Summary;Judgment — ECLI:EU:C:2024:505
Date: 2024-06-13
Language of the case: Bulgarian
Court formation: Tenth Chamber
Subject matter: Telecommunications;Fundamental rights;Data protection;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-229/23 – 1 
Case C-229/23 
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: 
12 April 2023 
Referring court: 
Sofiyski gradski sad (Bulgaria) 
Date of the decision to refer: 
12 April 2023 
Defendants: 
SS 
IP 
ZI 
DD 
HYA 
  
Subject matter of the main proceedings 
Probative value of judicial authorisations to use special investigative methods 
Subject matter and legal basis of the request 
The request is made under point (b) of the first paragraph of Article 267 TFEU. 
Question referred for a preliminary ruling 
Must Article 15(1) of Directive 2002/58, read in conjunction with the second 
paragraph of Article 47 of the Charter [of Fundamental Rights of the European 
Union (‘the Charter’)], as interpreted by the Court of Justice of the European 
Union in the judgment of 16 February 2023 in Case C-349/21 and in the light of 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-229/23 
 
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recital 11 of that directive, of Article 52(1) and Article 53 of the Charter and of 
the principle of equivalence, be interpreted as requiring a national court: 
– to disapply provisions of national law (Article 121(4) of the [Konstitutsia na 
Republika Bulgaria (Constitution of the Republic of Bulgaria)], Article 174(4) of 
the [Nakazatelnoprotsesualen kodeks (Code of Criminal Procedure; ‘the NPK’)] 
and Article 15(2) of the [Zakon za spetsialnite razuznavatelni sredstva (Law on 
Special Investigative Methods; ‘the ZSRS’)]) and the interpretation of Article 8(2) 
of the [European Convention on the Protection of Human Rights and Fundamental 
Freedoms (ECHR)] adopted by the [European Court of Human Rights (ECtHR)] 
in the judgment in Case No 70078/12, according to which a judicial authorisation 
(to listen to, intercept and store telecommunications without the consent of the 
users concerned) must contain an express statement of written reasons, 
irrespective of the existence of a reasoned application on the basis of which the 
authorisation was issued, the reason for such disapplication being that a cross-
reading of the application and the authorisation makes apparent (1) the precise 
grounds on which the court, in the factual and legal circumstances of the particular 
case, arrived at the view that the legal requirements had been met, and (2) the 
person and the means of communication that formed the subject of the judicial 
authorisation issued? 
– in the context of the examination as to whether the telecommunications at 
issue must be excluded as evidence, to disapply a provision of national law 
(Article 105(2) of the NPK), or to interpret it in conformity with EU law, in so far 
as it requires compliance with the national procedural rules (in this case, 
Article 174(4) of the NPK and Article 15(2) of the ZSRS), and to apply instead 
the rule laid down by the Court of Justice in the judgment of 16 February 2023 in 
Case C-349/21? 
Provisions of European Union law and case-law relied on 
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 
2002 concerning the processing of personal data and the protection of privacy in 
the electronic communications sector (OJ 2002 L 201, p. 37; ‘Directive 2002/58’) 
Judgment of 6 September 2012, Trade Agency (C-619/10, EU:C:2012:531; ‘Case 
C-619/10’) 
Judgment of 26 February 2013, Stefano Melloni (C-399/11, EU:C:2013:107; 
‘Case C-399/11’) 
Judgment of 21 December 2016, Tele2 Sverige and Watson and Others (C-203/15 
and C-698/15, EU:C:2016:970; ‘Case C-203/15’) 
Judgment of 17 January 2019, Dzivev (C-310/16, EU:C:2019:30; ‘Case 
C-310/16’) 
HYA AND OTHERS 
 
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Judgment of 6 October 2020, Privacy International (C-623/17, EU:C:2020:790; 
‘Case C-623/17’) 
Judgment of 6 October 2020, La Quadrature du Net and Others (C-511/18, 
C-512/18 and C-520/18, EU:C:2020:791; ‘Case C-511/18’) 
Judgment of 24 November 2020, Minister van Buitenlandse Zaken (C-225/19 and 
C-226/19, EU:C:2020:951; ‘Case C-225/19’) 
Judgment of 2 March 2021, H. K. (C-746/18, EU:C:2021:152; ‘Case C-746/18’) 
Judgment of 16 February 2023, HYA and Others (C-349/21, EU:C:2023:102; 
‘Case C-349/21’) 
Case-law of the ECtHR 
Judgment of 11 January 2022 concerning Application No 70078/12, Ekimdzhiev 
and Others v. Bulgaria, ECLI:CE:ECHR:2022:0111JUD007007812; ‘ECtHR – 
judgment in Case No 70078/12’ 
Provisions of national law relied on 
Konstitutsia na Republika Bulgaria (Constitution of the Republic of Bulgaria) 
Nakazatelnoprotsesualen kodeks (Code of Criminal Procedure; ‘the NPK’) 
Zakon za spetsialnite razuznavatelni sredstva (Law on Special Investigative 
Methods; ‘the ZSRS’) 
Nakazatelen kodeks (Criminal Code; ‘the NK’) 
Grazhdanski protsesualen kodeks (Code of Civil Procedure) 
Zakon za elektronnite saobshtenia (Law on Electronic Communications; ‘the 
ZES’) 
Succinct presentation of the facts and procedure in the main proceedings 
1 Charges were brought against five persons (IP, DD, ZI, SS and HYA) for 
membership of a criminal organisation, aiding and abetting the illegal crossing of 
borders and paying and accepting bribes. 
