Information;Order — ECLI:EU:C:2023:263
Date: 2023-03-27
Language of the case: Dutch
Court formation: Sixth Chamber
Subject matter: Free movement of capital;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Belgium

summary conclusions, the defendant seeks a declaration that the claim is 
admissible and unfounded, with the assessments, in their current form, being 
upheld. […] 
III. RELEVANT FACTS AND DISPUTE 
1. 
BELGISCHE STAAT 
 
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The present dispute concerns two personal income tax assessments for the 2018 
tax year […] and the 2019 tax year […]. 
2. 
The applicant filed a timely personal income tax return for the 2018 and 2019 tax 
years.  
3. 
On 28 April 2020 a notice of deficiency (bericht van wijziging) was sent in 
relation to both tax years. 
4. 
The applicant then sent a notification of his disagreement with that notice. Since 
the interest was earned on a Dutch savings account, he requested an exemption in 
accordance with Article 21(5) of the Wetboek van Inkomstenbelastingen 1992 
(Belgian Income Tax Code 1992; ‘ITC 1992’).  
5. 
On 16 July 2020, a notification of assessment (kennisgeving van beslissing tot 
taxatie) was sent out stating the reason why the comments could not be accepted 
and confirming the assessments.  
6. 
A supplementary personal income tax assessment was issued on 24 August 2020 
for the [2018] tax year […] and on 27 August 2020 for the [2019] tax year […].  
7. 
On 8 September 2020 (tax year 2018) and on 15 December [2020] (tax year 
2019), respectively, the claimant filed notices of objection to these supplementary 
assessments. 
8. 
By a decision of the Directorate of 19 January 2021, the notices of objection were 
rejected. 
9. 
The applicant was unable to agree with that rejection decision, so that on 
17 March 2021, he lodged an application with the registry of this rechtbank 
(District Court). 
REQUEST FOR A PRELIMINARY RULING OF 13. 1. 2022 – CASE C-34/22 
 
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IV. ASSESSMENT 
1. Admissibility 
[The claim is admissible] […] 
2. The substance 
General  
2.1. 
The present dispute relates to the application of Article 21(5) of the ITC 1992. 
2.2. 
The judgment of the Court of Justice of the European Union of 6 June 2013 states 
that the Belgian legislation in question infringes the abovementioned provisions 
since it has the effect of discouraging Belgian residents from using, for the 
management of savings accounts, the services of banks established in other 
Member States of the European Union and States which are parties to the EEA 
Agreement.  
On the basis of that judgment of the Court of Justice, Belgium can therefore no 
longer exclude interest received by taxpayers on their regulated savings deposits 
from banks established in other Member States of the European Economic Area 
from the exemption provided for in Article 21(5) of the ITC 1992. 
Article 170 of the wet van 25 april 2014 houdende diverse bepalingen (Law of 
25 April 2014 on various provisions; B.S., 7 May 2014) therefore amended 
Article 21(5) of the ITC 1992: 
‘Income from capital and movable property shall not include: 
(…) 
5 the first tranche of EUR 1 250 (unindexed amount) per year of income from 
savings deposits received, without any contractual stipulation as to maturity dates 
or periods of notice, by credit institutions referred to in Article 56, §2, 2°,2 a, 
On the basis that:  
- those deposits must, moreover, satisfy the criteria laid down by Royal enactment 
after approval by the Nationale Bank van België (National Bank of Belgium) and 
the Autoriteit voor Financiële Diensten en Markten (Authority for Financial 
Services and Markets), according to their respective powers, regarding the 
currency in which they are denominated, and the conditions and methods of 
withdrawals and deductions and regarding the structure, the level and the method 
for calculating their remuneration, or, for deposits received by credit institutions 
BELGISCHE STAAT 
 
