¹ ECJ 16 June 2015, Peter Gauweiler and Others v Deutscher Bundestag, followed by the decision by the German Constitutional Court, Second Senate, 21 June 2016 - 2 BvR 2728/13.

² ECJ (Grand Chamber) 8 September 2015, Case C-105/14, Ivo Taricco and Others released upon a reference by an Italian criminal court, the Tribunal of Cuneo.

³ Italian Constitutional Court, order of 23 November 2016, no. 24/2017, also available in English at <www.cortecostituzionale.it/documenti/download/doc/recent_judgments/O_24_2017.pdf>, visited 2 November 2018.

⁴ ECJ (Grand Chamber) 5 December 2017, Case C-42/17, M.A.S. and M.B., also known as Taricco II.

⁵ Italian Constitutional Court, decision of 31 May 2018, no. 115, also available in English at <www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S_2018_115_EN.pdf>, visited 2 November 2018.

⁶ On this topic see now the special issue ‘Constitutional adjudication in Europe between unity and pluralism’, 10(2) Italian Journal of Public Law (2018), edited by P. Faraguna et al.

⁷ It is now acknowledged that the instrument of the preliminary reference was inspired by the question of constitutionality under Italian law. The ‘inspiration’ was also due to the work of Nicola Catalano, Italian representative in the working group for the drafting of the EEC Treaty (and future judge of the ECJ). See Claes, M., The National Courts’ Mandate in the European Constitution (Hart 2006) p. 61 Google Scholar ; Tamm, D., ‘The History of the Court of Justice of the European Union since its Origins’, in The Court of Justice and the Construction of Europe: Analyses and Perspective on Sixty Years of Case-law (Springer 2013) p. 19 Google Scholar .

⁸ For an early theoretical exposition targeted to the English-speaking audience, see Cartabia, M., ‘The Italian Constitutional Court and the Relationship Between the Italian Legal System and the European Community’, 12(1) Michigan Journal of International Law (1990) p. 173 Google Scholar .

⁹ In judgment no. 238/2014, the Italian Constitutional Court upheld the balance of substantive values of the Italian Constitution against specific rulings of the International Court of Justice related to actions for reparations of damages caused by war crimes and crimes against humanity. See Lustig, D. and Weiler, J.H.H., ‘Judicial review in the contemporary world – Retrospective and prospective’, 16(2) International Journal of Constitutional Law (2018) p. 352 Google Scholar .

¹⁰ P. Barile, ‘Il cammino comunitario della Corte’ [The European Journey of the Court], 18 Giurisprudenza costituzionale (1973) p. 2406 ff. It is often overlooked that he had also actually used the expression before, in the essay ‘Ancora sul diritto comunitario e diritto interno’ [Again on community and domestic law], in Studi per il ventesimo anniversario dell’Assemblea costituente, VI (Vallecchi Florence 1969) p. 35 at p. 49. Even earlier – in ‘Rapporti fra norme primarie comunitarie e norme costituzionali e primarie italiane’ [Relationships between primary community law and constitutional and primary domestic law], 21(1) La Comunità internazionale (1966) p. 14 at p. 23 – he elaborated on the ‘limits to limitations of sovereignty’.

¹¹ See Italian Constitutional Court, judgment no. 183/1973, §9.

¹² In the case note quoted supra n. 10 he actually uses ‘counter-limitations’ (controlimitazioni), which is more faithful to the lexicon of the constitution.

¹³ Bettermann, K.A., Grenzen der Grundrechte (De Gruyter 1968)Google Scholar introduced the idea that there are limits to the constitutionally permissible restriction of fundamental rights.

¹⁴ See also Pollicino, O., ‘From Partial to Full Dialogue with Luxembourg: The Last Cooperative Step of the Italian Constitutional Court’, 10(1) EuConst (2014) p. 143 Google Scholar .

