C-105/14 Taricco and Others

JUDGMENT OF THE COURT (Grand Chamber)

8 September 2015 ( *1 )

‛Reference for a preliminary ruling — Criminal proceedings concerning offences in relation to value added tax (VAT) — Article 325 TFEU — National legislation laying down absolute limitation periods which may give rise to impunity in respect of offences — Potential prejudice to the financial interest of the European Union — Obligation, for the national court, to disapply any provision of national law liable to affect fulfilment of the Member States’ obligations under EU law’

In Case C‑105/14,

REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunale di Cuneo (Italy), made by decision of 17 January 2014, received at the Court on 5 March 2014, in the criminal proceedings against

Ivo Taricco,

Ezio Filippi,

Isabella Leonetti,

Nicola Spagnolo,

Davide Salvoni,

Flavio Spaccavento,

Goranco Anakiev,

THE COURT (Grand Chamber),

composed of V. Skouris, President, K. Lenaerts, Vice-President, R. Silva de Lapuerta, L. Bay Larsen, T. von Danwitz and J.-C. Bonichot, Presidents of Chambers, A. Arabadjiev, M. Safjan, D. Šváby, M. Berger (Rapporteur), A. Prechal, E. Jarašiūnas and C.G. Fernlund, Judges,

Advocate General: J. Kokott,

Registrar: L. Carrasco Marco, Administrator,

having regard to the written procedure and further to the hearing on 3 March 2015,

after considering the observations submitted on behalf of:

Mr Anakiev, by L. Sani, avvocato,

the Italian Government, by G. Palmieri, acting as Agent, assisted by M. Salvatorelli and L. Ventrella, avvocati dello Stato,

the German Government, by T. Henze and J. Kemper, acting as Agents,

the Polish Government, by B. Majczyna, acting as Agent,

the European Commission, by P. Rossi and R. Lyal, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 April 2015,

gives the following

Judgment

Legal context and the dispute

1This request for a preliminary ruling concerns the interpretation of Articles 101 TFEU, 107 TFEU and 119 TFEU as well as Article 158 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

2The request has been made in criminal proceedings brought against Mr Taricco, Mr Filippi, Ms Leonetti, Mr Spagnolo, Mr Salvoni, Mr Spaccavento and Mr Anakiev (‘the accused’), for forming and organising a conspiracy to commit various offences in relation to value added tax (‘VAT’).

Legal context

EU Law

3Article 325 TFEU provides:

‘1. The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies.

2. Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests.

...’

The Convention on the protection of the European Communities’ financial interests

4According to the preamble to the Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995 (OJ 1995 C 316, p. 49; ‘the PFI Convention’), the contracting parties to that convention, Member States of the European Union, are convinced ‘that protection of the European Communities’ financial interests calls for the criminal prosecution of fraudulent conduct injuring [the] interests in question’ and of ‘the need to make such conduct punishable with effective, proportionate and dissuasive criminal penalties, without prejudice to the possibility of applying other penalties in appropriate cases, and of the need, at least in serious cases, to make such conduct punishable with deprivation of liberty’.

5Article 1(1) of the PFI Convention provides:

‘For the purposes of this Convention, fraud affecting the European Communities’ financial interests shall consist of:

...

in respect of revenue, any intentional act or omission relating to:

the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities,

..’

6Article 2(1) of the PFI Convention provides:

‘Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1, and participating in, instigating, or attempting the conduct referred to in Article 1(1), are punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud, penalties involving deprivation of liberty which can give rise to extradition, it being understood that serious fraud shall be considered to be fraud involving a minimum amount to be set in each Member State. This minimum amount may not be set at a sum exceeding [EUR] 50000.’

Directive 2006/112

7Article 131 of Directive 2006/112 provides:

‘The exemptions provided for in Chapters 2 to 9 [of Title IX of Directive 2006/112] shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

8Article 138(1) of that directive provides as follows:

‘Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the Community, by or on behalf of the vendor or the person acquiring the goods, for another taxable person, or for a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods began.’

9Article 158 of that directive reads as follows:

‘1. ... Member States may provide for warehousing arrangements other than customs warehousing in the following cases:

where the goods are intended for tax-free shops ...;

...

