of an opinion on the chances of lodging a successful appeal on points of law, and those relating to the observations in reply to the appeal on points of law by the Belgian State.

167. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. This includes only domestic legal costs incurred to prevent or redress the breach of the Convention found by the Court (see, to similar effect, inter alia, Nada v. Switzerland [GC], no. 10593/08, § 243, ECHR 2012). Regard being had to the single violation found, that is not the case as regards the domestic proceedings. The Court therefore dismisses the claim in respect of the costs and expenses incurred in those proceedings.

168. As to the proceedings before it, the Court reiterates that costs and expenses are only recoverable to the extent that they relate to the violation found (see Murray v. the Netherlands [GC], no. 10511/10, § 134, 26 April 2016, and Denisov v. Ukraine [GC], no. 76639/11, § 146, 25 September 2018, and the case-law cited therein). In that connection the Court notes that the applicant company’s complaints have succeeded to only a very limited extent and that a substantial portion of its observations concerned aspects of the application resulting in a finding of no violation. Hence, regard being had to the documents in its possession and the above criteria, the Court deems it reasonable to award EUR 5,000 to the applicant company in respect of the proceedings before it.

169. That sum is to be paid directly into the bank account of Mr Van Belle, the applicant company’s representative.

3. Default interest

170. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT,

1. Declares, unanimously, the application admissible;
2. Holds, by ten votes to seven, that there has been no violation of Article 6 § 1 of the Convention on account of the legislature’s intervention during the proceedings;
3. Holds, unanimously, that there has been no violation of Article 6 § 1 of the Convention on account of the substitution of grounds;
4. Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention on account of the failure to comply with the reasonable-time requirement;
5. Holds, unanimously, that the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non‑pecuniary damage sustained by the applicant company;
6. Holds, unanimously,

(a) that the respondent State is to pay the applicant company, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant company, in respect of costs and expenses, to be paid directly into its representative’s bank account;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses, by eleven votes to six, the remainder of the claim for just satisfaction.

Done in English and French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 3 November 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Johan Callewaert Robert Spano
Deputy to the Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judge Lemmens ;

(b) joint partly dissenting opinion of Judges Spano, Kjølbro, Turković, Yudkivska, Pejchal, Mourou-Vikström and Felici.

R.S.
J.C.

CONCURRING OPINION OF JUDGE LEMMENS

(Translation)

1. I voted with the majority in finding no violation of Article 6 § 1 of the Convention on account of the legislature’s intervention during the proceedings.

I also agree with the reasoning that led the majority to that finding. However, I would like to add a short “national” footnote to the judgment, in order to focus attention on a crucial aspect that was not addressed (the “elephant in the room”), and thus clarify the real scope of the case brought before the Court.

2. The judgment concerns the interruption of the limitation period. Where the limitation period is interrupted, it stops running and restarts (from day one) once the cause of the interruption has ceased to exist. A creditor may create a situation that interrupts the limitation period in order to safeguard his or her claim. In the present case the limitation period was deemed to have been interrupted by the serving of a demand for payment at the request of the tax authorities.

The majority felt bound to examine the case from the standpoint of the interruption of the limitation period, this having been the sole ground for the Court of Cassation’s finding, in its judgment of 13 March 2009, that the limitation period had not expired (see paragraphs 98-99 of the present judgment).

The elephant in the room to which I refer is the suspension of the limitation period. This results from an obstacle which, while it persists, prevents the limitation period from continuing to run; once the obstacle is removed, the limitation period resumes until it reaches completion. An obstacle of this kind may result from the actions of the debtor. This transpires, in particular, from Article 2251 of the Civil Code, according to which the limitation period ceases to run for as long as the creditor is unable (owing, for instance, to the debtor’s actions) to recover the debt (see paragraph 51 of the judgment).

For a reason unknown to me, the issue of suspension was not raised by the parties in either the Chamber or the Grand Chamber proceedings. It was not for the Court to raise the matter of its own motion.

3. However, the issue of suspension did indeed feature in the domestic court proceedings. In its judgment of 6 February 2007 the Antwerp Court of Appeal held that the limitation period was suspended until such time as the dispute between the applicant company and the tax authorities was finally settled (see paragraph 21 of the judgment). It was this decision, and this reasoning, that the applicant company challenged before the Court of Cassation (see paragraph 22 of the judgment).

