Criminal law, human rights and constitutional pluralism: two views on Taricco II

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.

-          Charles Dickens, Bleak House

Interminable legal proceedings have long outlived the voluminous fog of Dickensian London. In a bid to cut them short, some legal systems impose strict deadlines requiring their conclusion. But while it is often argued that justice delayed is justice denied, justice curtailed denies justice too.

In the field of EU law, curtailed justice can cause a particular problem if it results in the inability to enforce criminal sanctions against those who have allegedly defrauded EU funds. Two years ago, in its judgment in Taricco I (discussed here), the ECJ attempted a solution: national courts had to disapply short limitation rules if they prevented the effective prosecution of such frauds. But this ruling was soon embroiled in further litigation, raising questions of national constitutional identity, within the framework of the relationship between EU and national courts and legal systems, in the particular context of criminal justice.

Earlier this week, the ECJ revisited its ruling, now suggesting a compromise with the concerns of the Italian constitutional court. This post comprises two contributions examining the new judgment from different angles: the broader debate about constitutional pluralism, and the ECJ’s relations with the Italian court.

1) Judicial dialogue after Taricco II: who has the last word, in the end?

Barbora Budinska, post-graduate researcher, Leiden University; and Zuzana Vikarska, DPhil candidate at the University of Oxford

On Tuesday (5 December), the second judgment in the Taricco saga added yet another piece of puzzle to the ongoing judicial dialogues between the Court of Justice and the national constitutional courts. The judgment will, most likely, provide food for thought on a variety of themes. In this post, we would like to focus on and shortly sketch the evolvement of the judicial cooperation between the Court of Justice and the Italian Constitutional Court in the Taricco saga and compare it with the progressing dialogue between the Court of Justice and the German Constitutional Court in and after the Gauweiler saga.

There are a number of interesting features that Gauweiler (discussed here) and Taricco II have in common: not only have they both originated at the “barking but not (yet) biting” constitutional courts in Karlsruhe and Rome (with their famous doctrines on constitutional limits to EU integration), but they also share the puzzling motive of constitutional identity, invoked by both constitutional courts, extensively examined by the Advocates-General, yet, formally ignored by the Court of Justice. Against this background, our analysis aims to show that although the Court refrained from explicitly clarifying the concepts of constitutional identity and national identity in its judgments, it still showed a great deal of understanding for national specificities and identities, in line with the principle of respect for national identities embedded in Article 4(2) TEU.

The saga begins: The first Taricco judgment

Many landmark judgments of the Court of Justice seem to involve alcohol. After Scotch whisky, Crème de cassis, pure German beer, or the Picon liqueur, this time the Court was dealing with bottles of champagne sold in Italy below the market price, allegedly due to VAT fraud. As a result, an Italian district court launched criminal proceeding againsts Ivo Taricco (and many others) for so-called “fraudulent ‘VAT carousel’ legal arrangements” (Taricco I, para 18).

This scheme involves shell companies, non-existent transactions, fake invoices, and fraudulent annual VAT returns, all of which could put the perpetrators to prison for up to seven years, if they are found guilty. Yet, according to Italian criminal law, the offences are subject to rather short limitation periods and will soon be time-barred (in February 2018 at the latest), despite the pending judicial proceedings. The Italian district court hearing this matter in the first instance pointed out that it is quite usual that criminal proceedings concerning tax evasion are complex and take a considerable amount of time. Therefore, the combination of time-consuming criminal proceedings and (rather short) limitation periods leads to a situation where “de facto impunity is a normal, rather than exceptional, occurrence” (Taricco I, para 24) and where the EU’s financial interests may be put at risk (cf. Article 325 TFEU). The national court therefore turned to the Court of Justice, asking for advice.

The Court opened its judgment in Taricco I by outlining the general principles on effective collection of VAT revenue and the fight against tax evasion, referring repeatedly to the Fransson case (which confirmed the effective collection of VAT revenue is an EU law issue) and to the well-established mantra of “effective, proportionate and dissuasive” sanctions. However, what concerned the referring court was not the sanction as such, but the situation where the offence is commonly time-barred before the criminal proceedings come to an end. In response to this concern, the Court of Justice suggested that if the national court believes that cases of serious fraud regularly escape criminal punishment, then the national provisions are not effective and dissuasive and should be disapplied, “without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure” (para 49).

