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.

Table of Contents

Case Background: The Taricco Judgment and the EU’s Demand Constitutional Issue: Legality and Limitation Periods Inter-court Dialogue: The Constitutional Court’s Challenge The Logic of the 2017 Follow-up Judgment Effect of the Judgment: Conditional Acceptance Why It Still Matters

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.

Cappato Judgment (Italian Constitutional Court, 2019): To What Extent Does the Constitution Allow the Freedom to End One’s Life?

Is “assisting suicide” always a crime? The constitution could no longer avoid that question.

The freedom to choose death long remained outside constitutional debate. That was because the idea that life is an object of protection, not an object of choice, was overwhelmingly strong. But as medical technology advanced, the gap between “being alive” and “living with dignity” became increasingly clear. The Cappato case in Italy arose precisely at that point. A person who depended on life-sustaining devices due to quadriplegia wished to end his life, and someone helped him make that choice. The criminal code classified this as an unmistakable crime, but the Italian Constitutional Court posed a question that went beyond a simple guilty-or-not-guilty judgment: “Can the state, in the name of its duty to protect life to the end, entirely deny the self-determination of an individual in extreme suffering?” The Cappato judgment offered, to this question, the “most uncomfortable answer” permitted by the Italian Constitution.

Table of Contents

Case Background: Cappato and DJ Fabo Legal Background: Blanket Criminalization of Assisted Suicide Core Issue: Protecting Life vs. Self-Determination The Constitutional Court’s Reasoning Structure Effect of the Judgment: Tasks Left to the Legislature Why It Still Matters

Case Background: Cappato and DJ Fabo

At the center of the Cappato case is Fabiano Antoniani, known as DJ Fabo. After a traffic accident, he was left quadriplegic, lost his sight, and lived dependent on a ventilator and medical devices. Amid extreme physical pain and total dependence, he repeatedly expressed a clear intention that he no longer wished to continue living.

Marco Cappato, responding to DJ Fabo’s request, helped him travel to Switzerland so he could use a procedure where assisted suicide is lawful. Cappato then returned to Italy and reported himself to the authorities, and he was prosecuted under Article 580 of the Criminal Code (instigation of or assistance in suicide). This case went beyond a personal tragedy and brought to the forefront a constitutional question: how the state should address death chosen through self-determination.

Legal Background: Blanket Criminalization of Assisted Suicide

Article 580 of the Italian Criminal Code, in principle, made all acts of instigating or assisting suicide punishable. This covered diverse forms of assistance, including providing motivation, information, or physical support. The legislative rationale was clear: life is the highest value the state must actively protect, and any form of “helping suicide” cannot be socially tolerated.

At the same time, however, the Italian legal system recognized a patient’s right to refuse or discontinue life-sustaining treatment. In other words, choosing death by removing a ventilator could be lawful, yet helping achieve the same end in a less painful way could be a crime—creating a contradiction. The Cappato case squarely challenged this legal imbalance.

Core Issue: Protecting Life vs. Self-Determination

The Constitutional Court’s central question was not merely whether a criminal penalty is constitutional. The issue was whether the state, on the ground of protecting life, can entirely block the self-determination of an individual in an irreversible condition. In particular, the dispute was whether this remains true even when the decision is well-considered, free from external coercion, and made under persistent suffering.

The Constitutional Court did not simplify the matter into the abstract phrase “a right to die.” Instead, it focused on how human dignity and self-determination relate to the protection of life, and how far criminal law may force that balance.

The Constitutional Court’s Reasoning Structure

In the Cappato case, the Italian Constitutional Court avoided an immediate declaration of unconstitutionality. Instead, it noted that Article 580 of the Criminal Code could, in certain situations, constitute an excessive restriction of freedom, and it presented a highly refined conditional framework. The Court’s starting point was to acknowledge the state’s legitimate aim of protecting life.

However, the Court held that the duty to protect life cannot operate with the same intensity in all cases. In particular, for a person who has an irreversible illness, endures persistent and intolerable suffering, and is fully dependent on medical support, using criminal punishment to block that choice entirely risks violating human dignity and self-determination.

Effect of the Judgment: Conditional Decriminalization

Element	Constitutional Court Criteria
Medical condition	Irreversible; dependent on life-sustaining devices
Suffering	Persistent and intolerable
Decision-making	Free and well-considered decision
Procedural safeguards	Prior verification by a public medical institution

Why It Still Matters

The Cappato judgment goes beyond the binary question of “whether to allow assisted suicide,” and instead asks how the constitution should recognize individual suffering. The Court did not declare death a right, but it clearly stated that there are limits to responding to choices made in suffering solely through criminal punishment.

As medical technology advances, people can live longer—but they can also suffer longer. Facing this reality, the Cappato judgment shows what the most cautious constitutional posture can be, and it remains an important benchmark in contemporary debates on euthanasia and assisted suicide.

FAQ: The Most Commonly Confused Questions in the Cappato Judgment (2019)

The Cappato judgment is often misunderstood as a “decision allowing euthanasia,” but in fact it has a far more refined constitutional structure. I have organized the key issues in question form.

Did the Cappato judgment “legalize assisted suicide”?

No. The Constitutional Court did not generally permit assisted suicide. It held only that, in extremely limited circumstances, punishing the conduct through criminal penalties may be unconstitutional.

Did the Constitutional Court recognize a “right to die”?

It did not. The Court did not declare death to be a right; it centered its analysis on “self-determination in suffering” and the limits of criminal punishment.

Why are discontinuing life-sustaining treatment and assisted suicide treated differently?

In the existing legal system, discontinuing treatment is recognized as a patient’s right to refuse treatment, while assisted suicide has been classified as active intervention. The Cappato judgment suggested that this distinction is not always justified and should be re-examined.

Why did the Court defer the detailed design to the legislature?

Because matters of life and death involve strong social and ethical judgments. The Constitutional Court set only the minimum constitutional limits and left the concrete procedural design as the legislature’s responsibility.

Did punishment immediately stop after the judgment?

No. The Constitutional Court stated that a procedure is needed in which a public medical institution verifies in advance whether the conditions are met. This is not unconditional decriminalization, but an exception premised on procedures.

For exams or reports, what is a good one-sentence summary?

“The Cappato judgment recognized that blanket punishment for assisting suicide may excessively restrict self-determination in certain extreme situations, and it presented constitutional criteria for conditional decriminalization,” is a sufficient summary.

The Cappato Judgment: Not “a Right to Die,” but a Question About the Limits of Punishment

The question posed by the Cappato judgment is provocative, but its answer is strikingly restrained. The Italian Constitutional Court did not declare death a new right, nor did it generally permit assisted suicide. Instead, it examined, with sobriety, whether criminal law can respond to an individual’s choice solely through punishment in every situation and without exception. That is: if a person who is irreversibly ill, in persistent suffering, and wholly dependent on life-sustaining devices makes a free and well-considered decision, is it constitutionally justified to brand the act of helping that choice as a crime without qualification? At this point, the Court acknowledged that even the state’s duty to protect life can operate with different intensity. The Cappato judgment is therefore not a decision taking sides in a pro–con debate on euthanasia, but a decision that forces us to ask again how the constitution should regard human suffering. Its real legacy is the message not to avert our eyes from suffering in the name of protecting life, and the demand that the legislature assume responsibility for designing that difficult balance.