The author analyzes two really problematic cases, because they involve a difficult dialogue between European Courts and National Courts under criminal law, namely the Taricco case and the Contrada case.
The first, as is well known, concerns a case of tax fraud, in particular c.d. Carousel fraud, in the case of VAT on export for which the Cuneo Gip has involved the European Court of Justice which, according to art. 325 T.F.U.E. which prescribes proportionate but above all effective and dissuasive sanctions, has ordered that Articles 160 and 161 should not be applied to the Italian penal court, in particular the increase of only . because in this way the protection of the European Community’s financial interests would not be effective.
The Court of Appeals of Milan first and the Third Section of the Cassation then, after the initial adherence to the ECJ’s decree, instead sent the acts to the Constitutional Court by acting the c.d. “counter-boundary theory”, according to which, however, if the ruling of a European Court of Justice violates the supreme values of the law of a State, it must not be applied by the State itself.
Invested the Constitutional Court of the matter, the latter responded by an order in which he fully accepted the theory of counterboundary, and in fact considered that the ECJ ruling violated the principle of strict legality both in terms of its determination and of the unreasonableness of the criminal law, bearing in mind that the prescriptive institution in our case belongs to substantive criminal law and not to criminal procedural law.
The Constitutional Court, however, obviously not to intensify the dialogue between the Courts and, above all, in the perspective of not easily obtaining an explicit recognition at Community level of counter-boundary theory, preferred to postpone the matter to the ECJ for a new examination.
As for the Contrada case, accused and convicted of an external competition in a mafia-type association, before the intervention of the United Criminal Court Sections of the Supreme Court of Cassation in this matter, first occurred in 1995, tre ECHR condemned the Italian State in so far as it is considered that the institute concerned by the case-law of the court and also and consequently considered the sentence contrary to the principle of predictability of judicial decisions, according to art.7 of the European Court of Human Rights.
The case law of the Cassation, in the case of Ciancio and Dell’Utri, did not follow the ECHR’s statement, believing that, on the contrary, the external competition possesses a precise legal basis constituted by the combined provision of art. 110 and art. 416 bis c.p.
This latter argument is even taken for granted, because the problem lies in the fact that the articles in question are vague and indefinite, and this concerns in particular art. 110 either because it irrationally divides all competitors, or because it is an empty clause.
If he adds that the same art. 416 bis is now interpreted in two very different ways from the same jurisprudence, that is to say, on the one hand, in a more assured way as a crime of harm and, secondly, above all to mafia organizations operating in the North Center, as an abstract-concrete danger of crime which, at least, according to the author, was right by the European Court of Human Rights to point out that the legal phenomenon of the external competition, in spite of its original legal basis, has become a judge-made law, precisely because jurisprudence, with particular reference to art. 110, filled the regulatory vacuum that the author has previously found.
Nevertheless, the Court of Cassation, in particular in the Ciancio case, rejected the questions of constitutional lawfulness relating to the institution of the external competition, with particular reference to the hypothetical contradiction with the principle of strict legality and its corollaries. There is nothing but wait for the legislature to intervene, although unlikely, at least in the short and medium term, as even the same four judgments of the Criminal Chapters of the Court of Cassation do not seem to have completely fought the problems of constitutional order related to this controversial legal phenomenon, which increasingly takes on a typical dimension of the special part of the criminal code despite the reference to the art. 110 c.p., belonging to the general part of the code.
Lastly, Cass., Sect. I, July 6, 2017, Ric. Contrada, revoked the condemnation of the same Contrada for exterior competition ex art 416 bis cp., precisely on the basis of Contrada judgment of the ECHR, 14.4.2015, Contrada c. Italy.