Key facts of the case:
Reference for a preliminary ruling — Taxation — Personal Income Tax — Inadmissibility of the request for a preliminary ruling.
Joined Cases C-469/18 and C-470/18.
Outcom of the case:
On those grounds, the Court (Fifth Chamber) hereby rules:
The requests for a preliminary ruling made by the Hof van Cassatie (Court of Cassation, Belgium) by decisions of 28 June 2018 are inadmissible.
1) These requests for a preliminary ruling concern the interpretation of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
9) Before the referring court, the Hof van Cassatie (Court of Cassation, Belgium), the appellants in the main proceedings claim, inter alia, that it follows from Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and from Article 7 of the Charter that the transfer of natural persons’ banking data is possible only if the legal procedures laid down for that purpose are complied with. That is not the case here and therefore their fundamental right to respect for private life has been infringed. Obtaining such evidence in breach of such a right is contrary to what can be expected of an authority acting in accordance with the principles of sound administration and the use of such evidence should therefore, in all circumstances, be considered inadmissible.
13) In light of that case-law of the European Court of Human Rights, the referring court considers it necessary for the Court to be questioned again as to whether, in the case of VAT, Article 47 of the Charter must be interpreted as precluding, in all circumstances, the use of evidence obtained in breach of the right to respect for private life guaranteed by Article 7 of the Charter or as not precluding national rules under which a court that has to assess whether such evidence may be used to support a levying of VAT is required to carry out an examination such as that described above.
15) In those circumstances the Hof van Cassatie (Court of Cassation) decided, in Cases C‑469/18 and C‑470/18, to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling, which is worded identically in each of those two cases:
‘Should Article 47 of the Charter …, in cases of [VAT], be interpreted as precluding in all circumstances the use of evidence obtained in violation of the right to respect for private life as guaranteed by Article 7 of the Charter, or does it leave room for a national regulation under which the court which has to decide whether such a piece of evidence can be used as the basis for a VAT assessment has to make an evaluation such as the one set out [in the grounds of the request for a preliminary ruling]?’
18) It should be noted that the fact that, in the main proceedings, evidence was obtained in criminal proceedings following a complaint by the Belgian tax authorities which had investigated VAT fraud does not mean per se, as the Advocate General noted in point 66 of her Opinion, that the use of that evidence for the purpose of adjusting personal income tax returns constitutes an implementation of EU law within the meaning of Article 51(1) of the Charter. Such use does not have any link to EU law which goes beyond the close relationship that may exist, in one Member State, between the rules on the levying of VAT and those on the levying of personal income tax or the indirect effects of one of those matters on the other (see, to that effect, judgment of 10 July 2014, Julián Hernández and Others, C‑198/13, EU:C:2014:2055, paragraph 34 and the case-law cited).
19) In the present case, the Court cannot therefore assess, in the light of the Charter, the national legislation or case-law applicable to the use, in the procedure for the levying of personal income tax to which the appellants in the main proceedings are subject, of evidence which, according to the referring court, was improperly obtained.
20) However, although the cases in the main proceedings concern personal income tax, the referring court, whose question specifically concerns the interpretation of Article 47 of the Charter, seeks, in fact, to determine to what extent EU law permits or does not permit the use of improperly obtained evidence for the purpose of the levying of VAT. According to the referring court, there may be a discrepancy on this point between the solution found by the Court in the judgment of 17 December 2015, WebMindLicenses (C‑419/14, EU:C:2015:832), and the case-law of the European Court of Human Rights. The answer to the question raised is necessary for it to be able to assess the unequal treatment, alleged by the appellants in the main proceedings, between a taxpayer who is the subject, as in the present case, of a levying of personal income tax and a taxpayer who is the subject of a levying of VAT.