If one tax measure has provoked resistance ever since its introduction at the end of 2017, it is certainly the mechanism denying the deduction of tax losses (and other similar deductions) in the event of a tax audit where a tax penalty of 10% or more is applied (see Article 206/3, §1, al. 2, of the Income Tax Code 1992). Despite three judgments of the Constitutional Court upholding its validity[1] and a reform of the tax penalty regime (for a first-time breach) closely linked to it, perplexity remains, and four new preliminary questions for constitutional review are still pending[2]. Without undertaking a full analysis here, the inconsistencies that burden this mechanism —which conflates the corporate tax itself and its sanction— seem as irreducible as the naturalness of the ensuing remedy: limiting the application of the non-deductibility of tax losses (and others) solely to the calculation of the tax penalties (see Article 444 of the Income Tax Code 1992), so that offenders can indeed be sanctioned without distorting the calculation of the corporate tax itself for some of them.
1. Reminder of the mechanism and its justifications
1. Legal text: Article 206/3, § 1, para. 2, of the Income Tax Code (“ITC 92”), formerly Article 207, paras. 1 and 7, of the ITC 1992, in question, was introduced by the Law of 25 December 2017 reforming corporate tax (O.J., 29.12.2017), effective from tax year 2019, and provides that (hereinafter, the “mechanism”):
is taxable, without “any of the deductions determined in Articles 199 to 206, 536 and 543, or compensation with the loss of the taxable period may be operated except for deductible income in accordance with Article 205, § 2,” the part of the result which is the subject of a correction of the return referred to in Article 346 or an ex officio assessment referred to in Article 351 for which surcharges of a percentage equal to or greater than 10% referred to in Article 444 are effectively applied, except in the latter case for deductible income in accordance with Article 205, § 2.
On the basis of this provision, the non-deductible items in the event of adjustments are of course tax losses, but also the loss of the taxable period and other assimilated deductions[3] (hereinafter, the “targeted tax carryforwards”).
2. For its part, Article 444 of the ITC 1992 currently provides, inter alia, that:
“In the event of absence of a return, late filing thereof or in the case of an incomplete or inaccurate return, the taxes due on the portion of undeclared or late-declared income, determined before any imputation of withholding taxes, tax credits, foreign tax credits and advance payments, are increased by a surcharge determined according to the nature and seriousness of the offence, on a scale set by the King and ranging from 10% to 200% of the taxes due on the portion of undeclared or late-declared income. (para. 1)
[…]
“The surcharge is waived for the first offence committed in good faith.” (para. 3)[4] (emphasis added).
According to this provision, surcharges are calculated on the taxes actually “due” at the end of the audit, with the consequence that, if tax losses (and other carryforwards) are available, it often happens that not only no tax, but also no surcharges, are due on the adjustments.
2. Examination of the motives in the first Constitutional Court rulings
6. Principle of equality and non-discrimination in tax matters: According to the established formula, the principle of equality and non-discrimination (Arts. 10, 11 and 172 of the Constitution) requires that differentiated or identical treatment between categories of taxpayers “rests on an objective criterion and is reasonably justified,” “taking into account the purpose and effects of the contested measure,” so that there exists a “reasonable relationship of proportionality between the means employed and the aim pursued” (no. 129/2024, B.3; see e.g.: Const. Ct., 13 March 2025, no. 43/2025, B.6.1; Const. Ct., 25 February 2021, no. 27/2021, B.5.1; Const. Ct., 28 May 2020, no. 76/2020, B.12).
7. Identical treatment with regard to the sanction objective of the mechanism: In its first rulings, the Constitutional Court examined the justifications of the mechanism and, in this respect, relied on the aforementioned excerpt from the preparatory works (see point 3), which it reproduced in full each time[5]; in this case, it is the second motive — ensuring proper compliance with filing obligations — and not the first budgetary motive, that the Court highlighted as the sole objective of the mechanism[6]. The Court explained, referring to both motives, that:
“[the measure] was justified by the desire to encourage companies to properly fulfil their tax filing obligations. […] Accepting the offset or deduction of losses in cases where it is justified for the tax administration to impose a sanction in the form of a surcharge[7] would amount to diminishing, or even neutralising, the effect of that sanction when the extent of the losses is such that they reduce or entirely absorb the taxable income.” (no. 129/2024, B.6.1 and B.6.2; no. 90/2025, B.12 – emphasis added).