2 During the pre-trial stage of the criminal proceedings which had been instituted, 
the president of the court, acting on the basis of extensively reasoned applications 
made by the public prosecutor, adopted seven decisions authorising the use of 
special investigative methods for the purposes of listening to, intercepting and 
storing telecommunications effected via the defendants’ telephones. These are 
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decisions drawn up in the form of a pre-drafted template text which lists, and 
reproduces some of the content of, the legal provisions applicable to the 
investigative activity in question. The only individualised elements are the number 
of the application, the case number and the duration [of the activity] (which is 
specified in the operative part of the decision). In particular, they do not contain 
any individualised grounds for the decision concerned. 
3 Neither do they contain an individualised operative part (that is to say, a decision 
formula). Although the operative part of the judicial decision clearly states what 
measures are to be taken (namely, listening to, intercepting and storing 
telecommunications) and for how long (in the form of the start date and total 
duration of the measure), it does not specify either the name of the person or the 
means of communication (the IMEI number of the telephone device or the SIM 
card number) that are to form the subject of those measures. The only 
individualised information provided in it is the duration of the measure. 
4 The application, however, contains all of those details. 
5 On the basis of the seven judicial authorisations issued, the telephone 
conversations of the defendants and of an unidentified individual were listened to, 
intercepted and stored for various periods of time. 
6 In accordance with the guidance provided by the Court of Justice in paragraph 38 
of the judgment in Case C-349/21, the referring court finds that the 
telecommunications operators providing telecommunications services were 
involved in the aforementioned measures and that their assistance falls within the 
scope of Article 4(2) of Regulation 2016/679. Pursuant to Articles 304 to 310 of 
the ZES, telecommunications operators are to provide and maintain interception 
interfaces through which intercepted electronic communications are to be 
transmitted to the facilities of the police authorities. They are also to furnish data 
on the call concerned and on its decryption. 
7 The judicial authorisations were therefore executed on the basis of obligations to 
process personal data, within the meaning of Article 4(2) of Regulation 2016/679, 
imposed by law on, and actually discharged by, providers of electronic 
communications services, in so far as those providers used technical means to 
carry out operations to collect personal data (the content of the 
telecommunications at issue in the main proceedings) and transmit those data to 
the law enforcement authorities in such a way as to make the former accessible to 
the latter. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 It is a legal requirement that both the application and the judicial authorisation 
must state the reasons on which they are based. Failure to state the reasons for a 
judicial decision constitutes a substantial procedural defect and results in the 
setting aside of the judicial decision concerned. In accordance with the NPK, 
HYA AND OTHERS 
 
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evidence must be gathered or produced in accordance with the rules and 
procedures laid down in that law. Part of the process of gathering evidence (in this 
case, the recorded telecommunications) is the existence of a prior lawful judicial 
authorisation. Since failure to state reasons, as expressly provided for by law, 
constitutes a substantial procedural defect, the recorded telephone conversations 
must be excluded as evidence. 
9 Failure to state reasons is permissible only in cases expressly provided for by law. 
In all other cases, judicial decisions must always state the reasons on which they 
are based. 
GENERAL REMARKS 
Judgment in Case C-349/21 
10 In paragraph 45 of the judgment in Case C-349/21, the Court of Justice held that 
judicial decisions authorising access to the electronic communications protected 
under Article 5 of Directive 2002/58 must state the reasons on which they are 
based. In paragraphs 50 to 53 thereof, however, the Court of Justice also held that, 
if the application for access was extensively reasoned, the judge, by signing a pre-
drafted template text indicating that the legal requirements for issuing the 
authorisation have been complied with, endorses the grounds of the application. 
