Judgment;Summary — ECLI:EU:C:2022:127
Date: 2022-02-24
Language of the case: French
Court formation: Seventh Chamber
Subject matter: Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

summary statement, failing which they are not regarded as deductible 
expenses and may give rise to […] a separate corporation tax levy, in accordance 
with Article 219 of the CIR 92. 
Since the PHARMACIE POPULAIRE – LA SAUVEGARDE SCRL had not 
completed individual fee forms 281.50 or summary statements relating to those 
expenses, the tax authorities sent the company a correction notice on 20 August 
2015 informing it that it intended to make the sums in question subject to the 
separate levy. 5 
[…] 
By tax decision of 23 November 2015, the authorities maintained their position 
stating that the reason for the planned corrections is not based on the fact that the 
transactions were not carried out in good faith or that the corresponding services 
were not actually provided but on the fact that PHARMACIE POPULAIRE – LA 
SAUVEGARDE has not completed individual fee forms 281.50 relating to the 
sums paid to the LAD SARL. and that it also has not established that the amount 
of the expenses, covered by Article 57, is included in a tax return filed by the 
recipient in accordance with Article 305 or in a similar return filed abroad by the 
recipient. 6 
 
2 […] 
3 […] 
4 […] 
5 […] 
6 […] 
PHARMACIE POPULAIRE 
 
3 
The levies [at issue] were therefore [claimed in that respect […] on 24 November 
2015. 
5 PHARMACIE POPULAIRE – LA SAUVEGARDE SCRL lodged a complaint 
[…] which was declared […] unfounded [Or. 5] […]. 
6 It then brought the dispute before the Liège Court of First Instance […]. 
By judgment of 25 October 2018, that court declared the action […] unfounded 
[…]. 
7 PHARMACIE POPULAIRE – LA SAUVEGARDE SCRL filed an appeal on 
7 May 2019. 
It requests the Court to cancel […] the levies at issue. 
It asks that, if appropriate, a question be referred to the Court of Justice of the 
European Union for a preliminary ruling. 
[…] 
8 The ÉTAT BELGE (the Belgian State) claims […] that the Court should confirm 
the levies and the judgment under appeal […]. 
Discussion 
Applicable national legislation and administrative tolerance 
9 Under Article 57(1) of the CIR 92, the following expenses will only be regarded 
as professional costs if they are evidenced by the production of individual fee 
forms and a summary statement drawn up in the form and within the time limits 
determined by the King: 1 commissions, […] fees […] that constitute for the 
recipients professional income [Or. 6] whether or not taxable in Belgium, […] 
(…). 
10 Article 219 of the CIR 92 […] provides:  
ʻA separate levy is provided for in respect of the expenses referred to in Article 57 
[…] which are not evidenced by the production of individual fee forms and a 
summary statement […]. 
That levy is equal to 100% of those expenses, […] unless it can be shown that the 
recipient of those expenses, […] is a legal person […], in which case the rate is 
set at 50%. 
(…) 
REQUEST FOR A PRELIMINARY RULING OF 4. 12. 2020 – CASE C-52/21 
 
4  
That levy is not applicable if the taxpayer shows that the amount of the expenses, 
referred to in Article 57, […] is included in a tax return filed in accordance with 
Article 305 or in a similar tax return filed abroad by the recipient. 
Where the amount of the expenses referred to in Article 57 […], is not included in 
a tax return filed in accordance with Article 305 or in a similar tax return filed 
abroad by the recipient, the separate levy is not applicable to the taxpayer if the 
recipient has been clearly identified at the latest within 2 years and 6 months of 
1 January in the tax year concerned.ʼ 
11 However, it is a fact that that provision is not applied in certain cases by the tax 
authorities. [Or. 7] 
That tolerance is evident from the travaux préparatoires for the Law, the replies 
of the Minister for Finance to parliamentary questions and from circulars and the 
Administrative commentary. 
Thus, in reply to a parliamentary question, the Minister stated: 
ʻ[…] the obligation to complete individual fee forms concerns only sums paid:  
– either to persons who are not subject to the Law of 17 July 1975 on business 
accounting; 
– or to persons to whom that law applies but who, under the VAT Code, are 
exempt from issuing invoices for the services they provide.  
It follows that fees paid to companies subject to the aforementioned Law of 
17 July 1975 which are not exempt from issuing invoices do not have to be the 
subject of individual fee forms 281.50I.ʼ 7  
That view is confirmed by number 57/62 of Administrative comment […] 
[…] 8 
12 On the other hand, that tolerance does not apply in the case of payment made to a 
non-resident of the Kingdom without a permanent establishment there. [Or. 8] 
Accordingly, to the following parliamentary question of 22 October 2014: 
ʻThe obligation to complete individual fee forms for the amounts paid to natural 
and legal persons subject to the Law of 17 July 1975 on business accounting 
which, under the VAT Code, are required to issue invoices for the services 
provided, is the subject of administrative tolerance. 
 
