Opinion of the Advocate General — ECLI:EU:C:2019:597
Date: 2019-07-11
Language of the case: Dutch
Subject matter: Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Belgium

Summary C-469/18 — 1 
Case C-469/18 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
19 July 2018 
Referring court: 
Hof van Cassatie (Belgium) 
Date of the decision to refer: 
28 June 2018 
Appellant: 
IN 
Respondent: 
Belgische Staat 
  
Subject of the procedure in the main proceedings 
Appeal in cassation, lodged by the appellant against a judgment of the Hof van 
beroep van Gent (Court of Appeal, Ghent), of 5 April 2016, in which the appeal of 
the respondent against the judgment of the Rechtbank van eerste aanleg West-
Vlaanderen afdeling Brugge (Court of First Instance, West Flanders, Bruges 
Division), was declared well-founded and that judgment was annulled in so far as 
it exempted the appellant from paying personal income tax assessed to him in the 
amounts of EUR 501 244.50 (1997 tax year) and EUR 532 073.78 (1998 tax year) 
respectively  
Subject and legal basis of the request for a preliminary ruling 
Interpretation of Union law (Articles 7 and 47 of the Charter of Fundamental 
Human Rights of the European Union), Article 267 TFEU. 
EN NL
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-469/18 
 
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Questions referred 
‘Should Article 47 of the Charter of Fundamental Human Rights of the European 
Union, in cases of value added tax, 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 above under paragraph 4 of this judgment.’ 
Provisions of international law cited 
Articles 6, 8 and 13 of the Convention for the Protection of Human rights and 
Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’)  
Articles 20(1) and (2) of the Treaty Concerning Extradition and Mutual 
Assistance in Criminal Matters between the Kingdom of Belgium, the Grand 
Duchy of Luxembourg and the Kingdom of the Netherlands, signed in Brussels on 
27 June 1962 (‘Benelux Treaty Concerning Extradition and Mutual Assistance in 
Criminal Matters’):  
‘1. At the request of the requesting party, the requested party shall, in so far as is 
permitted by its law, seize the objects: 
a) which may serve as articles of evidence; 
b) which originate from the offence and are found either before or after the 
surrender of the arrested person; and transfer them.  
2. The transfer is subject to the approval of the Raadkamer (Chambre du Conseil) 
of the court of the place where the search and seizure took place. The Raadkamer 
shall decide whether the seized objects are to be transferred in whole or in part to 
the requesting party. It may order the return of objects that are not directly related 
to the fact that the respondent is being charged, and, where appropriate, shall 
decide on objections from third parties, who were the holders of the objects, or 
from other rights holders.’ 
Article 24(2) of the Benelux Treaty Concerning Extradition and Mutual 
Assistance in Criminal Matters: 
‘However, rogatory commissions, for purposes of search or seizure, shall only be 
carried out for facts which may give rise to extradition under this Convention and 
subject to the reservation expressed in Article 20(2).’ 
BELGISCHE STAAT 
 
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Provisions of Union law cited 
Articles 7, 8 and 47 of the Charter of Fundamental Human Rights of the European 
Union (‘the Charter’) 
Case-law of the Court of Justice of the European Union cited 
Judgment of 17 December 2015, WebMindLicenses, C-419/14, EU:C:2015:832 
(‘the WebMindLicenses judgment’), paragraphs 86 to 89  
National rule cited 
A rule formulated in the case-law of the Court of Cassation known as the ‘tax 
Antigone", on the basis of which it can be determined whether or not the use of 
unlawfully obtained evidence in tax cases is permissible. 
That rule provides that, except where the legislature provides for special sanctions 
in that respect, the use of unlawfully obtained evidence in tax cases can only be 
excluded if the evidence has been obtained in a manner which is so contrary to the 
standard of propriety that is expected from a public authority, that that practice 
should be deemed inadmissible under all circumstances, or if that practice 
compromises the taxpayer’s right to a fair trial. 
In considering the matter, the court may take into account, inter alia, one or more 
of the following circumstances: the purely formal nature of the irregularity, its 
impact on the right or the freedom protected by the compromised standard, the 
intentional or unintentional nature of the unlawful conduct of the authorities and 
the circumstance that the gravity of the infringement by far exceeds the unlawful 
conduct. 
Brief summary of the facts and the procedure in the main proceedings 
1 The appellant is managing director of a trading and distribution company in 
computers and computer parts. In 1996, a criminal investigation was initiated 
against that company after a complaint from the Bijzondere Belastinginspectie 
(Special Tax Inspectorate), which was launched in 1995 with an investigation into 
VAT carousel fraud. 
2 In the context of a rogatory commission sent to the Grand Duchy of Luxembourg, 
the Director of the Bank Ferrier Lullin Luxembourg (‘the bank director’), during 
his interrogation by the Luxembourg examining magistrate, in the presence of his 
Belgian colleague, handed over banking documents relating to the appellant. It has 
been established in cassation that the release of those documents was not 
voluntary, but was the result of the procedure of search and seizure at the 
aforementioned bank.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-469/18 
 