¹⁵ Just to give an idea, apart from dozens of case notes, it is possible to list no less than four edited collections exclusively focused on this saga: one containing the proceedings of seminars organised to comment on the first decision of the ECJ (A. Bernardi (ed.), I controlimiti. Primato delle norme europee e difesa dei principi costituzionali [Counter-limits. Primacy of EU norms and defence of constitutional principles] (Jovene 2016)); two specifically related to the questions of constitutionality raised after it (A. Bernardi and C. Cupelli (eds.), Il caso Taricco e il dialogo tra le corti [The Taricco case and the dialogue among courts] (Jovene 2017) and I. Pellizzone (ed.), Principio di legalità penale e diritto costituzionale [The Legality Principle in Criminal Matters and Constitutional Law] (Giuffrè 2017)); and one up-to-date with the second decision of the Italian Constitutional Court (C. Amalfitano (ed.), Primato del diritto dell’Unione europea e controlimiti alla prova della ‘saga Taricco’ [Primacy of EU Law and Counter-limits Tested in the ‘Taricco Saga’] (Giuffrè 2018)).

¹⁶ Council Directive 2006/112/EC of 28 November 2006.

¹⁷ Tribunale di Cuneo, order of 17 January 2014.

¹⁸ Taricco and Others, supra n. 2.

¹⁹ §1 of the ruling.

²⁰ Arts. 160 and 161 of the Criminal Code, which set the maximum limitation period for criminal offences.

²¹ The ECJ also raised the level of sources of law involved: whereas the preliminary reference had focused mainly on interpretation of the VAT directive, the ruling shifted its answer to Art. 325 TFEU, deriving from its (quite vague) wording a direct, clear and immediate obligation for the Member States (see M. Bonelli, ‘The Taricco saga and the consolidation of judicial dialogue in the European Union’, 25(3) Maastricht Journal of European and Comparative Law (2018) p. 357). This element, even without any specific formal significance, symbolically opened the way to the escalation seen in the subsequent decisions of the saga.

²² Court of Cassation, Third Criminal Section, judgment of 15 September 2015.

²³ Court of Appeal of Milan, order of 18 September 2015, and the same Court of Cassation, Third Criminal Section, order of 30 March 2016.

²⁴ A. Ruggeri, ‘Ultimatum della Consulta alla Corte di giustizia su Taricco, in una pronunzia che espone, ma non ancora oppone, i controlimiti’ [Ultimatum by the ICC to the CJEU on Taricco, in a decision that shows, and not yet applies, counter-limits], and G. Piccirilli, ‘L’unica possibilità per evitare il ricorso immediato ai controlimiti: un rinvio pregiudiziale che assomiglia a una diffida’ [The only chance to avoid the immediate application of counter-limits: a preliminary reference that looks like a formal notice], both in Consulta online (2017), 1. The choice of issuing a preliminary reference and, at the same time, pointing out the possibility of applying counter-limits in the event the decision of the ECJ is not ‘satisfying’ would seem to be not all that different from the reasoning provided by the Bundesverfassungsgericht in the OMT saga.

²⁵ Opinion of AG Bot, delivered on 18 July 2017, Case C‑42/17, §181: ‘I note that in the Italian Constitution the principles classified as “fundamental” are set out in Articles 1 to 12, and the principle that offences and penalties must be defined by law is therefore a priori not included in that category’. According to Rauchegger, C., ‘National constitutional rights and the primacy of EU law: M.A.S.’, 55(5) Common Market Law Review (2018) p. 1521 Google Scholar at p. 1542, the AG was ‘wrong’ to ‘interpret the constitution of a Member State’.

²⁶ B. Guastaferro, ‘Derubricare i conflitti costituzionali per risolverli: sezionando il caso Taricco’ [Reduce constitutional conflicts in order to solve them: analysing the Taricco case], 38(2) Quaderni costituzionali (2018) p. 441.

²⁷ M.A.S. and M.B., supra n. 4, §60: ‘the [principle of non-retroactivity of the criminal law] preclude the national court, in proceedings concerning persons accused of committing VAT infringements before the delivery of the Taricco judgment, from disapplying the provisions of the Criminal Code at issue’.

