E pur si muove! After all, we do have a highest level of protection of fundamental rights… (about the Taricco saga)

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 by Alessandra Silveira, Editor 
 and Sophie Perez Fernandes, Junior Editor

On 5 December 2017, the European Court of Justice (ECJ) ruled again on the Taricco saga. The interpretation set out in the judgment in Taricco I gave rise to heated debate, particularly within the Italian legal community, since the compatibility of the interpretative solution set out therein was called into question in the light of supreme principles of the Italian constitutional order, particularly the principle of legality in criminal matters [Article 25(2) of the Italian Constitution], the disregard of which would allegedly violate the constitutional identity of the Italian Republic.

At the origin of the judgment in M.A.S. and M.B. (or Taricco II) is thus the interpretation laid down in Taricco I regarding Article 325 TFEU, the provision concerning the obligations on Member States to combat fraud affecting the financial interests of the Union. In Taricco I, the ECJ held it to be incompatible with EU law, in particular with Article 325 TFEU, a national regime on limitation periods for criminal offenses which has the effect that facts constituting serious fraud affecting the financial interests of the Union would escape criminal punishment, in the framework of a de facto impunity.

The contentious point was that, within the Italian legal system, and with support of constitutional case-law, the legislation governing limitation periods of criminal offences is characterised as being substantive (rather than procedural) in character and is, therefore, subject to the principle of legality in criminal matters laid down by Article 25(2) of the Italian Constitution. Since the Italian constitutional order would ensure (according to the Italian Constitutional Court) a higher level of protection of fundamental rights than the one guaranteed under EU law, the Italian Constitutional Court held that both Article 4(3) TEU (respect for national constitutional identities) and Article 53 CFREU (principle of the highest level of protection of fundamental rights) would allow national courts not to comply with the obligation laid down by the ECJ in Taricco I (see commentary here).

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Editorial of December 2017

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by Alessandra Silveira, Editor
and Joana Abreu, Junior Editor


European Public Prosecutor’s Office, fundamental rights and preliminary reference: disquietudes and expectations

With the establishment of the European Public Prosecutor’s Office (EPPO) [i] (in the different Member States that will adhere to the respective enhanced cooperation), the European citizens will be in touch with national and European authorities regarding the criminal prosecution in the scope of the offences against the Union’s financial interests. This scope may eventually be enhanced  to include serious crimes having a cross-border dimension through a unanimous decision of the European Council in accordance with Article 86(4) of the TFEU. The members of EPPO (European Delegated Prosecutors) are active members of the national Prosecutor’s Office in each Member State to whom will be granted powers of investigation and prosecution with independence. When investigating and prosecuting criminal cases under the competence of EPPO they shall i) act in the interest of the Union as a whole, ii) act exclusively in representation and on behalf of EPPO in the territory of the respective Member State and iii) neither seek nor take instructions from any person external to the EPPO.

It is, therefore, a sort of hybrid institution, completely new in the European structure. This is why it is important to consider the indispensable institutional conditions to its (political and legal) control in the light of the fundamental rights protected by the European legal order. Well, the more the borders between national and European competences are diluted harder it becomes to define the applicable standard of fundamental rights protection in whichever case in question (i.e., the level of protection). According to the division of competences expressed in Article 51(1) of the CFREU, the field of application of the Charter depends on whether or not EU law is being applied in the case. In other words, in the field of application of the EU law the applicable level of fundamental rights protection is the one of the Union, but out of the scope of the EU law the applicable level of protection shall be the one of the national constitution. Hence, to apply the level of protection resulting from the CFREU we must know, beforehand, if the solution of the case falls under the EU law. Indeed, if it was not already difficult to decipher the “riddle of the Sphinx” of the scope of application of the CFREU in the absence of EPPO’s hybridism, everything becomes more complex and sophisticated with it.
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