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).

Continue reading “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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State liability for judicial decisions – between the Portuguese regime and EU law, some lights in the Ferreira da Silva judgment

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

In the recent Ferreira da Silva ruling[1], the ECJ was given the opportunity to assess the compliance of the applicable Portuguese legal regime of State liability for damages caused in the exercise of judicial functions with the principles of EU law on State liability.

The facts of the main proceedings took place in 1993[2] and concerned the wound up of a company. After the dissolution, ninety-seven workers brought proceedings to challenge the collective redundancy. These proceedings first took place before the Tribunal de Trabalho de Lisboa (Lisbon Labour Court), and were subject to an appeal, first before the Tribunal da Relação de Lisboa (Lisbon Court of Appeal) and then (an appeal of cassation) before the Supremo Tribunal de Justiça (Supreme Court of Justice, henceforth STJ).  Some of the applicants asked the STJ to make a reference for a preliminary ruling to the ECJ. The problem concerned the interpretation of the concept of ‘transfer of a business’ within the meaning of the Directive 2001/23[3]. The STJ denied the requests considering that there were no doubts regarding the interpretation of the relevant provisions of EU law that could justify the reference for a preliminary ruling[4]. The reasoning of the STJ, the court adjudicating at last instance, was based on the Cilfit ruling[5].

Unsatisfied, the applicants brought proceedings regarding the non-contractual civil liability of the State, arguing that, in its decision, the STJ (i) had erroneously interpreted the concept of ‘transfer of a business’ within the meaning of the Directive 2001/23 and (ii) had not made a reference for a preliminary ruling to the ECJ when such a reference was mandatory under Article 267/3 TFEU[6]. In turn, the Portuguese State argued that, under Article 13/2 of the non-contractual civil liability of the State and other public bodies’ regime (RRCEE)[7], a claim for damages must be based on the prior setting aside, by the court having jurisdiction, of the decision that caused the loss or damage. Therefore, as the decision of the STJ had not been set aside, the damages sought were not payable[8].

Continue reading “State liability for judicial decisions – between the Portuguese regime and EU law, some lights in the Ferreira da Silva judgment”