The Court of Justice thus introduces the method of cross-reading the application 
and the authorisation (paragraphs 59 and 61 and the operative part), whereby the 
specific grounds on which the authorisation was issued may be inferred from the 
content of the two documents taken together. The reasons stated in the application 
thus become the grounds of the judicial authorisation, since the court which issued 
the authorisation adopted as its own the grounds contained in the application and, 
having come to the conclusion on the basis of those grounds that the legal 
requirements had been met, issued that authorisation (paragraph 60). In 
paragraph 56, the Court of Justice directs the referring court to examine whether it 
is able to ascertain and understand the grounds of a judicial authorisation 
presented in this way by cross-reading it with the application (paragraphs 58 to 
61). 
11 The referring court expressly points out that the application was entered in its 
entirety in the case file and was available to the defence. Furthermore, it has the 
content necessary to cover the points provided for by law, so that the grounds for 
the decision taken to listen to, intercept and store telecommunications without the 
consent of the users concerned can be easily and clearly understood by cross-
reading the reasons set out in the application and the judicial authorisation. 
The contradiction between the judgment in Case C-349/21 and national law 
12 Under national law, the statement of reasons standard established by the Court of 
Justice in Case C-349/21, that is to stay the statement of reasons by signature of a 
pre-drafted text, is not applicable in the procedure for obtaining judicial 
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authorisation to listen to, intercept and store telecommunications without the 
consent of the users concerned. 
13 Under national law, the obligation to state reasons is a two-stage process: reasons 
must be given first in the application and then in the judicial authorisation too. By 
law, the mere fact that the application stated the reasons on which it was based – 
no matter how extensively – does not make it permissible for the judicial 
authorisation to be unreasoned. 
14 The national legislature found that the use of special investigative methods to 
intercept telephone conversations infringes the essence of citizens’ privacy to such 
an extent that both the application and the judicial decision authorising the use of 
such methods must necessarily be independently reasoned. 
15 There is therefore a contradiction between national law and EU law in relation to 
the quality of the statement of reasons for a judicial authorisation, because 
national law expressly requires that the judicial authorisation contain a written 
statement of reasons, whereas, under EU law as interpreted in the judgment in 
Case C-349/21, a judicial authorisation in the form of a text template is sufficient 
if it was adopted on the basis of an extensively reasoned application to which the 
court and the defence have access and the reasons for the decision adopted can 
therefore be understood from a cross-reading of the decision and the authorisation. 
This is a crucial contradiction and an interpretation [of national law] in conformity 
with EU law is not possible. Consequently, the national law should be disapplied 
in so far as it cannot be applied in conformity with EU law. 
The contradiction between the judgment in Case C-349/21 and the judgment of 
the ECtHR in Case No 70078/12 
16 It is safe to assume that the ECtHR does not allow the statement of reasons by 
signature either. The ECtHR expressly addressed that issue in Case No 70078/12, 
in which the national rules on the use of special investigative methods for 
telephone tapping were examined in the light of Article 8 ECHR. The ECtHR 
finds that a statement of reasons – even if brief – is necessary in order to ensure 
that the judge has actually read the application and examined the evidence 
presented in the case. The absence of such a statement of reasons leads to the 
conclusion that the issue of the authorisation is not compatible with Article 8(2) 
ECHR. The ECtHR reaches that conclusion after finding that the application was 
reasoned. 
17 Consequently, the ECtHR does not recognise the concept, established by the 
Court of Justice of the European Union, of stating reasons by signing a pre-drafted 
template text and cross-reading the judicial authorisation and the application. On 
the contrary, the ECtHR finds that it is a violation of Article 8 ECHR for judicial 
authorisations to be drafted in this way. 
Presentation of the issue in relation to the aforementioned contradictions 
HYA AND OTHERS 
 
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18 According to the facts of the main proceedings, the judicial authorisations 
themselves are not reasoned, since they do not make clear on exactly what 
grounds the president of the Spetsializiran nakazatelen sad (Specialised Criminal 
Court, Bulgaria) formed the view that, in the factual and legal circumstances of 
the particular case, the legal requirements had been met. On the other hand, those 
judicial authorisations are to be regarded as reasoned if they are considered in 
conjunction with the applications and each authorisation and corresponding 
application are cross-read. 
19 The law can therefore be interpreted in two ways that lead to opposite end results. 
If EU law were applied in the manner in which it was interpreted by the Court of 
Justice in Case C-349/21, the referring court would subscribe to the ‘statement of 
reasons by signature’ view and the judicial authorisation and the application 
would therefore have to be cross-read. It would thus assume that the judicial 
authorisations are formally lawful. If, on the other hand, it applied national law 
and the ECHR as interpreted by the ECtHR in the judgment in Case No 70078/12, 
it would assume that the judicial authorisations for telephone tapping are 
unreasoned and, therefore, unlawful too. 
