Abstract
In December 2017, the Court of Justice of the European Union delivered its awaited decision on the Taricco II case, responding to a preliminary reference from the Italian Corte Costituzionale. The latter, unhappy with the outcome of the earlier Taricco I decision, asked for a re-interpretation of Article 325 TFEU and threatened the Court of Justice with the possible activation of its controlimiti doctrine. The CJEU partially ‘corrected’ its previous ruling and prevented an open conflict between EU law and Italian constitutional law. This case note discusses the saga and its three episodes against the background of the growing constitutional conversation between top European courts. It argues that Taricco is a positive episode of judicial dialogue and may further contribute to its consolidation: on one hand, constitutional courts are increasingly willing to ‘play the game’ and refer to the CJEU under Article 267 TFEU; on the other, the Court of Justice seems more reactive than in the past to constitutional courts’ claims and now considers them with increasing attention and detail. Finally, the case note reflects on the partially diverging languages for constitutional dialogue: national courts use the language of constitutional identity, while the CJEU prefers to refer to the ‘common constitutional principles of the EU’.
Keywords
1. Introduction
It was not long ago that the Italian Constitutional Court (ICC) concluded that it did not consider itself a ‘court of tribunal’ under Article 267 TFEU 1 and was therefore not authorized to send preliminary references to the Court of Justice of the European Union (CJEU). 2 Still quite recently, the attitude of national constitutional courts towards the Court of Justice was described as one of ‘splendid isolation’, 3 as most of them refused to request preliminary rulings from Luxembourg. Yet much has changed in the past few years. The Corte Costituzionale has now sent three separate references to the European Court under Article 267 TFEU. 4 Several other constitutional courts have finally engaged in direct 5 conversation with the CJEU through the instrument of preliminary references. 6 Despite some disappointing answers from Luxembourg, at least from their perspective, 7 constitutional courts have been increasingly more willing to talk to the Court of Justice. In turn, the latter seems now more open to listen to national constitutional courts and fully engage in this form of judicial dialogue. The decision of the CJEU in M.A.S., M.B. (hereinafter: Taricco II) on a preliminary reference from the Corte Costituzionale very well shows the more receptive attitude of the Court of Justice towards the concerns of national constitutional courts. 8 Nonetheless, communication between the two sides is not yet perfect. National and European courts often use different languages, as will be explained in the following pages.
Taricco II was an eagerly expected decision, especially in Italy. The earlier episodes in the saga – the ruling of the Court of Justice in Taricco I and the following preliminary reference of the ICC, suggesting the possible activation of the controlimiti doctrine 9 – provoked a flood of academic commentaries 10 and had significant practical effects in the national legal order. The finding 11 by the CJEU that Italian limitation rules breached EU law obligations under Article 325 TFEU, and that they should have been disapplied by national courts in the context of criminal proceedings on VAT fraud, led several Italian criminal courts to reopen proceedings that were already time-barred. Other courts questioned the compatibility with fundamental rights and the Italian constitution of the CJEU solution. More generally, the regulation of limitation periods has been a controversial matter for decades in Italy, and the subject of political and legal disputes, even before European courts. 12
Yet the decision of the Court of Justice is of interest not only from an Italian perspective, but also as a largely positive example of the growing conversation between the CJEU and national constitutional courts. It stimulates reflections on the instrument for direct dialogue between courts – the preliminary reference of Article 267 TFEU – and on the language used by different actors – while national courts often speak in terms of national identity, the Court of Justice seems to have a preference for dialogue on the basis of the ‘common constitutional principles’. The case note proceeds as follows. First, it offers a brief overview of the decision of the CJEU in Taricco I. Section 3 then reflects on the ICC order for preliminary reference. The second judgment of the CJEU in M.A.S., M.B. (Taricco II) is analysed in Section 4, while the fifth and final sections identify and discuss the main elements of interest of the Court of Justice’s final ruling and of the entire saga against the background of the ‘consolidation’ of judicial dialogue between highest courts in Europe.
