Taricco Follow-up Judgment (Italian Constitutional Court, 2017): Even Before EU Law, the Constitution Does Not Fall Silent
In response to the Court of Justice of the European Union’s demand, the Constitutional Court replied, “We cannot follow it as-is.”
The Taricco case is one of the clearest examples showing that EU law and a domestic constitution can collide head-on. In particular, the CJEU’s 2015 Taricco judgment issued a very strong demand to Italian courts, stating that Italy’s rules on limitation periods in criminal law did not sufficiently secure the protection of the EU’s financial interests. The problem was that this demand directly clashed with core principles of the Italian Constitution—non-retroactivity of criminal punishment and the principle of legality. The Italian Constitutional Court did not ignore this conflict. In its 2017 follow-up judgment, it made its position explicit: “We respect EU law, but we cannot concede the constitutional identity itself.” The Taricco follow-up judgment is not a simple declaration of non-compliance with EU law; it is a representative example showing how constitutional and EU legal orders must “dialogue” to manage conflicts.
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Case Background: The Taricco Judgment and the EU’s Demand
The Taricco controversy begins with the CJEU’s 2015 Taricco judgment. In that case, the CJEU took issue with the reality that many Italian value-added tax (VAT) fraud cases were going unpunished due to the expiration of limitation periods. In light of the obligation to protect the EU’s financial interests (Article 325 TFEU), the Court considered such outcomes unacceptable.
Accordingly, the CJEU delivered a very strong message to Italian courts. If domestic limitation rules effectively make serious EU financial crimes unpunishable, domestic courts must disapply those rules. The problem was that this demand was not a mere procedural matter; it could produce the effect of expanding the scope of punishment and the possibility of prosecution retroactively.
Constitutional Issue: Legality and Limitation Periods
In the Italian constitutional order, limitation periods are not merely technical rules of criminal procedure. According to the Constitutional Court’s consistent position, limitation periods are a substantive element of criminal law directly connected to the scope of punishment. Therefore, they cannot be changed or extended retroactively to the detriment of the accused, and they are protected by the legality principle and the principle of non-retroactivity of criminal punishment.
If the CJEU’s Taricco judgment were applied as-is, conduct that was not punishable at the time due to limitation rules could become punishable retroactively. The Italian Constitutional Court considered precisely at this point that the EU-law demand risked infringing the foreseeability of criminal liability and legal certainty protected by the Constitution.
Inter-court Dialogue: The Constitutional Court’s Challenge
The Italian Constitutional Court did not immediately reject the CJEU’s ruling. Instead, in 2017, before reaching its own final conclusion, it referred preliminary questions to the CJEU. The core of the questions was clear: if applying the Taricco principle would infringe the essential content of the legality principle under the Italian Constitution, must domestic courts nonetheless follow it?
What matters at this stage is the posture. The Constitutional Court did not declare “EU law is unconstitutional,” nor did it say “we will not comply.” Instead, it chose a strategy of adjusting the conflict through dialogue with the EU legal order, while clearly presenting constitutional limits.
The Logic of the 2017 Follow-up Judgment
In the 2017 Taricco follow-up judgment, the Italian Constitutional Court avoided a direct declaration of conflict, but in the end it limited domestic courts’ “unconditional application of Taricco.” The Court’s core logic was straightforward: EU law must be respected, but its application cannot be compelled up to the point of infringing the essential principles of the Constitution.
The Court did not treat limitation rules as mere procedural provisions. In the Italian constitutional order, limitation periods set the limits of punishability and enable citizens to predict until when their conduct can be subject to punishment by the state. Therefore, disapplying limitation rules retroactively under the Taricco principle would seriously undermine the foreseeability of criminal punishment and legal certainty.
Effect of the Judgment: Conditional Acceptance
| Issue | CJEU Taricco Demand | Italian Constitutional Court Position |
|---|---|---|
| Nature of limitation periods | Procedural rule | Substantive element of punishment |
| Application of domestic law | Disapply required | Not possible if it violates the Constitution |
| Relationship with EU law | Immediate supremacy | Constitutional-identity limits recognized |
Why It Still Matters
The Taricco follow-up judgment does not deny the supremacy of EU law. Instead, it made clear a condition: supremacy can operate only insofar as it does not erode the core principles of the Constitution. This is a case in which the concept of a “last constitutional line of defense” was made to function in a concrete dispute.
The criminal-law domain is one of the fields where constitutional identity operates most strongly. The Taricco case shows that, as European integration deepens, what is required is not a simple declaration of supremacy, but dialogue and mutual respect between courts. For that reason, it remains a reference point that cannot be omitted in discussions of the EU–national constitutional relationship.
FAQ: The Most Confusing Questions When Understanding the Taricco Follow-up Judgment (2017)
The Taricco controversy intertwines EU-law supremacy, constitutional identity, and criminal-law principles all at once, making it easy to lose the structure. I have organized this around questions that repeatedly appear in exams and comparative-constitutional discussions.
Did the Taricco follow-up judgment deny EU-law supremacy?
No. The Italian Constitutional Court did not deny the general supremacy of EU law. It clarified a “limit,” however: if applying EU law infringes the essential principles of the Constitution, it cannot be followed as-is.
Why are limitation periods such an important constitutional issue?
In the Italian constitutional order, limitation periods are understood not as a mere procedural rule, but as a substantive element that sets the limits of punishability. Therefore, they cannot be changed retroactively to the accused’s detriment.
Why didn’t the Constitutional Court refuse Taricco’s application from the start?
The Constitutional Court sought to resolve the conflict with the EU legal order through “dialogue.” It therefore first referred preliminary questions to the CJEU, clarified constitutional limits, and then arrived at conditional acceptance.
Is this an example of “constitutional identity review”?
Yes. The Taricco follow-up judgment treated criminal-law legality as a core component of constitutional identity and made clear that EU law also has limits in that domain.
What impact did it have on later EU–national court relations?
This judgment is often evaluated as reconstructing EU-law supremacy into a “dialogical supremacy.” Thereafter, the CJEU also began to show a more cautious posture in considering core principles of national constitutions.
What is a good one-sentence summary for exams or reports?
“The Taricco follow-up judgment is a constitutional-identity precedent holding that, while EU-law supremacy is accepted in principle, domestic courts cannot apply the Taricco principle where it infringes the legality principle,” is an appropriate summary.
Taricco (2017): Not a Judgment That “Broke EU-Law Supremacy,” but One That Protected “Foreseeability in Criminal Punishment”
The Taricco follow-up judgment creates a peculiar tension because the Italian Constitutional Court appeared to reject EU law head-on, yet in reality it never closed the door to “dialogue” to the end. The key was not that the objective of “protecting the EU’s financial interests” was wrong, but that pursuing that objective could collapse the foreseeability of criminal provisions and the principle of non-retroactivity. If limitation periods are seen as mere procedure, the Taricco principle looks persuasive; but in the Italian legal order, limitation periods are treated as part of substantive punishment, and citizens must be able to predict “until when the state can punish me.” To protect that minimum, the Constitutional Court chose the compromise of “conditional acceptance.” As a result, Taricco (2017) is less a fight about “supremacy versus defiance” than a practical manual showing how to preserve core constitutional principles within European integration. That is why, even today, it continues to be cited as one of the most realistic examples when discussing EU–national constitutional relations.