20 In order to apply EU law, the referring court must first satisfy itself that the 
principle of the primacy of EU law over national law applies, and then, in so far as 
the application of EU law requires the disapplication of national law and of the 
law deriving from the ECHR as interpreted in the judgment of the ECtHR in Case 
No 70078/12, satisfy itself that such disapplication does not infringe other 
provisions of EU law – recital 11 of Directive 2002/58, Articles 52 and 53 of the 
Charter. 
21 All of the issues set out above form the subject of the first question referred for a 
preliminary ruling. 
The primacy of EU law over national law 
22 There is no question that EU law takes precedence over national law. It follows 
that the latter must be disapplied where it cannot be interpreted in conformity with 
EU law. On that basis, the referring court would apply the concept of the 
statement of reasons by signature formulated by the Court of Justice and recognise 
the reasons given in the application as the grounds on which the judge issued the 
judicial authorisation. This would be the case, however, only if the matter 
concerned is governed by EU law. 
23 The referring court notes, however, that Article 15 of Directive 2002/58 does not 
attach any special requirements to the statement of reasons for judicial 
authorisations to restrict the rights provided for in Article 5 thereof. The only 
requirement is that they must be lawful. The standard consisting of a statement of 
reasons by signature followed by a cross-reading [of the application and the 
judicial authorisation] was established by the Court of Justice when interpreting 
the second paragraph of Article 47 of the Charter. The Charter itself, however, 
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does not extend the scope of EU law as defined in Article 51 thereof. 
Consequently, EU law does not lay down a standard for the statement of reasons 
outside the context of the second paragraph of Article 47. 
24 If the second paragraph of Article 47 of the Charter lays down a standard for the 
statement of reasons for judicial authorisations which is different from that 
applicable under national law, the question thus arises as to whether the principle 
of the primacy of EU law, whereby national law must be disapplied and the EU-
law standard for the statement of reasons applied instead, is applicable. This forms 
the subject of the first indent of the first question referred for a preliminary ruling. 
Applicability of recital 11 of Directive 2002/58 
25 That provision expressly states that the measures provided for in Article 15(1) 
must be applied in accordance with the ECHR as interpreted by the judgments of 
the ECtHR. Furthermore, those measures must comply with the procedural 
guarantees provided for in the ECHR. 
26 Consequently, with specific regard to the issue of the judicial authorisations in the 
main proceedings, which are based on national law and the case-law transposing 
Article 15 of Directive 2002/58, it is the provisions of the ECHR, in particular 
Article 8(2) ECHR, as interpreted by the ECtHR in the judgment in Case 
No 70078/12, and not EU law, in particular the second paragraph of Article 47 of 
the Charter, as interpreted by the Court of Justice in Case C-349/21, which should 
be applicable. 
27 The question is whether recital 11 (which was not discussed by the Court of 
Justice in the judgment in Case C-349/21) is a sufficient reason not to apply the 
second paragraph of Article 47 of the Charter, since this provides for a lower 
standard of protection than Article 8(2) ECHR. This forms the subject of the 
second indent of the first question referred for a preliminary ruling. 
The application of Article 52(1) of the Charter 
28 That provision states that any limitation on the exercise of the rights and freedoms 
recognised by the Charter must be provided for by law, respect the essence of 
those rights and comply with the principle of proportionality, which is to say that 
any such limitation must be necessary and meet objectives of general interest or 
the need to protect the rights and freedoms of others. These independent 
conditions form the subject of the first question referred for a preliminary ruling. 
The lawfulness of the limitation 
29 The right to respect for private life, the right to the protection of personal data and 
the right to freedom of expression are enshrined in the Charter (Articles 7, 8 and 
11), and their specific manifestation – the confidentiality of communications by 
public communications services – is protected by Article 5(1) of Directive 
2002/58. 
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30 Bulgarian law provides for a special procedure for the issue of a judicial 
authorisation (to listen to and intercept telecommunications). Part of that 
procedure is the express condition that the authorisation must be reasoned, which 
obligation exists irrespective of compliance with the other, independent obligation 
requiring that the application for such an authorisation should also be reasoned. 
Furthermore, the judicial decision must be drafted in such a way as to be 
enforceable in its own right. In practice, this means that the judicial decision must 
at least specify the telephone IMEI number or SIM card number enabling the 
telecommunication forming the subject of the listening, interception and storage. 
It is for this very reason that the name of the person concerned must also be 
specified in the judicial decision, so that it is known which person is the addressee 
of that decision and so as to enable that person to exercise his or her rights of 
defence. 