2. The Court of Justice’s ruling in Taricco I
In January 2014, the Tribunale di Cuneo sent a preliminary reference to the CJEU in the context of criminal proceedings for VAT fraud in the trade of champagne. The national judge questioned the compatibility of Italian provisions regulating limitation periods applicable to tax and financial offences with EU law. The limitation system had been modified by the widely contested ex-Cirielli law 251/2005, 13 with the latter significantly shortening the length of limitation periods. In the case pending before the Tribunale, prosecution would have most likely become time-barred before a final judgment could be delivered. 14 According to the referring court, this was not due to the specific circumstances of the case, but to a more structural problem of the Italian criminal justice system, particularly evident in the context of criminal proceedings relating to economic and financial crimes. 15 The court therefore asked the CJEU to determine whether limitation rules, as resulting from the 2005 amendments, infringed a series of provisions of the Treaties, 16 as well as Directive 2006/112. 17
The Court of Justice re-formulated, in a rather explicit manner, 18 the third question referred 19 and decided to concentrate on the possible incompatibility of Italian limitation provisions with Article 325 TFEU. 20 The latter – not explicitly mentioned by the Italian court – demands that ‘The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States’. In the first place, on the basis of its earlier decision in Akerberg Fransson, 21 the Court confirmed that criminal penalties ‘may (…) be essential to combat certain serious cases of VAT evasion in an effective and dissuasive manner’. 22 Hence, it is a duty of the Member States to put in place criminal penalties that are effective and dissuasive in order to punish those cases. 23 The CJEU then held that it was for the national court to verify whether the national provisions in place allowed for effective and dissuasive sanctions in cases of serious frauds affecting the Union’s financial interests. 24 Yet, while ultimately such evaluation was left to the Italian court, in the following paragraphs the CJEU offered clear indications that it considered Italian norms on limitation periods as to be not complying with the obligations deriving from the Treaties. If the result, as the Court implicitly suggested in paragraph 46, is that ‘in a considerable number of cases, the commission of serious fraud will escape criminal punishment’, then national law is incompatible with Article 325 TFEU as it cannot be considered ‘effective and dissuasive’. 25
The most controversial part of the decision followed this conclusion and explained the consequences to be derived from the possible incompatibility of the national provisions in question with EU law. If national courts had confirmed that national provisions did not put in place effective and dissuasive sanctions to counter VAT fraud, they would have been called to disapply those provisions and give full effect to EU law. 26 Here the CJEU, supporting the findings of the Advocate General, quite simply restated the traditional case law on the effect utile of EU law and primacy (or ‘precedence’) of EU law. 27 A small reservation was made in para. 53, where the Court held that national courts, if they concluded for the disapplication of national law, were still called to ensure respect for the fundamental rights of the individuals concerned by the criminal proceedings. This paragraph will be crucial in the second decision to be analysed, but was not further elaborated in Taricco I and in any case the Court did not seem excessively concerned with possible fundamental rights infringements. In fact, the CJEU concluded that, in its view, Article 49 of the Charter, and the principles of legality and proportionality affirmed by it, would have not been affected by a disapplication of national law on limitation periods. 28 The Court of Justice shared therefore the view, expressed also by the ECtHR, that limitation periods are purely procedural matters, not part of substantive criminal law, hence excluding that their extension could breach Article 7 ECHR and the corresponding Article 49 of the Charter. 29
3. The preliminary reference of the Corte Costituzionale
As explained in the Introduction, the decision of the CJEU provoked turmoil in the Italian legal order. The findings of the Court of Justice were problematic in the first place from a criminal law perspective, which had traditionally seen limitation periods as part of substantive criminal law. But also, and more importantly in the context here discussed, they seemed at conflict with the earlier case law of the Italian Constitutional Court. The ICC had in fact endorsed such interpretation of limitation periods as substantive criminal norms. 30 In the view of the Constitutional Court, the principle of non-retroactivity of criminal law affirmed by Article 25 of the Italian Constitution applies also to provisions regulating limitation periods. This is to say, in synthesis, that the ICC explicitly denied that amendments to limitation periods could be applied retroactively in peius. Yet this was exactly what the judgment of the CJEU required, in case existing norms could not guarantee effective and dissuasive sanctions against severe VAT frauds. Giving application to the findings of Taricco I would have therefore led to a conflict between EU law, as interpreted in Luxembourg, and the Italian Constitution, in particular Article 25.
Faced by criminal proceedings similar in the facts to Taricco, two Italian courts, among which the Court of Cassation, sent separate references to the Italian Constitutional Court, questioning the compatibility with the Italian constitution of the duties imposed on national courts by Taricco I. The referring courts doubted whether the solution imposed by Luxembourg – disapplication of the norms on the limitation period and consequently a decision on the merits of the case – would comply with ‘the supreme principles of the Italian constitutional order’, including fundamental rights. 31 They called upon the ICC to decide whether to give bite to the doctrine of controlimiti and to set aside, borrowing a concept belonging to EU law, the decision of the Court of Justice. The Constitutional Court, while recognizing the severe consequences that would have derived from the application of Taricco I in the Italian legal order, decided to avoid an immediate conflict with the CJEU and offered a ‘second chance’ to the Court of Justice. It sent another preliminary reference to the Court of Justice asking for further clarifications on the interpretation of Article 325 TFEU and on the implementation of the first decision.
