Judgment of the Court of Justice of the EU of 17 May 2023
Case C-418/22 SA CEZAM
In this case, the issue concerned the conformity of a fine applicable in Belgium in the event of failure to file VAT returns; in this case a fine of 20% of the amount of VAT.
The company considered that the Belgian tax authorities should have taken into account the amount of VAT due after deduction of the deductible VAT. The failure to take into account the deductibility of VAT is therefore considered to be a breach of the right to deduct and the principle of fiscal neutrality.
The Court ruled that the flat-rate fine introduced in Belgium for failure to comply with the obligation to declare and pay VAT was not contrary to the VAT Directive or to compliance with the principle of proportionality and fiscal neutrality, even if the deductible VAT had not been taken into account.
Decision of the Council of State of April 14, 2023
In this case, a taxpayer challenged the provisions of Article 1737 of the General Tax Code, which states that: ” II. – Any omission or inaccuracy found in the invoices or documents in lieu thereof mentioned in Articles 289 and 290 quinquies shall give rise to the application of a fine of €15. However, the total amount of the fines due in respect of each invoice or document may not exceed one quarter of the amount mentioned therein. »
The taxpayer invoked the non-compliance of such a mechanism with regard to the constitutional principle of proportionality of penalties resulting from Article 8 of the Declaration of the Rights of Man and of the Citizen.
The Council of State considered that this Priority Question of Constitutionality was of a serious nature. The question was therefore referred to the Constitutional Council.
To be continued!