This is nothing new for EU lawyers, as the logic of disapplying national provisions has been clear (and constitutionally controversial) ever since Simmenthal. Yet, a criminal lawyer could just as well point out that such disapplication amounts to “a retroactive application of a rule of substantive criminal law to the detriment of the defendants” which “should be prohibited under the Italian Constitution,” as has recently been claimed by Fabio Guiffrida.

Importantly, the Court did not disregard the fact that fundamental rights of the accused could be at stake: clearly, disapplication of a limitation clause in a pending criminal case puts the accused in a worse position. Yet, having briefly considered Article 49 of the Charter and Article 7 ECHR, which both prohibit retroactivity in criminal law, the Court concluded that the rights guaranteed by these provisions would not be infringed, since “the acts which the accused are alleged to have committed constituted, at the time when they were committed, the same offence and were punishable by the same criminal penalties as those applicable at present” (Taricco I, para 56). Notably, the Court concluded that its legal assessment is still “subject to verification” by the referring court, therefore seemingly handing the responsibility over to the national actors.

The saga continues: The Corte Costituzionale asks for clarification (or revision?)

Considering the very EU-enthusiastic tone of the reference, the Italian district court was probably pleased by the answer given by the Court of Justice. Not just the referring court, but also other criminal courts in Italy dealing with similar cases understood Taricco I as a green light allowing them to continue prosecuting suspects after the lapse of the limitation periods. This, however, put the convicted individuals in a worse position, for the sake of compliance with EU law. Unsurprisingly, at some point, the Corte Costituzionale (also referred to as “ICC”) was approached with questions of constitutionality of these practices.

In turn, the ICC considered the situation from the perspective of the Italian constitutional order, realising a potential clash between the reasoning in Taricco I on the one hand, and the principle of legality as understood under the Italian constitution on the other hand. Importantly, the ICC decided not to apply its controlimiti doctrine, first established in Frontini in 1973; but instead, it referred its questions to the Court of Justice, seeking what seems to be a “revision” of Taricco I.

First, the ICC reiterated that the limitation periods in Italy form part of substantive criminal law and therefore fall within the scope of the constitutional principle of legality. The ICC voiced its concern about the compatibility of Taricco I with such a “supreme principle of the Italian legal system.” Gently concealing its criticism as “doubts” about the correct interpretation of the Taricco I judgment, the ICC felt compelled to turn to the Court of Justice and present its own views on the situation.

In its referral, the ICC put forward that “the primacy of EU law does not express a mere technical configuration of the system of national and supranational sources of law. It rather reflects the conviction that the objective of unity, [...] justifies the renunciation of areas of sovereignty.” And then, in the same breath, the ICC stated that “the very force of unity within a legal order characterised by pluralism (Article 2 TEU) result from its capacity to embrace the minimum level of diversity that is necessary in order to preserve the national identity inherent within the fundamental structure of the Member State (Article 4(2) TEU). Otherwise, the European Treaties would seek, in a contradictory fashion, to undermine the very constitutional foundation out of which they were born by the wishes of the Member States.” The ICC thus accepts the Court of Justice´s authority on “establishing the meaning of EU law” but expects in return that the Court will leave “to the national authorities the ultimate assessment concerning compliance with the supreme principles of the national order.”

The ICC therefore submitted three questions to the Court of Justice. The first one focused on the lack of sufficiently precise legal basis for disapplication of the national provisions, the second one pointed out that limitation periods are part of substantive criminal law in Italy, and the third one asked rather directly whether Italian courts should disapply the limitation periods even if that brings them “at variance with the overriding principles of the constitution … or with the inalienable rights of the individual.”