In its order, the ICC reaffirmed in the first place its long-standing case law concerning primacy of EU law, considered ‘an established fact within the case law of this Court’. 32 The principle of primacy is generally accepted by the ICC, but moderated, so to say, by the existence of the controlimiti: in the view of the Corte Costituzionale, respect for the supreme principles of the constitutional order and of fundamental rights is a condition for the application of EU law in Italy. The Court continued by holding that the principle of legality in criminal law is one of those supreme principles: an EU norm contrasting with that principle could not be ‘incorporated’ in the Italian order. 33 The Cassation Court and the Corte di Appello di Milano argued that this would have been the case, had they followed the interpretation of Article 325 TFEU offered in Taricco. And the Constitutional Court shared such a reading: it firmly held in paragraph 5 of its order that the rule affirmed in Taricco I was in apparent contrast with the Italian constitution. This contrast arose from the fact that the Italian legal system considers limitation rules a part of substantive criminal law. While acknowledging that in other European legal orders, as well as in ECtHR, the most common interpretation is that they are purely procedural matters, the Court concluded that ‘there is no requirement whatsoever for uniformity across European legal systems regarding this aspect’ and every Member State is therefore free to decide in one way or another ‘in accordance with its constitutional tradition’. 34
The Corte Costituzionale brought two sets of arguments before the Court of Justice in order to resolve the conflict between the legal orders and avoid enforcing the controlimiti. The first was based on the notion of respect for national constitutional identity and constructed on the basis of Article 4(2) TEU. 35 The Constitutional Court brought to the fore its own understanding of primacy and de facto asked Luxembourg to offer formal recognition of its controlimiti doctrine. 36 This is evident in its third question for a preliminary ruling that summarizes the argument of the ICC: should national courts set aside national law ‘even where such disapplication is at variance with the overriding principles of the constitution (…) or with the inalienable rights of the individual (…)’? In the view of the ICC, EU law, including the rule affirmed in Taricco I, would only be applicable within national legal orders ‘if it is compatible with the constitutional identity of the Member State’. 37 The Corte Costituzionale’s reliance on the identity clause triggered much attention from commentators, as the concept of national constitutional identity had been until then foreign to the case-law of the Italian constitutional court. 38 The ICC tried to corroborate its argument by holding that, in the case at stake, respect for constitutional identity would not have compromised primacy and uniform application of EU law and that it would have amounted to allowing Italy to maintain a higher standard of protection of fundamental rights. 39 In doing so, it distinguished the Taricco situation from Melloni, in which, as acknowledged by the ICC, allowing for higher standards would have interfered with the smooth functioning of the [European Arrest Warrant] Framework Directive. This question based on constitutional identity was, however, not picked up by the CJEU in its Taricco II ruling. 40
With the second set of arguments (questions (1) and (2) for preliminary ruling), the Corte Costituzionale asked the Court of Justice to reconsider its interpretation of Article 325 TFEU on the basis of its compatibility with Article 49 of the Charter and the principle of legality. The ICC argued that the Court of Justice reviewed in its first decision only one specific aspect of the principle, namely the prohibition on retroactivity, and that it did so without considering, or even without knowing, that in Italy limitation periods are part of substantive criminal law. Another aspect deserved further attention, according to the ICC: ‘the requirement that the provision concerning the regime of punishment must be sufficiently precise’. 41 In this part of the order, the language spoken is that of common constitutional principles, rather than of national constitutional identity. The ICC referred to the ‘broad consensus that is widespread among the Member States’ on this requirement and asked the CJEU to take it on board in its analysis. 42 In doing so, it created a bridge between the Italian particularity – namely that limitation periods are part of substantive criminal law – and the European consensus on, and importance of, the principle of legality, in particular the requirement of ‘precision’ deriving from it. The Court of Justice, as will be explained below, will take this assist offered by the ICC in the last paragraphs of its order, and use it in order to reformulate the obligation affirmed in Taricco I in a way that arguably resolves possible conflicts between the Italian and European legal order.
