3) The present case invites the Court to address the relationship between the right of access to the file, guaranteed by Article 41(2)(b) of the Charter of Fundamental Rights of the European Union (‘the Charter’), and the general principle of EU law of respect for the rights of the defence. Moreover, can the right of access to the file be said to be applicable also to administrative procedures, carried out by the administrative authorities of the Member States when they act within the scope of EU law?

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4) That question, however, hints at the real ‘elephant in the file’ in the present case, which needs to be looked at first: is the issue of potential (non-)access to an administrative file and/or documents contained therein in national VAT collection procedures within the scope of EU law, thus triggering the applicability of the Charter?

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29) The point of departure is clear: EU fundamental rights, including those codified in the Charter as well as those remaining at the level of general principles of EU law, are applicable in all situations governed by EU law, but not outside such situations. ( 7 ) In other words, EU fundamental rights must be complied with where national legislation falls within the scope of EU law: situations cannot exist which are covered by EU law but where EU fundamental rights are not applicable. ( 8 ) Fundamental rights are indeed the ‘shadow’ of EU law. ( 9 )

30) However, this also means that there must be a rule of EU law which is applicable, independent and different from the fundamental right itself. ( 10 ) The provisions of the Charter (or a specific fundamental right) cannot be relied on in themselves to form the basis of the Court’s jurisdiction. ( 11 ) In other words, a shadow cannot cast its own shadow.

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50) Thus, for example, when applying the framework decision on the European arrest warrant, ( 34 ) Member States must take care that detention conditions are not contrary to the prohibition of inhuman and degrading treatment in Article 4 of the Charter, even though the European arrest warrant does not in any way engage with the determination of standards for the execution of imprisonment penalties or detention conditions. ( 35 ) Another example is the case of procedural rights. In DEB, ( 36 ) the generally applicable provisions of national law governing access to legal aid for legal persons did not specifically intend to implement EU law, and nor did they have exactly the same objective. However, they fell within the scope of EU law for the purposes of the right to effective judicial protection under Article 47 of the Charter in connection to the remedies provided for in EU law — in particular, a procedure for pursuing a claim seeking to establish State liability under EU law. They were necessary to ensure that those whose rights and freedoms guaranteed by EU law have been infringed have an effective remedy before a tribunal.

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74) The referring court has posed its question exclusively with regard to the principle of respect for the rights of the defence. ( 49 ) This framing of the question is correct, to my mind. Neither Article 48 nor Article 41 of the Charter is applicable to the circumstances of the present case.

75) First, Article 48 of the Charter is not relevant to the present case. That provision lays down the presumption of innocence and rights of the defence which must be enjoyed by a person ‘who has been charged’. The Applicants in the main proceedings have not been ‘charged’. They were merely subjected to a tax assessment notice establishing their tax obligations. ( 50 )

76) Second, Article 41(2)(b) of the Charter explicitly includes the right of access to the file as a component of the right to good administration. That provision is nonetheless clearly limited to Union institutions, bodies, offices and agencies (a). Moreover, there is a difference between Article 41 of the Charter and the principle of respect for the rights of the defence (b) concerning its precise scope and content.

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77) After some initial hesitations, ( 51 ) the Court has repeatedly held, in line with the wording of the Charter, that Article 41 of the Charter is addressed only to the institutions, bodies, offices and agencies of the European Union. ( 52 )

78) Such an interpretation has not met with universal acclaim. An opposing view has been voiced, suggesting that that interpretation appears to contradict the general rule concerning the scope of application of Article 51(1) of the Charter. It excludes Member State action even if adopted in implementation of EU law. ( 53 )

79) I must admit that I fail to see any such contradiction, for at least four reasons.

80) First, the text is very clear. Section 1 of Article 41 of the Charter distinctly limits, for the purpose of the entire article, its application to the ‘institutions, bodies, offices and agencies of the Union’. In my view, there would have to be extremely strong arguments to effectively judicially rewrite a clear proposition of primary law, one which, moreover, has been enacted quite recently.

