Tagged: Case C-42/17 M.A.S. & M.B. (Taricco II)

A Fundamental Right to Tax Enforcement? A response to Prof. Capaldo

By Eduardo Gill-Pedro

In her recent entry on this blog, Prof. Capaldo criticised the judgment of the Court of Justice of the EU in Taricco II by arguing that there exists, in international law (or what the author calls ‘global law’), a fundamental human right to policies that criminalise tax fraud. According to the author, the Court presented in its judgment a false dichotomy between the need to ensure the effective application of EU law and the need to ensure the protection of constitutionally guaranteed rights of the accused. This is because the effective application of EU law also entails the protection of ‘social human rights’, presumably by the proper use of the taxes for public expenditure. In this blog entry I argue that Prof. Capaldo’s argument presupposes a particular understanding of human rights, and that this understanding of human rights is problematic from the perspective of democratic theory.

The understanding of human rights as socially beneficially outcomes  which are to be ensured through the proper expenditure of tax revenue, sees human rights as policy goals. Such policy goals are then to be optimized and balanced against other policy goals situated on the same level. This is made clear in the blog entry, which argued that there was a need to “balance[e] the rights under these articles [social rights which would be secured through tax collection] and the accused’s individual rights guaranteed by the legality principle”. Continue reading

The Global Fight against Impunity and the European Court of Justice: A New Approach to Tax Fraud as a Crime against Human Rights

by Giuliana Ziccardi Capaldo

Introduction

This contribution is a comment to the blog posts of Maxime Lassalle on Taricco I and Michal Krajewski on Taricco II. In the following, I summarize some reflections developed in my article entitled “Lotta globale all’impunità e Corte di giustizia europea: un nuovo approccio alla frode fiscale come crimine contro i diritti umani”, that touch upon the core of the Taricco dispute between the European Court of Justice (ECJ) and the Italian Constitutional Court concerning the prosecution of value added tax (VAT) fraud.

Two very closely related issues are considered in this regard. One is that the ECJ’s view in Taricco I on the interpretation and application of the obligation to combat fraud, imposed on Member States by Article 325 TFUE, opens the way to a new approach to tax fraud as a crime against human rights. The second, logically connected, is that the alleged conflict between the interpretation of Article 325 TFEU given by the ECJ and Italian Constitutional law (the principle of legality in criminal matters as laid down by Article 25(2) Const.) is a false problem for which I present a solution.  Continue reading

A Way Out for the ECJ in Taricco II: Constitutional Identity or a More Careful Proportionality Analysis?

By Michal Krajewski

The final countdown to the announcement of the long awaited judgment in case C-42/17, M.A.S. & M.B. (Taricco II) on 5 December 2017 has begun. The preliminary reference (for an overview see Bassini and Pollicino), by which the Italian Constitutional Court (the ‘ICC’) challenged the judgment of the European Court of Justice (the ‘ECJ’) in C-105/14, Taricco I, has already generated a heated debate online (see for instance here and here). The most fascinating question is whether for the first time the ECJ will authorise a national court to disapply an EU legal provision to protect its national constitutional identity or higher national standards of fundamental rights’ protection. My aim in this post is to question the compatibility of Taricco I judgment with the EU law itself. I will first argue that the ECJ’s judgment in Taricco I is problematic under EU law because the ECJ left out from its reasoning the general principle of legal certainty and ensuing limits to the direct applicability of EU provisions.  Second, I will explore whether the ECJ can still withdraw from its stance taken in Taricco I without opening the Pandora’s box of exceptions to the EU law primacy: either due to national constitutional identity (Article 4(2) TEU) or higher national standards of fundamental rights’ protection (Article 53 of the Charter of Fundamental Rights).  Continue reading