A Bridge over Troubled Water – a Criminal Lawyers’ Response to Taricco II 

The recent CJEU judgment in M.A.S., M.B. (hereinafter Taricco II) raises more questions than it answers on when Member States can apply higher standards of rights in criminal proceedings. Previous case law, i.e. Taricco I and Melloni, pervaded the primacy of EU law, but from Jeremy F. we also know that Member States enjoy a […]

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Belittling the Primacy of EU Law in Taricco II

The Taricco II judgement handed down by the CJEU on 5 December 2017 is a telling and worrying example of a weakly reasoned court decision and the high price at which such weakness comes. It is a judgement that disregards legally problematic questions, seemingly subordinating argumentative consistency to the constraints of legal policy in a climate increasingly critical towards EU law and institutions. The (potential) collateral damage of this approach is considerable.

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Defusing the Taricco Bomb through Fostering Constitutional Tolerance: All Roads Lead to Rome

As Mauro Cappelletti perceptively wrote in 1986, ‘unlike the American Supreme Court and the European Constitutional Courts, the Court of Justice has almost no powers that are not ultimately derived from its own prestige, intellectual and moral force of its opinions’. In other terms, the Court of Justice (‘ECJ’) cannot take obedience to its judgments by Member States and the respective authorities as granted or constitutionally-mandated since, in Weiler’s words, this is a voluntary obedience which goes hand in hand with the exercise of constitutional tolerance in the Member States. In other words, there is a time for the enforcement of the radical primacy of EU law as in Melloni and Taricco I, and a time for internalizing the counterlimits, as in the Taricco II decision (M.A.S. and M.B. case) handed down today by the ECJ.

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The Opinion of Advocate General Bot in Taricco II: Seven “Deadly” Sins and a Modest Proposal

The wind of populism is blowing across Europe and courts (including constitutional and supreme courts) are not immune therefrom. Within this context, the enforcement of the constitutional identity clause to contrast the application and, sometimes, the primacy of EU law would be a powder keg waiting to be lit. In the latest act in the Taricco saga, Advocate General Bot in his opinion in Taricco II does nothing to defuse it – on the contrary.

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How Could the ECJ Escape from the Taricco Quagmire?

The Taricco saga shows how difficult has become the coexistence between the doctrines that have been developed so far by the ECJ on one side and the national Constitutional or Supreme Courts on the other side. The ECJ and the Constitutional Courts, in all their isolated splendour (or splendid isolation), preferred so far to follow parallel lines, whose meeting could only take place ad infinitum. However, if the parallelism collapses, the two lines are doomed to crash.

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An Instruction Manual to Stop a Judicial Rebellion (before it is too late, of course)

2016 was not a good year for the EU. Among many other things, one of the EU’s proudest achievements, its judiciary, has shown the first signs of worrying instability: In Germany, Denmark and Italy, high-level courts have openly and harshly declared their dissatisfaction with rulings by the European Court of Justice. I would not say that these are nationalist overreactions. These are worrying (and I would add justified) signs of something going wrong.

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The Italian Constitutional Court in re Taricco: “Gauweiler in the Roman Campagna”

The Italian Constitutional Court’s Tarrico judgement is worded in apparently much milder terms than the BVerfG’s preliminary reference in Gauweiler. The content of the ICC’s decision, though, seems loaded with much more dynamite. In Gauweiler, the CJEU was called to interpret an act of another EU institution. In Taricco, the CJEU is called to reinterpret its own decision, after the ICC essentially asked “please, say it again?”

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The Taricco Decision: A Last Attempt to Avoid a Clash between EU Law and the Italian Constitution

Is Italy obliged by EU law to pursue criminal acts longer than provided by Italian law? This question might cause a fundamental clash between the Italian Constitutional Court and the European Court of Justice. Unlike the CJEU, the Italian Constitutional Court interprets a retroactive suspension of the limitation period as a matter of principle of legality, and thereby as a matter of a core principle of Italian constitutional law. By referring the case to the CJEU, the Italian Constitutional Court gives the European Court a chance to revisit its jurisdiction while avoiding the identity language of the German Constitutional Court – good news for cooperative constitutionalism in Europe.

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