31 Many courts, including within the referring court itself, have nonetheless adopted 
a practice whereby judicial authorisations, in breach of national law, do not in fact 
state the reasons on which they are based, as is the case in the main proceedings. 
32 The foregoing circumstances raise the question as to the meaning of the 
requirement of being ‘provided for by law’, laid down in Article 52(1) of the 
Charter, and of the requirement of lawfulness laid down in recital 11 and 
Article 5(1) of Directive 2002/58. 
33 The judgment in Case C-349/21 has already established the standard for the 
statement of reasons in such cases, namely a ‘statement of reasons by signature’ 
(paragraph 53) followed by a subsequent ‘cross-reading’ (paragraphs 59 and 61 
and the operative part). It is possible, therefore, that that very judgment might 
satisfy the requirement of being provided for by law. 
34 The view might further be taken that the national case-law to the effect that 
judicial authorisations may be issued in the form of template texts which do not 
contain any individualised reasoning and do not specify the name of the person 
concerned either also satisfies the requirement of being ‘provided for by law’ that 
is laid down in Article 52 of the Charter. In actual fact, however, that case-law 
infringes the legal requirement that judicial authorisations must state the reasons 
on which they are based. 
35 Lastly, the view might be taken that ‘provided for by law’ refers either to a legal 
act of the European Union expressly governing the matter of the statement of 
reasons for judicial decisions or an act of national law which also expressly 
governs that matter. 
36 It is in that context that this court refers for a preliminary ruling the question as to 
whether a national provision requiring a judicial authorisation to contain a written 
statement of reasons of its own must be disapplied. Furthermore, does [the 
principle of] the statement of reasons by signature, as established by the Court of 
Justice in paragraph 53 of the judgment in Case C-349/231 and as applied, even 
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before that judgment was delivered, by some of the national courts in their case-
law, satisfy the requirement of being ‘provided for by law’ that is laid down in 
Article 52 of the Charter? Only if it does will a limitation of the rights enshrined 
in Articles 7, 8 and 11 of the Charter, as manifested in the protection of 
telecommunications provided for in Article 5 of Directive 2002/58, be possible. 
37 This raises the question of the legal significance of the conclusion reached by the 
Court of Justice in the judgment in Case C-349/21 that the judicial authorisations 
at issue in those proceedings were in conformity with the second paragraph of 
Article 47 of the Charter so far as concerned the statement of the reasons on which 
they were based (to the extent that, since a statement of reasons by signature was 
present, the reasons for the judicial authorisation could be understood by cross-
reading the judicial authorisation with the application). Is the referring court to 
assume on the basis of that conclusion by the Court of Justice that the listening to, 
interception and storage [of telecommunications] at issue in the present 
proceedings is in conformity with Article 52(1) of the Charter because it is 
provided for by law? 
Respect for the essence of the limited right 
38 Furthermore, the question arises as to whether the essence of the limited right has 
been respected. In the main proceedings, it fell to the president of the 
Spetsializiran nakazatelen sad (Specialised Criminal Court) to decide whether or 
not to issue an authorisation to listen to, intercept and store telecommunications 
without the consent of the users concerned. By issuing a judicial authorisation to 
that effect, he necessarily infringes the right to the protection of such 
telecommunications that is guaranteed in Article 5 of Directive 2002/58. Does his 
decision to draft that judicial authorisation in such a way that it contains no 
individualised reasoning, and does not even specify the name of the person 
concerned, satisfy the requirement laid down in Article 52(1) of the Charter to 
respect the essence of the limited right? 
39 It is important to take into account the significance of that limited right. 
Article 5(1) of Directive 2002/58 protects the right to the confidentiality of 
telecommunications, which is a manifestation of the rights provided for in 
Articles 7, 8 and 11 of the Charter. It is therefore a right which is fundamental to 
the EU legal order. 
40 Account must also be taken of the extent to which that right is limited. The Court 
of Justice has repeatedly had occasion to rule on the retention of traffic data and, 
in assessing the seriousness of the interference with privacy, has compared the 
information so obtained with disclosure of the content of telecommunications. The 
disclosure of such content is therefore the most serious possible form of 
interference with the rights guaranteed in Article 5(1) of Directive 2002/58 and 
Articles 7, 8 and 11 of the Charter. Hence the need for particular care to be taken 
to comply with the requirement to respect the essence of that right, given the 
possibility of its being limited in such a way as to be revoked altogether. 
