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5.4
EUROPEAN COURT OF JUSTICE
AND SOL LEGISLATION
A major point of discussion concerns the role
taken by the European Court of Justice in this is-
sue and the nature of the act taken by a specific
EU institution. The issue is whether the nature
of a decision of this magnitude is legal, accep-
table and reasonable at the same time.
Experts from five countries disagree with the
choice of action of the EU court which, in practi-
ce, does not limit its power to the specific case
it rules on; rather, it essentially demands the
relevant national court to disapply a national
provision in a criminal law matter.
Except for the majority of Spanish experts, who
consider such overruling of a national provision
as acceptable in the specific Taricco decision
and in similar cases where national provisions
do not allow for the prosecution of crimes da-
maging EU financial interest, all other experts
do not agree with such Court intervention. In
particular, experts from Greece are highly skep-
tical towards such intervention: it is considered
by many as an act of judicial activism that vio-
lates the defendant’s rights and is against the
Constitution.
Other responses share their disapproval of the
form used by the EU institution: the principle of
legal certainty in criminal proceedings is often
mentioned as the primary reason why this deci-
sion is not the best option to express disagree-
ment with national legal provisions, particularly
in the Italian legal framework where the Taric-
co case represents only the tip of the iceberg
and not an isolated case. A widely-endorsed
comment is that the EU has all the reasons to
require radically different outcomes for judicial
proceedings concerning VAT frauds and that it
is entitled to require (and maybe even force)
Italy (and other, possible, non-compliant mem-
bers) to amend its legislation to guarantee the
prosecution of these criminal behaviours.
Whilst waiting for a (hopefully soon) revision of
SOL national law, the EU Court will probably be
asked to rule on similar cases and will have to
comply with its previous judgment. Article 325
of the Treaty on the Functioning of EU acts as
a gateway for the active intervention of EU in-
stitutions on criminal matters, with the Taricco
decision simply reinforcing it.
ITALY AND ITS SYSTEMIC ISSUE WITH SOL: A PLURALITY OF CRIMES BECOMING STATUTE BARRED.
Some crimes are most prone to becoming statute barred but the list of cases whose limitation period is
subject to expiration is long and shows how the entire framework needs to be strongly reviewed.
Among the political cases it is worth mentioning that of the former president of the Milan Province, Filip-
po Penati, who benefited from the law reform in 2012 and had the charges against him become statute
barred in a large corruption case. Penati initially claimed that he would give up his right to enforce the
limitation period in order to be acquitted on the merits but then changed his mind. In another case, the
former governor of the Molise region, Michele Iorio, was sentenced to one and a half years of imprison-
ment for abusing his position but the offence was held statute barred by Cassazione, which even antici-
pated the starting moment of the SOL from the time of payment of a service to two companies back to
the previous moment when the region assigned the service thereto.
In the sports field three famous cases can be mentioned: the so-called Calciopoli, the match-fixing and
doping cases. First, Calciopoli was a tremendous scandal which came out in 2006 when large investiga-
tions revealed a system of powers among football clubs and league associations that exercised an un-