M.A.S. and M.B. (Taricco follow-up)

On 18 July 2017, Advocate General Bot delivered his opinion on case C-42/17.

Following the Taricco judgment, the Italian Court of Cassation and the Court of Appeal of Milan, before which proceedings concerning serious fraud in relation to VAT were pending, considered that the non-application of the last subparagraph of Article 160 and the second subparagraph of Article 161 of the Penal Code to situations predating the publication of the judgment in Taricco would entail the retroactive imposition of a harsher regime of dealing with offences, which would be incompatible with the principle enshrined in Article 25(2) of the Italian Constitution that offences and penalties must be defined by law. They therefore addressed to the Italian Constitutional Court a question of constitutionality in this respect.

The Italian Constitutional Court referred questions to the Court of Justice on the extent to which the national courts are required to fulfil the obligation, identified by the Court in the Taricco judgment to disapply, in pending criminal proceedings, the rules in the last subparagraph of Article 160 and the second subparagraph of Article 161 of the Italian the Penal Code.

In his opinion, Advocate General Bot concluded that the Court should answer the questions referred for a preliminary ruling by the Italian Constitutional Court as follows:

(1) Article 325(1) and (2) TFEU must be interpreted as meaning that it requires the national court, acting as an ordinary court in matters of EU law, to disapply the absolute limitation period resulting from the combined provisions of the last subparagraph of Article 160 and the second subparagraph of Article 161 of the codice penale (Penal Code) where such a rule prevents the imposition of effective and dissuasive penalties in a case of serious fraud affecting the financial interests of the European Union or lays down longer limitation periods for cases of serious fraud affecting the financial interest of the Member State concerned than for those affecting the financial interests of the Union.

(2) The concept of interruption of the limitation period must be considered to constitute an autonomous concept of EU law and must be defined as meaning that each investigative procedural act and also any act necessarily extending it interrupts the limitation period, that act therefore causing a new period, identical to the initial period, to run, while the limitation period which has already elapsed will then be cancelled.

(3) Article 49 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that it does not preclude the Italian judicial authorities from disapplying, in the proceedings pending before them, the combined provisions of the last subparagraph of Article 160 and the second subparagraph of Article 161 of the Penal Code in accordance with the obligation identified by the Court in the judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555).

(4) Article 53 of the Charter of Fundamental Rights does not allow the judicial authority of a Member State to refuse to fulfil the obligation identified by the Court in the judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555) on the ground that that obligation does not respect the higher standard of protection of fundamental rights guaranteed by the Constitution of that State.

(5) Article 4(2) TEU does not allow the judicial authority of a Member State to refuse to fulfil the obligation identified by the Court in the judgment of 8 September 2015, Taricco and Others (C‑105/14, EU:C:2015:555) on the ground that the immediate application to proceedings pending before it of a longer limitation period than that provided for by the law in force at the time when the offence was committed would be capable of affecting the national identity of that State.