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established in another Member State of the European Economic Area, these 
deposits must comply with similar requirements established by the equivalent 
competent public authorities of the other Member State. 
- for the purposes of application of this provision, periods constituting mere 
safeguard measures that the depositary reserves the right to invoke shall not be 
regarded as periods of notice.’ 
2.3. 
The Rechtbank notes, together with the applicant, that the amended legislative text 
indicates that the legislature intends to extend the exemption applicable to a first 
tranche of interest on savings deposits to savings deposits held by credit 
institutions established in the European Economic Area, as is also mentioned at 
the start of the relevant passage in the Explanatory Memorandum to the Act of 
25 April 2014. 
When applied in tax practice, it appears that the Belgian legislature continues to 
impose ‘Belgian’ conditions on foreign credit institutions. 
According to Circular No AAFisc. 22/2014 (Ci. RI-1.231/633.479) dated 12 June 
2014, this means that the requirements as imposed by Article 2 Koninklijk besluit 
tot uitvoering van het WIB 1992 (Royal Decree on the implementation of the 
Belgian Income Tax Code 19921992; ‘RD/ITC 1992’) must be met. Among other 
things, the tax administration points to the requirement that “the remuneration of 
savings deposits must compulsorily but also exclusively consist of a basic interest 
rate and a loyalty premium.”  
The requirement that the remuneration of savings deposits must compulsorily but 
also exclusively consist of a basic interest rate and a loyalty premium is a typical 
Belgian requirement that is grafted onto the Belgian financial culture.  
2.4. 
The view of the tax administration that the Belgian rule, set out in 
Article 21(1)(5), in conjunction with article 2 RD/ITC 1992, contains two 
cumulative exemption conditions, namely, that the account must be ‘regulated’ 
and that it must meet the criteria laid down in the Royal Decree, is open to 
dispute.  
It would appear that the tax administration sees the so-called ‘requirement of 
being regulated’ as an exclusion condition. The question is whether such a reading 
of Article 21(1)(5) of the ITC 1992 is not in conflict with EU law.  
Before ruling on the substance 
2.5. 
REQUEST FOR A PRELIMINARY RULING OF 13. 1. 2022 – CASE C-34/22 
 
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The Rechtbank therefore considers, before ruling on the substance, that the 
following question should be referred to the Court of Justice of the European 
Union for a preliminary ruling: 
‘Does Article 21(1)(5) of the ITC 1992, as amended by Article 170 of the Law of 
25 April 2014 on various provisions, infringe the provisions of Articles 56 and 63 
TFEU and Articles 36 and 40 of the EEA Agreement, in that the provision in 
question, although it applies without distinction to domestic and foreign service 
providers, not only requires compliance with conditions analogous to those set 
out in Article 2 RD/ITC 1992, which are de facto specific to the Belgian market, 
but also requires, first of all, that such analogous requirements be laid down by 
the public authorities in the EEA State concerned, thus going beyond local 
prudential supervision and falling instead within the scope of the deposit 
guarantee scheme pursuant to Directive No 94/19/EC, seriously impedes foreign 
service providers from offering their services in Belgium?’ 
FOR THOSE REASONS, 
THE RECHTBANK RULES, […] 
[…] to refer the following question to the Court of Justice of the European Union 
for a preliminary ruling: 
‘Does Article 21(1)(5) of the Wetboek van Inkomstenbelastingen 1992 (Belgian 
Income Tax Code 1992; ‘ITC 1992’), as amended by Article 170 of the Wet van 25 
april 2014 houdende diverse bepalingen (Law of 25 April 2014 on various 
provisions), infringe the provisions of Articles 56 and 63 TFEU and Articles 36 
and 40 of the EEA Agreement, in that, although it applies without distinction to 
domestic and foreign service providers, it not only requires compliance with 
conditions analogous to those set out in Article 2 of the Koninklijk besluit tot 
uitvoering van het WIB 1992 (Royal Decree on the implementation of the Belgian 
Income Tax Code 1992; ‘RD/ITC 1992’), which are de facto specific to the 
Belgian market, but also requires, first of all, that such analogous requirements 
be established by the public authorities in the EEA State concerned, thus going 
beyond local prudential supervision and falling instead within the scope of the 
deposit guarantee scheme pursuant to Directive No 94/19/EC, [thereby] seriously 
imped[ing] foreign service providers from offering their services in Belgium?’ 
[…] 
[Closing formula and signatures] […]