According to the European Court of Human Rights, searches of business premises may only be conducted in accordance with legal provisions requiring, in particular, prior authorised authorisation stating the reasons for the search. However, in Belgium, this formality does not exist in the case of searches of business premises.
In two judgments concerning the regime for tax investigations of business premises in Italy — Italgomme Pneumatici S.R.L. and Others v. Italy (6 February 2025, No. 36617/18) and Agrisud 2014 S.R.L. Semplificata and Others v. Italy (11 December 2025, No. 32539/18) — the European Court of Human Rights ruled that Italian law violated Article 8 of the European Convention on Human Rights (protection of the right to privacy) in the absence of adequate procedural safeguards. The Court noted that investigations on business premises were carried out with unfettered discretion from the tax authorities, without any prior reasoned authorisation.
Following those rulings, Italy amended its law to require the Italian tax authorities to draw up a detailed and reasoned document explaining why investigations must be carried out on site and why other, less intrusive, means of investigation would be insufficient. This document must be provided to the taxpayer upon request.
In Belgium, the tax authorities may, without any specific justification (or prior warning), carry out investigations on business premises as long as a business activity is conducted there. The only formality is the obligation for officials to be in possession of their “commission”. This document identifies the officer as belonging to an authorised authority and certifies that he or she is specifically responsible for carrying out the audit in question. No prior reasoned authorisation is, however, required before investigations may be undertaken.
Only in the case of a visit to inhabited premises do the Income Tax Code and the VAT Code require prior authorisation from the magistrate’s court. Case law further requires that the authorisation granted by the judge be duly reasoned.
How might the case law of the European Court be invoked in Belgium? It is our view that the taxpayer should, first and foremost, raise the objection at the outset of the investigations. To do so afterwards will be too late, as illustrated by the case law of the Court of Cassation, which has upheld investigations carried out at the premises of a taxpayer who had argued that the tax officials conducted the investigations without first producing their commission — and without the taxpayer having requested to inspect that document at the relevant time.
That said, even assuming that the audit was carried out despite the taxpayer’s unsuccessful request to be shown prior authorisation, the taxpayer must still take into account the “Antigone” doctrine, pursuant to which taxation may be established on the basis of unlawfully obtained evidence, subject to limited exceptions (see in this respect my previous insight: “The Belgian Court of Cassation (plenary session) validates the use of irregularly collected evidence to establish taxes“). To this must be added the extreme reluctance displayed by the Court of Cassation when it comes to applying human rights provisions in tax proceedings (although lower courts may adopt a more rigorous approach in this regard). The task facing a taxpayer seeking to have investigations conducted without prior reasoned authorisation declared null and void is therefore by no means straightforward.
There remains the option for the taxpayer to object to the investigations (at any point in time), a course of action that has been recognised in case law. In principle, such a refusal carries certain drawbacks: the possibility of an ex officio taxation (where it may be presumed that the refusal of access is accompanied by a refusal to disclose documents located on the premises in question), and the prospect of expedited proceedings brought by the tax authorities to compel access to the premises, subject to a penalty payment. Nevertheless, it is our view that a refusal of access grounded in the absence of a prior reasoned authorisation — and founded upon the explicit case law of the European Court of Human Rights — constitutes a legitimate justification, such that there are no grounds either for ex officio taxation or for a court order enforced by way of a penalty payment.
The case law of the European Court of Human Rights yields a further important lesson: visits to business premises cannot amount to a “fishing expedition” — that is to say, a measure designed to gather information and potentially uncover tax offences in the absence of any prior indicia. Such visits may only serve as a complement to, or follow-up of, less intrusive preliminary investigations.
For further information, please contact:
Olivier Bertin, Partner, Bird & Bird
olivier.bertin@twobirds.com
