1) This request for a preliminary ruling concerns the interpretation of Article 325(1) TFEU, Article 1(1)(b) and Article 2(1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995 (OJ 1995, C 316, p. 48, ‘the PFI Convention’) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

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20) In those circumstances, the Spetsializiran nakazatelen sad (Specialised Criminal Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Do the following legal provisions:

• Article 325(1) TFEU which provides that the Member States must take measures that effectively afford protection against fraud and any other illegal activities affecting the financial interests of the Union,
• Article 2(1) of the PFI Convention, read in conjunction with Article 1(1)(b) of that convention and with Article 2(1)(b) of Decision 2007/436, according to which every Member State is to take the necessary measures to ensure the effective punishment of VAT evasion,
• the first and second paragraphs of Article 47 of the Charter which guarantees the right to an effective remedy before a tribunal previously established by law,

preclude national legislation, according to which evidence obtained through the deployment of “special investigation methods”, specifically through the interception of the telephone conversations of individuals subsequently charged with a VAT-related offence, cannot be used because that interception was ordered by a court that lacked jurisdiction, bearing in mind the following factors: 

• previously (between one and three months earlier), an application was made to intercept some of those telecommunications, and this was authorised by the same court which at that point still had jurisdiction;
• an application for authorisation of the disputed interception of telecommunications (for the extension of the earlier interception of telecommunications and for the tapping of new telephone connections) was made to the same court when it no longer had jurisdiction because, immediately before that, its jurisdiction had been transferred to a different court; despite its lack of jurisdiction, the original court examined the substance of the application and granted the authorisation;
• at a later point (about one month later), a fresh application was made to authorise the tapping of the same telephone connections which was granted by the court that now had jurisdiction;
• none of the orders made actually contain any reasoning supporting them;
• the statutory provision transferring jurisdiction was unclear and led to numerous contradictory court decisions, which resulted in the Varhoven kasatsionen sad (Supreme Court of Cassation) delivering a binding interpretation decision about two years after the legal transfer of jurisdiction and after the interception of telecommunications in question;
• the court examining the substance of the present case does not have jurisdiction to decide on applications for the authorisation of the deployment of special investigation methods (the interception of telecommunications); however, it does have jurisdiction to decide on the legality of any interception of telecommunications carried out, in particular to make a finding that an authorisation does not meet the statutory requirements, and thus to refuse to take into account evidence gathered following that authorisation; that power exists only if a valid order has been made authorising the interception of telecommunications;
• the use of that evidence (the defendants’ telephone conversations, the interception of which was ordered by a court that had lost its jurisdiction) is of crucial importance to the resolution of the question of a person’s culpability as the leader of a criminal organisation formed for the purpose of committing tax offences covered by the [Law on value added tax, in the version in force at the material time,] and as the instigator of specific tax offences, in the knowledge that he may be found guilty and sentenced only if those telephone conversations can be used in evidence, and that, otherwise, he would have to be acquitted?

(2) Does the judgment [which will be given in the case] Ognyanov (C‑614/14) apply to the present case?’

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23) By its question, the referring court asks, in essence, whether Article 325(1) TFEU, and Article 1(1)(b) and Article 2(1) of the PFI Convention, read in conjunction with the Charter, must be interpreted to the effect that, in the light of the principle of effectiveness of the prosecution of VAT offences, they preclude a national court from applying a national provision excluding, from a prosecution, evidence such as the interception of telecommunications which requires prior judicial authorisation, where that authorisation was given by a court that lacked jurisdiction, in a situation in which that evidence alone is capable of proving that the offences in question were committed.

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33) However, the obligation to ensure the effective collection of the European Union’s resources does not dispense national courts from the necessary observance of the fundamental rights guaranteed by the Charter and of the general principles of EU law, given that the criminal proceedings instigated for VAT offences amount to an implementation of EU law, within the meaning of Article 51(1) of the Charter. In criminal law, those rights and those principles must be respected not only during the criminal proceedings, but also during the stage of the preliminary investigation, from the moment when the person concerned becomes an accused (see, to that effect, judgments of 5 December 2017, M.A.S. and M.B., C‑42/17, EU:C:2017:936, paragraph 52; of 5 June 2018, Kolev and Others, C‑612/15, EU:C:2018:392, paragraphs 68 and 71, and of 20 March 2018, Di Puma and Zecca, C‑596/16 and C‑597/16, EU:C:2018:192, paragraph 31 and the case-law cited).

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36) In addition, the interception of telecommunications amounts to an interference with the right to a private life, enshrined in Article 7 of the Charter. Such an interference may be allowed, in accordance with Article 52(1) of the Charter, only if it is provided for by law and if, while respecting the essence of that right and subject to the principle of proportionality, it is necessary and genuinely meets objectives of general interest recognised by the Union (see, to that effect, judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraphs 71 and 73).

37) In that regard, it is common ground that the interception of telecommunications at issue in the main proceedings was authorised by a court which did not have the necessary jurisdiction. The interception of those telecommunications must therefore be regarded as not being in accordance with the law, within the meaning of Article 52(1) of the Charter.

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40) In that regard, the fact, pointed out by the referring court, that the unlawful act committed is due to the imprecise nature of the provision transferring power at issue in the main proceedings is irrelevant. The requirement that any limitation on the exercise of the right conferred by Article 7 of the Charter must be in accordance with the law means that the legal basis authorising that limitation should be sufficiently clear and precise (see, to that effect, judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraph 81). It is also of no relevance that, in the case of one of the four defendants in the main proceedings, only the interception of telecommunications initiated on the basis of authorisations granted by a court lacking jurisdiction could prove his guilt and justify a conviction.

41) In the light of the foregoing considerations, the answer to the question referred is that Article 325(1) TFEU, and Article 1(1)(b) and Article 2(1) of the PFI Convention, read in conjunction with the Charter, must be interpreted to the effect that, in the light of the principle of effectiveness of the prosecution of VAT offences, they do not preclude a national court from applying a national provision excluding, from a prosecution, evidence such as the interception of telecommunications requiring prior judicial authorisation, where that authorisation was given by a court that lacked jurisdiction, in a situation in which that evidence alone is capable of proving that the offences in question were committed.

42) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules:

Article 325(1) TFEU, and Article 1(1)(b) and Article 2(1) of the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995, read in conjunction with the Charter of Fundamental Rights of the European Union, must be interpreted to the effect that, in the light of the principle of effectiveness of the prosecution of value added tax (VAT) offences, they do not preclude a national court from applying a national provision excluding, from a prosecution, evidence such as the interception of telecommunications requiring prior judicial authorisation, where that authorisation was given by a court that lacked jurisdiction, in a situation in which that evidence alone is capable of proving that the offences in question were committed.