The paper focuses on the increasing role played by ordinary courts in the implementation of EU law. Since Simmenthal and Costa v. E.N.E.L. judgments, these courts are called upon to set aside any domestic provision in conflict with the directly enforceable provisions of EU law. This obligation, however, may prove problematic with respect to criminal law. Recently, the Taricco affaire has once again brought out this topic, by highlighting that the removal of the inconsistences between the domestic law and the EU law may infringe upon the constitutional principles concerning criminal law. At the same time, the Taricco case has questioned the relationship between the primacy of the EU law and the national threshold of protection of fundamental rights. Such a question needs to be faced in the light of the judgment delivered by the Constitutional Court on 31 May 2018.
The paper presents the main options of the European lawmaker in defining the contents of Regulation (EU) 2017/1939 on the enhanced cooperation establishing the European Public Prosecutor Office, focusing on the substantive criminal law profiles and the criteria aimed at preserving the actual exercise of prosecutorial powers in relation with the domestic authorities. The author highlights the matters deriving from the definition of the legal framework of the brand-new European body by references to domestic rules, so maintaining the current legal patchwork in fighting offences to EU financial interests (i.e. the focus of the EPPO) and weakening the new body also in terms of legitimacy, leaving aside the matters of effectiveness.
The paper analyses the relationship between organised crime and corruption, from a criminological and legal perspective, both at the domestic and the cross-border level. As to the latter, it is explored the link to the notion of "transnational crime" under Law 146/2006. The analysis is then devoted to the EU and international law as well, whose instruments shaped the domestic legislation in these areas of crime. The empirical mix between criminal organisations (including the Mafia-style ones) and corrupt practices influences criminal law policies, that eventually merged, as demonstrated by the recent Law 3/2019 (so-called "spazzacorrotti"). The said osmosis of preventative and repressive strategies, potentially leading to an oversimplified unification, raises new and deep concerns about the fundamental criminal law safeguards
Judgment no. 115/2018 by the Italian Constitutional Court, which puts an end to the chain of judgments started by the EUCJ judgment Taricco, disapplies the Taricco ruling as being incompatible with the principle of precision of the criminal provisions derived from Article 25 (2) of the Italian Constitution. By doing so, the Italian Court de facto applies, for the first time, its “counter-limits” doctrine in respect of the EU law, as interpreted by the EUCJ. The Court’s reasoning is based on the assumption that the discipline of the statute of limitation is encompassed by nulla poena principle and its sub-principles, among with the sufficient precision of the criminal provision. The latter sub-principle, on its part, is applied for the first time by the Court as requiring foreseeability, based on the wording of the a criminal provision, of the future interpretation of said provision by the courts in the future. This view is ad odd with the traditional teaching of the Court, and sets a standard of scrutiny to which the Court itself will hardly be able to stick in the ordinary application of Article 25 (2) Constitution. Furthermore, it is not easy to imagine how the “constitutional patriotism” showed by the Court could be reconciled with the general proEuropean attitude of the Italian case law.
Illicit Traffics in the Mediterranean Area. Prevention and Repression in National, European and International Law
The text presents the topics of the illicit traffics in the Mediterranean area, which was the subject of the 8th Training Course "Giuliano Vassalli" for PhD Candidates, held in Noto in 2017. The remarks are complemented by references to the following contributions of the participants selected for the pubblication.
From the "Victory of Nicosia" to the Legislative “Dinghy”: new regulatory outcomes for contrasting the Illicit Trafficking of Cultural Property
After a brief overview of the Italian and the international legal framework against illicit trafficking of cultural property, the Author strives to verify the coherence of the forthcoming reforming law currently under discussion with the international law, focusing in particular on the provisions of the new Nicosia Convention, highlighting, from this perspective, some possible critical concerns.
The application of the Taricco judgment to the principle of assimilation underlies a comparison between serious VAT fraud and the crime set forth in Article 291-quater TULD. However, a close analysis of this smuggling crime calls into question the assumption of the Luxembourg Court and points out the political nature of the Taricco judgment. Therefore, this paper will focus on the consequences on the EU criminal policy arising from this decision, with particular attention to the PIF Directive.
This study focuses on the delicate issue of illegal waste trafficking, in particular in the Mediterranean area, to identify effective tools to prevent and repress the Ecomafia phenomenon. In order to do that, a preliminary analysis of the operating models must be carried out, as well as of the phases through which it develops, of the aims it pursues and of the subjects that take part in it. In this regard, arising from the natural starting point in the Italian body of law, the Article 260, d. lgs. 2006, no. 152, today reproduced by the Article 452 quaterdecies penal code, as combined in some cases with the Articles 416 and 416 bis penal code, the study will then consider the aggravating circumstances “ecomafiosa” and “environmental”, introduced by the Law 22 May 2015, no. 68, in order to contrast the hipotesis of environmental crimes, whenever they interact with criminal associations. The research will address the effectiveness of the current legislation to properly neutralize the entire dynamic since its origine and in its distinct features. In this context, having noted the level of criticality that the regulatory overview presents in dealing with a phenomenon of such magnitude and complexity, and having considered several similarities with the criminal association structure, one wonders about the opportunity to introduce a specific associative hypothesis, to regulate the “association to commit environmental crimes”.
The present paper critically analyzes the European legislation on smuggling of migrants. According to the author's opinion, the communitarian legislator and the majority of the European countries have confused this specific crime, regulated by international law in Palermo Convention, with the felony of facilitating illegal immigration. This undue overlap between different types of crime generates multiple and complex problems. In first place, the article studies the requirements of smuggling of migrants in international law. In second place, it examines the reasons why is not possible to conceive this crime and the felony of facilitating illegal immigration as functional equivalents. Finally, the paper proposes to distinguish clearly the elements of both crimes and their respective application ambits.