2. Where Member States exercise the option of exemption provided for in point (a) of paragraph 1, they shall take the measures necessary to ensure the correct and straightforward application of this exemption and to prevent any evasion, avoidance or abuse.

...’

Decision 2007/436/EC

10Article 2(1) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17) is worded as follows:

‘Revenue from the following shall constitute own resources entered in the general budget of the European Union:

...

... the application of a uniform rate valid for all Member States to the harmonised VAT assessment bases determined according to Community rules. ...’

Italian law

11Article 157 of the Italian Penal Code, as amended by Law No 251 of 5 December 2005 (GURI No 285 of 7 December 2005; ‘the Penal Code’), provides, in relation to limitation periods under criminal law:

‘Prosecution of an offence shall be time-barred after a period equal to the maximum duration of the penalty laid down by law for the offence itself; the foregoing notwithstanding, the limitation period shall be no less than six years for serious offences and four years for other offences, even where the latter are punishable only by a fine.

...’

12Article 158 of the Penal Code sets the starting point of the limitation period as follows:

‘Time shall start to run from the day on which the offence was committed or, in the case of attempted or continuing offences, from the date on which the offender’s activity or continuing activity ceased.

...’

13Article 159 of the Penal Code provides, in relation to the rules governing the suspension of the limitation period:

‘The limitation period shall be suspended in all cases where the suspension of the procedure, of the trial or of the period prescribed for pre-trial detention is provided for by a special legislative provision, as well as in the following cases:

consent to bring a prosecution;

transfer of the case to another jurisdiction;

suspension of the proceedings or of the trial because the parties or the lawyers are unable to attend, or at the request of the accused or of his lawyer. ...

…

The limitation period shall resume running from the date on which the cause of its suspension ceases to exist.’

14Article 160 of the Penal Code, which governs interruption of the limitation period, provides:

‘The limitation period shall be interrupted by judgment or conviction.

An order applying protective measures … and an order fixing the preliminary hearing … shall also interrupt the limitation period.

If it is interrupted, the limitation period shall start to run anew from the day of the interruption. If there is more than one interruption, the limitation period shall start to run from the last such interruption; however, the periods laid down in Article 157 may not, in any circumstances, be extended beyond the periods referred to in the second subparagraph of Article 161, with the exception of the offences referred to in Article 51(3)a and (3)c of the Code of Criminal Procedure.’

15According to Article 161 of the Penal Code, concerning the effects of suspending and interrupting the limitation period:

‘The suspension and interruption of the limitation period shall affect all those who committed the offence.

With the exception of the prosecution of offences provided for in Article 51(3)b and (3)c of the Code of Criminal Procedure, an interruption of the limitation period may give rise to an extension of that period by no more than one quarter of the maximum prescribed period ...’

16Article 416 of the Penal Code provides that instigating a criminal conspiracy is punishable by a term of imprisonment of up to seven years. Merely taking part in such a conspiracy is punishable by a term of imprisonment of up to five years.

17In accordance with Article 2 of Legislative Decree No 74, laying down new rules governing offences in relation to income tax and value added tax (decreto legislativo n. 74, nuova disciplina dei reati in materia di imposte sui redditi e sul valore aggiunto), of 10 March 2000 (GURI No 76 of 31 March 2000; ‘Legislative Decree No 74/2000’), the submission of a fraudulent VAT return through the use of invoices or other documents relating to non-existent transactions is punishable by a term of imprisonment of between one and a half years and six years. In accordance with Article 8 of Legislative Decree No 74/2000, the issuing of false invoices to enable third parties to evade VAT is punishable by the same penalty.

The facts of the main proceedings and the questions referred for a preliminary ruling

18The accused are charged before the Tribunale di Cuneo with having formed and organised, during the fiscal years 2005 to 2009, a conspiracy to commit various offences in relation to VAT. They are alleged to have put in place fraudulent ‘VAT carousel’ legal arrangements, involving, inter alia, the creation of shell companies and the use of false documents, by means of which they were able to acquire goods — in this case, bottles of champagne — VAT free. This allowed Planet Srl (‘Planet’) to procure products at costs below the market price, which it could then sell to its customers, thereby distorting the market.

