Opinion of the Advocate General — ECLI:EU:C:2020:2
Date: 2020-01-14
Language of the case: French
Subject matter: Agriculture and Fisheries;European Agricultural Guidance and Guarantee Fund (EAGGF);Free movement of goods;Approximation of laws;Customs Union
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
11 January 2019 
Referring court:  
Cour de cassation (Belgium) 
Date of the decision to refer:  
20 December 2018 
Appellant on a point of law:  
État belge 
Respondent in the appeal on a point of law:  
Pantochim SA, in liquidation 
  
I. Subject matter and circumstances of the dispute 
1 The public limited company Pantochim was placed in liquidation by judgment of 
26 June 2001.  
2 It has a significant tax claim against the État belge (Belgian State). 
3 Furthermore, the Belgian State had declared a VAT claim of the German State as 
part of the liquidation of the company Pantochim, which was admitted as an 
unsecured debt. 
4 The Belgian State intends to offset its tax debt with the German State’s VAT 
claim on the basis of Article 334 of the Programme-Law of 27 December 2004. 
5 The liquidators of the company Pantochim instituted proceedings against the 
Belgian State for payment of a tax claim. 
6 The court of first instance decided that the appellant was not authorised to offset 
those claims and debts. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-19/19 
 
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7 On appeal, the Cour d’appel de Mons (Court of Appeal, Mons, Belgium) upheld 
that decision and ordered the Belgian State to pay its tax debt to the company in 
liquidation, Pantochim. 
8 The Belgian State brought an appeal on a point of law before the Cour de 
cassation (Court of Cassation, Belgium).  
II. The provisions at issue 
A. EU law 
Council Directive 76/308/EEC of 15 March 1976 on mutual assistance for the 
recovery of claims relating to certain levies, duties, taxes and other measures (as 
amended by Directive 2001/44).  
9 Article 6 provided: 
‘[…] 2. For this purpose any claim in respect of which a request for recovery has 
been made shall be treated as a claim of the Member State in which the requested 
authority is situated […]’. 
10 Article 10, as amended by Council Directive 2001/44/EC of 15 June 2001, 
provided: 
‘Notwithstanding Article 6(2), the claims to be recovered shall not necessarily 
benefit from the privileges accorded to similar claims arising in the Member State 
in which the requested authority is situated’.  
Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the 
recovery of claims relating to certain levies, duties, taxes and other measures 
11 This so-called codification directive adopts a slightly different title (at least in the 
French-language version) and reproduces verbatim the content of the two 
provisions cited above, as well as their numbering. However, it is noted that 
‘Article 6(2)’ has become ‘the second paragraph of Article 6’. 
B. Belgian law 
Law of 20 July 1979 [on mutual assistance for the recovery of claims relating to 
certain levies, duties, taxes and other measures] 
12 Article 12 provides: 
‘The requested Belgian authority shall proceed with recoveries requested by the 
applicant foreign authority as if they were claims arising within the Kingdom [of 
Belgium]’. 
ÉTAT BELGE 
 
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13 Article 15 states: 
‘The claims to be recovered shall not benefit from any privilege’. 
Programme-Law of 27 December 2004  
14 Article 334 provides: 
‘Any sum to be repaid or paid to a debtor […] may be assigned without 
formalities by the competent official to the payment […] of income taxes, taxes 
treated as equivalent thereto, value added tax, […] where the latter are not or are 
no longer contested.’ 
Programme-Law of 22 December 2008 
15 Article 194 provides: 
‘The first paragraph of Article 334 of the Programme-Law of 27 December 2004 
is replaced by the following: 
“Any sum to be repaid or paid to a person, either in the course of applying [tax] 
laws […] may be assigned without formalities and at the discretion of the 
competent official, to the payment […] of sums owed by that person pursuant to 
the [tax] laws concerned or to the settlement of tax or non-tax claims the 
collection and recovery of which are ensured by the Service public fédéral 
Finances (Federal Public Service Finance) […]”.’ 
III. The position taken by the Belgian State  
16 First of all, the Belgian State criticises the Court of Appeal for excluding statutory 
set-off on the ground that, even if the German State’s claim could be recovered as 
the Belgian State’s own claim, it remains a claim of the German State, with the 
result that there are no mutual claims between the same persons acting in the same 
capacity, as statutory set-off requires.  
17 It submits that the tax set-off established by Article 334 of the Programme-Law 
must be understood as set-off sui generis. In its view, the intention of the 
legislature had in fact always been to establish a set-off measure specific to tax 
law and thus excluding the provisions of the Code civil (Civil Code, Belgium) 
governing statutory set-off. 
18 The ratio legis of Article 334 of the Programme-Law therefore leads to the 
conclusion that, from the entry into force of the Programme-Law of 27 December 
2004, the provisions of the Civil Code, in particular the provision requiring that 
mutual debts exist between the same persons, must be excluded from that specific 
tax set-off mechanism. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-19/19 
 