And that:
“Such a consequence would run counter to the objective of the sanction” (no. 129/2024, B.6.2; no. 90/2025, B.12 – emphasis added) and, in the latest ruling, “could give rise to an unjustified equal treatment between taxpayers who have properly fulfilled their filing obligations and those who have not.” (no. 90/2025, B.12 – emphasis added).
The Court concluded these reflections by adding that:
“It could moreover lead to unjustifiable differences in treatment between taxpayers who failed to file their return on time and who may be subject to the sanction in question depending on whether or not they are able to deduct losses.” (no. 129/2024, B.7 – emphasis added; see also no. 90/2025, B.12, which reproduces the same wording but for “taxpayers who filed their return incompletely or inaccurately”).
8. In summary, the Court logically inferred that “With regard to the objective pursued, namely the effectiveness of the tax surcharge sanction, the categories of taxpayers compared by the first preliminary question [namely, among others, those depending on whether or not they have the targeted tax carryforwards] are not in essentially different situations” (no. 129/2024, B.7 – emphasis added; see also B.11.1 and no. 90/2025, B.12).
9. One can only agree with these considerations: taxpayers who have not properly fulfilled their tax obligations (whether through failure to file, late filing, incomplete and/or inaccurate filing) are indeed in identical situations (not “essentially different”) with regard to the objective of ensuring the effectiveness of the surcharge sanction and should therefore not be able to escape it solely on the grounds that they do (or do not) have the targeted tax carryforwards.
10. Hence the present question: since offenders of tax obligations are in the same situation with regard to the objective of ensuring the effectiveness of surcharge sanctions under the mechanism, how can it be justified — except for the application of those surcharges — that the sanction should (or could even) be harsher for taxpayers who have the targeted tax carryforwards?
Perfect — let’s keep going with the translation. Here’s the next major block of your document in English, continuing seamlessly from where we left off:
3. Distinguishing between the sanction, the tax and the procedure
11. Distinct nature of tax and surcharge: By definition, in our tax system, tax is distinct from the sanction, and it is indeed the surcharge – and not the tax as such – nor the assessment procedure – that sanctions the tax infringements found (whether it be a failure to file, or a late, incomplete and/or inaccurate filing of the return).
Thus, the Constitutional Court contrasts tax – defined as “a levy imposed by authority” – with the surcharges of Article 444, mentioned above, which constitute a sanction “in order to prevent and repress fraud resulting from the absence of a tax return or the incomplete or inaccurate nature of the return” and which may entail for the administration “an additional risk of not recovering the correct tax” and “the need to devote financial means and human resources to carry out the verifications necessary for this correct collection” (Const. Ct., 17 November 2022, no. 149/2022, B.2.1; Const. Ct., 23 January 2019, no. 7/2019, B.5.1; see also no. 129/2024, B.4.1).
Similarly, according to established case law, the ex officio assessment procedure “is not a tax sanction and does not allow the State to collect more than what is legally due” (see notably the note under Cass., 24 September 1963, Pas., 1964, p. 88; Cass., 24 June 1969, Pas., p. 989)[9].
12. Criminal qualification of the mechanism: In its latest ruling (no. 90/2025), the Court confirmed that the mechanism of Article 207, para. 7, in question, read in combination with Article 444, para. 2, of the ITC 92, is to be considered as a “penalty of a criminal nature” (Art. 6, § 1, of the European Convention on Human Rights).
After recalling the applicable principles (B.17.2 and B.17.3), the Court indeed found that:
“the measure pursues above all a preventive and repressive objective” and that its “consequences […] may seem heavy in certain cases, as evidenced by the underlying dispute” (B.17.4), concluding that “the repressive character predominates in the limitation of deduction and in the tax surcharge,” so that it is indeed a “penalty of a criminal nature” (B.17.5) (emphasis added).
13. The alteration (aggravation) of the calculation of tax due by taxpayers who have the targeted tax carryforwards constitutes an additional sanction, which is far from trivial and comes on top of the surcharges.
14. More generally, this analysis is not without possible parallels with that on the secret commissions tax (see notably: Const. Ct., 6 April 2000, no. 44/2000; Const. Ct., 6 June 2014, no. 88/2014; Const. Ct., 2 December 2021, no. 176/2021).