In its judgment of 13 March 2009 the Court of Cassation did not rule on the suspension of the limitation period. It could have done so, thereby assessing the lawfulness of the Court of Appeal’s decision in that regard. However, it did not do so, opting instead to base its decision on a ground that had been dismissed by the Court of Appeal, relating to the interruption of the limitation period by the demand for payment under section 49 of the Miscellaneous Provisions Act of 9 July 2004 (see paragraph 27 of the present judgment). As a result of the substitution of the ground relied on by the Court of Appeal, the ground of appeal raised by the applicant company, in which it challenged the finding that the dispute between itself and the tax authorities had the effect of suspending the limitation period, was declared inadmissible for lack of interest (ibid.).

“Lack of interest”, pure and simple. The Court of Cassation did not hold that, contrary to the Court of Appeal’s assessment, the limitation period had not been suspended. It merely found that, since the demand for payment had the effect of interrupting the limitation period, the tax authorities’ entitlement to recover the debt was not time-barred. It thus arrived at the same conclusion as the Court of Appeal, but on different grounds.

Even supposing that the finding that the limitation period was interrupted were to be regarded as being in breach of the Convention, it would not automatically follow that the limitation period should be considered to have expired. The issue of the possible suspension of the limitation period would still remain to be examined.

4. Of course, owing to the substitution of grounds by the Court of Cassation and the resulting dismissal of the applicant company’s appeal on points of law, this last issue no longer arose before the domestic courts in the present case.

However, it did arise in other cases examined after that of the applicant company. Moreover, some commentators explicitly observed that the issue of suspension was to be distinguished from that of interruption and that it was still to be determined, especially if the domestic courts or the Court should one day decide that section 49 of the Miscellaneous Provisions Act of 9 July 2004 was incompatible with the Convention[1].

In two judgments of 22 September 2011 the Court of Cassation held that, in so far as it was clear from Article 410 of the 1992 Income Tax Code (see paragraph 33 of the present judgment) that the lodging of an objection precluded collection of the tax debt, it should be inferred from that provision, read in conjunction with Article 2251 of the Civil Code, that the limitation period for recovery of the debt was in fact suspended (F.10.0015.N and F.10.0052.N). The same court ruled to similar effect in a judgment of 15 February 2013 (F.11.0128.N). In a judgment of 2 March 2017 it further clarified that the period was suspended until such time as a final decision had been given on the taxpayer’s appeal against the relevant tax assessment (F.12.0056.F).

These rulings rendered the entire discussion on the validity of section 49 of the Miscellaneous Provisions Act of 9 July 2004 superfluous. Legal commentators adopted this understanding from the outset[2].

5. Thus, given what we know of the post factum case-law of the Court of Cassation, we can legitimately consider that if that court had ruled on the merits of the ground of appeal relied on by the applicant company rather than substituting its own grounds for those of the contested judgment, and thus had not applied section 49 of the Miscellaneous Provisions Act of 9 July 2004 retrospectively, the applicant company’s appeal on points of law would in all likelihood still have been dismissed.

Of course, I cannot assert that this would certainly have been the case. But the above-mentioned case-law of the Court of Cassation demonstrates in any event that the possible invalidation of section 49 of the Act of 9 July 2004 would not have been the end of the matter in domestic law.

In retrospect, the whole saga surrounding the legislature’s intervention by means of the legislation at issue strikes me as nothing more than a storm in a teacup. In my view, if the Court had been able to take into consideration the ground relating to the suspension of the limitation period, that ground would have formed part of the “specific circumstances of the present case” referred to in paragraph 123 of the judgment.

JOINT PARTLY DISSENTING OPINION OF JUDGES SPANO, KJØLBRO, TURKOVIĆ, YUDKIVSKA, PEJCHAL, MOUROU-VIKSTRÖM AND FELICI

1. We are unable to subscribe to the Court’s reasoning and its finding “that there has been no violation of Article 6 § 1 of the Convention on account of the legislature’s intervention during the proceedings” (point 2 of the operative provisions).

2. In our view and for the reasons explained below, the Court has not applied the existing case-law of relevance to the present case, and, to the extent that it is to be understood as a further development or clarification of the case-law, we have principled objections to the reasoning in this part of the judgment, which in our opinion creates confusion regarding the application of well-established principles.

3. In our view, the Court has failed to take sufficient account of the core of the complaint brought before it, the existing case-law on Article 7 of the Convention, the link between Articles 6 and 7, the need to interpret the two sets of rights in a harmonious manner and the possible negative consequences for the Court’s case-law flowing from this judgment.

The core of the complaint brought before the Court in the present case

4. In 1995 the tax authorities presented the applicant company with a claim relating to the 1993 fiscal year, including supplementary tax (the taxes due) and tax surcharges (the penalty imposed).

