Taricco principles beyond Taricco

DOI10.1177/2032284418761068
AuthorFabio Giuffrida
Published date01 March 2018
Date01 March 2018
Subject MatterOpinions
Opinion
Taricco principles beyond
Taricco: Some thoughts on
three pending cases (Scialdone,
Kolev and Menci)
Fabio Giuffrida
Queen Mary University of London, UK
Abstract
This contribution examines whether the principles laid down in M.A.S., M.B. (‘Taricco II’) may play a
role in some forthcoming decisions of the Court of Justice of the European Union (CJEU).
In Scialdone, the Court will be asked to strike a balance between the effectiveness of national legis-
lation on VAToffences and the principle of lex mitior.The key difference betweenTaricco and Scialdone
lies in the fact that the lex mitiorprinciple, unlike the regulation of the statuteof limitation, falls within
the scope of the principle of legality at the European level. Kolev concerns instead an alleged
incompatibility between Article 325 TFEU and the Bulgarian Code of Criminal Procedure. Unlike
Taricco, therefore, the CJEU willhave to deal with national rules thatform part of procedural criminal
law. Nevertheless, it cannot be excluded that the Court may reach a Taricco II-like conclusion (i.e.
disapplicationin theory, exception to the disapplication in practice), especially if thereasoning of the
CJEU will rely on the importance of foreseeabilityand legal certainty in criminal matters. These same
principles couldlead the CJEU, in Menci, not to endorse the partialrevirement of the European Court
of Human Rights in theA. and B v. Norway ruling and, as a consequence, not to lower theEU standard
of protection of the right not to be tried or punished twice for the same offence.
Keywords
Taricco, Scialdone, Kolev, Menci, principle of legality
Introduction
In light of the recent M.A.S., M.B. judgment (‘Taricco II’), this contribution discusses the effects
that the Taricco principles may have on three cases that are currently pending before the Court of
Justice of the European Union (CJEU), namely Scialdone,Kolev and Menci.
Corresponding author:
Fabio Giuffrida, Criminal Justice Centre, School of Law, Queen Mary University of London, UK.
E-mail: f.giuffrida@qmul.ac.uk
New Journal of European Criminal Law
2018, Vol. 9(1) 31–37
ªThe Author(s) 2018
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DOI: 10.1177/2032284418761068
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