The Court’s judgment in Taricco II: don’t feel obliged to fulfil the obligation

Using the accelerated procedure, the Court of Justice prioritised the Taricco II case and dealt with it in less than a year. It understood very well that the reference from the Corte Costituzionale was an invitation to talk, and opened its reasoning with observations on judicial dialogue and the preliminary ruling mechanism being an instrument of cooperation (paras 22-23). In response to the reference, the Court of Justice provided the ICC with three messages, not necessarily matching the three questions posed.

1. We have asked you to take care of something and we don’t care how you do it.

The Court first reiterated that Article 325 TFEU imposes on the Member States an obligation of results; i.e. to punish serious VAT fraud effectively (para 1) and in the same way as they punish fraud at national level (para 2). Just like in case of directives, Member States are free to choose the means to achieve these results (Taricco II, paras 32-41) while compliance is mainly in the hands of national legislatures, who must “ensure that the national rules … do not lead to impunity in a significant number of cases of serious VAT fraud” (para 41), and national courts, who must “give full effect to the obligations under Art 325(1) and (2) TFEU and to disapply national provisions” if necessary (para 39).

2. We acknowledge the principle of legality and we still don’t think it’s in danger.

Referring to a number of cases from both Strasbourg and Luxembourg, the Court of Justice split the principle of legality into three parts: foreseeability, precision, and non-retroactivity. Foreseeability requires that both the offence and the penalty be clearly defined (para 55), precision focuses on the individuals, checking whether they are in a position to know which acts or omissions will make them criminally liable (para 56), whereas non-retroactivity prohibits the courts to punish conduct which was not prohibited at the time of that conduct, or to aggravate the rules in pending proceedings (para 57). The Court showed understanding for all these aspects of legality, indicating that they are not specific to the Italian legal order, but rather shared by all the Member States, both as common constitutional traditions and as values embedded in the ECHR (paras 53-54).

3. We imposed on you an obligation, but you are not obliged to comply with it.

This is where the Court of Justice got cold feet and downplayed the requirements laid down in Taricco I, this time giving the national courts much softer instructions. Does disapplication of national rules lead to uncertainty and imprecision? Well, in that case you are not obliged to disapply. Does disapplication put suspects in pending cases in a worse position? (Of course, it does, and we knew it already in Taricco I!) Well, then you are not obliged to disapply either.

In fact, if you think that the obligation to disapply conflicts with the principle of legality, you are not obliged to comply with that obligation (isn’t it a magical formulation?). But remember our first message: we have asked you to take care of something, so please do. If your courts cannot do it, your parliament should (para 61).

A comparison: The Gauweiler saga and beyond

In his opinion in Taricco II, Advocate-General Bot mentioned that the order for reference from the ICC reminded him of the questions submitted in 2014 by the Federal Constitutional Court of Germany (the Bundesverfassungsgericht or the BVerfG), which gave rise to the Court’s notorious Gauweiler judgment – arguably one of the most heavyweight cases the Court of Justice has ever had to deal with. There, in its very first referral for a preliminary ruling, the BVerfG not only submitted its questions regarding the European Central Bank’s (ECB) Outright Monetary Transactions (OMT) programme but also strongly advised the Court on what the answers to these questions should be. The judges of the BVerfG’s Second Senate were convinced that the OMT programme (based on a press release announcing the same) would constitute an ultra-vires act inasmuch as it would, first, exceed the monetary policy mandate of the ECB pursuant to Articles 119 and 127 TFEU, and second, circumvent the prohibition of monetary financing according to Article 123(1) TFEU.

1. The references from the constitutional courts

Advocate-General Bot is right insofar as pointing out some similarities between the two orders issued by, on the one hand, the German constitutional court in Gauweiler, and on the other hand, the Italian constitutional court in Taricco II: both courts posed a series of preliminary questions while simultaneously suggesting to the Court what they believed to be the “correct” answers. What is more, the two apex courts indicated (more or less aggressively) that in case of an unsatisfactory response of the Court, they, as guardians of their particular constitutions (and of their constitutional identities), would be forced to make use of the limits developed in their respective jurisprudence against the Court’s claim of absolute primacy of EU law, i.e. the well-established BVerfG’s doctrine of threefold limits (fundamental rights, ultra vires acts and constitutional identity), and the controlimiti jurisprudence developed by the Corte Costituzionale.

Yet, from a perspective of judicial dialogue, there is a remarkable difference between Gauweiler and Taricco II. In the former, the BVerfG’s order for preliminary ruling opted for a very harsh tone and manoeuvred the Court of Justice deliberately between a rock and a hard place. On the one side, the announcement of the OMT programme by the ECB’s President Mario Draghi brought the desirable effect of calming the crises-stricken markets; yet, on the other side, the BVerfG left little doubt that it considered the same OMT programme as manifestly exceeding the ECB mandate, and thereby constituting an ultra vires act and violating German constitutional identity. The Court of Justice was left with a daunting reconciliation task of avoiding an open constitutional conflict with the BVerfG and simultaneously preventing the rise of new tensions on the bond markets.

On the other hand, the “tone” chosen by the Corte Costituzionale in Taricco II is considered much friendlier than the one adopted by the BVerfG in Gauweiler. The message from Rome was just as ultimate as the message from Karlsruhe; and the ICC made it clear that it expected the Court of Justice to reinterpret its Taricco I judgment in a way compatible with (the ICC’s understanding of) Italian constitutional identity. Yet, unlike the BVerfG, the ICC chose a strategy combining flattery with diplomatically enunciated ultimata, in other words, the method of carrot and stick, as Davide Paris and Daniel Sarmiento have pointedly noted.

2. The answers from Luxembourg

Advocate-General Cruz Villalón was the first to try and soften the harshness with which the German referral arrived at the Court of Justice. His opinion, issued in a spirit of conciliation between the two apex courts, opened with an elaboration on what he called the “functional difficulty” of the BVerfG’s request: the tension between the purpose of the preliminary ruling procedure and its binding nature on the one hand, and the right to have “the last word” on the validity of an EU act which the BVerfG reserved for itself (para 35).

In an attempt to square the circle and turn the Karlsruhe dictate into a dialogue, the Advocate-General reminded the BVerfG of its own Honeywell judgment, in which the latter made a commitment to genuinely seek the guidance of the Court of Justice before making a final decision (para 44). Moreover, the Advocate-General referred to Article 4(3) TEU enshrining the principle of sincere cooperation, arguing that this principle can constitute a basis for a “cooperative relationship” between the courts. The principle entails obligations for both, the BVerfG as well as the Court of Justice. The former should show its willingness to accept the Court’s preliminary ruling as a sufficient and binding basis for its final decision. The Court, on the other hand, should, first, respond to the BVerfG “in the greatest spirit of cooperation possible”; and second, it should make the effort and address the substance of the referred questions, putting aside any “functional difficulties” arising from the mutual relationship (paras 47-49, 65-68). In response to the BVerfG’s claims of constitutional identity, the Advocate-General invited both courts to strive for “basic convergence between the constitutional identity of the Union and that of each of the Member States” (para 61).

The Court in Gauweiler, seemingly following the advice of the Advocate-General, adopted a pragmatic, yet strict and uncompromising, approach and engaged in a substantive dialogue with the BVerfG on the legality of the OMT programme. It purposefully avoided any elaboration on the tension between the ECB’s actions and the German constitutional identity and contended itself with referring to the settled case law on the binding nature of its preliminary rulings. In response, the BVerfG refrained from its extremely critical tone used in the referral and, overall, accepted the Court’s analysis.

Advocate-General Bot, on the other hand, opted for a much more confrontational tone in his opinion in Taricco II. He recycled his line of argumentation from Melloni (which already smells like trouble), first acknowledging the principle of respect for national identities but then rejecting its applicability to the case at hand, claiming that he was “not convinced” that the Italian claim would constitute a genuine identity claim: “The present case does indeed concern a fundamental right protected by the Italian Constitution, the importance of which should not be underestimated, but that does not mean that the application of Article 4(2) TEU must be envisaged here” (para 179). Marco Bassini and Oreste Pollicino labelled Advocate-General Bot’s opinion in Taricco II as “probably the most conservative and radical view on the supremacy of the EU legal order.”