5. The applicant company objected to the claim and the dispute was brought before the domestic courts. The core of the applicant company’s objection was that the claim was time-barred. More specifically, the applicant company argued that the tax authorities’ demand for payment of 24 October 2000 did not interrupt or suspend the running of the five-year limitation period and that, consequently, the claim was time-barred.

6. While the dispute was pending before the domestic courts the Miscellaneous Provisions Act was enacted on 9 July 2004, and entered into force on 25 July 2004.

7. On 6 February 2007 the Antwerp Court of Appeal ruled in favour of the tax authorities and against the applicant, not basing its ruling on section 49 of the Miscellaneous Provisions Act. The judgment was appealed against, and before the Court of Cassation the tax authorities relied exclusively on section 49 of the Miscellaneous Provisions Act (see paragraph 23 of the judgment).

8. The Court of Cassation applied section 49 of the Miscellaneous Provisions Act and ruled in favour of the tax authorities and against the applicant company, applying the provision in question retrospectively and finding that the demand for payment of 24 October 2000 had interrupted the limitation period and that, consequently, the claim for supplementary tax and tax surcharges had not become time-barred (see paragraph 27 of the judgment).

9. In our view, there can be no doubt that had it not been for the enactment and retrospective application of section 49 of the Miscellaneous Provisions Act, the supplementary tax and the tax surcharges would have been declared time-barred in the applicant company’s case. This would have been in accordance with the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003.

10. This follows clearly from the reasoning of the Court of Cassation (see paragraph 27 of the judgment) to the effect that section 49 of the Miscellaneous Provisions Act “must be applied retrospectively by the courts, in accordance with the legislature’s wishes” and that the legislature’s aim in adopting a retrospective measure was “to protect the rights of the Treasury in the context of pending proceedings in which tax debts disputed on the basis of the position taken in the case-law were about to become, or had already become, time-barred.”

11. This understanding of domestic law and practice is also confirmed by the reasoning of the Constitutional Court in its judgment of 7 December 2005 (see paragraph 47 of the judgment), to the effect that the purpose of the legislative interference was to counteract the retrospective effects of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003 and that it was justified due to exceptional circumstances.

12. This is also confirmed by the Government’s written observations before the Grand Chamber, in which the Government do not call into question the retrospective application of section 49 of the Miscellaneous Provisions Act in the applicant company’s case, explaining that the passing of the Act was a response by the legislature aimed at counteracting the change in the Court of Cassation’s case-law resulting from the judgments of 10 October 2002 and 21 February 2003. In fact, the Government argue extensively that the legislative interference with retrospective effect was justified by exceptional circumstances and pursued the purpose of restoring legal certainty.

13. This understanding of domestic law and practice was also the basis on which the Chamber decided the case. Thus, the Chamber stated that the applicant company “could legitimately expect that its tax debt would be declared time-barred in accordance with the case-law of the Court of Cassation” arising out of the judgments of 10 October 2002 and 21 February 2003. The Chamber also stated that section 49 of the Miscellaneous Provisions Act “settled, finally and with retrospective effect, the issue of interruption of the limitation period in ongoing tax proceedings”. More specifically, the Chamber stated that the supplementary taxes “had become time-barred”, that it was “solely due to the retrospective application of the provisions” that the claim had not been declared time-barred, and that the limitation period “had already expired” (see paragraphs 63, 64, 65 and 67 of the Chamber judgment).

14. The majority also seem to acknowledge this understanding of domestic law and practice (see paragraph 99 of the judgment).

15. From this we conclude the following: had it not been for the legislature’s enactment of section 49 of the Miscellaneous Provisions Act, the tax authorities’ claim for supplementary tax and tax surcharges would have been declared time-barred, as the demand for payment of 24 October 2000, in the light of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003, did not interrupt or suspend the running of the limitation period. More specifically, the very purpose of passing the Act was to prevent that from happening, and the Act was applied to pending cases and with retrospective effect.

16. In formulating the question to be decided by the Court in the present case, it is important to distinguish between supplementary tax and tax surcharges.

17. As rightly concluded by the Court, and not contested by the Government, Article 6 of the Convention does not apply to supplementary tax (see paragraphs 66 and 71 of the judgment), but does apply to tax surcharges that constitute criminal charges within the meaning of the Court’s case-law (see paragraphs 70 and 71 of the judgment). Not only is the Court’s case-law clear on this point, but according to domestic law a claim for supplementary tax is “subject to an increase based on the nature and seriousness of the offence” (see paragraph 35 of the judgment). In other words, the tax surcharge is imposed “based on the nature and the seriousness of the offence”.

