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.
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.
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.”
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).
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”.
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
JHA4:
chapter II:5
Barnard
& Peers: chapter 6, chapter 8, chapter 25
In a nutshell, the CJEU decision has finally accepted that Criminal Law & Procedure has a different status in national systems and it cannot be treated as any other, equally important, subject matter from the common market. More concisely, Criminal Law cannot violate the principle of non-retroactivity. End of discussion!
ReplyDeleteIt's easy for you to say with regards to these rulings. If that is the case, this would have gone long or resolve to a resolution. What the author says is spot-on. They represent different interests, work and conceptual frameworks. And that's why they had ruled for a different solution. David Storobin
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