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

Abstract

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.