Brexit and the possibility of “withdrawing the withdrawal”: a hypothetical question?

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 by Alessandra Silveira, Editor

In case C-621/18, Wightman and others, pending judgment by the ECJ, the request for a preliminary ruling concerns the interpretation of Article 50 TEU. It has been made in proceedings where the opposing Scots parties are Andy Wightman and o., on the one hand, and the Secretary of State for Exiting the European Union, on the other, raising the question whether it is possible to revoke the notification of the intention of the United Kingdom of Great Britain and Northern Ireland to withdraw from the European Union. The Court of Session, Inner House, First Division (Scotland), seeks, in essence, to ascertain whether, where a Member State has notified the European Council of its intention to withdraw from the European Union in accordance with Article 50 TEU, EU law permits that Member State to unilaterally revoke its notification before the end of the period of two years referred to in that Article. If so, the referring court is uncertain as to the conditions governing such a revocation and its effects relative to that Member State remaining within the European Union.

The referring court states that, under Section 13 of the EU (Withdrawal) Act 2018, the withdrawal agreement which might be concluded between the United Kingdom and the Union under Article 50(2) TEU, setting out the arrangements for that withdrawal, may be ratified only if that agreement and the framework for the future relationship of the United Kingdom and the European Union has been approved by the Parliament of the United Kingdom. The referring court states that, where the withdrawal agreement is not approved by that Parliament, and if no other proposal is made, the departure of the United Kingdom from the Union will nonetheless take effect as from 29 March 2019. The referring court adds that it is uncertain whether it is possible to revoke the notification unilaterally and to remain within the European Union. That court also states that an answer from the ECJ will clarify the options open to the parliamentarians when they vote on those matters.
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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.
Continue reading “Editorial of December 2017”

Taricco continues – between constitutional national identity and highest level of protection of fundamental rights, where does effectiveness of EU law stand?

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

In September 2015, and in the wake of the case-law set in Fransson, the European Court of Justice (ECJ) detailed in Taricco the scope of the Member States’ obligations to combat VAT fraud (see comment here). The ECJ is now faced with the repercussions of said judgment as the Corte costituzionale [the Italian Constitutional Court (ICC)] questions the compatibility of the solution established therein with supreme principles of the Italian constitutional order.

As is well known, the Taricco case called into question the Italian regime on limitation periods for criminal offenses. The national provisions in question were such that, given the complexity and duration of criminal proceedings, defendants accused of VAT evasion constituting serious fraud affecting the EU’s financial interests were likely to enjoy de facto impunity as a result of the expiration of the limitation period. Having established that the Italian regime in question was not in conformity with EU law, the ECJ interpreted Article 325 TFEU as having “the effect, in accordance with the principle of the precedence of EU law, in their relationship with the domestic law of the Member States, of rendering automatically inapplicable, merely by their entering into force, any conflicting provision of national law”. Therefore, national courts were to “ensure that EU law is given full effect, if need be by disapplying those provisions (…), without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure”. The ECJ significantly added that, if a national court decides to disapply the national provisions at issue, “it must also ensure that the fundamental rights of the persons concerned are respected” as penalties might be applied to them, which, in all likelihood, would not have been imposed under those national provisions. In this regard, the ECJ did not consider that such a disapplication of national law would infringe the rights of the accused as guaranteed by Article 49 CFREU on the principles of legality and proportionality of criminal offences and penalties.

The Taricco judgment caused some stir within the Italian legal community. A few days after the delivery of the judgment, the Corte d’appello di Milano (Court of Appeal of Milan), instead of applying the solution formulated therein in a case pending before it concerning serious fraud in relation to VAT, stayed the proceedings to raise a question of constitutionality before the ICC, which would be followed months later by the Corte suprema di cassazione (Court of Cassation). Both courts have doubts as to the compatibility of the case-law established in Taricco with supreme principles of the Italian constitutional order and with the requirement to respect inalienable human rights as laid down by the Italian Constitution, with particular reference to the principle of legality in criminal matters [Article 25(2) of the Italian Constitution]. Hearing such concerns, the ICC sought a preliminary reference from the ECJ (here and here) according to an expedited procedure, the application of which was deferred (here). Advocate-General Yves Bot recently rendered its Opinion (here).

Continue reading “Taricco continues – between constitutional national identity and highest level of protection of fundamental rights, where does effectiveness of EU law stand?”