Brussels, 28 February 2008
Direct Taxation: Commission requests Belgium to end discrimination against foreign nurseries and foreign artists and sportsmen
The European Commission has sent Belgium formal requests to end two cases of tax discrimination. The first case concerns income tax relief for the cost of nurseries. Such relief is available only if the children are placed in Belgian nurseries, but not if they are placed in foreign nurseries. The second case concerns foreign artists and sportsmen. The Belgian tax law may lead to higher taxation for foreign artists and sportsmen than for artists and sportsmen resident in Belgium. The requests are in the form of ‘reasoned opinions’ under Article 226 of the EC Treaty. If Belgium does not reply satisfactorily to the reasoned opinions within two months the Commission may refer the cases to the European Court of Justice.
Income tax relief is only available for the cost of nurseries if the children are placed in Belgian nurseries. It is not available if they are placed in foreign nurseries. According to the Commission this may restrict the freedom to provide services of foreign nurseries, as guaranteed by Article 49 of the EC treaty. It may also restrict the free movement of persons, such as frontier workers who are liable to income tax in Belgium, but live outside Belgium and place their children in a nursery in the State where they live. The free movement of persons is guaranteed by Articles 18, 39 and 43 of the EC Treaty and the corresponding Articles of the Agreement on the European Economic Area (the EU plus Iceland, Norway and Liechtenstein).
Artists and sportsmen
Artists and sportsmen who are resident in Belgium are taxed at progressive income tax rates and can deduct their professional expenses. Artists and sportsmen who are resident outside Belgium are taxed at a fixed rate of 18% and cannot deduct their professional expenses. This may lead to higher taxation of foreign artists and sportsmen. According the Commission such higher taxation is contrary to articles 49 and 50 of the EC Treaty, as confirmed by the European Court of Justice in Gerritse, Case C-234/01. It is also contrary to the corresponding articles of the EEA Agreement.
The Commission has taken up a similar case against Germany (see IP/08/144).
In both cases Belgium has replied to earlier letters of formal notice (the first step of the infringement procedure of Article 226 of the EC Treaty) by acknowledging the infringement, but it did not indicate when and how it would eliminate it, nor how it would apply EU law in the period before any new rules would enter into force. For both cases the Commission has therefore decided to move to the second stage of the infringement procedure.
The Commission's reference number of the nursery case is 2005/5063, the number of the artists and sportsmen case is 2006/2375.
For the press releases issued on infringement procedures in the taxation or customs area see: