22) In those circumstances, the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must the provisions of the VAT Directive and, in so far as they are concerned, the fundamental principle of respect for the rights of the defence and Article 47 of the Charter of Fundamental Rights [of the European Union (‘the Charter’)], be interpreted as precluding the legislation of a Member State and national practice based on that legislation, under which the findings, in the context of an inspection carried out of the parties to a legal relationship (contract, transaction) to which the tax liability relates, made by the tax authorities at the conclusion of a procedure instigated in respect of one of the parties to the legal relationship (the issuer of the invoices in the main proceedings) and entailing a reclassification of that legal relationship, must be taken into account as a matter of course by the tax authorities when carrying out an inspection of another party to the legal relationship (the recipient of the invoices in the main proceedings), it being understood that the other party to the legal relationship has no rights, in particular rights attaching to the status of a party, in the original inspection procedure?

(2) If the Court of Justice answers the first question in the negative, do the provisions of the VAT Directive and, in so far as they are concerned, the fundamental principle of respect for the rights of the defence and Article 47 of the [Charter], preclude national practice that allows a procedure such as that referred to in the first question whereby the other party to the legal relationship (the recipient of the invoices) does not have, in the original inspection procedure, rights attaching to the status of a party, and cannot therefore exercise any right of appeal with respect to an inspection procedure the findings of which must be taken into account as a matter of course by the tax authorities in the inspection procedure concerning the other party’s tax liability and may be adopted as evidence against that other party, it being understood that the tax authorities do not make available to the other party the relevant files concerning the inspection carried out in respect of the first party to the legal relationship (the issuer of the invoices), in particular documents underpinning the findings, the reports and administrative decisions, but discloses only part of them to that other party in the form of a summary, the tax authorities thus apprising the other party of the contents of the files only indirectly, making a selection according to their own criteria, over which the other party may not exercise any control?

(3) Must the provisions of the VAT directive and, in so far as they are concerned, the fundamental principle of respect for the rights of the defence and Article 47 of the [Charter], be interpreted as precluding national practice under which the findings, in the context of the inspection of the parties to a legal relationship to which the tax liability relates, made by the tax authorities at the conclusion of a procedure instigated in respect of the issuer of the invoices and including the finding that that issuer actively participated in tax evasion, must be taken into account as a matter of course by the tax authorities when carrying out an inspection in respect of the recipient of the invoices, it being understood that that recipient has no rights attaching to the status of a party in the inspection procedure carried out at the premises of the issuer of the invoices, and cannot therefore exercise any right of appeal in an inspection procedure the findings of which must be taken into account as a matter of course by the tax authorities in the inspection procedure concerning the tax liability of the recipient and may be adopted as evidence against that recipient, and that [the tax authorities] do not make available to the recipient the relevant files relating to the inspection carried out in respect of the issuer, in particular the documents underpinning the findings, the reports and administrative decisions, but disclose only part of them to the recipient in the form of a summary, the tax authorities thus apprising the recipient of the contents of the files only indirectly, making a selection according to their own criteria and over which the recipient may exercise no control?’

...

24) The referring court essentially asks whether the provisions of the VAT Directive, interpreted in the light of Article 47 and Article 48(2) of the Charter, preclude a provision or practice of a Member State according to which, when verifying the right of a taxable person to deduct VAT, the tax administration takes into account the findings of fact and the legal qualification of those facts (‘the findings’) made by the administration in related decisions taken against other taxable persons. While doing so, the administration discloses the documents relevant for those findings to the taxable person only partially and indirectly, by means of a summary of the documents considered to be relevant.

...

32) Finally, with regard to the applicable EU law, it should be recalled that national rules laying down procedures and penalties to combat fraud or tax evasion constitute implementation of EU law, for the purposes of Article 51(1) of the Charter. ( 3 ) As emphasised by the referring court, the right to an effective remedy and to a fair trial and the rights of the defence, set out in Article 47 and Article 48(2) of the Charter respectively, are of particular relevance in the present proceedings.

...

37) In the absence of EU rules regarding the taking of evidence, participation of a taxable person in VAT fraud must be proved in accordance with the rules of evidence under national law. ( 11 ) However, as the Court has repeatedly stated, the rules on the collection of evidence must not undermine the effectiveness of EU law and must respect the rights guaranteed by the Charter. ( 12 )

...

69) In accordance with Article 47 of the Charter, the jurisdiction of the national court must cover all matters of law and of fact that will determine the outcome of the proceedings. ( 31 ) In order to satisfy the requirements associated with the right to a fair trial, it is important, in that connection, that the parties are apprised of, and are able to debate and be heard on, all those matters. ( 32 )

70) In the context of judicial proceedings, the national court must also be able to verify (if need be, in the context of interlocutory proceedings) the lawfulness, in the light of EU law, of the evidence used against the taxable person, including that ‘transferred’ from other proceedings. As the Court held in WebMindLicenses, in order for the judicial review guaranteed by Article 47 of the Charter 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’. 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 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’. ( 33 )

...

72) If the referring court were unable to review the tax authorities’ findings, or the manner in which the evidence submitted by them was collected, that would also give rise to a breach of the principle of equality of arms, which is a corollary of the right to a fair trial set out in Article 47 of the Charter.

...

76) I propose that the Court answer the question referred for a preliminary ruling by the Fővárosi Közigazgatási és Munkaügyi Bíróság (Budapest Administrative and Labour Court, Hungary) as follows:

– The provisions of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, interpreted in the light of Article 47 and Article 48(2) of the Charter of Fundamental Rights of the European Union, do not preclude a provision or practice of a Member State according to which, when verifying the right of a taxable person to deduct value added tax (VAT), the tax administration is to take into account the findings that it has made in related decisions which have become final, provided that:

• such a provision or practice, while respecting the logic and structure of the VAT system, does not prevent the tax authorities, de jure or de facto, from reaching different conclusions, in the context of different procedures, when presented with new arguments or new evidence;
• the tax authorities are, in principle, required to grant access, before the adoption of their final decision, to all documents which are relevant for the exercise of the taxable person’s rights of defence, including those that have been collected in the context of related administrative or criminal procedures. A description of the evidence in the form of a summary report does not suffice, unless the taxable person is able to request an examination and, possibly, a copy of the specific documents;
• the national court hearing an action against a decision adopted by the tax authorities is able to review all elements of fact and of law in that decision, including the lawfulness of the manner in which the evidence was collected, irrespective of the origin of such evidence.