²⁸ M.A.S. and M.B., supra n. 4, §44.

²⁹ M.A.S. and M.B., supra n. 4, §53: ‘the principle that offences and penalties must be defined by law forms part of the constitutional traditions common to the Member States’.

³⁰ G. Repetto, ‘Quello che Lussemburgo (non) dice. Note minime su Taricco II’ [What Luxemburg does (not) say. A first comment on Taricco II], in Diritti comparati, 21 December 2017.

³¹ M.A.S. and M.B., supra n. 4, §61: ‘If the national court were thus to come to the view that the obligation to disapply the provisions of the Criminal Code at issue conflicts with the principle that offences and penalties must be defined by law, it would not be obliged to comply with that obligation, even if compliance with the obligation allowed a national situation incompatible with EU law to be remedied’.

³² The opinion that this is the ‘final’ word on the saga is supported by P. Faraguna, ‘Roma locuta, Taricco finita’, Diritti comparati, 5 June 2018.

³³ Italian Constitutional Court, judgment no. 115/2018, §10: ‘Regardless of whether the facts occurred before or after 8 September 2015, the referring ordinary courts cannot apply the ‘Taricco rule’ to them because it contradicts the principle of legal certainty in criminal matters enshrined in Article 25(2) of the Constitution’.

³⁴ Italian Constitutional Court, judgment no. 115/2018, §8.

³⁵ For instance, in decision no. 168/1991 the Italian Constitutional Court implicitly referred to the ‘possibility’ of directly submitting a preliminary reference.

³⁶ Italian Constitutional Court, Order no. 536/1995, decided on the basis of earlier case law related to the identification of judicial bodies (judgment no. 13/1960).

³⁷ For a general discussion of ‘dual preliminarity’, a topic that has been highly debated, also in France, see Martinico, G., ‘Multiple loyalties and dual preliminarity: The pains of being a judge in a multilevel legal order’, 10(2) International Journal of Constitutional Law (2012) p. 871 CrossRefGoogle Scholar .

³⁸ See Italian Constitutional Court, decisions nos. 284/2007, 415/2008 and 100/2009.

³⁹ The Italian Constitutional Court, in order no. 319/1996, returned the case to the ordinary judge, thereby nudging a previously submitted preliminary reference before introducing the question of constitutionality. In order no. 108/1998, the Italian Constitutional Court invited the judge to ‘provoke’ the ‘certain and reliable’ interpretation by the ECJ.

⁴⁰ See Italian Constitutional Court, judgment no. 284/2007.

⁴¹ Repetto, G., ‘Pouring New Wine into New Bottles? The Preliminary Reference to the CJEU by the Italian Constitutional Court’, 16 German Law Journal (2015) p. 6 Google Scholar , special issue on The Preliminary Reference to The Court of Justice of The European Union by Constitutional Courts, edited by M. Dicosola et al., p. 1449 ff.

⁴² The impossibility for the Court to avoid preliminary references in principaliter proceedings was pointed out with foresight already by M. Cartabia and J.H.H. Weiler, L’Italia in Europa: profili istituzionali e costituzionali [Italy in Europe: institutional and constitutional profiles] (il Mulino 2000) p. 194 ff.

⁴³ Italian Constitutional Court, order no. 103/2008.

⁴⁴ Italian Constitutional Court, order no. 24/2017, §7.

⁴⁵ Taricco and Others, supra n. 2, §58. Critically on the possibility of acknowledging the direct effect of the quoted Treaty provisions, see E. Cannizzaro, ‘Sistemi concorrenti di tutela dei diritti fondamentali e controlimiti costituzionali’ [Concurring systems of protection of fundamental rights and constitutional counter-limits], in Bernardi, supra n. 15, p. 46. Even more drastically, see D. Gallo, ‘La Corte costituzionale chiude la ‘saga Taricco’: tra riserva di legge, opposizione de facto del controlimite e implicita negazione dell’effetto diretto’ [The ICC closes the Taricco saga: riserva di legge, de facto opposition of counter-limits and implicit negation of the direct effect] in European papers (2018).