15. Impact of the mechanism for the calculation of surcharges (justified): With regard to its “objective of ensuring the effectiveness of surcharge sanctions” (see points 7 and 8), it is manifestly necessary – but also sufficient – that the mechanism in question (i.e. the non-deduction of the targeted tax carryforwards in the event of an audit) be limited in its application to the calculation of the “sanction” (i.e. surcharges) to the exclusion of “tax” as such.
16. To this end, and although this was not the approach taken, the mechanism could have been limited (provided) solely in Article 444 of the ITC 92 (reproduced at point 2); such an approach would not be new and has already been applied in that article to provide for the calculation of surcharges before deduction of various imputable credits (such as advance payments and certain withholdings), for the very purpose of preventing those credits from resulting in the absence of sanction for the infringement (Programme Law of 27 December 2012[10]; see also: Const. Ct., 23 January 2019, ruling no. 7/2019, B.5 and B.9.3).
17. Like these credits, the applicable surcharge would thus be calculated on the (theoretical/corrected) tax relating to undeclared (or late-declared) income before deduction of any of the targeted tax carryforwards, so that all offenders are indeed sanctioned in the same way whether or not they have carryforwards; for illustration:
| Adjusted result | Tax loss carryforwards | Normal corporate tax (25%) | Surcharges (e.g. 10%) | |
|---|---|---|---|---|
| A | 100,000 | 0 | 25,000 | 2,500 |
| B | 100,000 | 150,000 | 0 | 2,500 |
18. Application of the mechanism to tax: Conversely, since the mechanism allows the imposition of the dedicated surcharges, the objective of effectiveness is achieved – and therefore does not in itself justify – applying an additional sanction (i.e. the unfavourable recalculation of tax due) penalising only taxpayers with the targeted tax carryforwards (see point 15).
19. For equivalent infringements and surcharges, the choice to further extend (or not) the mechanism to tax as such involves an irreducible contradiction: this extension amounts to penalising more heavily taxpayers who have the targeted tax carryforwards (who have therefore not avoided current tax, or even future tax) than those who do not (and who have indeed avoided current tax).
20. As it stands, on the grounds of technical constraints (non-existent) relating to the calculation of surcharges on “tax due,” we have moved from one extreme (where taxpayers with carryforwards were not even sanctionable by surcharges) to another (where they are now penalised more heavily than others) (cf. also: Const. Ct., 23 January 2019, no. 7/2019, B.9.3)[11].
21. Such an approach, in our view, breaks the equality of treatment that the Constitutional Court itself found should prevail between these different categories of taxpayers (points 7 and 8), and it is difficult to see what objectively and reasonably justifies this additional sanction.
22. These extremes inevitably lead to shocking situations, which courts ultimately remedy on a case-by-case basis, in particular on the basis of the principle of proportionality (see point 26).
23. Consideration in the first Constitutional Court rulings: So far, and given the questions referred to it, the Court’s analysis of the impact on tax has been largely linked to that of surcharges[12], while ultimately validating the mechanism only in light of other safeguards available in the cases decided, such as (i) the possibility of waiving surcharges in the case of a first offence (no. 129/2024, B.8, and no. 90/2025, B.13.3) and (ii) the principles of good administration, equality, proportionality and others binding on the administration (no. 90/2025, B.13 and B.18), but also – as regards the impact on tax – the fact that (iii) “losses can be carried forward and deducted in a subsequent tax year” (no. 129/2024, B.8) and that “the tax advantage linked to the deduction of losses is not lost” (no. 129/2024, B.8 – emphasis added).
24. Prospects: Beyond the fact that these safeguards risk showing their limits (the sanction being supposed to be “automatic”), the objections raised above as to the discriminatory nature of the impact on tax remain open; at this stage, the Court does not seem to have had the last word and, in particular, as to the exact scope to be given to its qualifications concerning tax (point 23 (iii) above); the Court will soon have to revisit this aspect in the context of preliminary question 8470 (absence of distinction by the mechanism between liquidated and non-liquidated companies).
4. Disproportionate nature of the measure and relative prohibition of cumulative sanctions
25. Disproportionate nature of extending the measure to the tax: Beyond the issue of discriminatory impact of extending the measure to the tax (see previous section), and as already emphasized by the Constitutional Court in its initial rulings, the fact that the measure constitutes a sanction of a criminal nature (point 12) implies compliance with all associated guarantees, including the (relative) prohibition of cumulative sanctions[13], full jurisdictional review, and the principle of proportionality (notably: no. 129/2024, B.8; no. 90/2025, B.18)[14].
