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.

The last chapter of the Taricco affaire that will presumably bring this saga to an end prior than the Italian Constitutional Court (‘ICC’) takes back the floor and ‘cashes out’, stands out as an all about persuasive decision fostering the (Italian) constitutional tolerance, most notably if compared with the judgment of September 2015 (Taricco I). Nonetheless, it goes without saying that, the decision will be welcomed and promptly enforced by the ICC despite its argumentative weakness.

As it is well known, the Opinion of Advocate General Bot of 18 July raised several concerns among scholars, by foreshadowing a negative reaction of the ECJ to the questions referred by the ICC. It was not by chance, perhaps, that the Opinion was delivered by Bot, who served as Advocate General also in Melloni, the very nightmare of the ICC in the Taricco affaire ...

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