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41 That would be the case if judicial authorisations were issued in a manner 
suggestive of routine and automatism. The exception provided for in Article 15(1) 
of the Directive would thus effectively become the rule. That would be the case, in 
particular, if the judicial authorisation were intentionally issued in the form of a 
pre-drafted text which simply reproduces the relevant legal requirements and is 
used in all cases. In that event, the statement of reasons is dispensed with, in the 
firm belief that reasons are not really necessary (possibly because the public 
prosecutor has provided sound reasoning in the application). The referring court is 
of the view that such an approach infringes the essence of the limited right, since 
the limitation of that right is not combined with an awareness of the actual harm to 
the person forming the subject of the special investigative methods or of the need 
arising from that awareness to state independent reasons – however succinct – 
indicating why that limitation is necessary. 
42 A limitation which has the result of revoking the right in question altogether is 
also present in the case where judicial authorisations do not specify the name of 
the person in respect of whom the confidentiality of telecommunications has been 
revoked. 
43 Such a situation is present in the main proceedings, since the judicial authorisation 
in question does not even mention the name of the person concerned. This 
depersonalises the case concerned. 
44 Furthermore, the essence of the limited right is preserved if the limitation takes 
place under the following conditions: (a) there are real and effective safeguards 
against abuse; (b) there is a guarantee that the limitation will apply only to the 
extent strictly necessary; and (c) any prevention or deterrence from exercising the 
right to communicate provided for in Article 5 of the Directive and the right to 
freedom of expression provided for in Article 11 of the Charter is avoided. 
The need for the limitation and its permissibility for the purpose of preserving 
objectives of general interest or protecting the rights and freedoms of third parties 
45 This is a case concerning a limitation within a limitation. First, the right provided 
for in Article 5(1) of the Directive was limited. Then, the right to a judicial 
authorisation permitting the first limitation which states the reasons on which it is 
based was also limited. 
46 On the one hand, the Court of Justice has held that, so far as concerns the 
collection of graphic data not caught by the concept of telecommunications, the 
necessary judicial review must take place ‘prior to any access’, since a 
‘subsequent review’ would not enable the objective of a prior review, consisting 
in preventing the authorisation of access to the data in question that exceeds what 
is strictly necessary (paragraph 58 of the judgment in Case C-746/18). On the 
other hand, so far as concerns disclosure of the content of telecommunications, the 
Court of Justice has held that the necessary prior review may be given expression 
under relaxed requirements in respect of the statement of reasons, that is to say in 
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the form of the statement of reasons by signature (paragraph 53 of the judgment in 
Case C-349/21), which would enable the defendant and the court with jurisdiction 
to take cognisance of the grounds cited by the public prosecutor and adopted by 
the judge that issued the authorisation for the purposes of the subsequent review 
of lawfulness (paragraphs 55 to 56 in conjunction with paragraphs 59 to 61 and 
the operative part of the judgment in Case C-349/21). In the view of the referring 
court, what the Court of Justice had in mind in so ruling was that, in any 
subsequent challenge, the defendant would benefit from comprehensive 
protection, including in the form of an express statement of reasons in the judicial 
decision. 
47 The question, therefore, is whether there really is a need to recognise a lower 
standard of protection in the form of relaxed requirements in respect of the 
statement of reasons (in the present case, the statement of reasons by signature, as 
mentioned in paragraph 53 of Case C-349/21). In its judgment in Case C-349/21, 
the Court of Justice referred to its earlier case-law in Cases C-225/19 and 
C-619/10. However, those judgments are concerned with different situations in 
which relaxed requirements in respect of the statement of reasons are objectively 
necessary. 
48 In the present case, it is not clear which objective of general interest justifies the 
fact that less stringent requirements are attached to the statement of reasons for the 
judicial authorisation to disclose the content of telecommunications. 
The application of Article 53 of the Charter 
49 Article 53 of the Charter states that nothing in that Charter is to be interpreted as 
restricting a right recognised by the ECHR or the constitution of a Member State. 
50 This raises the question referred for a preliminary ruling in connection with 
Article 53 of the Charter, namely whether the referring court must disapply 
Article 121(4) of the [Bulgarian] Constitution and Article 8 ECHR, which classify 
the failure to state express reasons in judicial authorisations for telephone tapping 
as unlawful. That question concerns the contradiction between the different legal 
orders. 
51 Under the [Bulgarian] Constitution, judicial decisions must state the reasons on 
which they are based, meaning that they must be expressly and not merely tacitly 
reasoned. Given that, in accordance with Article 121(4) of the [Bulgarian] 
Constitution as interpreted by the Konstitutsionen sad (Constitutional Court, 
Bulgaria), a statement of reasons by signature as recognised by the Court of 
Justice (paragraph 53 of the judgment in Case C-349/21) is not permissible, there 
is a contradiction between the two legal orders. 