⁴⁶ Italian Constitutional Court, order no. 24/2017, §10.

⁴⁷ See supra n. 9 and accompanying text.

⁴⁸ For the sake of completeness: similar language was used in an older decision, although it was not related in any way to EU law. In decision no. 262/2009, the expression ‘constitutional identity’ generically referred to the equality principle and the impossibility of unequal treatment before courts of persons serving in supreme constitutional court offices.

⁴⁹ Extensively on this topic, Faraguna, P., Ai confini della costituzione. Principi supremi e identità costituzionale [At the boundaries of the constitution. Supreme principles and constitutional identity] (FrancoAngeli 2015) p. 60 Google Scholar .

⁵⁰ Italian Constitutional Court, judgment no. 238/2014, §3.2, which clearly states that the counter-limits represent the external dimension of the supreme principles of the constitution, previously identified by judgment no. 1146/1988.

⁵¹ Italian Constitutional Court, judgment no. 115/2018, §11.

⁵² In this sense, see von Bogdandy, A. and Schill, S., ‘Overcoming absolute primacy: respect for national identity under the Lisbon Treaty’, 48(5) Common Market Law Review (2011) p. 1417 Google Scholar .

⁵³ See B. Guastaferro, ‘Beyond the Exceptionalism of Constitutional Conflicts. The Ordinary Functions of the Identity Clause’, 31 Yearbook of European Law (2012) p. 263, and E. Cloots, National Identity in EU Law (Oxford University Press 2015) p. 210.

⁵⁴ See supra n. 1.

⁵⁵ Hungarian Constitutional Court, decision of 30 November 2016 no. 22/2016 (XII. 5) AB, on the quota of migrants whose asylum applications were to be processed by Hungarian authorities.

⁵⁶ Belgian Constitutional Court, judgment of 28 April 2016, no. 62/2016, on the law of 18 July 2013 approving the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union, with an interesting obiter dictum on the possibilities for attributing new competences to EU institutions (and the consequent limits on those possibilities deriving from the Belgian constitutional identity): para. B.8.7.

⁵⁷ Again, Italian Constitutional Court order no. 24/2017, §6: ‘the Court of Justice is not exempt from the task of defining the scope of EU law and cannot be further encumbered by the requirement of assessing in detail whether it is compatible with the constitutional identity of each Member State’.

⁵⁸ Ibid.

⁵⁹ Italian Constitutional Court, judgment no. 115/2018, §8.

⁶⁰ I have decided to leave the Italian wording instead of attempting a translation, which would imply a conceptual and not a mere linguistic exercise. Also, A. Türk decided to give up on translating the name of this institution (just mentioning that it could be only ‘roughly’ transposed as ‘legislative reservation’) in his review of the book by Rieckhoff, H., Der Vorbehalt des Gesetzes im Europarecht (Mohr Siebeck 2007), 47(1)CrossRefGoogle Scholar Common Market Law Review (2010) p. 278.

⁶¹ Some even trace its origins back as far as the medieval idea of limiting royal power by requiring legislative authorisation for war expenditures.

⁶² See also Lupo, N. and Piccirilli, G., ‘The Relocation of the Legality Principle by the European Courts’ Case Law’, 11(1) EuConst (2015) p. 58 Google Scholar .

⁶³ Italian Constitutional Court, judgment no. 183/1973, in particular §8-9. On this decision see F. Sorrentino, ‘Regolamenti comunitari e riserva di legge’ [EC regulations and riserva di legge], 44 Diritto e pratica tributaria (1974) p. 245 ff.

⁶⁴ Italian Constitutional Court, judgment no. 399/1987, §2.

