This newsflash is an update on the reform of the tax regime for copyright and related rights (for more details please refer to our previous newsflash).
Since Parliament adopted this reform (Program Law of 26 December 2022, M.B., 30 December 2022), one of the main questions in relation hereto is whether "computer programs" protected by copyright are covered by this tax regime.
In May and June 2023, two actions for annulment of this reform were lodged with the Constitutional Court. The requesting parties argued that Article 100 of the program law of 26 December 2022, constitutes a violation of Articles 10, 11, and 172 of the Constitution. They contended that this provision would create discrimination between authors of protected literary or artistic works depending on whether these works are computer programs or not.
On 16 May 2024, the Constitutional Court issued its ruling in these cases (French version / Dutch version), confirming that the exclusion of "computer programs" from the new copyright tax regime is not an unconstitutional discrimination. Consequently, the Constitutional Court aligns with the Minister of Finance’s position on this matter (it is particularly noteworthy that its reasoning is primarily based on the Minister’s responses).
Although reinforcing the Tax Authorities' interpretation, this decision does not put an end to all legal remedies aimed at defending the application of the copyright tax regime to “computer programs”. Judiciary Courts and Tribunals can choose not to follow the interpretation (based solely on parliamentary works) of the Constitutional Court and be referred to by other legal means than those used before the Constitutional Court.