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3 The approval required by Article 20(2) of the Benelux Treaty Concerning 
Extradition and Mutual Assistance in Criminal Matters for the transfer of the 
relevant documents to the Belgian authorities was not granted by the Raadkamer 
(Chambre du conseil) of the court of the place where the search and seizure took 
place, namely, the Chambre du conseil of the tribunal d’arrondissement de 
Luxembourg (investigation chamber of the District Court, Luxembourg). Nor had 
such approval been requested.  
4 The respondent was granted permission to inspect the criminal file and to make a 
copy thereof. On the basis of the information thus obtained, the respondent sent 
the appellant notices of deficiency (berichten van wijziging van de aangifte in de 
personenbelasting) in respect of his income tax returns for the 1997 and 1998 tax 
years, stating that half of the various amounts which, according to the 
aforementioned banking documents, had been credited to a Luxembourg account 
of the appellant and his brother by the companies Intercontinental Stock Exchange 
(ISE) and World Wide Commodities and Trading (WWCT), would be taxed as 
gross profit from industrial and commercial enterprises. For the 1997 tax year, this 
amounted to EUR 536,738.94 in taxable profit. For the 1998 tax year, this 
amounted to EUR 576,717.62. 
5 The appellant then brought an action before the Rechtbank van eerste aanleg 
Brugge (Court of First Instance, Bruges) (from 1 January 2014, Rechtbank van 
eerste aanleg West-Vlaanderen, afdeling Brugge) (Court of First Instance, West 
Flanders, Bruges Division), seeking exemption from the personal income tax 
assessments. In that regard, he argued, inter alia, that, under the Benelux Treaty 
Concerning Extradition and Mutual Assistance in Criminal Matters, the 
documents handed over as part of the rogatory commission to the Grand Duchy of 
Luxembourg could only be transferred to the requesting party, namely, 
Belgium, — and consequently could only be used — if approved by the Chambre 
du conseil of the tribunal d’arrondissement de Luxembourg. Since that approval 
had not been sought, the banking documents at issue were obtained unlawfully 
and they cannot be used to establish the appellant’s personal income tax liability. 
6 By judgment of the Rechtbank van eerste aanleg West-Vlaanderen, afdeling 
Brugge, the appellant’s tax appeal was declared admissible and the appellant was 
exempted from the personal income tax assessments in his name, in the amounts 
of EUR 501 244.50 (1997 tax year) and EUR 532 073.78 (1998 tax year), 
respectively. 
7 The respondent lodged an appeal against that judgment before the Hof van beroep 
Gent (Court of Appeal, Ghent; ‘the Court of Appeal’). That court acknowledged 
that the banking documents in question had been released as a result of the search 
and seizure procedure at Bank Ferrier Lullin Luxembourg within the framework 
of the aforementioned rogatory commission, so that, under Article 20(2) of the 
Benelux Treaty Concerning Extradition and Mutual Assistance in Criminal 
Matters, the documents could only be used if the Chambre du conseil of the 
tribunal d’arrondissement de Luxembourg had given its approval for this. 
BELGISCHE STAAT 
 
