The decree was expected by practitioners, municipalities and taxpayers. The constitutionality of the mechanism implemented by the New Municipal Law (NLC) and the CDLD regarding the publication of the tax regulation was at stake. It was pronounced on 15 December 2022 (no. 16/2022).

The enforceability of a tax regulation against third parties is ensured in the Brussels and Walloon Regions by Articles 112 to 114 NLC and L1133-1 and 2 CDLD respectively. The tax regulation must be published and this publication must be recorded in a register specially kept for this purpose in the forms provided for by a Government order.

The forms of annotation in the register are defined in a Royal Decree of 14 October 1991, which requires that the annotation be made the day after the publication, in the order of the publications, dated and signed by the Mayor and the municipal secretary.

The Constitutional Court recalls the position of the Court of Cassation, which considers that the only admissible method of proof of the publication of a municipal ordinance or regulation is the annotation in the special register. It is also recalled that the annotation in the register relates to the evidential regime of the publication and not to the nullity of the regulation. The legal provisions, according to the Constitutional Court, are likely to be interpreted as including a condition of form on pain of the unenforceability of the regulation.

As for the annotation in the register as the only admissible proof of the enforceability of a regulation, the Court recalls that it is a question of the protection of the person concerned so that the legislator was able to conceive a unique and exclusive evidential regime.

The Court adds that the federal or Walloon legislator has provided for the method of publication and has defined the method of proof consisting of annotation in a register. This evidential exclusivity leading to the unenforceability and not the nullity of the regulation could be delegated to the executive as regards the form of the annotation. The legal empowerment is thus constitutional.

The Court also decides that the effect of the lack of annotation is on the enforceability of the regulation, so that the form of the annotation is not one of the essential elements of the tax, so that there is no violation of the principle of legality.

The Court considers that the existence of a single system of proof of publication is admissible in the same way as for regulations requiring publication in an official journal. It also considers that there is no discrimination between the regime of enforceability of municipal regulations and provincial regulations, which must be published in the Provincial Bulletin.

The lesson of the judgment is therefore clear. The legislator could choose a single method of publicising tax regulations, choose the mechanism of annotation in a register and empower the executive to determine the method of annotation. This method of publicity only has consequences for the enforceability of the tax regulation and is not contrary to the Constitution.

For more information, please contact Jean LAURENT (jean.laurent@cew-law.be), lawyer, CEW & Partners.