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Petar Dzivev*

Request for a preliminary ruling from rom the Spetsializiran nakazatelen sad (Bulgaria) lodged on 31 May 2016.

1. Is it compatible with:

— Article 325(1) of the Treaty on the Functioning of the European Union which envisages that the Member States will take measures to effectively counter fraud and any other illegal activities affecting the financial interests of the European Union;
— Article 2(1) in conjunction with Article 1(1)(b) of the Convention on the Protection of the European Communities’ Financial Interests (the ‘PFI Convention’) in conjunction with Article 2(1)(b) of Council Decision 2007/436/EC [of 7 June 2007 on the system of the European Communities’ own resources] [Euratom], according to which every Member State is to take the necessary measures to ensure the effective punishment of VAT evasion;

—Article 47(1) and (2) of the Charter which guarantees the right to an effective remedy before a tribunal previously established by law,

if, under national law, the evidence obtained through the deployment of ‘special intelligence methods’, specifically through the interception of the telecommunications of individuals subsequently charged with VAT fraud, cannot be used because it was ordered by a court that lacked jurisdiction, and at the same time the following requirements are met:

— At an earlier point (between one and three months previously) the interception of some of these telecommunications was requested and ordered by the same court, when at that point it still had jurisdiction;
— an application authorising the disputed interception of telecommunications (for the extension of the earlier interception of telecommunications and for the tapping of new telephone connections) was made at the same court which 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 made an order;
— at a later point (about one month later) a fresh application was made to authorise the tapping of the same telephone connections and granted by the court that now had jurisdiction;
— none of the orders made actually contain any reasoning supporting them;
— the statutory regulation that ordered the transfer of jurisdiction was unclear, led to numerous contradictory court decisions and caused the Varhoven sad to issue a binding interpretation decision
about two years after the legal transfer of jurisdiction and the interception of telecommunications in question;
— the court examining the current case is not authorised to decide on applications authorising the deployment of special intelligence methods (the interception of telecommunications); however, it does have jurisdiction to decide on the legality of any interception of telecommunications carried out, including the finding that an order does not meet the statutory requirements and therefore to refrain from assessing the evidence obtained in this way; this power only exists if a valid order has been issued for the interception of telecommunications;
— the use of this evidence (the defendants’ telephone conversations, the interception of which was ordered by a court that had already lost its jurisdiction) is of crucial importance to the resolution of the question of [the defendant’s] liability as the ringleader of a criminal gang formed for the purpose of committing tax offences under the Bulgarian Value Added Tax Act or as an instigator of specific tax offences, but he can only be found guilty and sentenced if these telephone conversations can be used in evidence; otherwise he would have to be acquitted.

2. Does the judgment given in the reference for a preliminary ruling C 614/14 apply in the present

Source: Official Journal of the European Union, 29.8.2016, C 314/11

Case Number C-310/16

Name of the parties Criminal proceedings against Petar Dzivev

Date of the judgement 2016-08-12

Court Court of Justice (ECJ)