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Key facts of the case:

  1. Is a Member State implementing Union law if its tax authorities use, for an income tax assessment, evidence that the investigating authorities obtained after the discovery of a VAT carousel? In other words, does a breach of fundamental rights of the European Union when gathering evidence lead to a prohibition on the use of evidence in the context of an income tax assessment? These are essentially the questions that the Court of Justice has to consider by means of two requests for a preliminary ruling from the Belgian Court of Cassation.
  2. The questions are asked against the background of criminal investigations in the context of which Luxembourg transferred evidence to Belgium in breach of a provision stipulating judicial authority provided for in an international agreement. This evidence was used at least for the income tax assessments. It is only these assessments that are contested by the appellants in cassation in the main proceedings (‘the appellants in cassation’).
  3. The matter at issue is therefore the application of the Charter of Fundamental Rights of the European Union (‘the Charter’) — Article 47 of the Charter in this case — in the context of income tax assessment. This matter goes beyond the much-discussed (2) Åkerberg Fransson judgment from 2013. (3) In that judgment, the Court ruled that criminal proceedings regarding VAT fraud serve to ‘implement … Union law’ within the meaning of Article 51(1) of the Charter. It is now necessary to examine whether the assessment of income tax serves to implement Union law if evidence that was obtained during a pre-trial investigation initiated due to suspicion of VAT fraud is used.

Conclusion:

 In view of the foregoing considerations, I propose that the Court of Justice should declare that it lacks jurisdiction to answer the question of the Belgian Court of Cassation.