26. Based on these principles, courts generally consider themselves competent to verify whether the cumulative sanctions applied (including the implementation of the measure) are not objectively disproportionate in light of the situation at hand[15].
27. In this regard, it seems legitimate to argue that the harsher treatment of taxpayers with carryforward tax deductions in the calculation of their tax constitutes an objective element demonstrating the disproportionate nature of the measure at this level.
5. Specificity of late filing
28. Late filing – positions in the initial rulings: On this scenario, the Constitutional Court notes that: “In light of the objective pursued, namely the effectiveness of the tax surcharge sanction, the categories of taxpayers compared by the first preliminary question [those who filed their return late] are not in essentially different situations” (no. 129/2024, B.7).
The Court notes, among other things, that it makes no difference whether “the taxpayer filed their return before being notified of the automatic assessment” or “the administration used the data that was submitted late by the taxpayer themselves, without modifying them” (no. 129/2024, B.7).
29. Even if any delay must be effectively sanctioned, this does not mean – and this is not what the Court says – that all late filers are in the same degree of severity (e.g.: spontaneous regularization, more or less shortly after the audit, etc.); also, as recalled above (point 23), the Court only concludes to the proportionality of the measure in these cases in light of the safeguards surrounding it, particularly the possibility of waiving the surcharge (no. 129/2024, 8.).
30. Late filing – discretionary power or not: This assimilation of late filing to non-filing finds its roots in the assessment procedure (filing and establishment of the tax) and, in particular, in the express terms of Article 351 of the CIR 92 (and its predecessors[16]), from which it follows that “the delay in filing the return renders it irregular and is equivalent, in terms of effects, to the absence of a return” (Const. Ct., 23 January 2019, no. 7/2019, B.3.1, and the case law cited therein).
31. At the procedural level, however, a notable difference remains: in the case of a late return, if the administration merely uses the data submitted late, and even if this is not the recommended practice (Com.IR. no. 351/2) nor the one followed (Parl. Q. of 29.04.2025, no. 56004685C, by Mr. H. Bayet), it must be noted that the administration then has the choice “to assess the tax” under the ordinary procedure “without necessarily resorting to the automatic assessment procedure, which is a possibility and not an obligation for the administration” (Cass., 23 January 1992, Pas., 1992, I, 455; Cass., 26 May 1994, Pas., 1994, I, p. 517; Cass., 12 January 1948, Pas., 1948, I, p. 20); furthermore, without prejudice to the obligations to justify the surcharges, these do not require “any notice of correction of the return” or “notification prior to its assessment” (cf. Cass., 7 February 2002, F.00.0001.N; Cass., 17 February 2000, F.96.0080.N).
Such latitude does not exist if the return is missing, incomplete and/or incorrect, in which case a notice of automatic assessment or correction is required.
32. Since this choice has an impact in terms of sanctions (notably on the application of surcharges and, now, of the measure), and no longer merely on the procedure (the reversal of the burden of proof), it would be appropriate to draw useful consequences from it (whether on the discretionary power of the administration, full jurisdictional review and/or the criterion of proportionality).
33. We will not revisit here other controversies related to Article 444 of the CIR 92 (and its predecessors), notably before the case of late filing was expressly added to its text (following the laws of 30 June 2017, 27 June 2021 and 5 July 2022[17]), but which was interpreted as such by consistent case law until recently[18]; for the subject at hand, these debates at least remind us that there is no inherent parallelism between the scope of application of assessment procedures and that of applicable sanctions.
6. Concluding remarks
34. The purpose of the foregoing is clear: the non-deductibility of tax losses (and other carryforward deductions) in case of additional assessments following an audit (Art. 206/3 of the CIR 92) should, in our view, be confined to the calculation of surcharges, and therefore limited to the dedicated provision (cf. Art. 444 of the CIR 92).
Surcharges constitute the standard sanction regime, applicable to all offenders, and it is difficult to understand why taxpayers with carryforward deductions should – in addition to these surcharges – also be penalized by an (automatic and unfavorable) recalculation of their tax.
