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mean that the legislation would continue to impose on providers of electronic communications
services obligations which are contrary to EU law and which seriously interfere with the
fundamental rights of the persons whose data has been retained.
220
Therefore, the referring court cannot apply a provision of national law empowering it to limit the
temporal effects of a declaration of illegality which it is bound to make under that law in respect of
the national legislation at issue in the main proceedings.
221
That said, in their observations submitted to the Court, VZ, WY and XX contend that question 3
implicitly yet necessarily asks whether EU law precludes the use, in criminal proceedings, of
information and evidence obtained as a result of the general and indiscriminate retention of traffic
and location data in breach of that law.
222
In that regard, and in order to give a useful answer to the referring court, it should be recalled that,
as EU law currently stands, it is, in principle, for national law alone to determine the rules relating
to the admissibility and assessment, in criminal proceedings against persons suspected of having
committed serious criminal offences, of information and evidence obtained by such retention of
data contrary to EU law.
223
The Court has consistently held that, in the absence of EU rules on the matter, it is for the national
legal order of each Member State to establish, in accordance with the principle of procedural
autonomy, procedural rules for actions intended to safeguard the rights that individuals derive from
EU law, provided, however, that those rules are no less favourable than the rules governing similar
domestic actions (the principle of equivalence) and do not render impossible in practice or
excessively difficult the exercise of rights conferred by EU law (the principle of effectiveness) (see,
to that effect, judgments of 6 October 2015, Târşia, C‑69/14, EU:C:2015:662, paragraphs 26 and
27; of 24 October 2018, XC and Others, C‑234/17, EU:C:2018:853, paragraphs 21 and 22 and the
case-law cited; and of 19 December 2019, Deutsche Umwelthilfe, C‑752/18, EU:C:2019:1114,
paragraph 33).
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As regards the principle of equivalence, it is for the national court hearing criminal proceedings
based on information or evidence obtained in contravention of the requirements stemming from
Directive 2002/58 to determine whether national law governing those proceedings lays down less
favourable rules on the admissibility and use of such information and evidence than those
governing information and evidence obtained in breach of domestic law.
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As for the principle of effectiveness, it should be noted that the objective of national rules on the
admissibility and use of information and evidence is, in accordance with the choices made by
national law, to prevent information and evidence obtained unlawfully from unduly prejudicing a
person who is suspected of having committed criminal offences. That objective may be achieved
under national law not only by prohibiting the use of such information and evidence, but also by
means of national rules and practices governing the assessment and weighting of such material, or
by factoring in whether that material is unlawful when determining the sentence.
226
That said, it is apparent from the Court’s case-law that in deciding whether to exclude information
and evidence obtained in contravention of the requirements of EU law, regard must be had, in
particular, to the risk of breach of the adversarial principle and, therefore, the right to a fair trial
entailed by the admissibility of such information and evidence (see, to that effect, judgment of
10 April 2003, Steffensen, C‑276/01, EU:C:2003:228, paragraphs 76 and 77). If a court takes the
view that a party is not in a position to comment effectively on evidence pertaining to a field of
which the judges have no knowledge and is likely to have a preponderant influence on the findings
of fact, it must find an infringement of the right to a fair trial and exclude that evidence to avoid
such an infringement (see, to that effect, judgment of 10 April 2003, Steffensen, C‑276/01,
EU:C:2003:228, paragraphs 78 and 79).
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Therefore, the principle of effectiveness requires national criminal courts to disregard information
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