ECJ’s Taricco judgment.

A look from an italian criminal lawyer’s point of view.

Nicola Canestrini

Luxembourg, october 2015. European Criminal Bar Association ECBA

Taricco judgement C 105 / 14

september 2015

intent of ECJ ?

Member States cannot ignore fraud against the EU budget, but have to take effective measures to stop it (art 325 TFEU)

“The national court must give full effect to EU law, if need be by disapplying the provisions of national law the effect of which would be to prevent the Member State concerned from fulfilling its obligations”

italian duration of limitation period concerning fraud (6 + 1/4 max. interruption) can be too short and thus affect effectiveness of sanctions

italian point of view

statute of limitations are running even during the trial

interruption extends prescription period with a maximum limit

prescription is part of substantial criminal law: prescription extinguishes the crime and defendant is acquitted

limitation periods

ensure legal certainty and finality

prevent infringements of the rights of defendants

(fait trail: evidence might have become incomplete because of the passage of time)

effectiveness and dissuasive character of the penalties

vs.

observance of the fundamental rights of the individual (…even if a tax evader)

Nor shall a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed

(art. 49 Charta)

question

149.  ..  However  (modifying  rules  of  limita9on)  does  not  entail  an  infringement  of  the  rights  guaranteed  by  Ar9cle  7,  since  that  provision  cannot  be  interpreted  as  prohibi9ng  an  extension  of  limita9on  periods  through  the  immediate  applica9on  of  a procedural  law  where  the  relevant  offences  have  never  become  subject  to  limita9on  (Coeme  vs  Belgium,  ECHR,  2000)

european law prevails over ordinary law but has to be interpreted according to italian Constitution

counter -limits

doctrine

EU law should not be applied when it is able to breach the fundamental principles of the constitutional order or the fundamental rights of the individuals

”Aims of a purely economic nature cannot constitute pressing

reasons of public interest justifying a restriction of a fundamental

freedom guaranteed by the Treaty.”

ECJ, C-109/04

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