How Could the ECJ Escape from the Taricco Quagmire?

The Taricco saga has produced an endless flow of analyses, conferences, seminars. Just surfing the web one can find several comments (Gallo, Amalfitano, Bin, Sarmiento, Steinbeis, Faraguna, Bassini and Pollicino, Repetto) and even theatrical pieces (Gradoni). All this doctrinal effort is convergent in stressing 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.

By a preliminary reference, the Italian Constitutional Courts is asking the ECJ to re-interpret (i.e. to re-write) its previous decision Taricco I (C-105/14), which had affirmed that the protection of the EU financial interests must be assured by national judges, disregarding whatever national rule that is in contrast with art, 325 TFEU because the latter has a direct effect. The national rule was in this case a law that had reduced the limitation period for prosecuting the VAT frauds. The Italian Court explains that, since the limitation period for the frauds committed by Mr. Taricco had expired, the Italian judges couldn’t give direct effect to art 325 TFEU -and ignore the time-barring effect without violating the fundamental principle of legality. In other words the application of the Taricco I decision by the remitting judges would trigger the Italian constitutional “counter-limits”. For this reasons the Italian Constitutional Court is kindly asking the ECJ to find a solution.

Taricco is a decision where major constitutional principles and legal weaknesses are involved on both sides. As to the principles involved: if for the ECJ, autonomy, primacy and direct effects constitutes the very essence of the EU legal order; for the national Constitutional Courts certain fundamental rights—which can be perceived or interpreted in different ways in the national legal orders—are not subjected to any sort of restriction ...

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