Melloni overruled? Considerations on the ‘Taricco II’ judgment of the Court of Justice

Date01 March 2018
Published date01 March 2018
AuthorFrancesco Viganò
Subject MatterOpinions
Melloni overruled?
Considerations on the
Taricco II’ judgment of the
Court of Justice
Francesco Vigano
`Commerciale Luigi Bocconi, Italy
In its M.A.S. preliminary ruling on the questions asked by the Italian Constitutional Court in the
wake of Taricco, the Court of Justice chooses now to avoid any conflict with the Italian counterpart
and allows the Italian criminal courts not to comply with the obligations laid down in Taricco, insofar
as these obligations are inconsistent with the principle of legality in criminal matters in its domestic
constitutional dimension. However, several questions remain unanswered. The most awkward
question is probably whether or not each Member State will be actually allowed, as the Italian
Constitutional Court has been in this case, to be bound by its own national standards of protection
of fundamental rights while implementing EU obligations in criminal matters, even if those national
standards are higher than those set at a European level – a possibility, which is hardly reconcilable
with the principles set forth by the same Court of Justice in Melloni.
Charter of Fundamental Rights, Principle of Legality of Criminal Offences and Penalties,
Constitutional Identity
The CJEU judgment M.A.S. –or‘Taricco II’, as it was immediately nicknamed – has been
welcomed by scholars with a widespread sense of relief. The Luxembourg Court has managed
to avoid a conflict with the Italian Constitutional Court, which had unequivocally shown its
willingness to oppose, if necessary, the domestic ‘counter-limits’ against European Union (EU)
law. In other words, the Italian Constitutional Court had made it clear that it was ready to challenge
the principle of primacy of EU law – one of the cornerstones on which the entire construction of
EU law is based – and declare void the execution law of the EU treaties, insofar as that law confers
Corresponding author:
Francesco Vigano
`, Full Professor of Criminal Law, Universita
`Commerciale Luigi Bocconi, Milan, Italy.
New Journal of European Criminal Law
2018, Vol. 9(1) 18–23
ªThe Author(s) 2018
Reprints and permissions:
DOI: 10.1177/2032284418760926

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