CJEU - C 105/14 / Opinion

Ivo Taricco and Others
Policy area
Justice, freedom and security
Deciding body type
Court of Justice of the European Union
Deciding body
Advocate General
Decision date
ECLI (European case law identifier)
  • CJEU - C 105/14 / Opinion

    Key facts of the case:

    Request for a preliminary ruling from the Tribunale di Cuneo (Italy).

    Protection of the European Union’s financial interests — Tax offences in the field of value added tax — Duty of the Member States to impose effective, proportionate and dissuasive penalties — Criminal penalties — Limitation period for proceedings — Statutory restriction of the overall length of the limitation period in the event of its interruption — National limitation regime which, in many cases, may have the effect of exempting offenders from punishment — Legality of the penalties — Prohibition on retroactivity — Article 325 TFEU — Directive 2006/112/EC — Regulation (EC, Euratom) No 2988/95 — Convention on the protection of the European Communities’ financial interests (‘PIF Convention’).

    Results (sanctions) and key consequences of the case:

    128. ...I propose that the Court reply as follows to the questions referred to it by the Tribunale di Cuneo:

    1. Articles 4(3) TEU and 325 TFEU, Regulation (EC, Euratom) No 2988/95 and Directive 2006/112/EC are to be interpreted as meaning that they require the Member States to provide for effective, proportionate and dissuasive penalties for irregularities in matters of VAT.
    2. Article 2(1) of the Convention on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995, requires the Member States to punish fraud in matters of VAT by means of effective, proportionate and dissuasive criminal penalties which must, in serious cases of fraud at least, also include penalties involving deprivation of liberty.
    3. A provision of national law on limitation periods for proceedings which, for reasons relating to the scheme of that provision, has the effect in many cases of exempting from punishment the perpetrators of fraud in matters of VAT is incompatible with the aforementioned provisions of EU law. In pending criminal proceedings, the national courts must refrain from applying such a provision.
  • Paragraphs referring to EU Charter


    113. More detailed consideration must be given first, however, to the question of whether such an approach is precluded by the general principles of EU law, namely the principle of the legality of penalties (nullum crimen, nulla poena sine lege). That principle is one of the general legal principles underlying the constitutional traditions common to the Member States and now enjoys the status of a fundamental right of the European Union under Article 49 of the Charter of Fundamental Rights. In accordance with the requirement of homogeneity (first sentence of Article 52(3) of the Charter), in interpreting Article 49 of the Charter, regard must be had not least to Article 7 ECHR and the case-law of the European Court of Human Rights (ECtHR) on that provision.

    114. The principle of the legality of penalties states that no one is to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed, and, furthermore, that a heavier penalty is not to be imposed than the one that was applicable at the time the criminal offence was committed (first and second sentences of Article 49(1) of the Charter). That principle goes hand in hand with the rule that directives cannot be relied upon directly in order to determine or aggravate liability in criminal law.

    115. Contrary to the view taken by Mr Anakiev and the Italian Government, however, in a case such as that at issue, there is no risk of any conflict with the principle of the legality of penalties. After all, from a material point of view, that principle requires only that legislation must provide a clear definition of offences and the penalties which they attract. Provisions on limitation periods, however, say nothing about the criminal liability of an act or the penalty which that act attracts, but deal only with whether a criminal offence may be prosecuted, and, consequently, are not even caught by the rule of nullum crimen, nulla poena sine lege. For the same reason, the principle of the retroactive application of the more lenient penalty (third sentence of Article 49(1) of the Charter of Fundamental Rights) also does not apply to matters of limitation periods.


    124. This does not involve the complete abolition of limitation but the application of an adequate limitation regime which makes the imposition of effective, proportionate and dissuasive penalties in a fair trial of an appropriate length (second paragraph of Article 47 of the Charter of Fundamental Rights; first sentence of Article 6(1) ECHR) seem like a realistic prospect.

    125. One of the steps to be taken by the referring court in this regard might be to apply the provisions on limitation without the absolute limitation period laid down in the last subparagraph of Article 160 of the Codice penale, as amended by the Law No 251/2005. As I have already said, it would appear from information supplied by the Commission at the hearing that Italian law does indeed provide for criminal offences — including in the area of economic crime — which are not subject to an absolute limitation period at all.

    126. An alternative approach might conceivably be to apply the revised limitation periods applicable to tax offences, which have been extended by a third, as now provided for in Law No 148/2011. Finally, a further possibility would be to regard the earlier rules on limitation periods, as provided for in the Codice penale before its amendment by Law No 251/2005, as still being applicable to the present case.

    127. Which of those various options is to be selected is ultimately a matter of national law and its interpretation, the assessment of which falls to the national courts alone. From the point of view of EU law, the only requirement is that the solution adopted should be applied in a fair trial (second paragraph of Article 47 of the Charter of Fundamental Rights, first sentence of Article 6(1) ECHR), in a non-discriminatory manner and on the basis of clear, comprehensible and generally applicable criteria.