The European Court of Justice: A “Quasi-Constitutional Court” in Criminal Matters? The Taricco Judgment and its Shortcomings
| Author | Emmanouil Billis |
| Published date | 01 March 2016 |
| Date | 01 March 2016 |
| DOI | http://doi.org/10.1177/203228441600700103 |
| Subject Matter | Article |
20 Intersentia
ARTICLES
THE EUROPEAN COURT OF JUSTICE:
A “QUASI-CONSTITUTIONAL COURT”
IN CRIMINAL MATTERS?
e Tar ic co Judgment and Its Shortcomings
E B*
ABSTRACT
A main task of the CJEU is to ensure the uniform inter pretation and e ective application
of EU l e gi s l at i on . In t he c a se Taricco and Other s, the Court provides for the s trengthening
of the protection of the nancial interests of the EU by emphasi sing the immediate e ect
and precedence of primary EU law in criminal matters. At the same time, the CJEU
functions as a quasi-constitutional court. It does so by ordering a national court to
directly disapply domestic criminal law provisions on limitation periods in a pending
case. Legality and legal ce rtainty are at stake here. e judgment of the CJ EU indicates,
furthermore, the evolution of a “con stitutional” relation between the EU judiciary and
national criminal courts.
Keywords: le gal c ert ain ty; prece denc e of EU law i n cr imi nal m att ers; r ole o f the Cour t
of Justice
1. INTRODUC TION
In the case Taricco and Others1 (Taric co case) the Court of Justice of the European
Union (CJEU) delivered with its judgment of 8September 2015 a preliminar y ruling
which practical ly goes beyond interpreting the law of the European Union (EU) and
* Dr. Emmanouil Bi llis, LL.M., is a Senior R esearcher at the Max Planck Ins titute for Foreign and
International Criminal Law in Freiburg (Germany), Lawyer in Athens (Greece), former Alexander
S. Onassis Found ation Scholarship Holder, and former member of the I nternational M ax Planck
Research School for C omparative Crimina l Law. e author wou ld like to thank Dr. Els De Busser,
Head of the Europea n Criminal L aw Section at the Max Pl anck Institute a nd Dr. Konstanze Jarve rs,
Head of the Itali an Criminal L aw Section at the Max Pla nck Institute, for thei r valuable comments
on an earlier dra of thi s paper.
1 Case C-105/14 (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX :62014CJ0105).
e Europea n Court of Justice: A “Qu asi-Constitution al Court” in Cr iminal Matters?
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 1, 2016 21
ensuring its uni form application in the legal orders of the Member States. As the
Advocate General of the CJEU points out in her opinion, the actual ques tion which
the Court of Justice wa s called upon to consider was t he following: “Does EU law
require the court s of the Member States to refrain from apply ing certain provisions of
their national law on the li mitation periods applicable to the prosecution of crimina l
o ences in order to gua rantee the e ective punish ment of tax o ences?”2
e Grand Cha mber in its judgment provides for the streng thening of the
protection of t he nancial interests of the EU by emphasising t he immediate e ect
and precedence of primar y EU law in criminal matters. At the sa me time, the CJEU
(indirectly) adopts the role of a quasi-constitutional cour t in a eld that was for
years exclusively the object of national reg ulation and doctrine. It does so by giv ing
an explicit rul ing on how a national court has to directly d isapply national criminal
law provisions (here: speci c rules on limitation periods) in a concrete pending
case.
To a certain extent it seems, however, that Luxembourg is cu rrently attachi ng
greater importance to protecting Europe’s ( nancial) interests than to guaranteeing
legal certai nty in the neuralgic eld of cri minal justice. In any case, the i mpact of the
CJEU judgment will most l ikely exceed the narrow pur pose of securing the e ective
application of rules agai nst tax evasion in a pa rticula r country; it could a lso have a
general e ect on European just ice systems and indic ate the evolution of a
“constitutional” relation bet ween EU judiciary and national criminal courts.
In this article, rst the facts and procedur al particularities of t he Taricc o case are
brie y presented (2.) followed by a systematic expla nation of the crucial points of the
preliminary ruling of the CJEU with regard to the incompatibi lity between nationa l
limitation period r ules and the obligation of the Member States to e ect ively apply the
EU anti-fraud laws (3.). e next sections will analyse s peci c problematic aspects of
the Grand Chamber’s judgment, which ca n have an adverse e ect on the gu arantees
of legality and legal c ertainty in crim inal matters (4.–8.). e focus of the ex amination
lies on the immed iate e ect and precedence of EU law as well as on the active,
intervening role of the CJEU as rega rds pending national crimina l proceedings.
2. SUMMARY OF THE TARICCO CASE
e judgment under consideration was i ssued by the Grand Chamber of t he CJEU
upon a request for a preliminary r uling under A rticle 267 of the Treaty on the
Functioning of the European Union (TFEU), submitted by the Tribunale di Cu neo
(District Cour t, Cuneo, Italy; “referring court”) wit h respect to criminal proceed ings
brought by the Italian authorit ies against Mr. Taricco and si x other individua ls
2 §1 of the opinion of the Advocate G eneral Kokott delivered on 3 0April 2015 (http://eur-lex.europa.
eu/legal-content/EN/TXT/?uri=CELEX:62014CC0105).
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