Taricco II: taking (fundamental) rights seriously (Osservazioni a margine della sentenza della Corte di giustizia dell’Unione europea del 5 dicembre 2017 in causa C-42/17)

After providing a brief summary of the jurisdictional saga which lies behind the decision concerned, a special focus is devoted to the relevance of the national identity clause (art. 4, para. 2, TEU) and counterlimits in relation to the Taricco II judgment. Given that the objective pursued in this case by the ECJ was a high level of protection of fundamental rights, the recourse to the national identity clause – suggested by the Italian Constitutional Court in its request for a preliminary ruling – seemed rather unappropriate, since: 1) State counterlimits and national identity as provided for by the Treaty are rather different notions; 2) the latter doesn’t include protection of fundamental rights within its material scope, which corresponds to the “fundamental structure, political and constitutional” of the MS. As a consequence, the national identity clause was not taken into account by the EU judges; from this point of view, no europeanization of counterlimits seems to be present in the case at stake. Thus, the ECJ, without embracing the identitarian view of the ICC, decides to give protection to the relevant fundamental rights by assuming that a specific, substantial meaning of legality is part of the constitutional traditions common to the MS and, therefore, constitutes a general principle of the EU. The result of such a reasoning is that the original conflict between a norm provided for by the TFEU and a national supreme principle turns out into a conflict between EU rules (namely, the general principle of legality and art. 325 TFEU). Thus, we are not facing anymore a counterlimits problem, since the CJEU treated the counterlimit “exposed” by the ICC as an EU internal limit. The legal reasoning of the ECJ in Taricco II promotes a high standard of protection of fundamental rights while reaffirming primacy of EU law and fostering a coherent advance of the European integration process.