4. Taricco II: the Court of Justice’s decision
The Grand Chamber of the Court of Justice delivered its decision on the preliminary ruling on 5 December 2017, under the accelerated procedure. The decision introduces an important qualification to the interpretation of Article 325 TFEU offered in Taricco I: national courts should not disapply provisions on limitation periods when disapplication would ‘entail a breach of the principle that offences and penalties must be defined by law because of the lack of precision of the applicable law or because of the retroactive application of legislation imposing conditions of criminal liability stricter than those in force at the time the infringement was committed’. 43 In substance, the decision of the CJEU offers adequate answers to the concerns of the Italian Constitutional Court so that the latter will not be forced to resort to the controlimiti doctrine. 44
The Court of Justice does not explicitly retreat from the rule affirmed in its earlier decision. The interpretation of Article 325 TFEU is confirmed, 45 but qualified by the insertion of the statement reported above, which limits the scope of the obligation to disapply. This approach is prepared by some initial observations that the Court dedicates to the instrument of the preliminary reference and the system of dialogue set up by it. 46 The Court of Justice underlines that it had now to consider questions ‘which were not drawn to its attention’ 47 in Taricco I and were raised for the first time by the ICC. It then considers together the first and second question posed by the ICC, while it ultimately will not answer on the third question on constitutional identity and controlimiti. 48
In principle, the analysis on the substance of EU law obligations, the assessment of the compatibility of Italian law with EU law, and even the consequences of the possible incompatibility between the two levels, remain identical. But the Court offers two answers to the concerns of the Corte Costituzionale. In the first place, it brings within the picture another actor: the Italian legislature. It holds that it is first and foremost for the national legislature to law down rules ensuring compliance with EU law obligations and in particular with Article 325 as interpreted in Taricco I. 49 Furthermore, it is for the legislature to remedy a national situation incompatible with EU law, when national courts are prevented to do so due to their fundamental rights obligations. 50
The second answer aims precisely to offer further guidance on the fundamental rights responsibilities of national courts. Here the Court brings together the peculiarity of the Italian system – considering limitation periods as part of substantive criminal law – and the need to respect a principle that is common to all European national and supranational legal orders: the principle of legality, demanding that criminal offences and penalties must be defined by law. The principle is enshrined in the EU Charter of Fundamental Rights, 51 forms part of the common constitutional traditions of the Member States, 52 and is recognized by the ECHR. 53 The reasoning of the Court of Justice goes as follows. In the first place, Italy was allowed to consider limitation provisions as substantive criminal rules, since EU law had not yet harmonized the matter. 54 The Court adds also, making implicit reference to Article 53 of the Charter, 55 that national actors may apply national fundamental rights standards ‘provided that the level of protection provided for by the Charter (…) and the primacy, unity and effectiveness of EU law are not thereby compromised’. 56 These two paragraphs stand in contrast with the uniformity-oriented Opinion of Advocate General Bot. The AG had suggested that allowing Italy to maintain a higher level of protection of fundamental rights would have compromised the primacy and effectiveness of Union law, even in the absence of a full harmonization of limitation rules. 57 The Court, on the contrary, acknowledges the Italian choice in terms of limitation rules and fundamental rights standards as the expression of legitimate diversity within the Union’s legal order.
These considerations are not, however, the conclusive and decisive part of the ruling. Taricco II is not a case of legitimate national diversity under Article 4(2) TEU 58 or Article 53 EUCFR. The Court of Justice continues its analysis by stressing the importance in European law of the principle that offences and penalties must be defined by law. It then brings together the ‘common constitutional principle’ and the Italian particularity in para. 58, by holding that ‘the requirements of foreseeability, precision and non-retroactivity inherent in the principle (…) apply also, in the Italian legal system, to the limitation rules from criminal offences relating to VAT’. 59 It follows that, in order to respect this fundamental principle, national courts are obliged not to disapply national limitation provisions. This is a true EU law requirement, 60 not merely a possibility left to the Italian national courts and authorities, as it would have been had the reasoning of the Court been imprinted on Article 53 of the Charter. It will then be for the national legislature to remedy a situation that is incompatible with the EU.
The key to grasping the reasoning of the Court is to analyse it from the lens of the ‘common constitutional principles’ of Union law. While it is true that the possible infringement of fundamental rights derives from a particular feature of the Italian legal order (the fact that limitation rules are part of substantive criminal law), what is actually at stake is a principle that is recognized as fundamental by each and every catalogue of fundamental rights in Europe (the principle of legality). Moreover, the Italian approach to limitation rules was perfectly legitimate from the point of view of EU law. The Court of Justice thus acknowledges the fundamental rights concerns of the ICC as common concerns at the EU level and offers a way for the Italian court to ensure respect for the common principle of legality within the national legal order. At the same time, it does not impose the Italian solution upon other Member States by transforming the Italian standard into a European one: for states that do not consider limitation rules part of substantive criminal law, the problem will simply not arise.