18. From this we conclude that nothing would have prevented the legislature from enacting section 49 of the Miscellaneous Provisions Act and applying it with retrospective effect to claims for supplementary tax, as the latter fall outside the scope of Article 6 of the Convention, under both its civil and criminal limbs. Moreover, in the present case there may have been exceptional circumstances justifying such a legislative intervention to protect the general interest. However, that is not what the Court was called upon to decide in the present case.

19. On the contrary, the legal issue to be decided by the Court was the following. Did the enactment of section 49 of the Miscellaneous Provisions Act and its retrospective application in the applicant company’s case, resulting in a criminal sanction (tax surcharges) being imposed on the applicant company even though the claim had become time-barred as a consequence of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003, violate the applicant company’s rights under Article 6 of the Convention? In other words, did the legislative intervention, restoring the applicant company’s criminal liability for tax surcharges after the offence had become time-barred, violate the applicant company’s rights under Article 6 of the Convention?

The existing case-law on Article 7 of the Convention

20. The answer to the legal question articulated above, concerning the restoration of criminal liability for an offence that has already become time‑barred, would, in our view, be clear and straightforward if the question were to be assessed under Article 7 of the Convention.

21171. Based on existing case-law, restoring criminal liability for an offence that has become time-barred will violate Article 7 of the Convention, and it makes no difference whether criminal liability is restored by means of a legislative intervention, as in the present case, or by means of a change in the case-law.

22. Depending on the domestic legal system in question, statutes of limitation may be regarded as substantive or procedural rules. In some legal systems, if a crime has become time-barred the accused cannot be held criminally responsible for the offence and will be acquitted. In other legal systems, if a crime has become time-barred, the accused cannot be prosecuted for the offence and the proceedings will have to be discontinued. Irrespective of whether statutes of limitation are seen as substantive or procedural rules, the outcome is, in practical terms, the same for the accused, who cannot be held criminally responsible for the offence.

23. The Court has ruled that amending statutes of limitation and extending the limitation period for an offence will not violate Article 7 of the Convention even if such legislative intervention is applied with retrospective effect, provided that the offence in question had not already become time‑barred when the new legislation was adopted.

24. In Coëme and Others v. Belgium (nos. 32492/96 and 4 others, § 149, ECHR 2000-VII), the Court ruled that immediate application of new statutes of limitation, extending the limitation period for an offence, did not violate Article 7 of the Convention. In reaching its conclusion, the Court stated as follows:

“The extension of the limitation period brought about by the Law of 24 December 1993 and the immediate application of that statute by the Court of Cassation did, admittedly, prolong the period of time during which prosecutions could be brought in respect of the offences concerned, and they therefore detrimentally affected the applicants’ situation, in particular by frustrating their expectations. However, this does not entail an infringement of the rights guaranteed by Article 7, since that provision cannot be interpreted as prohibiting an extension of limitation periods through the immediate application of a procedural law where the relevant offences have never become subject to limitation” (emphasis added).

25. In Kononov v. Latvia ([GC], no. 36376/04, §§ 232 and 233, ECHR 2010), the Court had to assess whether the criminal conviction of the applicant for a crime for which no statute of limitation applied amounted to an ex post facto extension of a national limitation period which would have applied when the offence was committed, and consequently whether his prosecution amounted to a retrospective application of criminal law. In assessing the complaint, the Court formulated the question as follows: “The essential question to be determined by the Court is whether at any point prior to the applicant’s prosecution, such action had become statute-barred ...” In reaching the conclusion that there had been no violation of Article 7 of the Convention, the Court stated: “In sum, the Court concludes, firstly, that any prescription provisions in domestic law were not applicable ... and, secondly, that the charges against the applicant were never prescribed under international law ... It therefore concludes that the prosecution of the applicant had not become statute-barred” (emphasis added).

26. In our view, it was already clear from the cases cited that States could enact legislation extending limitation periods, and could apply such provisions with retrospective effect, provided that the offence in question had not already become time-barred when the new provisions were enacted, as this would imply restoring or reviving criminal liability for crimes that had already become time-barred, in violation of Article 7 of the Convention.

