CONCURRING OPINION OF JUDGE LEMMENS

(Translation)

1. I voted with the majority in finding no violation of Article 6 § 1 of the Convention on account of the legislature’s intervention during the proceedings.

I also agree with the reasoning that led the majority to that finding. However, I would like to add a short “national” footnote to the judgment, in order to focus attention on a crucial aspect that was not addressed (the “elephant in the room”), and thus clarify the real scope of the case brought before the Court.

2. The judgment concerns the interruption of the limitation period. Where the limitation period is interrupted, it stops running and restarts (from day one) once the cause of the interruption has ceased to exist. A creditor may create a situation that interrupts the limitation period in order to safeguard his or her claim. In the present case the limitation period was deemed to have been interrupted by the serving of a demand for payment at the request of the tax authorities.

The majority felt bound to examine the case from the standpoint of the interruption of the limitation period, this having been the sole ground for the Court of Cassation’s finding, in its judgment of 13 March 2009, that the limitation period had not expired (see paragraphs 98-99 of the present judgment).

The elephant in the room to which I refer is the suspension of the limitation period. This results from an obstacle which, while it persists, prevents the limitation period from continuing to run; once the obstacle is removed, the limitation period resumes until it reaches completion. An obstacle of this kind may result from the actions of the debtor. This transpires, in particular, from Article 2251 of the Civil Code, according to which the limitation period ceases to run for as long as the creditor is unable (owing, for instance, to the debtor’s actions) to recover the debt (see paragraph 51 of the judgment).

For a reason unknown to me, the issue of suspension was not raised by the parties in either the Chamber or the Grand Chamber proceedings. It was not for the Court to raise the matter of its own motion.

3. However, the issue of suspension did indeed feature in the domestic court proceedings. In its judgment of 6 February 2007 the Antwerp Court of Appeal held that the limitation period was suspended until such time as the dispute between the applicant company and the tax authorities was finally settled (see paragraph 21 of the judgment). It was this decision, and this reasoning, that the applicant company challenged before the Court of Cassation (see paragraph 22 of the judgment).

In its judgment of 13 March 2009 the Court of Cassation did not rule on the suspension of the limitation period. It could have done so, thereby assessing the lawfulness of the Court of Appeal’s decision in that regard. However, it did not do so, opting instead to base its decision on a ground that had been dismissed by the Court of Appeal, relating to the interruption of the limitation period by the demand for payment under section 49 of the Miscellaneous Provisions Act of 9 July 2004 (see paragraph 27 of the present judgment). As a result of the substitution of the ground relied on by the Court of Appeal, the ground of appeal raised by the applicant company, in which it challenged the finding that the dispute between itself and the tax authorities had the effect of suspending the limitation period, was declared inadmissible for lack of interest (ibid.).

“Lack of interest”, pure and simple. The Court of Cassation did not hold that, contrary to the Court of Appeal’s assessment, the limitation period had not been suspended. It merely found that, since the demand for payment had the effect of interrupting the limitation period, the tax authorities’ entitlement to recover the debt was not time-barred . It thus arrived at the same conclusion as the Court of Appeal, but on different grounds.

Even supposing that the finding that the limitation period was interrupted were to be regarded as being in breach of the Convention, it would not automatically follow that the limitation period should be considered to have expired. The issue of the possible suspension of the limitation period would still remain to be examined.

4. Of course, owing to the substitution of grounds by the Court of Cassation and the resulting dismissal of the applicant company’s appeal on points of law, this last issue no longer arose before the domestic courts in the present case.

However, it did arise in other cases examined after that of the applicant company. Moreover, some commentators explicitly observed that the issue of suspension was to be distinguished from that of interruption and that it was still to be determined, especially if the domestic courts or the Court should one day decide that section 49 of the Miscellaneous Provisions Act of 9 July 2004 was incompatible with the Convention [1] .

In two judgments of 22 September 2011 the Court of Cassation held that, in so far as it was clear from Article 410 of the 1992 Income Tax Code (see paragraph 33 of the present judgment) that the lodging of an objection precluded collection of the tax debt, it should be inferred from that provision, read in conjunction with Article 2251 of the Civil Code, that the limitation period for recovery of the debt was in fact suspended (F.10.0015.N and F.10.0052.N). The same court ruled to similar effect in a judgment of 15 February 2013 (F.11.0128.N). In a judgment of 2 March 2017 it further clarified that the period was suspended until such time as a final decision had been given on the taxpayer’s appeal against the relevant tax assessment (F.12.0056.F).

These rulings rendered the entire discussion on the validity of section 49 of the Miscellaneous Provisions Act of 9 July 2004 superfluous. Legal commentators adopted this understanding from the outset [2] .

5. Thus, given what we know of the post factum case-law of the Court of Cassation, we can legitimately consider that if that court had ruled on the merits of the ground of appeal relied on by the applicant company rather than substituting its own grounds for those of the contested judgment, and thus had not applied section 49 of the Miscellaneous Provisions Act of 9 July 2004 retrospectively, the applicant company’s appeal on points of law would in all likelihood still have been dismissed.

Of course, I cannot assert that this would certainly have been the case. But the above-mentioned case-law of the Court of Cassation demonstrates in any event that the possible invalidation of section 49 of the Act of 9 July 2004 would not have been the end of the matter in domestic law.

In retrospect, the whole saga surrounding the legislature’s intervention by means of the legislation at issue strikes me as nothing more than a storm in a teacup. In my view, if the Court had been able to take into consideration the ground relating to the suspension of the limitation period, that ground would have formed part of the “specific circumstances of the present case” referred to in paragraph 123 of the judgment.