If the Advocate-General’s harsh stand on national identity were at least supported by a white flag raised by the Italian government (as was the case with the Spanish government in Melloni, as follows from para 141 of Advocate-General’s opinion), it could be regarded as acceptable. Yet, in Taricco II, the identity claim was invoked by no one else than the country’s constitutional court, and nothing suggests that Italy gave up the identity claim in the proceedings in Luxembourg. The Court’s handling of the situation (summarised above) is therefore praiseworthy; unlike the Advocate-General, the court managed “to reconcile the imperative of ensuring the effectiveness of EU law with the good health of its dialogue with national constitutional courts,” as was optimistically foreseen by Alessandra Silveira and Sophie Perez Fernandes earlier this year.

What is more, after the Gauweiler judgment, it seems that even the BVerfG has become more open to an amicable judicial cooperation: in July 2017, it issued its second referral, addressing yet another policy tool of the ECB, the so-called Quantitative Easing (QE) programme. In the order, the BVerfG questions whether the QE programme exceeds the mandate of the ECB (cf. Articles 119 and 127 TFEU) and amounts to a circumvention of the prohibition of monetary financing (Article 123(1) TFEU). Moreover, it invites (perhaps almost challenges) the Court of Justice to apply its own standards developed for the OMT programme in the Gauweiler case. Yet, as some commentators have observed, the language of the second referral is more cordial (see, for example here and here), acknowledging the purpose of the judicial dialogue between the two apex courts, as well as the obligation of the BVerfG under Article 267(3) TFEU. Depending on the response from the Court of Justice regarding the QE programme, this might be a start of a “true judicial dialogue”.

Conclusion

There is, indeed, an inherent functional difficulty, in a dialogue between the Court of Justice and any national constitutional court. They represent different interests, work with different conceptual frameworks, and push for different solutions. A constant fight for the last word, supplemented with (allegedly unconditional) weapons of primacy on the one hand and constitutional identity on the other, leads to no satisfactory solution. The interaction between the Court of Justice and its national counterparts is a diplomatic dialogue of a sort, and it therefore requires diplomatic language. We are certainly not the first ones to emphasise the need for a conciliatory tone in judicial dialogues; still, we are happy to be among the first ones to rejoice about the diplomatic accomplishment of the Court of Justice in its Taricco II ruling - maybe with a glass of champagne? J

2) Taricco II: the Italian Constitutional Court raises its voice and the Court of Justice listens

Massimo Fichera, Adjunct Professor of EU Law. Academy of Finland Research Fellow, University of Helsinki

Background

“The Calm After The Storm” is a poem by the famous 19th century Italian poet Giacomo Leopardi. In a way, this image could represent the climate after the Taricco II case has been finally decided. On 5 December 2017, the CJEU delivered its long-awaited decision in C-42/17 Criminal Proceedings against M.A.S. and M.B. (Taricco II). It was the first time the Italian Constitutional Court threatened to use its “counter-limits” weapon - and the third time it resorted to the preliminary ruling procedure.

To be sure, the relationship between Constitutional Courts/Supreme Courts and the Court of Justice of the European Union (CJEU) has increasingly intensified in recent years. Several rulings, from Ajos (a Danish case discussed here) to the Hungarian asylum-seeker quota case (discussed here), Melloni and the Slovak pensions case, have tested the extent to which EU law is allowed to penetrate into national legal systems. The Taricco saga is just another example of this trend – albeit particularly significant on at least two counts: (a) the interaction between EU criminal law and human rights and  (b) European constitutionalism.

It will be remembered that the question in Taricco was whether Italian rules on prescription periods violated EU law, in particular a number of provisions in the area of state aid, economic and monetary union, competition and the main VAT Directive (although only the last one was considered by the CJEU to have been infringed by national law). As time, quite simply, runs out during the proceedings, this makes fighting fraud against the EU budget and the EU financial interests, as prescribed by Article 325 TFEU, harder. Indeed, Member States are obliged to take effective and dissuasive measures (whatever their nature) to fight fraud, and must do so by adopting the same measures they would adopt to protect their own financial interests.