⁶⁵ I. Pellizzone, ‘Il ruolo del giudice penale nella tutela degli interessi finanziari dell’Unione (e nazionali): battaglia di retroguardia o principio ineludibile da esporre a controlimite del diritto dell’Unione europea?’ [The role of the criminal judge in protecting the financial interest of the EU (and the MS): rearguard action or unavoidable principle to be used as counter-limit to EU law?], in Bernardi and Cupelli, supra n. 15, p. 323.

⁶⁶ Italian Constitutional Court, judgment no. 115/2018, §12.

⁶⁷ C. Cupelli, ‘La Corte costituzionale chiude il caso Taricco e apre a un diritto penale “certo”’ [The ICC closes the Taricco case and opens to a “certain” criminal law], 6 Diritto penale contemporaneo (2018) p. 232 and p. 235.

⁶⁸ In these terms, Gallo, supra n. 45, p. 8.

⁶⁹ G. Scaccia, ‘Giudici comuni e diritto dell’Unione europea nella sentenza della Corte costituzionale n. 269 del 2017’ [Ordinary judges and EU law in the ICC judgment no. 269/2017], 62(6) Giurisprudenza costituzionale (2017) p. 2948, describes the context before this decision as featured by the progressive ‘drying’ of constitutional review and the corresponding empowerment of ordinary judges (because of their authority to disapply domestic law following the preliminary ruling of the ECJ without the involvement of the Italian Constitutional Court).

⁷⁰ This is the position of Stone Sweet, A., ‘A cosmopolitan legal order: Constitutional pluralism and rights adjudication in Europe’, 1(1) Global Constitutionalism (2012) p. 53 CrossRefGoogle Scholar at p. 68.

⁷¹ Italian Constitutional Court judgments nos. 348 and 349/2007. See Pollicino, O., ‘Italy: Constitutional Court at the crossroads between constitutional parochialism and co-operative constitutionalism’, 4(2) EuConst (2008) p. 363 Google Scholar ff.

⁷² This innovation seems, however, not to fully convince all members of the Italian Constitutional Court, at least considering the not completely homogeneous views that have been given by Judges Amato, Cartabia, de Pretis and Sciarra in the interviews collected in the special issue of the Italian Journal of Public Law, supra n. 6.

⁷³ ECJ 22 June 2010, joined Cases C-188/10 and C-189/10.

⁷⁴ ECJ 11 September 2014, Case C-112/13.

⁷⁵ Italian Constitutional Court, judgment no. 269/2017, §5.2.

⁷⁶ See for example the order of 16 February 2018, no. 3831, by the II civil section of the Court of Cassation, with a detailed motivation of the innovation brought by judgment no. 269/2017 of the Italian Constitutional Court on the basis of submitting the question of constitutionality prior to the preliminary reference to the ECJ (see in particular §11.3.6.7).

⁷⁷ See Faraguna, P., ‘“Do You Ever Have One of Those Days When Everything Seems Unconstitutional?”: The Italian Constitutional Court Strikes Down the Electoral Law Once Again’, 13(4) EuConst (2017) p. 778 Google Scholar .

⁷⁸ G. Riccardi, ‘La Corte di giustizia tra ‘dialogo’ e ‘monologo’ nella ‘saga Taricco’: silenzi, fraintendimenti e surrettizie appropriazioni di competenze penali dirette’ [The ECJ between dialogue and monologue: silences, misunderstandings and underhand appropriation of direct criminal competences], in Amalfitano, supra n. 15, casts doubt on the very idea that the entire saga was an example of dialogue between the two Courts; it was more a confrontational mix of two monologues.

⁷⁹ The trust in a solution by the national legislature (suggested by Rauchegger, supra n. 25, p. 1547) cannot be shared. Paradoxically, only the Italian Constitutional Court could have a say (with a frankly unlikely overruling), whereas the Parliament cannot: since the dispute between the Italian Constitutional Court and CJEU involves the supreme principles of the Italian Constitution, neither legislation, nor a constitutional amendment – as said – can be admitted in modifying the understanding of the principle of legality in criminal matters away from the interpretation given by the same Italian Constitutional Court in the cases at hand.