27. If there were any doubts as to the Court’s case-law on this issue, they were dispelled by the Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture ([GC], request no. P16-2021-001, Armenian Court of Cassation, 26 April 2022), in which the Court stated as follows:

“72. The Court further reiterates that, as it has held on several occasions, limitation may be defined as the statutory right of an offender not to be prosecuted or tried after the lapse of a certain period of time since the offence was committed. Limitation periods, which are a common feature of the domestic legal systems of the Contracting States, serve several purposes, which include ensuring legal certainty and finality and preventing infringements of the rights of defendants, which might be impaired if courts were required to decide on the basis of evidence which might have become incomplete because of the passage of time (see Coëme and Others, cited above, § 146).

73. In the aforementioned case, the Court was called upon to determine whether legislative changes extending a limitation period, which had not yet expired, posed a problem under Article 7. The Court accepted that the extension of the limitation period had indeed prolonged the period of time during which prosecutions could be brought in respect of the offences concerned and therefore detrimentally affected the applicants’ situation, in particular by frustrating their expectations. However, this did not entail an infringement of the rights guaranteed by Article 7, since that provision could not be interpreted as prohibiting an extension of limitation periods through the immediate application of a procedural law where the relevant offences had never become subject to limitation ... In reaching that conclusion, the Court attached importance to the fact that the domestic court had followed the generally recognised principle that, save where expressly provided to the contrary, procedural rules apply immediately to proceedings that are under way (the tempus regit actum principle) ...

75. Thus, as can be seen from the rulings summarised above, legislative changes extending a limitation period which had not yet expired have not been found to constitute a failure to comply with Article 7 of the Convention.

76. However, in contrast to those cases, the Court found a violation of Article 7 in a recent case in which the applicants had been convicted of an offence which was time‑barred (see Antia and Khupenia v. Georgia, no. 7523/10, §§ 38-43, 18 June 2020). In doing so, the Court, while reiterating the definition and purpose of limitation periods stated at paragraph 72 above, observed that in this context, the main question before it, subject to its power of review under Article 7, was whether there was a valid legal basis for the applicants’ conviction in view of the expiry of the statute of limitation in respect of the relevant offence.

77. In other words, as can be deduced from the Court’s findings above, where criminal responsibility has been revived after the expiry of a limitation period, it would be deemed incompatible with the overarching principles of legality (nullum crimen, nulla poena sine lege) and foreseeability enshrined in Article 7 ... It follows that where a criminal offence under domestic law is subject to a statute of limitation, and becomes time-barred so as to exclude criminal responsibility, Article 7 would preclude the revival of a prosecution in respect of such an offence on account of the absence of a valid legal basis. To hold otherwise would be tantamount to accepting ‘the retrospective application of the criminal law to an accused’s disadvantage’ ...

78. In the present context, the Court is not presented with a legislative extension of a limitation period before its expiry in a case pending for adjudication, but with a situation where the requesting court is to determine whether to apply a ten-year limitation period, pursuant to Article 75 § 1(3) of the CC and Article 35 § 1(6) of the CCP, or an already existing provision in Article 75 § 6 of the CC specifying an exception whereby no limitation period is to apply in the circumstances described therein. ... it is first and foremost for the national court to determine, within the context of its domestic constitutional and criminal law rules, whether rules of international law having legal force in the national legal system, in the present instance pursuant to Article 5 § 3 of the Constitution ..., can provide for a sufficiently clear and foreseeable legal basis within the meaning of Article 7 of the Convention to conclude that the criminal offence in question is not subject to a statute of limitation” (emphasis added).

28. The Court delivered the following opinion:

“Where a criminal offence is subject to a statute of limitation pursuant to the domestic law and the applicable limitation period has already expired, Article 7 of the Convention precludes the revival of a prosecution in respect of such an offence. It is first and foremost for the national court to determine whether rules of international law having legal force in the national legal system can provide for a sufficiently clear and foreseeable legal basis within the meaning of Article 7 of the Convention to conclude that the criminal offence in question is not subject to a statute of limitation” (emphasis added).

29. The above-mentioned case-law leads us to the following conclusion: where a criminal offence is subject to a statute of limitation pursuant to the domestic law and the applicable limitation period has already expired, Article 7 of the Convention precludes the revival of a prosecution in respect of such an offence.

The link between Articles 6 and 7 of the Convention

30. It may be argued that the above-mentioned case-law concerned complaints under Article 7 of the Convention and, therefore, that the outcome of those cases might have been different had the complaints been assessed under Article 6 of the Convention.

31. Admittedly, there is a difference between Article 7 of the Convention, providing substantive guarantees in criminal cases, and Article 6 of the Convention, providing procedural guarantees in criminal cases.