What is more, there exists a specific obligation to punish fraud against the EU financial interests in an effective and dissuasive manner, in “a serious number of cases” of VAT evasion: this must happen through penal measures. On the face of it, the problem looks easy to solve: in addition to the provisions of the VAT Directive, Article 325 is directly effective, therefore the national judge ought to disapply the Italian provisions on prescription periods, as they run counter an EU law obligation. It is a pure and straightforward application of the classic principles of primacy and direct effect – a case study for first year EU law students.

In fact, this is what the CJEU decided in Taricco and is one of the most important aspects of the ruling. Yet, things are not as smooth as they look. The Italian Constitutional Court, requested by a couple of ordinary courts to trigger its “counterlimits” (i.e. to grind its teeth), chose the middle ground. Facing the choice of either obeying the CJEU or shooting at it, it merely raised its voice. It turned back to the CJEU and pointed out that the actual enforcement of the judgment would breach the fundamental principles of the Italian constitutional system, notably the principle of legality as interpreted by the latter- i.e. as a principle applicable also to prescription periods, because they are considered part of substantive criminal law, not of procedural law, as is the case with other EU countries. This is how we get to Taricco II.

Judgment

The ruling of the CJEU was preceded by the Opinion of Advocate-General Bot, who admittedly took a hard position. He was rather adamant that, in such circumstances, EU law needs to be complied with. Full stop. Bot argued that progressive harmonisation of criminal law, in particular through a common definition of fraud against the financial interests of the EU (see the recent Directive of the European Parliament and of the Council 2017/1371) and the creation of a European Public Prosecutor (see the recent Council Regulation 2017/1939)  can only be successful if such harmonisation is associated with effective measures, including a uniform discipline of prescription periods.

True, Bot conceded that national courts do not have clear and objective criteria, which would allow them to identify unequivocally those circumstances in which, following serious harm to the EU financial interests, the obligation to disapply national law would emerge. According to Bot, as the existence of a systemic risk of impunity, as suggested in Taricco, is too vague, it would be preferable to refer to the nature of the offence. Yet Bot stops short of providing a remedy to this situation. From his point of view, compliance with EU law obligations cannot be doubted or challenged.

The CJEU, instead, is much more cautious. It first shows the “stick”: national judges are in principle obliged to fully respect the obligation enshrined in Article 325 TFEU – with the consequence, as mentioned above, that national provisions preventing compliance with such obligation ought to be disapplied. However, soon comes the "carrot". Protection of the financial interests of the EU through criminal law belongs to the shared competences of the EU and Member States.

In this context, it cannot be ignored, says the Court, that, at the time of the commission of the crime, there was no harmonised legislation on fraud against the financial interests of the EU. As a result, Italy had a large room of manoeuvre and was free to regulate the field as it wished – including the application of the principle of legality to prescription periods. It is undeniable that the alleged offenders were not able to foresee the circumstances in which Article 325 TFEU applies. The main problem deriving from following the Melloni/Fransson doctrine here is that the Italian system does not allow the judge to replace the legislator by providing the missing criteria. Hence, not only the principles of foreseeability, clarity and non-retroactivity, but also the principle of separation of powers would be compromised.

In such situation, it is understandable why the Italian Constitutional Court indicated its readiness to trigger the “counter-limits”. And the CJEU could not help recognising the peculiarities of the Italian system, despite all the criticism levelled (not only by scholars, but also by the ECtHR) at the discipline of the prescription periods, which, as a matter of fact, ensure a high degree of impunity. Importantly, the CJEU, while discussing the principle of legality, considers its relevance both for the EU legal order and national legal orders. Moreover, the Court includes it in the Member States’ “common constitutional traditions”, by mentioning several provisions, including Article 7 (1) of the ECHR.

Comments

The Taricco saga proves the importance of EU criminal law, and the extent to which it has penetrated and still is penetrating into the national sphere. The approach followed by the EU has been that of allowing some degree of discretion to Member States, whilst setting the guidelines for their action.