7 […] 
8 […] 
PHARMACIE POPULAIRE 
 
5 
According to a judgment of 1 April 2011 of the Antwerp Court of First Instance 
and a judgment of 23 October 2012 of the Antwerp Court of Appeal, commissions, 
[…] or fees […] that constitute professional income, whether or not taxable in 
Belgium, for their recipients established abroad must be evidenced by individual 
fee forms and a summary statement.  
1. Do you share the opinion that, since non-residents without an establishment 
in Belgium are not subject to the Belgian law on accounting, they cannot benefit 
from that administrative tolerance for the commissions, brokerages, etc. assigned 
to them?  
2. Is the additional administrative burden under Article 57(1) of the CIR 92 not 
a disincentive to acquiring services from recipients established abroad?  
3. Since the aforementioned ʻadministrativeʼ obligation does not extend to 
contractual commitments to service providers established in Belgium, is the 
restriction of that administrative tolerance to recipients established in Belgium 
not contrary to the freedom to provide services within the European Union? 
4 Since accounting law and VAT legislation has been harmonised at European 
Union level, is the restriction of administrative tolerance to recipients established 
in Belgium justifiable from the point of view of EU law? 
5. Is it possible to defend the restriction of administrative tolerance if the 
recipient established in another Member State of the European Union is required 
to keep accounts and to issue an invoice in accordance with the relevant VAT 
provisions and to refer to most of the services in an intra-Community transactions 
declaration? [Or. 9] 
6. In view of the freedom to provide services and of Directive [2011/61/EU on 
administrative cooperation in the field of taxation], is that difference of treatment 
justifiable? 
7. What measures do you intend to take to abolish that restriction on the 
freedom to provide services?ʼ; 
the Minister for Finance replied:  
ʻ1. In view of the importance of completing fee forms 281.50 within the framework 
of the exchange of information on the basis of conventions on the avoidance of 
double taxation and in connection with the fight against international tax evasion, 
I endorse […] what is laid down in No 5 of Administrative circular […], namely 
that taxpayers who allocate commissions, brokerages, fees, etc. to non-residents 
without an establishment in Belgium, must in principle always mention the 
amount on individual fee forms 281. 50 and a summary statement 325.50.  
REQUEST FOR A PRELIMINARY RULING OF 4. 12. 2020 – CASE C-52/21 
 
6  
2. The provisions of Article 57 of the Income Tax Code 1992 have already existed 
for a long time and have not hitherto given rise to complaints with regard to the 
additional administrative burdens.  
3 to 7. My administration is currently examining to what extent administrative 
tolerance should be reviewed in the context of a possible barrier to the freedom to 
provide services and to the EU directive on exchange of information. 9ʼ  
The question referred to the Court of Justice of the European Union for a 
preliminary ruling 
13 The sums paid by PHARMACIE POPULAIRE – LA SAUVEGARDE SCRL to 
the LAD SARL did not lead to the completion of individual forms and summary 
statements, so that the aforementioned Article 219 of the CIR 92 is in principle 
applicable.  
14 In line with the administrative tolerance explained above, it is nevertheless not 
disputed that if LAD SARL had been a resident company, or had had an 
establishment in Belgium rendering it [Or. 10] subject to Belgian accounting 
legislation, the payment of its invoices by the PHARMACIE POPULAIRE – LA 
SAUVEGARDE SCRL would not have required the latter to complete the 
individual fee forms and summary statements needed to avoid the application of 
the separate levy provided for in Article 219 of the CIR 92.  
15 Article 56 TFEU provides that restrictions on freedom to provide services within 
the Union are prohibited in respect of nationals of Member States who are 
established in a Member State other than that of the person for whom the services 
are intended.  
16 Consequently, in accordance with the case-law of the Court of Justice, Article 56 
TFEU requires the abolition of any restriction on the freedom to provide services 
imposed on the ground that the person providing the service is established in a 
Member State other than that in which the service is provided. 10 
17 Restrictions on the freedom to provide services are national measures which 
prohibit, impede or render less attractive the exercise of that freedom. 11 
 