Ultimately, history repeats itself endlessly, and what a surprise it was to read in the submissions of Advocate General Ganshof van der Meersh preceding the judgment of 23 May 1950 (cited above) the following:
“It is, I said, an error to believe that the harm inflicted on the citizen because he failed in his legal obligation, that is to say the sanction, as you defined it in your judgment of 6 October 1937, lies in the automatic assessment.
Now, what do we see happening in administrative practice?
The administration, when it must ‘triple’ the portion of undeclared income, acts as if it feels remorse due to the severity of the legal system. Losing sight of both the nature of the tax surcharge as a penalty and its mandatory character, it merely increases this portion of the tax in proportions less than those provided by law, with a generosity that the law does not permit, and at the same time, and just as illegally, it disregards, in the automatic assessment operation, the rules that the law makes mandatory, as if it could ‘compensate’ here for the generosity it showed there.”
35. More generally, beyond the imbalance and inflexibility of the regime, one cannot help but question the wisdom of having created such interferences between the assessment procedure, the calculation of the tax, and the applicable sanctions, with the many questions that inevitably arise; in doing so, the measure under review also appears to have set a precedent.
36. Like other tax measures, the measure in question will undoubtedly continue to fuel judicial debates and, with some optimism, future political discussions.
Eric-Gérald Lang – info@langlegal.be – 14 October 2025 – All rights reserved – Legal Filing: 14.10.2025.
[1] See: Const. Ct., 26 September 2024, no. 100/2024; Const. Ct., 21 November 2024, no. 129/2024; Const. Ct., 19 June 2025, no. 90/2025, available on www.const-court.be (subsequent references to these decisions are made exclusively by their docket number).
[2] Prejudicial questions no. 8442 (17.03.2025); no. 8470 (02.05.2025); no. 8475 (08.05.2025); and no. 8538 (26.09.2025) (opinions not yet published).
[3] These include in particular: investment deductions, innovation income deduction, intra-group transfer deduction, notional interest deduction, excluding however the deduction for definitively taxed income (DTR).
[4] Paragraph as recently replaced by the Program Law of 18.07.2025 (MB 29.07.2025) and commented in Circular 2025/C/49 of 28.07.2025; until then, and in the versions cited in the rulings below, this paragraph read as follows: “In the absence of bad faith, the minimum 10% surcharge may be waived.” For initial commentary on the interpretation of this waiver (discretionary or mandatory) and the impact of its amendment, see notably: J. Van Dyck, “No surcharge for a first offense: a Pyrrhic victory?”, Fisc., 2025, 1885, 1; J. Van Dyck, “A ‘set’ of offenses and yet no tax surcharge”, Fisc., 2025, 1893, 9; J. Van Dyck, “First offense: from ‘potential sanction’ to ‘warning’”, Fisc., 2025, 1869, 10).
[5] See: no. 100/2024, B.1.2; no. 129/2024, B.1.4 and B.6.2; and no. 90/2025, B.1.3.
[6] Regarding the first motive, the Council of Ministers explained that it aimed to “broaden the tax base to offset the reduction [in the corporate tax rate] […] within the framework of a budget-neutral reform” and “ensure that tax audits resulting in adjustments […] lead to tax assessments” (no. 90/2025, point A.6.2); according to these explanations, this motive expresses a budgetary objective and not merely a “means” to achieve the repressive objective pursued by the second. The budgetary motive, however, is inherent to any tax and does not in itself justify differential treatment between comparable taxpayers (see e.g.: Cass., 13 May 2022, Case no. F.21.0102.F; Cass., 31 January 2020, Case no. F.18.0054.F; Cass., 28 February 2014, Case no. F.13.0112.F; available on www.juportal.be).
[7] In its ruling no. 90/2025, the Court is even more specific: “in the form of a surcharge calculated on the tax due” (point B.12).
[8] This position essentially reiterates that of the Council of Ministers, which explained in particular that “this provision corrects the defect linked to the method of calculating the surcharge, which required, in order to be effective, that a tax be due” and that “if losses could reduce the taxable base of the year, the surcharge could not fully apply” (no. 129/2024, points A.2.1 and A.2.2).
[9] On this subject, see notably: Cass., 23 and 30 May 1950, Pas., I, 669 and 688; F. Stévenart Meeûs (Dir.), Manuel de procédure fiscale, Anthemis, 2025, pp. 482 et seq.