32. However, it is a well-established principle that the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see, for example, Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 54, ECHR 2012; Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, § 136, ECHR 2012 (extracts); Marguš v. Croatia [GC], no. 4455/10, § 128, ECHR 2014 (extracts); and Merabishvili v. Georgia [GC], no. 72508/13, § 293, 28 November 2017).

33. Furthermore, in many cases, the Court has emphasised the link between Article 6 and Article 7 in criminal cases, in particular with regard to the notion of a “criminal charge”. By way of illustration, in Gestur Jónsson and Ragnar Halldór Hall v. Iceland ([GC], nos. 68273/14 and 68271/14, § 112, 22 December 2020), the Court stated as follows:

“The Court has already held that the proceedings in question did not involve the determination of a ‘criminal charge’ within the meaning of Article 6 of the Convention and that this provision did not apply to those proceedings under its criminal limb. In these circumstances and for reasons of consistency in the interpretation of the Convention taken as a whole, the Court does not find that the fines complained of under Article 7 are to be considered a ‘penalty’ within the meaning of this provision ..., which accordingly did not apply.”

34. More importantly, in a case where the Court had to assess a complaint under Article 6 of the Convention concerning a legislative intervention with retrospective effect extending a limitation period, it relied on its case-law under Article 7 of the Convention. Thus, in Chim and Przywieczerski v. Poland (nos. 36661/07 and 38433/07, §§ 205 and 206, 12 April 2018), the Court found that the legislature’s enactment of legislation extending limitation periods in the course of criminal proceedings against the applicant did not amount to a violation of Article 6 of the Convention. In its reasoning, the Court reiterated its earlier case-law, as follows:

“In this connection, the Court reiterates that in Coëme and Others v. Belgium, it examined a complaint under Article 7 of the Convention about the immediate application of a law extending limitation periods. It found that the provision had not been violated ’since it could not be interpreted as prohibiting an extension of limitation periods through the immediate application of a procedural law where the relevant offences have never become subject to limitation’ ...” (emphasis added).

In the applicants’ case, the offences had not become time-barred when the new legislation entered into force and the Court concluded as follows:

“Having regard to those findings, which may be respectively applied to the second applicant’s complaint under Article 6 § 1, and in the absence of arbitrariness, the Court finds that the application of the 2005 Amendment extending limitation periods to the case against the second applicant cannot be interpreted as a violation of the right to a fair hearing” (emphasis added).

35. From this we conclude, without hesitation, that Article 6 of the Convention cannot be interpreted in a manner that would permit the introduction of new legislation with retrospective effect extending limitation periods for criminal offences that have already become time-barred under domestic law, thereby restoring or reviving criminal liability, as this would amount to a violation of, and therefore be inconsistent with, Article 7 of the Convention.

The majority’s reasoning and its possible negative consequences for the Court’s case-law

17236. In reaching the conclusion that there has been no violation of Article 6 of the Convention, the Court relies on several arguments. However, in our view, those arguments cannot, separately or in combination, justify the finding of no violation.

37. The Court relies on a line of case-law to the effect that tax surcharges differ from the hard core of criminal law and that, therefore, the guarantees of Article 6 of the Convention do not necessarily apply with their full stringency (see paragraphs 76 and 122 of the judgment).

38. We do not call into question this line of case-law, but, in our view, it is not relevant to the present case. In all the cases cited by the Court, the complaint under Article 6 concerned procedural guarantees, not legislative interventions restoring criminal liability for offences that had become time‑barred. Thus, Jussila v. Finland ([GC], no. 73053/01, ECHR 2006-XIV) concerns the right to a public hearing, Segame SA v. France (no. 4837/06, ECHR 2012 (extracts)) concerns access to a court and scope of review, and Chap Ltd v. Armenia (no. 15485/09, 4 May 2017) concerns the examination of witnesses. It is not surprising that the application of Article 6 may be more flexible in respect of cases that are criminal within the autonomous meaning of Article 6 but at the same time do not belong to the “hard core of criminal law”, in particular as regards the manner in which such cases are processed and the procedural guarantees applicable. However, it is quite a different matter to find that the nature of the criminal charge can justify restoring criminal liability for offences that have already become time-barred.

39. The Court also relies on case-law concerning legislative interference with retrospective effect on pending proceedings and on the “compelling grounds” test (see paragraphs 92-94 of the judgment).

40. Here again, we do not call into question the line of case-law relied on, but we would argue that for several reasons it does not justify the findings made by the majority. Firstly, the case-law relied on has developed primarily in relation to civil disputes but has also, in a few cases, been applied to criminal cases.

