Effectiveness of EU law and protection of fundamental rights

AuthorRosaria Sicurella
Published date01 March 2018
DOI10.1177/2032284418761066
Date01 March 2018
Subject MatterOpinions
Opinion
Effectiveness of EU law and
protection of fundamental
rights: The questions
settled and the new
challenges after the ECJ
decision in the M.A.S. and
M.B. case (C-42/17)
Rosaria Sicurella
University of Catania, Italy
Abstract
The decision of the Court of Justice in the M.A.S. and M.B. case marks a very significant step
forward in the Taricco saga. It clearly shows the intention of the European Court to tone down the
confrontation with the Italian Constitutional Court, while at the same time maintaining the most
relevant achievement of the decision in the Taricco case, that is to say the fact to consider Article
325 TFEU as having direct effect. The author expresses quite a critical view on the solution
adopted by the ECJ which finally results in a sort of ‘‘flexibilization’’ of the principle of legality at EU
level in order to meet some of the claims by the Italian Constitutional Court. In the author’s
opinion, such a solution risks to undermine the overall coherence and soundness of the protection
of fundamental rights at EU level, although it can appear at a first glance to boost the legality
principle. A better solution could have been to develop a different reasoning relying on rights in the
Charter other that the nullum crimen principle, and avoid to touch at the well-established scope of
this principle as established in Article 49 Charter and also in Article 7 of the European Convention
on Human Rights.
Keywords
Effectiveness of EU law, protection of fundamental rights in the EU, Taricco rule, M.A.S. and M.B.
case
Corresponding author:
Rosaria Sicurella, Full Professor of Criminal Law, European Criminal Law and International Criminal Law at theUniversity of
Catania, Italy.
E-mail: rsicurella@lex.unict.it
New Journal of European Criminal Law
2018, Vol. 9(1) 24–30
ªThe Author(s) 2018
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DOI: 10.1177/2032284418761066
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