5. The consolidation of judicial dialogue between European courts
There are good reasons to believe that the Court of Justice’s decision in Taricco II was very much welcomed at the Palazzo della Consulta in Rome, and possibly also in other constitutional courts of the Member States. In the first place, for the ICC, the ruling of the CJEU prevents an open conflict between the Italian and European legal order. There is no longer any need to play the controlimiti card. Other constitutional courts were arguably less interested in the concrete outcome of the case, as it concerned a particular feature of the Italian legal system. But for them it is an encouraging sign to see the CJEU giving full consideration to the constitutional dimension of the question it had to face, and finding ways to accommodate national choices in terms of fundamental rights protection. On the other hand, national courts might be less pleased with the reluctance of the Court of Justice to consider arguments based on national identity. 61 As will be discussed below, the Court of Justice suggests another language for judicial dialogue, that of common constitutional principles.
It is still to be seen whether the attitude and the approach of the Court of Justice may stimulate further references from constitutional courts and further contribute to the consolidation of this form of direct judicial dialogue. If, however, even a harshly criticized decision such as Melloni at least did not explicitly discourage them, it seems plausible that the more ‘constitutional court-friendly’ ruling in Taricco II may make them more willing to talk to Luxembourg via preliminary references. This is not to say that dialogue through preliminary references is, or will become, routine (or that it should be). It is also not yet clear whether the growing number of references may be attributed to a strategic choice of constitutional courts to fight their ‘displacement’, 62 or is due to more ‘mundane’ factors. 63 What is certain is that, as foreseen by some, 64 the phenomenon is growing, becoming less exceptional and, in this sense, ‘consolidating’. The following paragraphs aim to reflect on this consolidation of judicial dialogue on the basis of the Taricco saga, discussing what the episodes of the saga tell us about the current status of judicial dialogue in Europe and reflecting on whether and how the decisions may shape further interactions between constitutional courts and the Court of Justice. The next sections reflect therefore on the platform or instrument for dialogue, the preliminary reference; on the different languages spoken by the courts; and some lines are dedicated to the topic of the conversation in the present case, namely the protection of fundamental rights.
A. The instrument: preliminary references
The Taricco decisions show both the benefits and the limits of the preliminary reference as an instrument for dialogue between courts, and in particular between constitutional courts and the CJEU. As a preliminary remark, it may be recalled that preliminary rulings create a direct link between the national court referring the question and the Court of Justice, with no intermediaries. It is the order for reference of the national court that circumscribes the CJEU’s decision on questions for preliminary rulings. 65 There are no procedural conditions for admissibility, beside the fact that the referring body should be classified as a ‘court or tribunal’ under Article 267 TFEU. In terms of substance, the question of interpretation or validity of EU law must be related to the facts pending before the national court, the problem raised must not be purely hypothetical and, finally, the CJEU should have before it sufficient factual and legal material in order to ‘give a useful answer’. 66 If these conditions are fulfilled, the CJEU will deliver its decision.
It follows that lower courts are authorized to send preliminary questions to the CJEU that may have a significant impact on national constitutional law. For example, they may question the compatibility with EU law of a national constitutional provision 67 or even of the case law of their constitutional court. 68 Furthermore, after the Charter’s entry into force, national courts have a new option for fundamental rights challenges of national law: they may still refer to their constitutional or supreme courts, depending on the specific characteristics of the national legal system, but now also refer to the CJEU if the right in question is protected by the Charter and if the situation falls within the scope of EU law.
In all these types of references, constitutional courts do not have a formal role to play. They may not intervene before the Court of Justice in the oral or written phase, nor can they send an amicus curiae during the proceedings. 69 Furthermore, the long-standing case law of the Court of Justice that originated in Simmenthal, 70 was confirmed in Mecanarte, 71 and was then restated more recently in Melki and Abdeli, 72 protects the possibility 73 for domestic courts to refer preliminary references to Luxembourg at any step throughout the proceedings. The Court of Justice has, in fact, constantly affirmed that national rules requiring the prior involvement of higher courts are incompatible with EU law and Article 267 TFEU. So, even if national constitutional law and judicial review by the constitutional court offer potential remedies to the concrete situation, lower courts may nonetheless prefer the European route and call upon the Court of Justice to intervene, and eventually directly set aside national rules if incompatible with EU law. 74 The result is that crucial constitutional questions may reach Luxembourg, but the national constitutional court does not have other options that sit on the side and wait until the CJEU reaches its decision.