81) Second, by explicitly defining the addressees of the provision devoted to the right to good administration, Article 41 of the Charter gives expression to the will of the (constitutional) legislature to adopt specific provisions applicable to the European Union when acting through its direct administration. Essentially, as to the applicability of that specific provision of the Charter, Article 41 contains its own lex specialis to the general definition of the scope of application of the Charter through its Article 51(1). I see nothing contradictory or inconsistent in such a construction: as a matter of fact, it is quite common that a piece of legislation may define its own (personal, factual) scope of application in different ways. There might be an overall provision on applicability that is generally applicable unless provided otherwise. Indeed, there might be, at the same time, one or more specific provision(s) that define their own scope of application, stating for example that section X or title Y of this act applies only to a given group of persons or in specific situations.

82) Seen in that light, Article 41 of the Charter constitutes a specific expression of an autonomous fundamental right which protects individuals only when they come into contact with the direct administration of the European Union, which is portrayed by the Treaties as ‘an open, efficient and independent European administration’. ( 54 )

83) Third, there is the systematic argument. The limitation of the ‘addressees’ who are bound to respect and comply with Article 41 of the Charter is consistent with the overall logic of the Charter which, in several of its provisions contained in Title V, sets out specifically the core rights of individuals when they enter into a direct relationship with the EU’s administrative and political bodies. ( 55 )

84) Finally, there is the broader constitutional argument. In the context of the robust and well-documented insistence of the constitutional legislature on limiting the expansive potential of Charter rights over non-attributed competences, ( 56 )an explicit limitation of the addressees of some of the Charter’s provisions can hardly be seen as an unwanted omission or a mere slip of the pen of the constitutional legislature. ( 57 )

85) In sum, it is my view that Article 41 of the Charter constitutes a provision specifically aimed at the direct administration of the European Union with the purpose of establishing a high and autonomous standard of protection. Article 41 is therefore not applicable in the present case.

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86) The discussion on the scope of application of Article 41 of the Charter epitomises the more general discussion regarding the interrelation between general principles and Charter rights. ( 58 ) Precisely because Article 41 of the Charter defines its scope of application by reference to the direct administration of the European Union, its relationship with the principles of good administration and the rights of the defence remains a rather controversial topic. ( 59 )

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89) On the other hand, it is doubtful whether such general principles, such as the rights of the defence in the present case, have exactly the same content as Article 41 of the Charter. For one thing, the explicit limitation in the wording of Article 41 of the Charter impedes, as Advocate General Kokott puts it, its content from simply being ‘transposed without more ado to bodies of the Member States, even when they are implementing [EU] law’. ( 63 ) On a more conceptual level, doing so would come dangerously close to the circumvention of the explicit provision of Article 41 of the Charter.

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91) In short, the applicable general principle is the respect for the rights of the defence. Its content with regard to the Member States’ application of EU law may differ from the (specific and autonomous) guarantees provided for in Article 41 of the Charter, which are applicable to the direct administration of the EU. With all these considerations in mind, I will examine the requirements of the rights of the defence in circumstances such as the ones at issue in the main proceedings in the following section.

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92) The Applicants have submitted that the right of access to the file, enshrined in Article 41(2)(b) of the Charter, is not explicitly regulated in national law with regard to tax procedures. ( 65 ) Therefore, taxpayers exercise their right to be heard without having proper access to their file. More precisely, the Applicants have explained that, during the administrative procedure, they did not have access to all the documents contained in their file, in particular, to the documents collected before the tax inspection formally begun. ( 66 ) The documents collected prior to the beginning of the fiscal inspection were only included in the file at the jurisdictional stage, at the request of the referring court. Those documents were not included in the annexes mentioned in the original tax assessment notices. They submit that those documents were concealed in order to mask the existence of a tax investigation before the effective beginning of the tax inspection.

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125) Finally, as regards the argument of the Applicants concerning the barring of new pleas at the jurisdictional stage, there is no evidence before this Court allowing a proper assessment of that issue. That issue has not been put forward in the order for reference submitted by the national court. It has been invoked by the Applicants in the course of these proceedings, but strongly contested by the Romanian Government. In such circumstances, it can only be recalled that the right to an effective judicial remedy enshrined in Article 47 of the Charter entails that the courts reviewing the legality of decisions 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’. ( 82 )