41. The cases of Biagioli v. San Marino ((dec.), no. 8162/13, 8 July 2014) and Chim and Przwieczerski (cited above) are of little relevance to the present case as they both concerned legislative interference extending the limitation periods in cases where the criminal offence, unlike in the present case, had not already become time-barred.

42. Nor can Scoppola v. Italy (no. 2) ([GC], no. 10249/03, 17 September 2009) support the Court’s finding in the present case. In that case, the applicant had opted for summary proceedings in a criminal case in order to obtain certain advantages, in particular a reduced sentence. This entailed waiving certain procedural guarantees that would otherwise have applied, including the right to a public hearing, the examination of witnesses and the production of evidence. However, owing to a legislative intervention with retrospective effect applying the new provisions to cases where the accused had already opted for summary proceedings, the advantages of the applicant’s choice were removed. In that case the Court, not surprisingly, found that there had been a violation of Article 6 of the Convention, emphasising that the legislative intervention had frustrated the applicant’s legitimate expectations. The Court stated, inter alia, as follows:

“139. ... It is contrary to the principle of legal certainty and the protection of the legitimate trust of persons engaged in judicial proceedings for a State to be able to reduce unilaterally the advantages attached to the waiver of certain rights inherent in the concept of fair trial. As such a waiver is made in exchange for the advantages mentioned, it cannot be regarded as fair if, once the competent domestic authorities have agreed to adopt a simplified procedure, a crucial element of the agreement between the State and the defendant is altered to the latter’s detriment without his consent. In that connection, the Court notes that, although the Contracting States are not required by the Convention to provide for simplified procedures ..., where such procedures exist and have been adopted, the principles of fair trial require that defendants should not be deprived arbitrarily of the advantages attached to them.”

43. Secondly, in analysing whether the Government have sufficiently demonstrated that the grounds for a legislative intervention in pending judicial proceedings meet the very high threshold required to constitute “compelling grounds” for the purposes of Article 6 of the Convention, we find it axiomatic that any grounds advanced for measures that directly breach Article 7 cannot be considered “compelling” for these purposes. The approach taken by the majority in fact creates a direct clash between the protections afforded by the two Articles.

44. In the present case the Court, applying the “compelling grounds” test (see paragraphs 101, 102 and 123 of the judgment), identifies the “relevant grounds” and assesses their “compelling nature” (see paragraph 108 of the judgment). The Court recognises three grounds as being relevant: (1) the aim of combatting large-scale tax fraud (see paragraph 104 of the judgment); (2) the aim of avoiding arbitrary discrimination between taxpayers (see paragraph 105 of the judgment); and (3) the aim of restoring legal certainty (see paragraphs 106 and 107 of the judgment).

45. We have already explained above why the application of this line of case-law is problematic with regard to the specific legal question to be answered in the present case. In addition, we would reiterate that all the cases referred to by the Court (see paragraph 107 of the judgment) concern legislative interventions in pending civil and not criminal cases, and as such are not directly relevant to the present case.

46. The Court relies on the retrospective effects of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003 on administrative practice and case-law concerning the issue of interruption of the limitation period, highlighting the fact that the Court of Cassation ruled for the first time on the issue (see paragraphs 109-112 of the judgment). We fail to see the relevance of this argument. The issue to be decided by the domestic courts was whether or not the demand for payment dated 24 October 2000 interrupted or suspended the running of the limitation period. This depended on an interpretation of domestic law. In the above-mentioned judgments, the Court of Cassation took a position on the correct interpretation of domestic law and reached the conclusion that a demand for payment did not interrupt the running of the limitation period. Once the Court of Cassation had interpreted domestic law in a final ruling, the applicant company could legitimately expect that this case-law would also be applied to its case. In other words, the applicant company could legitimately expect that the tax authorities’ claim had become, and would be declared, time-barred (see also paragraph 99 of the judgment).

47. The Court also relies on the timing of the legislative interference, emphasising that it occurred a relatively short time after the Court of Cassation’s judgment of 10 October 2002 (see paragraph 113 of the judgment). Again, we fail to see the relevance of this argument. What is decisive is not whether the legislature intervened shortly after the judgment of 10 October 2002, but whether the applicant company’s criminal liability for tax surcharges had become time-barred when the Miscellaneous Provisions Act was enacted.

48. The Court also relies on the argument that the legislature was not bound by the Court of Cassation’s judgment of 10 October 2002 and that it had the power to amend legislation (see paragraph 114 of the judgment). Obviously, we agree that the legislature was not bound by the Court of Cassation’s judgment of 10 October 2002 and could amend the relevant legislation on statutes of limitation and interruption of the running of limitation periods. However, as this case is about tax surcharges that constitute criminal charges within the meaning of Article 6 of the Convention, the legislature could, in our view, only do so in respect of cases where the claim had not already become time-barred.

