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ISSN 2611-8858



Ordinary Courts before the Primacy of EU Law and the Protection of Fundamental Rights

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.

L'epilogo del caso Taricco: l'attivazione 'indiretta' dei controlimiti e gli scenari del diritto penale europeo

The conclusion of the Taricco case, by virtue of the Constitutional Court recent judgment no. 115 of 2018, offers on the one hand the chance to analyse the dialogue between the Constitutional Court and the EU Court of Justice about the non-applicability - to the detriment of the accused person - of the domestic rules on the statutes of limitations. On the other hand, the said decision represents an occasion to reflect on the domestic and supranational evolution of the criminal law principle of legality as well as the need to avoid vagueness of criminal provisions

The Constitutional Court as Counter-limits Referee

Starting from the unquestionable central role of the Constitutional Court in opening criminal law to supranational sources, the paper highlights how the case law thereto is often ‘dualistic’ in comparing the latter with the constitutional principles. The said attitude prevented the Constitutional Court from being the main interlocutor of the European Courts, although an important change seems to have occurred in the renowned Taricco case.

Lettura critica di Corte costituzionale n. 115/2018

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.

Changes in EU criminal policy

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.

Reasons of Legality On Corte Cost. N. 24/2017

Through its decision No. 24/2017 the Constitutional Court tries a dialogue with the Court of Justice of the European Union on the problems resulting from the Taricco judgment. The diplomatic strategy of the Constitutional Court was finally welcomed by the Court of Justice, which embraced and consolidated the principles stated by the Italian Constitutional Court.

Relationships Between Different Legal Systems and Constitutional Identity’s Conflicts (Taking Inspiration from the Taricco Case)

This paper emphasises the partial perspectives adopted both by the EU Court of Justice and the Italian Constitutional Court, when it comes to define the ‘constitutional identity’ of the EU, on the one hand, and the Member State, on the other. Moreover, it identifies, within the Court of Justice, the two different approaches to this issue respectively taken advocated by Advocate General Y. Bot in Taricco II and by Advocate General M. Bobek in Scialdone. Finally, it deals with the sensitive question of determining who has the ultimate responsibility to give content to the constitutional identity of a Member State, and suggests rethinking conflicts between different legal systems in terms of conflicts of values and principles within the same legal system, to be solved through a classical balancing approach.

Criminal Procedure and Limitation Period’s Provisions Within the Framework of Eu Jurisprudence. Inter-Systemic Dialogue or Identity Conflict?

The interaction between European and national law has increased the level of uncertainty with regard to the nature of criminal law limitation periods under Italian law. By decision no. 24/2017 the Italian Constitutional Court expressed its intention to start a dialogue with the European Court of Justice, after the well-known 2015 Taricco decision. However, in referring the case to the ECJ for a preliminary ruling, Italian Court threatened to make use of the doctrine of “counterlimits”, bringing to the fore the difficult cohabitation between EU law and Italian criminal law. By decision no. 24/2017, the problems raised in Taricco were simply postponed, and are far from resolved. It seems difficult at the present time to understand how certain sensitive features of the Italian criminal justice system, which are representative of its identity, such as the provisions on time limitation, could be harmonised with the supranational set of rules originating from EU law.

The Triangulation of Procedural Guarantees Between European Union Law, Echr And National Legal Systems

In the context of EU law, procedural guarantees mostly take the form of “principles”, which must then be converted into "rules" by the courts. How can we ensure that these rules are actually able to achieve predictable results and, above all, a good balance of all the values at stake? The answer offered by article 53 of the Nice Charter requires the equivalence between the standards for the protection of fundamental rights provided by the European Union, the ECHR and the national systems. It is not easy to perform this triangulation, however, if we consider that these standards are often incompatible with each other. This article proposes some means to that end.

What is at Stake in the Constitutional Court Decision on the Taricco Sentence

The questions of constitutionality raised by the European Court’s in Taricco have to be evaluated under two points of view: as questions of domestic law (would a “Taricco law” be considered constitutional?), and as questions of limits that could be opposed to the reception of a European law principle. Under both points of view, the judgment raises important questions on the evaluation of the functional adequacy ot the power, conferred to the national judge by the European Court, to disapply in malam partem the rules concerning the interruption of the limitation period. The penal principle of legality and the principle of judge subjection to the law are what is at stake here.