On Legality in Criminal Matters between Primacy of EU Law and National Constitutional Traditions. A Study of the Taricco Saga

The present article retraces the history of the “Taricco saga” before the Court of Justice of the European Union (CJEU), which put in the spotlight the clashes between the primacy and effectiveness of EU law in the field of the protection of the financial interests of the EU, and the constitutional identities of the Member States with regard to fundamental rights in criminal law. Starting from the analysis of the first firm stance of the CJEU in the Taricco I judgment, to the Italian Constitutional Court’s reaction in defence of its own interpretation of the principle of legality in criminal law, the article then focuses on the final revirement of the CJEU towards a more tolerant position in M.A.S. and M.B.. The author, building upon the notion of constitutional pluralism and tolerance, does not consider such outcome as a defeat for the primacy of EU but rather welcomes it as a first step towards a more inclusive approach to the principle of primacy of EU law that necessarily encompasses fundamental rights and constitutional traditions, and that takes into due consideration the specificities of criminal law.