GRAND CHAMBER
CASE OF VEGOTEX INTERNATIONAL S.A. v. BELGIUM
(Application no. 49812/09)
 
 
JUDGMENT
 
Art 6 § 1 (criminal) • Fair hearing • Tax debt time-barred by retroactive effect of new case-law but subsequently reinstated, while dispute still pending, by retrospective but foreseeable legislation restoring legal certainty • Applicability in tax-related case of case-law principles on retrospective legislation influencing judicial determination of dispute to which State is party • Art 6 guarantees not applying with their full stringency in tax matters, which are outside hard core of criminal law • Criteria for assessment of compelling nature of relevant grounds of general interest
Art 6 § 1 • Substitution of grounds by Court of Cassation not breaching right of access to court, adversarial principle or principle of equality of arms
Art 6 § 1 • Excessive length of proceedings

 
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 penalty 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. 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 video-conference. 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. 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 tax year, on the grounds that the deduction for tax purposes of certain expenses relating to a stock exchange transaction by the applicant company could not be 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 penalty of 50%, in a notice 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% penalty of BEF 6,027,045 (EUR 149,405.54) was added. A notice of reassessment 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 reassessment and the penalty, 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 that had been disputed by the applicant company, but served solely to interrupt the limitation period. 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 penalty imposed on it for the 1993 tax 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 penalty, with the result that it should be reduced to 10% as provided for by law. The remainder of the application was dismissed. In particular, the 50% tax penalty 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 tax 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 reassessment 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 penalty in respect of the tax 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
DOMESTIC LAW AND PRACTICEAssessment 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 Law 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 tax year or earlier, as regards income tax (section 11 of the Law 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 provides 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 tax 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 in tax 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 in tax, may not exceed the amount of undeclared income. Limitation periods in taxation mattersInterruption 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 the 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 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 [1992] 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 a Law 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. 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. 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. 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 in “Goed Wonen”, C-376/02, EU:C:2005:251, paragraph 33; see also, to similar effect, the judgment of 13 February 2019 in Human Operator, C‑434/17, EU:C:2019:112, paragraph 36, and the judgment of 7 October 2019 in 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 value-added tax 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 CJEU “Goed Wonen” judgment, cited above, at paragraph 45). 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
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). 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 penalty 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 penalty pursued an aim that was both deterrent and punitive and of the severity of the penalty imposed on the applicant company. The parties’ submissionsThe 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. In their view, the dispute thus 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 penalty 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. 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 penalty pursued a purpose that was both deterrent and punitive; this was sufficient to establish the criminal nature of the sanction. The applicant company also stressed the severity of the sanction it had been liable to incur, pointing out that under Article 444 of the 1992 Income Tax Code (see paragraph 35 above), tax penalties were imposed in proportion to the amount of the unpaid taxes and could amount to 200% of that sum, there being no statutory ceiling.

Article of the Convention at issue: Article 41
Outcome: violation