European Court of Justice overrules the Belgian 7% surcharge imposed on non-residents
On 12 March 2026 the European Court of Justice (‘ECJ’) ruled that the 7% surcharge imposed on non-residents who are taxable in Belgium on their Belgian sourced income is a hindrance to the free movement of workers.
By way of background information, the tax burden of Belgian tax residents is increased with a communal surcharge varying between 0% and 9% depending on the Belgian commune where one resides. As non-residents are not attached to a Belgian commune of residence, there is an equivalent surcharge which is uniformly set at 7%. The latter percentage is in certain instances higher than the communal surcharge imposed on a Belgian tax resident, implying that non-residents can face a more substantial tax burden than Belgian tax residents in a similar situation. This is considered contrary to EU regulations.
A simplified example may clarify the impact. Assume a taxpayer with a taxable salary of EUR 70.000 triggering a tax burden of EUR 23.297,51, which leads to the following:
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Non-resident facing a surcharge of 7%
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EUR 23.297,51 x 7% = EUR 1.630,83
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Belgian tax resident facing a communal surcharge of 4,6%
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EUR 23.297,51 x 4,6% = (EUR 1.071,69)
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Surplus due by the non-resident EUR 559,14
While the Belgian government is still assessing the impact of this ECJ ruling, the ECJ ruling implies that the Belgian tax authorities (or Belgian tax courts) can no longer impose a uniformly fixed 7% surcharge to non-residents. In the absence of a legally valid alternative, it can reasonably be argued that the surcharge should effectively be reduced to 0% for non-residents until new legislation is introduced. This creates a temporary opportunity for tax savings, which in the above example amounts to EUR 1.630,83.
Impacted non-residents can already take action now, i.e.
- Either by filing a formal tax complaint, which must be done within a period of one year following the dispatch of the tax assessment form,
- Or by applying for ex officio detaxation, in which case the non-resident tax payer can claim a rectification over the last five years.
