Some lessons from the Taricco saga

AuthorVittorio Manes
Published date01 March 2018
Date01 March 2018
DOIhttp://doi.org/10.1177/2032284418761393
Subject MatterOpinions
Opinion
Some lessons from the
Taricco saga
Vittorio Manes
Full Professor of Criminal Law, University of Bologna, Italy
Abstract
The Taricco saga represents a fundamental step into the evolution of ‘EU criminal law’ as for the
relationship between the Court of Justice and national constitutional courts. The primacy of EU
law, the counter-limits, together with the protection of fundamental rights, have come under the
spotlight since the Court of Justice has denied in practice the obligation to disapply national
provisions contrasting with EU law that in principle is still regarded as necessary. The path of
‘European criminal law’ appears long and winding, requiring the cooperation among national and
supranational level to be strengthened instead of undermined.
Keywords
primacy, counter-limits, constitutional tolerance, cross-fertilization
Vita tua, vita mea
The Taricco saga represents a fundamental ‘trilogy’ in the evolution of EU (criminal) law on the one
hand and the relationship between the Courtof Justice and national constitutional courts on the other.
All the main issues of EU (criminal) law have come under the spotlight in this case: from primacy
to direct effect, from the doctrine of ‘counter-limits’ to the protection of fundamental rights and the
standards thereof. It has also touched upon the sensitive topic of national identity and of who is to
be its guardian, although this point has ultimately been left in the shadows.
1. In the most recent – and perhaps most significant – episode of the ‘saga’ (M.A.S. and M.B.,
sometimes referred to as ‘Taricco II’),
1
the Grand Chamber has stepped back from the ‘judicial
adventurism’ of the previous Taricco judgment.
2
In this way, the Court has prevented a conflict
with the Italian Constitutional Court, whichhadneatly–andsomehowkindly–drawnthe
boundaries of its ‘constitutional tolerance’.
The esprit d’escalier triggered by the request for a preliminary ruling from the Constitutional
Court
3
is embodied in the possibility for the national judge not to comply with the obligation to
1. Case C-42/17, M.A.S., M.B., 5 December 2017.
2. Case C-108/14, Ivo Taricco and Others, 8 September 2015.
3. Italian Constitutional Court, decision No. 24/17, 26 January 2017.
New Journal of European Criminal Law
2018, Vol. 9(1) 12–17
ªThe Author(s) 2018
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DOI: 10.1177/2032284418761393
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