While it is evident that in most situations the Court of Justice will be aware of the position of the constitutional court on the matter 75 – the case law of at least the major constitutional courts is well-known in Luxembourg, 76 and views can also be exchanged through informal platforms – there is no formal guarantee that this is actually the case. In some circumstances, constitutional courts may not have had the opportunity to reach a decision yet, while in others the constitutional dimension of a question raised before the CJEU may not be evident. Taricco is arguably an example of the latter situation. It originated from a reference of the Tribunale di Cuneo that was below standard and did not offer to the judges in Luxembourg adequate background on the domestic context. First, the Italian court relied on a quite bizarre set of EU law provisions – competition law, state aid and the principle of sound public finances – in arguing for the incompatibility of limitation rules, seemingly out of frustration with structural problems of the Italian criminal justice system. The Court of Justice would, however, reach its decision on the basis of another provision not even mentioned by the Tribunale, the now (in)famous Article 325 TFEU. 77 Moreover, the Italian court failed to mention the peculiarity of the Italian system that considers limitation rules as part of substantive criminal law. Nothing signals that the CJEU was aware of it, as even the Italian government did not raise the question in its written and oral observations. 78 The Court of Justice was therefore not fully able to grasp the constitutional and fundamental rights questions that its interpretation was destined to raise.
The paragraphs above and the Taricco I situation therefore show some of the limits of Article 267 TFEU as an instrument for constitutional conversations if and when national constitutional courts do not participate directly. While there are, of course, good reasons for the Simmenthal line of cases, in the first place in terms of individual rights' protection the position of the CJEU is not conducive to the participation of constitutional courts to judicial dialogue and, on the contrary, may be responsible for their displacement or marginalization. 79 Moreover, the procedure that Article 267 sets up does not allow for a multi-polar conversation. It is an odd type of ‘dialogue’, if one reflects on it: one actor – the national court – asks a question (or more), another – the Court of Justice – answers to it, and there are no further possibilities for interaction. National courts should then ‘go home’ and implement in their national legal order the decision of the Court of Justice, on the basis of the principle of sincere cooperation. 80 Thus, national courts are obviously key players in the procedure, but they, including the referring court, disappear as soon the case has reached Luxembourg, as they are not among the actors that can intervene before the CJEU and suggest possible answers, if they have not done so in their order for reference. As for national constitutional courts, they are not granted the possibility of signalling their concerns or underlining the possible fundamental rights or constitutional implications of a ruling. The fact that national governments may intervene in the written and oral phase is, moreover, not an adequate replacement or guarantee, as constitutional courts and governments may not necessarily share the same position. 81
It is at the moment hardly foreseeable to offer national constitutional courts an opportunity to officially intervene before the CJEU in a case brought by another referring court. Even leaving aside whether this would be desirable, the effectiveness of such a reform would be questionable. 82 They would certainly not have the time and resources to adequately study all of the cases that reach Luxembourg. They would probably limit themselves to the most troublesome and controversial references, yet these are precisely the situations in which the position of the constitutional court would be already known in a more (for example when there is previous case-law) or less explicit manner, and there would be less of a need to give them another possibility to present their views. On the other hand, a problematic decision from the perspective of national constitutional law may be reached in seemingly low-profile cases such as Taricco I, or from cases originating in other jurisdictions that constitutional courts would not have the opportunity to assess in detail before the CJEU’s decision.
Yet the Taricco saga shows that there is no need for a new solution. The answer is in Article 267 TFEU itself, which allows not only lower national courts, but also constitutional courts to directly join the conversation. Importantly, dialogue does not necessarily stop after a first ruling of the CJEU. National courts, if they have new questions or concerns to bring to the attention of the Court of Justice, can call Luxembourg to intervene again. As Taricco II demonstrates, constitutional courts are perfectly placed within domestic constitutional orders for this type of ‘second’ reference: 83 if a ruling of the CJEU is problematic from the point of view of national constitutional law, in most cases the matter will at some point end up before the constitutional court, which could then initiate a new preliminary reference procedure. This must not be confused with a right of ‘appeal’ before the Court of Justice, which does not exist under EU law. The constitutional court needs to bring new arguments to the attention of the European Court, motivating in detail its point of disagreement and possibly suggesting other solutions that could be reached in order to prevent a conflict between the national and the European legal orders, as done by the ICC in its Taricco order. The Charter of Fundamental Rights, as well as common constitutional principles, may be an excellent instrument in the hands of a national constitutional court for this type of ‘reconsideration’ question: national courts can now invite the CJEU to rethink its position, and offer protection to fundamental rights, on the basis of legally binding norms of primary Union law.