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19 In order to carry out set-off validly under Article 334 of the Programme-Law, it is 
sufficient that there is, for example, a value added tax reimbursement in favour of 
a debtor and a value added tax debt borne by that same debtor. 
20 The Belgian State adds that, by preventing it from proceeding with the recovery 
requested by the German State as if it were its own claim, the judgment under 
appeal has also infringed Article 6(2) of Directive 76/308 (as currently recast in 
the second paragraph of Article 6 of Directive 2008/55). 
21 Next, the Belgian State criticises the Court of Appeal for also deciding that, 
failing any definition in the directives, the term ‘privilege’ referred to in Article 10 
of those directives ‘must be understood in its usual sense of advantage or 
prerogative’, that term consequently including ‘the benefit of the set-off provided 
for in Article 334 of the Programme-Law’, with the result that the German State’s 
claim may not benefit from that ‘privilege’.  
22 The Belgian State adds that no EU instrument on the subject of mutual assistance 
defines what is to be understood by ‘privilege’, but that it is apparent from various 
texts relating to mutual assistance for recovery, indicating that foreign claims do 
not benefit from any privileges, that the concept of secured debts is at odds with 
the concept of unsecured debts. That concept of privilege does not therefore refer 
to the usual meaning of advantage or prerogative, but means the general privilege 
which the tax authority has over all incomes and assets of the taxpayer. As foreign 
debts are denied that privilege, they are therefore unsecured. The Law of 20 July 
1979 transposing the directive into Belgian law does not extend the general 
privilege of the Belgian tax authority over all incomes and assets of the taxpayer 
to the foreign claim. 
23 It follows, in the Belgian State’s view, that the tax set-off sui generis laid down in 
Article 334 of the Programme-Law is not a ‘privilege’ within the meaning of 
Article 10 of Directive 76/308. The application of that rule of tax law does not 
have the effect of conferring ‘privilege’ on the German State’s tax claim against 
the company Pantochim. That claim has remained unsecured but could simply 
have been paid by rapid, simple and efficient means without costs for the 
taxpayer. 
IV. Appraisal of the Court of Cassation 
24 The Court of Cassation notes the relevant passages of the judgment under appeal 
delivered by the Court of Appeal. 
25 First, the Court of Appeal considers that ‘Article 334 of the Programme-Law does 
not expressly exclude the provisions of the Civil Code relating to set-off’, which 
require ‘the existence of two mutual debts […] which must exist between the 
same persons acting in the same capacity’. The Court of Appeal states that, ‘even 
if the German State’s claim may be recovered as the Belgian State’s own claim, it 
remains a claim of the German State’, with the result that ‘statutory set-off is not 
ÉTAT BELGE 
 
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possible since there are no mutual debts between the same persons, the Belgian 
State seeking to offset its debt towards [the company Pantochim] with the debt [of 
the company Pantochim] towards the German State’. 
26 The Court of Appeal further indicates that, ‘even if tax set-off were to be regarded 
as set-off sui generis’, Article 334 of the Programme-Law still ‘does not extend 
the benefit of set-off to claims other than those of the Belgian State’. 
27 Secondly, the Court of Appeal considers that the provisions of the directives do 
not change any of the foregoing because, although ‘they admittedly provide that 
claims for which assistance is requested are to be recovered as a claim of the 
requested State and in the same way’, the fact remains that ‘the claims to be 
recovered are to benefit from the privileges accorded to similar claims arising in 
the Member State in which the requested authority is situated only if the 
legislation of that State or an agreement between the requesting State and the 
requested State so provides’. The Court of Appeal adds that, ‘failing any 
definition in the directive, the term “privilege” must be understood in its usual 
meaning of advantage or prerogative’. 
28 Since a question arises as to the interpretation of Articles 6 and 10 of Directive 
76/308 and Directive 2008/55, it is appropriate to refer the questions set out below 
to the Court of Justice of the European Union for a preliminary ruling.  
V. The questions referred for a preliminary ruling 
29 The Court of Cassation stays the proceedings until the Court of Justice of the 
European Union has given a preliminary ruling on the following questions: 
– Must the provision according to which the claim in respect of which a request 
for recovery has been made ‘shall be treated as a claim of the Member State in 
which the requested authority is situated’, as provided for in [the second 
paragraph of] Article 6 of Council Directive 2008/55/EC on mutual assistance 
for the recovery of claims relating to certain levies, duties, taxes and other 
measures, which replaces Article 6(2) of Council Directive 76/308/EEC of 
15 March 1976 on mutual assistance for the recovery of claims relating to 
certain levies, duties, taxes and other measures, be understood as meaning that 
the claim of the requesting State is to be treated as being a claim of the 
requested State, with the result that the claim of the requesting State acquires 
the status of a claim of the requested State? 
– Must the term ‘privilege’ referred to in Article 10 of Council Directive 
2008/55/EC of 26 May 2008, and, before codification, in Article 10 of Council 
Directive 76/308/EEC of 15 March 1976, be understood as the preferential 
right attached to the claim which confers on it a right of priority over other 
claims in the event of concurrence, or as any mechanism which results, in the 
event of concurrence, in the preferential payment of the claim? 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-19/19 
 
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– Must the option available to the tax authority to carry out, under the conditions 
laid down by Article 334 of the Programme-Law of 27 November 2004, a set-
off in the event of concurrence be regarded as a privilege within the meaning of 
Article 10 of the abovementioned directives?