Moreover, one could discern three fundamental mindframes in the Taricco saga. They all contribute, willingly or unwillingly, to a rich discussion not only on issues of constitutional identity, but primarily on how we should interpret the principles of primacy and direct effect – and, ultimately, on the nature of the EU legal order/system.

First and foremost, we have the “supremacy” mindframe, which can be observed in the first Taricco judgement and in Advocate General Bot’s Opinion. Essentially, Bot follows his own Opinion in Melloni, which was developed on the basis of the interpretation of Article 53 CFR, shared by the CJEU on that occasion. Whenever the EU provides an exhaustive harmonisation of fundamental rights in a certain area, Member States may not require higher standard of protection, even when these are ensured by their national constitution. In other words, it is the EU that decides on the adequate level of protection of fundamental rights by performing its own balance between rights and the effectiveness of EU law (see also Fransson).

Of course, to the extent that the subject matter has not been completely regulated by EU law, Member States are still allowed to go beyond EU standards. This observation should not be downplayed. Yet, and interestingly, while acknowledging this state of affairs, Bot still supported the Taricco judgement. Bot’s interpretation of the relationship between EU law and domestic law is, in a sense, hierarchical. It is not by chance that, in his view, mutual trust and mutual recognition (as in Aranyosi and Căldăraru) are to be viewed as “absolute”: there is no space in the Framework Decision on the European Arrest Warrant for any grounds for refusal of surrender by the national judge of the requested State based on the infringement of the fundamental rights of the surrendered person in the issuing country. (Although in those cases, as discussed here, the ECJ found a compromise – the postponement of surrender until human rights could be ensured).

The CJEU in Taricco II instead follows a “primacy” mindframe. It does not view the relationship between EU law and national in hierarchical terms and, rather, seeks cooperation. In this light, its revirement can be considered as part of a strategy of rapprochement and reconciliation with the Italian Constitutional Court. In other words, the CJEU has realised that, behind the conflict, there emerges a crucial legal-cultural difference.

The Italian legal system does not accept an interpretation of the principle of separation of powers in such a way that a judge is free to establish legal criteria and categories, which would normally be entrusted to the legislator. True, the Italian legislator has been inactive, and could have filled the gap earlier. Yet, this does not justify an intrusion of EU law to the extent of altering the constitutional balance of a Member State. The effort of the CJEU (which employs in its reasoning the notion of “common constitutional traditions”) is certainly laudable. While confirming the importance of the national identity clause (Article 4(2) TEU), the CJEU attempts to build up common principles with the aim of showing how all provisions on fundamental rights and fundamental principles can be read together systematically.

The third mindframe can be defined “statalist”. Such mindframe can be observed in all those legal systems which resist EU law. In Italy, for example, part of the doctrine interprets “counter-limits” as widely as possible, as embracing not only substantive constitutional norms, but also the principle of conferral and “identity review”. From such perspective, the power to decide to which extent legislative competence should be exercised by the EU belongs to the Italian Constitutional Court.

For the same reason, it has been argued that, instead of referring the questions to the CJEU, the Constitutional Court should have triggered its  “counter-limits” immediately, because the EU is acting ultra vires and has interpreted the notion of direct effect too extensively. In other words, there would simply exist no conditions allowing Article 325 TFEU to be directly effective. Needless to say, any such interpretation would make EU law pointless, because it would have as a consequence that of permitting any national court to challenge the applicability of direct effect (and primacy) at any time. This is an old debate (as the German Bundesverfassungsgericht and other constitutional courts can prove), but it is important to bear in mind that the “statalist” view is still very much present and does not need to be expressed in its more radical forms, as can be observed in Hungary or Poland.

Both courts – the Italian Constitutional Court and the CJEU after its revirement – ought to be praised for their attempt at building up a systemic view of fundamental rights and fundamental principles. They could have adopted a more intransigent stance, and yet they have showed willingness to cooperate, from two separate yet cooperating systems. However, Taricco II also shows the importance of conflict in EU law. It is by raising its voice that the Constitutional Court has showed how delicate matters relating to national diversity may be addressed. Whether this method will work in other contexts is another issue.

Photo credit: BBC News

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