Of course this only holds true if the Court of Justice is willing to play the game and take seriously the arguments presented by national constitutional courts. It is important that there is at least an implicit acknowledgement of the constitutional dimension of the decision, especially when such a dimension regards the protection of fundamental rights, now a common concern for the EU Court and national courts. This does not amount to fundamentally rethinking the doctrine of primacy of EU law against national constitutional law, or creating specific exceptions for constitutional law, but more simply engaging in depth with the arguments of constitutional courts. Taricco II is in this sense another example of a series of recent cases 84 in which the CJEU has manifested a more positive attitude towards constitutional law claims compared to earlier decisions to which it seemed blind, 85 despite (or maybe precisely because of?) being confronted with a quite assertive claim by the ICC.
B. On the language of the conversation: common constitutional traditions or national identity?
While dialogue is becoming more frequent and both sides seem increasingly disposed to engage in a full conversation, a case like Taricco signals that there are still significant differences in the languages spoken by courts. The ICC, following the footsteps of several other Member States’ top courts, 86 framed much of its reference in terms of the protection of national constitutional identity. 87 Although it is true that the concept itself is not explicitly mentioned in the questions referred to the CJEU, the reasoning behind the third question – whether national courts should have disapplied national law ‘even when setting aside such legislation would contrast with the supreme principles of the constitutional order of the Member State or with the inalienable human rights recognised under the Constitution of the Member State’ (Case C-42/17) – was strictly linked with protection of the Italian constitutional identity. In para. 7 of the reference, the ICC argued that the interpretation of Article 325 TFEU given by the CJEU should only be applied ‘if it [was] compatible with the constitutional identity of the Member State’. 88
A key concern of the Corte Costituzionale was therefore to defend Italian constitutional identity against a EU law provision infringing it. It is to be added, however, that the ICC tried to construe constitutional identity in a Euro-friendly manner, not as a fully independent internal standard of review for EU measures. 89 In its order (but again, not in its questions), the ICC refers to Article 4(2) TEU as the provision that would ultimately recognize as a matter of EU law its controlimiti doctrine. In other words, in the view of the ICC, Article 4(2) TEU would imply that Union law could only be applied within a national constitutional order if it does not violate the constitutional identity of that Member State. Moreover, the constitutional court added that such an interpretation, in the concrete case, would have not compromised uniform application of EU law and that it was also in line with the possibility, under Article 53 EUCFR, to maintain a higher standard of protection of fundamental rights. 90
As explained in the previous section, however, the CJEU refused to pick up the arguments of the ICC based on constitutional identity. It simply argued that on the basis of the answers given to questions (1) and (2), there was ‘no need’ to answer the third question. 91 The word ‘identity’ does not even appear in the ruling of the Court. The reasoning of Luxembourg suggests another language for constitutional dialogue: that of common constitutional principles or ‘common constitutional traditions’. 92 Indeed, it has to be recalled that the CJEU did not simply allow Italy to apply different standards of fundamental rights protection or to use fundamental rights as a ground for derogation from EU law. 93 The Court of Justice established a link between the Italian decision to consider limitation rules part of substantive criminal law and the common concern for, and the importance of, the principle of criminal legality and of the requirements of foreseeability, precision and non-retroactivity deriving from it. Ensuring respect for these principles became an obligation for the national court, not merely a possibility. 94
One may read the reasoning of the European Court as an invitation to national constitutional courts to frame their fundamental rights concerns in terms of common principles and common traditions, rather than on the basis of constitutional identity. If they do so, the Court may be more willing to listen and even to leave room for particular versions of those principles, as ultimately happened in Taricco II. The presumption at the basis of this approach may be that of a ‘basic convergence between the constitutional identity of the Union and that of each of the Member States’. 95 As correctly 96 argued by Advocate General Cruz Villalón, a specific national constitutional identity cannot be considered as ‘light years away from the common constitutional culture’. 97 In this light, national approaches might have better chances to be heard and accepted at the European level, not if they are treated purely as local oddities, but as the specific, particular expression of a common European value. If they follow this approach, constitutional courts may also be able to express concerns that are relevant for other courts elsewhere in Europe (and for the CJEU itself) and thus contribute even more profoundly to the protection of constitutional rights and traditions. 98
It is not a coincidence that the Italian Constitutional Court is ultimately successful not in its arguments based on constitutional identity, which are not even answered by the CJEU, but rather in its references to common constitutional principles that the ICC added to para. 9 of the Order. In the latter, as explained above in this case note, the Corte Costituzionale asked the Court of Justice to reconsider its decision on the basis of fundamental rights profiles not examined in the first ruling, including the principle of ‘precision’ of criminal legislation. There the ICC explicitly argued that this was a principle ‘common to the constitutional traditions of the Member States’, making reference to the case-law of the CJEU and to the ECHR. Framing concerns in these terms may therefore be beneficial from the point of view of national constitutional courts and ultimately from a fundamental rights perspective.