[10] MB, 31.12.2012.
[11] Such an additional sanction ultimately amounts to assuming that the surcharge sanction is insufficient in itself and that ordinary tax constitutes a sanction for offenders who do not have carryforward deductions (see also point 11); moreover, the real impact of this additional sanction (deferral over the medium or long term and/or definitive loss of the tax advantages concerned) for the offender bears no relation to the infringement committed (but depends on their economic situation, e.g.: their sector, stage of development, financial health, economic climate, etc.).
[12] The Court points out, for example, that the measure “certainly has an impact on the amount of tax ultimately due” (no. 129/2024, B.7) or again that “a limitation of deduction and a tax surcharge constitute in some way the extension of the tax debt, since they are calculated on the basis of the latter” (no. 90/2025, B.17.6).
[13] See in particular: Const. Ct., 17 November 2022, no. 149/2022; Cass., 21 April 2022, F.20.0156.N; Const. Ct., 23 January 2019, no. 7/2019, B.12.3 and 12.4 and Parl. Q. by Mr. Gilkinet, no. 20029, Ch., CRIV, 53 Com 837, p. 14; for an application, see e.g.: Trib. Br. W. (14th ch.), 2 June 2025, R.G. 23/1797/A, 35, which notes the choice between a fine and/or surcharges.
[14] See also: Const. Ct., 15 May 2008, no. 79/2008, B.6.2; see also: Const. Ct., 6 June 2014, no. 88/2014, B.8.1; Const. Ct., 17 November 2022, no. 149/2022; Cass., 24 March 2023, F.21.0056.N; Cass., 23 September 2022, F.20.0112.N, juriportal.be; Cass., 21 September 2018, F.17.0141.N, juridat.be; Cass., 15 October 2010, F.09.0081.N/1, juridat.be; for a study, see notably: F. Kuty, “Full jurisdictional review of administrative sanctions”, R.D.P.C., 2024/6, pp. 619 et seq.
[15] See e.g., recently: Ghent (5th ch.), 24 June 2025, R.G. 24/AR/339, 4.3, monkey.be (which confirmed the measure and the 20% surcharges); Ghent (5th ch.), 6 May 2025, R.G. 2023/AR/32, monkey.be (which confirmed the measure and ordered the reduction of surcharges from 200% to 40%); see also, same day: Ghent (5th ch.), 6 May 2025, R.G. 2023/AR/32, Fisc., 2025, 1895, 5, with note by S. Van Crombrugghe, who himself raised one of the new preliminary questions (see note 2); see also: Trib. Br. W. (14th ch.), 2 June 2025, R.G. 23/1797/A, monkey.be (which confirmed the measure but ordered the reduction of surcharges from 100% to 50%); Trib. East Flanders (6th ch.), 10 April 2025, R.G. 22/2575/A, monkey.be (which confirmed the measure and the 20% surcharge); Civ. Brabant W., 27 February 2024, R.G. 22/811/A, Cour. Fisc., 2024/161, with note; Civ. Liège, 14 March 2023, R.G. 22/484, Cour fisc., 2023/255, with note by W. De Foor, reducing surcharges to 9.9% to exclude the measure; in the same sense: Civ. Ghent, 20 November 2023, monkey.be, reformed by Ghent, 24 June 2025, cited above; Civ. Ghent, 13 September 2022, Cour fisc., 2023/11-15.
[16] See, previously: Art. 56 of the coordinated laws on income taxes, later becoming Art. 259 of the CIR 1964.
[17] Respectively: MB, 07.07.2017; MB, 30.06.2021; and MB, 15.07.2022.
[18] See: Cass., 3 December 2021, no. F.21.0059.F; Cass., 29 September 1961, Pas., I, 1962, p. 111; Cass., 17 October 1977, Pas., 1977, I, p. 199; Cass., 4 February 1969, Pas., 1969, I, p. 508; contra: Cass., 15 March 2018, F.17.0004.N; Cass., 25 September 2020, F.18.0137.N; on the history and the relationship between Articles 351 and 444 of the CIR 92, as well as the controversies in cases of late filing of the return, see in particular the interesting contribution of: E. Van Brustem, “Tax surcharges and late filing – Divergences in case law within the Court of Cassation and foreseeability of the (criminal) law”, R.G.C.F., 2022/6, pp. 396 et seq.