49. The Court further argues that legal certainty was not undermined, that the legislative intervention restored legal certainty, that the judgments of 2002 and 2003 were an unexpected development in the case-law of the Court of Cassation, and that the Miscellaneous Provisions Act re-established previous administrative practice (see paragraph 117 of the judgment). In addition, the Court argues that the applicant company could not have expected that the claim relating to its tax debt, and consequently also the claim relating to the tax surcharges, would be declared time-barred (see paragraph 118 of the judgment). With all due respect, how can it reasonably be argued that a judgment of the Court of Cassation, the highest court of the land, taking a clear position on a legal issue for the first time is itself the source of legal uncertainty? On the contrary, the legal position was made clear after the Court of Cassation judgment of 10 October 2002, not the other way around. In the present case the applicant company argued that the tax authorities’ claim had become time-barred, arguing, in particular, that the demand for payment of 24 October 2000 had not interrupted the running of the limitation period, a view confirmed by the Court of Cassation in its judgments of 2002 and 2003. Once the highest domestic court has taken a final position on the correct interpretation of domestic law, the principle of legal certainty actually requires such a final ruling to be complied with and applied, even though this does not prevent the legislature from intervening, even with retrospective effect, provided that such a legislative intervention does not restore or revive criminal responsibility for offences that have already become time-barred.

50. The Court also observes that the expiry of the limitation period had not been established by a judicial decision, still less one with res judicata effect (see paragraph 121 of the judgment). Again, the expiry of a limitation period for a criminal charge, resulting in the offence becoming time-barred, may occur at various stages of the proceedings. If a criminal offence has become time-barred before proceedings have been instituted, this would normally have as a consequence that no criminal proceedings are instituted. If the statute of limitation expires while the criminal proceedings are pending, this would normally lead to the discontinuation of the proceedings or the acquittal of the accused. We fail to see how the protection offered by statutes of limitation can be dependent upon whether there has been a final judicial decision on the matter, something which would significantly reduce the protection. Nor is there anything in the advisory opinion referred to by the Court (see paragraph 121 of the judgment) to support the view that it is decisive or important whether the expiry or otherwise of a limitation period has been established by a judicial decision.

51. Finally, the Court observes that the present case concerns Article 6 of the Convention, not Article 7, and that tax surcharges differ from the hard core of criminal law (see paragraph 122 of the judgment). We have already addressed this argument above.

Concluding remarks

52. For the reasons outlined above, we are of the view that the enactment of section 49 of the Miscellaneous Provisions Act and its retrospective application in the applicant company’s case, resulting in a criminal sanction (tax surcharges) being imposed on the applicant company even though the claim had become time-barred as a consequence of the Court of Cassation’s judgments of 10 October 2002 and 21 February 2003, amounted to a violation of the applicant company’s rights under Article 6 of the Convention.

53. The existing case-law under Article 6 and Article 7 clearly supports this conclusion. The Court’s reliance on the “compelling grounds” test and the argument that tax surcharges differ from “the hard core of criminal law”, invoked in order to justify the finding of no violation of Article 6, lead to the unfortunate outcome that a legislative intervention with retrospective effect restoring criminal liability for offences that have become time-barred – something that would amount to a violation of Article 7 of the Convention – can, nevertheless, be in conformity with Article 6 of the Convention. Article 6 is thereby interpreted in a manner that renders it inconsistent with Article 7 of the Convention.

[1] See, in particular, B. Vanermen, “De verjaring van betwiste directe belastingen: het Hof van Cassatie beantwoordt een aantal van de resterende vragen” (“The time-barring of contested direct tax debts: the Court of Cassation answers some of the outstanding questions”), comments on the Court of Cassation judgment of 17 January 2008, Tijdschrift voor Fiscaal Recht (Journal of Taxation Law), 2008, (786), 790.

[2] See, for example, J. Van Besien, “Artikel 443ter, § 1, 2de lid WIB 1992 versus beginsel van artikel 2251 B.W. Conclusie achteraf, was het allemaal niet nodig geweest?” (“Article 443 ter § 1, subparagraph 2, of the 1992 Income Tax Code and the principle of Article 2251 of the Civil Code. With hindsight, was it all unnecessary?”, comments on the Ghent Court of Appeal judgment of 12 October 2010, Tijdschrift voor Fiscaal Recht (Journal of Taxation Law), 2011, 645.