9 […] 
10 See judgments of 4 December 1986, Commission v Germany, 205/84, EU:C:1986:463 
paragraph 25; of 26 February 1991, Commission v Italy, C-180/89, EU:C:1991:78, 
paragraph 15; of 3 October 2006, FKP Scorpio Konzertproduktionen, C-290/04, 
EU:C:2006:630, paragraph 31, and of 18 October 2012, X, C-498/10, EU:C:2012:635, 
paragraph 21. 
11 See judgment of 18 October 2012, X, C-498/10, EU:C:2012:635, paragraph 22 and the case-law 
cited. 
PHARMACIE POPULAIRE 
 
7 
18 Furthermore, according to settled case-law, Article 56 TFEU confers rights not 
only on the provider of services but also on the recipient of those services. 12 
19 It seems in the present case that, by the combination of Article 219 of the CIR 92 
and of the tolerance referred to above, the obligation to complete individual fee 
forms and a summary statement in order to avoid the application of the levy 
provided for by that provision is imposed on the recipients of the services 
provided by non-resident companies, and means that they are required to bear an 
additional administrative burden which it is not required from recipients of the 
same services provided by a resident service provider subject to the legislation on 
accounting.  
Consequently, such an obligation is liable to render cross-border services less 
attractive for their recipients than services provided by resident service providers 
and thus to deter those recipients from having recourse to service providers 
resident in other Member States. 13 
That situation may therefore be classified as a restriction on the freedom to 
provide services, in principle prohibited by Article 56 TFEU, particularly since, 
according to the settled case-of the Court of Justice, a restriction on a fundamental 
freedom is prohibited by the Treaty even if it is of limited scope or minor 
importance. 14 
20 In order to determine whether there is a restriction on the freedom to provide 
services, and whether in some circumstances that may be justified by a reason 
relating to the public interest, it is necessary to submit to the Court of Justice of 
the European Union, pursuant to Article 267 TFEU, the question contained in the 
operative part of this decision concerning the interpretation of Article 56 of the 
Treaty. 
ON THOSE GROUNDS 
[…] 
[…], refers the following question to the Court of Justice of the European Union 
for a preliminary ruling:  
 
12 See, inter alia, judgments of 31 January 1984, Luisi and Carbone, 286/82 and 26/83, 
EU:C:1984:35, paragraph 10; of 3 October 2006, FKP Scorpio Konzertproduktionen, C-290/04, 
EU:C:2006:630, paragraph 32, and of 18 October 2012, X, C-498/10, EU:C:2012:635, 
paragraph 23. 
13 See, to that effect, judgments of 3 October 2006, FKP Scorpio Konzertproduktionen, C-290/04, 
EU:C:2006:630, paragraph 33; of 9 November 2006, Commission v Belgium, C-433/04, 
EU:C:2006:702, paragraphs 30 to 32, and of 18 October 2012, X, C-498/10, EU:C:2012:635, 
paragraph 28. 
14 Judgments of 15 February 2000, Commission v France, C-34/98, EU:C:2000:84, paragraph 49; 
of 18 October 2012, X, C-498/10, EU:C:2012:635, paragraph 30, and of 19 June 2014, Strojírny 
Prostějov and ACO Industries Tábor, C-53/13 and C-80/13, EU:C:2014:2011, paragraph 42. 
REQUEST FOR A PRELIMINARY RULING OF 4. 12. 2020 – CASE C-52/21 
 
8  
Is Article 56 of the Treaty on the Functioning of the European Union to be 
interpreted as precluding legislation, or a national practice, under which 
companies established in one Member State which use services of companies 
established in another Member State are required, in order to avoid a corporation 
tax levy of 100% or 50% of the sums invoiced by the latter, to complete and 
submit to the tax authorities individual fee forms and summary statements relating 
to those expenses whereas, if they use the services of resident companies, they are 
under no such obligation in order to avoid that levy? [Or. 12] 
[Signatures] 
[…]