The Taricco case and the courts' power to create new criminal law : strained dialogue between the Italian Constitutional Court (ICC) and the European Court of Justice (ECJ)

In the Taricco judgment, the ECJ held that Article 325 TFEU requires the national courts to disregard the Italian rules of limitation periods if their application prevents the imposition of effective and deterrent penalties in a significant number of cases of serious fraud affecting EU financial interests. In Italy, some courts considered that the disapplication imposed by the ECJ runs counter to the fundamental principles of the Italian constitutional system, including the principle of strict legality in criminal matters, formally recognized in the Italian Constitution. Consequently, the ICC had been requested by these judges to exercise the “counter-limits” power in order to prevent the enforcement of the ECJ ruling in Taricco. The ICC sought a preliminary reference from the ECJ on the interpretation of the Article 325 TFUE, making some important statements on the principle of legality. In particular, the ICC stated that this principle is an expression of a supreme principle of the legal order, which has been posited in order to safeguard the inviolable rights of the individual, by clarifying also that this principle does not grant the courts the power to create new criminal law in place of that established by legislation approved by Parliament. Awaiting the ECJ’s decision on the case, there are already several points on the issue of the “Judiciary creation of law and dialogue between judges” around which is possible to discuss and confront different legal traditions.