52 In view of the primacy of EU law, national law, even if it is of a constitutional 
nature, must unquestionably cede. That is the case, however, only if EU law does 
not give precedence to national law, which it does in the context of Article 53 of 
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the Charter, applicable here, since the [Bulgarian] Constitution provides for a 
higher standard of protection than EU law. 
53 It must therefore be assumed that the interpretation adopted by the Court of 
Justice in the judgment in Case C-349/21 lays down a minimum standard for the 
statement of reasons, but does not prohibit the national constitution from 
introducing a higher standard and requiring compliance with it. 
The ECHR 
54 In accordance with Article 52(3) of the Charter, the rights conferred there are to 
have the same meaning and scope as the rights under the ECHR, it being open to 
the European Union to grant more extensive protection. At the same time, the 
right to respect for private life under Article 7 of the Charter corresponds to the 
same right under Article 8(1) ECHR. That also follows from recital 11 [of the 
Directive], which itself refers to the ECHR. 
55 Furthermore, in the judgment in Case No 70078/12, the ECtHR, when examining 
Article 8 ECHR in a case similar to the main proceedings, held that, 
notwithstanding the presence of an extensively reasoned application, the statement 
of – even succinct – reasons by the court issuing the authorisation for telephone 
tapping is necessary so as to ensure that that court has taken cognisance of and 
actually examined the procedural documents. In the judgment in Case C-349/21, 
on the other hand, the Court of Justice takes the view that a failure to state 
independent reasons does not preclude the finding that the judicial authorisation is 
indeed reasoned. That is to be assumed to be the case where the application states 
the reasons on which it is based and the judge adopts those reasons as his own by 
signing a template text (paragraph 53 of the judgment in Case C-[34]9/21) and the 
reasons for the decision given can be understood by cross-reading that decision 
[with the application] (operative part of the judgment). 
56 In those circumstances, the question arises as to whether Article 53 of the Charter 
constitutes an obstacle to the disapplication of the case-law of the ECtHR in the 
place of which the case-law of the Court of Justice is to be applied. Does EU law, 
in establishing the standard of a statement of reasons by signature followed by a 
cross-reading, afford greater protection than the ECHR? 
57 The referring court notes that, as regards the protection of the right to private life 
under Article 8 ECHR and the rights under Articles 7, 8 and 11 of the Charter, the 
standard of reasoning established by the ECtHR affords a higher level of 
protection than the standard recognised by the Court of Justice, since the 
statement of – even succinct – reasons, as required by the ECtHR, confirms in 
addition that the court has actually taken cognisance of the reasons set out in the 
application and has itself reached the same view. 
58 If, conversely, the effectiveness of law enforcement, understood as being the mass 
use of telephone tapping, is to be protected, the tacit statement of reasons would 
be highly suitable, particularly since the judge would be able to grant several 
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authorisations quickly if he or she considered the corresponding applications to be 
duly reasoned, without having to state any reasons himself or herself. The purpose 
of Directive 2002/58, however, is to protect privacy in telecommunications, not to 
lay down rules governing the procedure for carrying out telephone tapping for the 
purposes of criminal proceedings. 
The principle of equivalence 
59 That principle requires that a legal situation relating to EU law must be treated no 
less favourably by national law and national case-law than a similar situation 
relating exclusively to a domestic matter. 
60 A judicial authorisation (to listen to, intercept and store telecommunications 
without the consent of the users concerned) forms part of the national provisions 
transposing Article 15(1) of Directive 2002/58, read in conjunction with 
Article 5(1) thereof. A similar situation, relating exclusively to domestic law, 
forms the basis of the judicial authorisations to seize correspondence provided for 
in Article 165 of the NPK, the only difference between this and telephone tapping 
being that the former concerns written communications in paper form rather than 
verbal messages transmitted over communications networks. In the latter case, all 
judicial authorisations must state the reasons on which they are based, the court 
being required to state, however briefly, why it finds that the application made by 
the public prosecutor’s office must be granted. In all cases without exception, the 
name of the person affected by those measures must also be stated. 
61 In fact, it is only judicial authorisations for the use of special investigative 
methods that do not state the reasons on which they are based, these being 
replaced by a pre-drafted template text which reproduces the legal requirements 
and states that they have been complied with. This is an exception to the generally 
applicable national rule that judicial decisions must state the reasons on which 
they are based, and takes into account the absence of an obligation to state reasons 
in certain special and different cases. 
62 The question therefore arises as to whether the principle of equivalence precludes 
the disapplication of national law that requires an express statement of reasons for 
judicial decisions and does not permit the statement of reasons by signature as 
established by the Court of Justice in Case C-349/21. 
