L’attesa sentenza “Taricco bis”: brevi riflessioni

Abstract

The purpose of this work is to analyze the decision of the Court of Justice in M.A.S. judgment (Court of Justice, judgment of 5 December 2017, case C-42/17, M.A.S. and M.B. [GC]), after the reference for preliminary ruling of the Italian Constitutional Court, concerning the connection between the internal principle of legality in criminal matters and the European Union law. The Court of Justice declares, inexplicably, that national provisions on limitation in criminal matters may not fall within the scope of European Union law. Consequently, the Italian Republic is free to provide that in its legal system those provisions form part of substantive criminal law, and are thereby subject to the principle that offences and penalties must be defined by law. It follows that national courts have to ascertain whether the application of Taricco decisum leads to a situation of uncertainty in the Italian legal system about the determination of the applicable limitation provisions, that would produce a violation of the principle that the applicable law must be precise. If so, the national court is not obliged to disapply those provisions. With this decision the Court of Justice has heavily hit the principle of primacy. Perhaps, it could have better remarked another element of the principle of legality: the reserve of law. So it would have been possible anchoring to “normative”, and “objective” parameters the requirement that the applicable law must be precise, and avoiding the national court could act in absolute discretion. And if the parameters were finally founded within the European law, the primacy would not have been compromised.