European Law Restrictions on the Temporal Effect of National Judicial Decisions: The Case of the Belgian Constitutional Court

Abstract

The Belgian Constitutional Court is a court of law watching over the observance of the Constitution by the legislative authorities of Belgium. It has the power to annul, to declare unconstitutional and suspend laws, decrees and ordinances infringing on important titles and articles of the Constitution, including some pertaining to taxation. 1 Annulment judgments have absolute binding force (erga omnes) from the moment they are published in the Belgian Official Journal. Such annulment has in principle retroactive effect, which means that the annulled act must be deemed never to have existed. This also applies when the Constitutional Court annuls a tax law. Unlike in most other countries with a Constitutional Court, an ex nunc effect of an annulment judgment was not considered sufficient in Belgium. From the outset, the Belgian (special) legislator has been aware that the retroactive annulment can have farreaching consequences for legal certainty. To address this, he has conferred on the Constitutional Court the power to identify – ‘if it judges this necessary’ – ‘by general decision, those consequences of the annulled provisions which should be considered as being maintained or being provisionally maintained for the period it sets’. The Constitutional Court makes frequent use of this power also in tax matters. In doing so, the Court not only upheld the effects that had already occurred before the delivery of the judgment, but sometimes also allowed later effects, for example up to the end of the current calendar year or until the legislator has restored the legislative gap, which would arise from the annulment.