6. Conclusions
The Taricco II decision of the CJEU is therefore a positive episode in the on-going constitutional conversation between European courts, and is both the result of, and may further contribute to, what has been defined in this paper as the consolidation of judicial dialogue. After the disappointing result of Melloni, constitutional courts sending references to the CJEU have mostly received solid answers in exchange, because of the detailed and solid reasoning of the Court, 99 and more generally for the due consideration given to the concerns of constitutional bodies. 100 It is by and large the attitude of the Italian Constitutional Court and of the CJEU that can be praised in the case discussed in this contribution.
It would not be wise, however, and ultimately mistaken, to read between the lines of Taricco a fundamental rethinking of the CJEU’s position in the form of a general exception to the principle of primacy for national constitutional rules or national standards of fundamental rights protection. It remains true that EU law has primacy over all national law, ‘however framed’, 101 including constitutional law even where it protects fundamental rights. 102 The result would have been different had the Court answered in the affirmative to the third and final question of the ICC, leaving to national (constitutional) courts the possibility of using constitutional identity as a shield against the primacy and the uniform application of Union law. The decision reached in Taricco II, and the reasoning behind it are, on the other hand, strictly linked to the facts of the case. For example, there is little doubt that the fact that EU law had not yet harmonized the area of law in question – limitation periods – played an important role in the decision of the Court. 103
Moreover, the different approaches followed by the CJEU and by Advocate General Bot show that there are still conflicting views in Luxembourg and call for caution in drawing excessively far-reaching conclusions on the basis of the final CJEU decision. Bot proposed a solution informed by a strict understanding of the principle of EU law’s uniformity, arguing that the Italian conception of limitation periods as substantive criminal rules was in contrast with the primacy and uniform application of Union law. Had the Court accepted his interpretation, the very existence of a possibility for national courts to apply higher standards of protection of fundamental rights would have been called into question: if national standards cannot be maintained even in the absence of harmonizing rules, can they ever be upheld when an act falls within the scope of EU law? The implicit rejection of Bot’s view has most likely been a relief for the ICC, and possibly for many other national constitutional courts, but it does not represent an explicit and fundamental turn in the Court’s case-law: on the contrary, it is partially built on the Melloni decision. 104
Yet there are several signs of a more receptive attitude of the Court of Justice towards constitutional courts. While EU law continues to have primacy over national constitutional law, the Court of Justice may now be ready to pay more attention to the concerns of a national constitutional court. Moreover, the advice one may draw from Taricco is that such claims are best framed in terms of common constitutional traditions, rather than on the basis of constitutional identity. Importantly, the umbrella of common constitutional principles can cover not only fundamental rights that are identically regulated throughout the Member States, but also specific national versions of those common principles, such as the Italian regulation of limitation periods.
In conclusion, the ‘message’ 105 sent by the CJEU, and earlier by the Corte Costitutizonale, may offer incentives to other constitutional courts to engage in direct dialogue under the preliminary reference procedure. This does not imply that other instruments of indirect or ‘hidden’ 106 dialogue are no longer current: 107 just to offer an example, the December 2015 decision of the FCC put the CJEU ‘on the spot’ and forced it to rethink its approach to fundamental rights derogations under the European Arrest Warrant Framework. 108 But a case like Taricco supports the claim that there is ultimately no better system than preliminary references under Article 267 TFEU for national constitutional courts to be heard on the European stage, 109 and for a full and open conversation on the interplay between European integration, fundamental rights, and constitutional traditions.
Footnotes
Acknowledgement
I am grateful to Monica Claes and Jan-Herman Reestman for their comments.