Reasons for the second question referred for a preliminary ruling 
63 In the view of the referring court, the second question is the most important, since 
the answer to it would enable it to decide whether the recordings of telephone 
conversations at issue may be used as evidence in the present proceedings. 
HYA AND OTHERS 
 
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Inapplicability of Article 105(2) of the NPK (Code of Criminal Procedure) 
64 A possible affirmative answer to the first question would not be helpful enough, 
since the issue of probative value would remain. It is therefore necessary also to 
examine Article 105(2) of the NPK, which obliges the national court to exclude 
the evidence collected (the recorded telephone conversations) if it finds that a 
procedural error was committed in the course of its collection. Part of the process 
of collecting evidence is, precisely, the issue of judicial authorisations, which are 
subject to the requirement to state reasons laid down in Article 174(4) of the NPK, 
applicable whether a reasoned application has been made or not. 
65 In particular, Article 47(2) of the Charter as interpreted by the Court of Justice in 
the judgment in Case C-349/21 provides for a method of stating reasons which is 
different from the method used nationally. The application of that method 
supports the conclusion that the seven judicial authorisations at issue state the 
reasons on which they are based, although that is not the case on the basis of the 
NPK. 
66 The question therefore arises whether Article 105(2) of the NPK must also be 
disapplied – namely only in so far as it relates to those provisions of the NPK that 
concern the assessment of the probative value of the evidence collected 
(telecommunications). In that event, the lawfulness of evidence might be assessed 
not by reference to the provisions of the NPK but by direct reference to the 
Charter. If so, nothing would stand in the way of the use of telephone 
conversations as evidence. 
Interpretation of Article 105(2) of the NPK in conformity with EU law 
67 The question of how to interpret Article 105(2) of the NPK in conformity with EU 
law would arise if the Court of Justice were to find that Article 105(2) of the NPK 
is applicable, which finding would lead to the conclusion that the seven judicial 
authorisations at issue do not state the reasons on which they are based. 
68 Some clarification is required in that regard. The prevailing national case-law 
concerning the lawfulness of judicial authorisations (to listen to, intercept and 
store telecommunications without the consent of the users concerned) rests on the 
view that such authorisations are lawfully drafted even if they include a template 
text. That case-law assumes that Article 105(2) of the NPK does not preclude the 
use of the stored messages as evidence. 
69 At the same time, in the judgment in Case C-349/21, the Court of Justice 
introduced the standard whereby the authorisation must be ‘cross-read’ with the 
application. The Court of Justice therefore takes the view that the judicial 
authorisation, although it does not itself state the reasons on which it is based, is to 
be regarded as reasoned when cross-read with the application. 
70 In the light of the findings of the Court of Justice in Case C-349/21 and those of 
the ECtHR in Case No 70078/12, and on the basis of a possible answer by the 
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Court of Justice in the present case to the effect that the provisions of national law 
are not to be disapplied, the view that there is no need to examine whether the 
judicial authorisations are sufficiently reasoned, or the general assumption that 
they are reasoned, would no longer be lawful. This would mean that 
Article 105(2) of the NPK is applicable and, as a result, the telecommunications 
collected could not be used as evidence. 
71 The referring court wishes to avoid this, however. It therefore proposes a new and 
different interpretation of Article 105(2) of the NPK, to the effect that material 
may be used as evidence even though the authorisation to collect that evidence 
was issued unlawfully. However, that interpretation stands in stark contradiction 
to national legal literature and case-law, and would for that reason inevitably be 
rejected. It might, on the other hand, be examined sufficiently seriously and 
critically if it were to receive the support of the Court of Justice. That support 
might come in the form of the Court’s view that EU law does not preclude 
national legislation and case-law to the effect that evidence collected on the basis 
of an unreasoned judicial authorisation may be used if the lawfulness of that 
unreasoned judicial authorisation was established by the court with jurisdiction, 
while observing the rights of the defendant, at a later date. 
72 It is in that context that the second part of the second question is raised. The 
question is not hypothetical in nature, since it concerns the compatibility with EU 
law of a possible legal solution adopted in pending legal proceedings on the basis 
of the specific facts of those proceedings (unfounded judicial authorisations) and 
of the legal issue arising from that solution (the usability of the evidence collected 
on the basis of those authorisations). The referring court wishes to ascertain 
whether the legal solution adopted in Case C-349/21 allows a national provision, 
namely Article 105(2) of the NPK, to be interpreted as meaning that, in the case 
where telecommunications are collected on the basis of an unreasoned judicial 
authorisation, the lawfulness of the collection of that evidence may be discussed 
by the parties to the proceedings, and those telecommunications are to be 
excluded as evidence only if their collection is found to be unlawful (or if they are 
found to have been the subject of technical manipulation calling into question 
their credibility).