Europe: softening of the primacy of application of community law by the ECJ decision "Taricco II"?

At the end of 2017, in the legal case C-42/17, the ECJ issued a much publicised decision on the question of the primacy of application of Community Law. The background was an issue referred to the Italian Constitutional Court to determine whether the obligation under Community Law for the effective collection of VAT can prevail over the national statutes of limitations, whereby the Italian interpretation of the statute of limitations is a question of substantive criminal law. In the end, therefore, it was a matter of the application of principles protected under constitutional law of non-retroactivity and the requirement of certainty. In the legal case C-105/14 ("Taricco I"), the European Court of Justice had still declared the priority of Community Law in the tried and tested manner, but had not dealt with the problem of the Italian constitutional law. The Constitutional Court thus saw itself forced to provide a more detailed clarification and rather blatantly threatened to apply the doctrine of the so-called "contro limiti", i.e., the restrictions inherent in the Basic Law on the transfer of sovereignty, which ultimately means without taking into consideration Community Law.

The decision-making content
With an acrobatics rare for its decision-making rich in dogmatic devices, the European Court of Justice succeeded in avoiding the threat of the Constitutional Court to override it, but at the same time, in avoiding every precise definition with regard to the protection of national constitutional identify as laid down in Art. 4 para. 2 TEU, by putting the following point of view, which can be considered quite astonishing from a legal point of view: Based on "Taricco I", first of all the lack of relevance of the statute of limitations under constitutional law is determined. Quite coherently, the ECJ then postulates the obligation of the member states to make Art. 325 AEUV fully effective; this must be done, however, in full compliance with the basic rights of the accused, without the European Court of Justice determining which basic rights should actually be applied; and in actual fact, it is now becoming creative: The law of national authorities [and] national basic rights are to be applied, if this does not compromise the priority, the unity and the effectiveness of Community Law (!). As if this were not enough, in blatant contradiction to the rationale, it has been determined that it was ultimately a matter of applying Art. 49 of the EU Charter of Fundamental Rights as an expression of the constitutional tradition shared by the Member States. Finally, the national courts are granted the right to disregard the priority of application of Community Law, if the non-compliance with national fundamental rights entails an "uncertainty" for the defendant, which is likely to apply, without exception, in the case at hand.

Evaluation of the decision
In view of the line of argumentation shown, it can be assumed that the European Court of Justice was desperate to make an ad hoc decision, and presumably mainly for political reasons, without making any clear commitments for the future. In Taricco II, the ECJ got away with it once again; however, it will certainly not be able to avoid the "crucial question" of how it can deal with the relationship between Community Law and national constitutional law for much longer.

Author: Florian Bünger