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8 Since that approval was not sought, the relevant documents were, according to the 
Court of Appeal, obtained irregularly. However, the Court of Appeal took the 
view that, as argued by the respondent, that irregularity does not preclude those 
documents being used, since the criteria of the ‘tax Antigone’ have been satisfied. 
9 According to the Court of Appeal, those criteria, which are part of the law ‘in 
themselves’ and were therefore not ‘introduced’ at a certain point in time, mean 
that the use of unlawfully obtained evidence in tax cases is only inadmissible if 
the relevant documents have been obtained in a manner which is so contrary to the 
standard of propriety that is expected from a public authority, that that practice 
should be deemed inadmissible under all circumstances, or if that practice 
compromises the taxpayer’s right to a fair trial. 
10 The Court of Appeal took the view that the use of the banking documents in 
question with a view to establishing liability for the disputed personal income tax 
assessments passed that dual test. 
11 With regard to the first criterion of the ‘tax Antigone’, that court found, inter alia, 
that there were no indications that the Belgian State was aware that the use of 
those documents required the approval of the Chambre du conseil of the tribunal 
d’arrondissement de Luxembourg. Be that as it may — and irrespective of 
whether the irregularity is purely formal — the use of the documents in question 
cannot be deemed ‘inadmissible in all circumstances’, because the irregularity at 
issue, in relation to the gravity of the facts adduced in the criminal proceedings, is 
not of sufficient weight to prohibit the use of those documents. In addition, it is 
unlikely that the Chambre du conseil of the tribunal d’arrondissement de 
Luxembourg would have withheld its consent to the transfer of those documents if 
its approval had been sought.  
12 Furthermore, according to the Court of Appeal, the documents only contained 
information on actual facts (financial transactions) which the appellant was able to 
take cognizance of, so that it fails to be seen that he was unable to guard against 
the tax consequences of that information. Since the appellant was able to defend 
himself by all available means in the context of the objection procedure and in the 
judicial phase of the tax dispute, the rights of the defence were respected.  
13 In the light of those considerations, the Court of Appeal, by judgment of 5 April 
2016, annulled the judgment of the first instance court in so far as it granted 
exemption from the disputed personal tax assessments. The appellant lodged an 
appeal in cassation against that judgment. 
Main submissions of the parties to the main proceedings 
14 As is apparent from paragraphs 8 to 12, the Court of Appeal agreed with the 
argument put forward by the respondent that the documents released by the bank 
director in the context of the criminal proceedings, pass the dual test of the ‘tax 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-469/18 
 
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Antigone’, so that they could serve as a basis for determining the disputed tax 
assessments.  
15 The appellant put forward two pleas in cassation against the contested judgment, 
the first of which consists of four parts. Only the fourth part of the first plea is 
directly relevant to the reference for a preliminary ruling. 
16 According to that fourth limb of the first plea in cassation, the transmission of the 
banking information of natural persons always constitutes interference in the 
private lives of those persons. It follows from both Article 8 of the ECHR and 
Article 7 of the Charter that the transmission of such information is only possible 
if the statutory procedures laid down for that purpose have been complied with. 
17 Although not every violation of the law constitutes an unacceptable infringement 
of private life, that is indeed the case when the violation of the statutory provision 
in question is crucial for the protection of private life. In that regard, the appellant 
considers that the requirement laid down in the Benelux Treaty Concerning 
Extradition and Mutual Assistance in Criminal Matters that the transfer of 
information in circumstances such as those at issue in the main proceedings must 
be approved by the Raadkamer (Chambre du conseil)  of the court of the place 
where the search and seizure took place, is unmistakably aimed at verifying 
whether the acquisition of the information concerned and its transmission were 
legal, and in particular, whether the objects seized directly relate to the alleged 
facts.  
18 According to the appellant, since the banking documents seized in Luxembourg, 
which relate to the appellant’s private life within the meaning of Article 8 of the 
ECHR and Article 7 of the Charter, were transferred to the Belgian authorities 
without the Chambre du conseil of the tribunal d’arrondissement de Luxembourg 
having given its approval to do so, the conclusion is justified that that transfer 
infringed one of his fundamental rights. In such a case, it is impossible to assume 
that the manner in which the relevant documents were obtained is not contrary to 
the standard of propriety that is expected from a public authority, so that that 
practice should be deemed inadmissible under all circumstances. According to the 
appellant, the disputed tax assessments should thus not have been based on those 
documents.  
Brief summary of the reasons for the referral 
19 To begin with, the referring court observes that the Belgian tax legislation does 
not contain a general provision which precludes the use of unlawfully obtained 
evidence in order to establish a tax debt. The use by the tax authorities of 
unlawfully obtained evidence should be tested against the principles of good 
administration and the right to a fair trial.  
20 Except where the legislature provides for special sanctions in that respect, the use 
of unlawfully obtained evidence in tax cases can only be excluded if the evidence 
BELGISCHE STAAT 
 
