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Italy / Constitutional Court / Decision No. 115 of 2018

The Italian Court of Cassation and the Appeals Court of Milan

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Constitutional Court
Type:
Decision
Decision date:
10/04/2018

Key facts of the case:

The Italian Court of Cassation and the Appeals Court of Milan challenged before the Constitutional Court the legitimacy of art. 2 of the Law No. 130 of 2 August 2008, implementing the TFEU and more specifically art. 325 of the TFEU as interpreted by the CJEU’s Grand Chamber with the decision C-105/14, Taricco of  8 September 2015, which introduced the so-called “Taricco rule” on the calculation of limitation period in case of crimes related to VAT. According to the Court of Cassation and the Appeals Court of Milan, applying the “Taricco Rule” would entail the violation of art. 3, 24, 25.2, 27.3 and 101.2 of the Italian Constitution due to the generic nature of the clause that does not comply with the principle of legitimacy in criminal matters, not allowing the subjects to foresee the judicial consequences of their behaviours and leaving the competent judges the discretional power to assess the “severity”of the conducts. 

Key legal question raised by the Court:

The Constitutional Court already submitted a reference for a preliminary ruling to the CJEU requesting the correct interpretation of the art. 325 of the TFEU and of the “Taricco rule”, since it considered it to violate art. 25.2  and 101.2 of the Italian Constitution: this violation would not be allowed even considering the primacy of the EU law on national legislation. The Grand Chamber of the CJEU replied to the Constitutional Court’s request with the M.A.S. and M.B., case C-42/17 a.k.a. Taricco II of  5 December 2017. The CJEU recognizes that the principle of legality in criminal matters is protected by Art. 49 of the Charter and is part of the “constitutional traditions” common to EU Member States. For this reason, the CJEU held that it is for the national judge to determine if the application of Art. 325 TFEU is as to be in contrast with the constitutional identity of the Member State involved. Moreover, the CJEU stressed that – in compliance to the prohibition of retroactive effects in criminal matters – the “Taricco rule” cannot be applied to those conducts perpetrated before the date of the decision which introduced it. Considering the interpretation provided by the CJEU, the constitutional legitimacy questions submitted by the Italian Court of Cassation and the Appeals Court of Milan result to be groundless since the “Taricco rule” does not apply to the cases considered by the two Courts. 

Outcome of the case:

The Constitutional Court considered groundless the questions of constitutional legitimacy submitted by the Italian Court of Cassation and the Appeals Court of Milan, since – considering the interpretation provided by the CJEU – the “Taricco rule” is not applicable in the Italian law system since it violates the principle of legitimacy in criminal matters, enshrined by the Italian Constitution.