Unlawfully Obtained Evidence: Follow the Court of Justice of the European Union if You Please

Abstract

This contribution addresses the case-law of the Court of Justice of the European Union (CJEU) on the issue of the use of unlawfully obtained evidence by the tax authorities in an administrative procedure. In 2015 in the value added tax (VAT) case WebMindLicences the CJEU has set the conditions for excluding evidence in an administrative procedure if that evidence was obtained or used in violation of the law. The highest courts of the neighbouring European Union (EU) Member States Belgium and the Netherlands had already developed in their case-law before the CJEU’s judgment in WebMindlicenses their own legal standard on the exclusion of unlawfully obtained evidence in tax cases. The author contributes to the discussion on whether national courts can maintain their own viewpoint or have to conform to the CJEU’s legal standard for excluding evidence in administrative procedures concerning tax, for the harmonized VAT as well as for the non-harmonized taxes. unlawfully obtained evidence, VAT fraud, fundamental rights, rights of the defence