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has been obtained in a way that is so contrary to the standard of propriety that is 
expected from a public authority, that that practice should be deemed inadmissible 
under all circumstances, or if that practice compromises the taxpayer's right to a 
fair trial.  
21 In considering the matter, the court may take into account, inter alia, one or more 
of the following circumstances: the purely formal nature of the irregularity, its 
impact on the right or the freedom protected by the compromised standard, the 
intentional or unintentional nature of the unlawful conduct of the authorities and 
the circumstance that the gravity of the infringement by far exceeds the unlawful 
conduct.  
22 After lodging the appeal in cassation, the appellant argued that, if it is accepted 
under Belgian law that in the case of an income tax assessment, evidence obtained 
in violation of a fundamental right may be accepted in certain circumstances, there 
is then a difference in treatment between the taxpayer who is subject to an income 
tax assessment and a taxpayer who is subject to a VAT assessment, a state of 
affairs which is unjustifiable from the point of view of the constitutionally 
guaranteed principle of equality and non-discrimination. In the WebMindLicenses 
judgment, the Court of Justice of the European Union ruled that evidence acquired 
in violation of a fundamental right must be excluded in the case of a VAT 
assessment. The appellant has proposed that a question be referred to the 
Constitutional Court for a preliminary ruling on that possible discrimination. 
23 Paragraphs 86 to 89 of the WebMindLicenses judgment, which concerned an 
additional assessment to VAT based on data from a criminal investigation that had 
not been concluded and which had been obtained by the interception of 
telecommunications and the seizure of e-mails, read as follows: 
‘86. As regards, in the third place, the right to an effective judicial remedy, 
guaranteed by Article 47 of the Charter, and the conclusions to be drawn from an 
infringement of the rights guaranteed by EU law, it should be noted that, under 
Article 47, everyone whose rights and freedoms guaranteed by EU law are 
violated has the right to an effective remedy before a tribunal in compliance with 
the conditions laid down in that article.  
87. In order for the judicial review guaranteed by that article to be effective, the 
court reviewing the legality of a decision implementing EU law must be able to 
verify whether the evidence on which that decision is founded has been obtained 
and used in breach of the rights guaranteed by EU law and, especially, by the 
Charter. 
88. That requirement is satisfied if the court hearing an action challenging the 
decision of the tax authorities adjusting VAT is empowered to check that the 
evidence upon which that decision is founded, deriving from a parallel criminal 
procedure that has not yet been concluded, was obtained in that criminal 
procedure in accordance with the rights guaranteed by EU law or can at least 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-469/18 
 
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satisfy itself, on the basis of a review already carried out by a criminal court in an 
inter partes procedure, that that evidence was obtained in accordance with EU 
law. 
89. If that requirement is not satisfied and, therefore, the right to a judicial remedy 
is not effective, or if another right guaranteed by EU law is infringed, the evidence 
obtained in the context of the criminal procedure and used in the administrative 
tax procedure must be disregarded and the contested decision which is founded on 
that evidence must be annulled if, as a result, the decision has no basis.’ 
24 The referring court considers it necessary that the Court of Justice of the European 
Union again give a ruling on the question whether, in the case of value added tax, 
which is regulated by European law, Article 47 of the Charter should 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 whether it leaves 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, is obliged to make an evaluation as referred to in 
paragraphs 20 and 21. 
25 For that reason, the referring court has decided to refer that question to the Court 
of Justice of the European Union by way of a request for a preliminary ruling 
under Article 267 TFEU.  
26 In that regard, the Hof van Cassatie (Court of Cassation) observes that, although 
the present case concerns income taxes, which are not governed by EU law, the 
answer to the question referred for a preliminary ruling is required in order to be 
able to give a ruling on the unequal treatment alleged by the appellant between, on 
the one hand, a taxpayer who is the subject of an income tax assessment and, on 
the other hand, a taxpayer who is the subject of a VAT assessment.