19Planet is alleged to have taken receipt of invoices issued by shell companies for non-existent transactions. Those companies did not submit any annual VAT returns or, where they did submit returns, did not actually pay the corresponding VAT. Planet, on the other hand, entered the invoices issued by those shell companies in its accounts, wrongly deducting the VAT recorded in each of them, and, consequently, submitted fraudulent annual VAT returns.

20It can be seen from the order for reference that various procedural matters have arisen in the case before the referring court and it has rejected numerous objections raised by the accused at the preliminary hearing held before it. At this stage, the referring court must, first, deliver a judgment dismissing the charges in respect of one of the accused, Mr Anakiev, since the offences in question are time-barred as regards him and, secondly, it must commit the other accused persons for trial, and fix a hearing before the trial court.

21The referring court indicates that the offences which the accused are alleged to have committed are punishable, under Articles 2 and 8 of Legislative Decree No 74/2000, by a term of imprisonment of up to six years. However, the offence of conspiracy, laid down in Article 416 of the Penal Code, of which the accused could also be found guilty, is punishable by a term of imprisonment of up to seven years for those instigating the conspiracy and up to five years for those merely taking part. It follows that, for those instigating the conspiracy, the limitation period is seven years, whereas it is six year for the others. The last event interrupting the limitation period was the order fixing the preliminary hearing.

22Despite the interruption of the limitation period, that period cannot be extended, pursuant to the last subparagraph of Article 160 of the Penal Code, read in conjunction with Article 161 of that Code (‘the national provisions at issue’), beyond seven years and six months or, as regards those instigating the conspiracy, eight years and nine months from the date on which the offences were committed. According to the referring court, it is certain that all the offences — in so far as they are not already time-barred — will be time-barred by 8 February 2018 at the latest, before a final judgment can be delivered as regards the accused. As a result, the accused, who are alleged to have committed VAT evasion amounting to several million euros, may enjoy de facto impunity as a result of the expiration of the limitation period.

23According to the referring court, that result was none the less foreseeable, because of the rule laid down in the last subparagraph of Article 160 of the Penal Code, read in conjunction with the second subparagraph of Article 161 of that code, which, by allowing the limitation period to be extended, following an interruption, by only a quarter of its initial duration, is tantamount to not interrupting the limitation period in most criminal proceedings.

24Criminal proceedings in relation to tax evasion, such as that which the accused are alleged to have committed, usually involve very complex investigations, with the result that the proceedings already take a considerable amount of time at the preliminary investigation stage. The duration of the entire proceedings is such that in Italy, in that type of case, de facto impunity is a normal, rather than exceptional, occurrence. Furthermore, it is often impossible for the Italian tax authorities to recover the amount of the taxes evaded through the offence in question.

25In that context, the referring court takes the view that the national provisions at issue indirectly authorise unfair competition by some economic operators established in Italy in relation to undertakings established in other Member States, thus infringing Article 101 TFEU. Moreover, those provisions are liable to favour certain undertakings, in breach of Article 107 TFEU. In addition, those provisions create a de facto VAT exemption which is not laid down in Article 158(2) of Directive 2006/112. Lastly, the de facto impunity enjoyed by tax evaders infringes the guiding principle, laid down in Article 119 TFEU, that the Member States must ensure that their public finances are sound.

26However, the referring court considers that, if it were able to disapply the national provisions at issue, it would be possible to ensure the effective application of EU law in Italy.

27In those circumstances, the Tribunale di Cuneo decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

In so far as it provides for the limitation period to be extended by only a quarter following interruption and, therefore, allows crimes to become time barred, resulting in impunity, even though criminal proceedings were brought in good time, has the amendment to the last subparagraph of Article 160 of the Italian Criminal Code made by Law No 251 of 2005 led to infringement of the provision protecting competition in Article 101 TFEU?

Has the Italian State, in amending by Law No 251 of 2005 the last subparagraph of Article 160 of the Italian Criminal Code, in so far as this provides for the limitation period to be extended by only a quarter following interruption, which means therefore that there are no penal consequences for crimes committed by unscrupulous economic operators, unlawfully introduced a form of aid prohibited by Article 107 TFEU?

Has the Italian State, in amending by Law No 251 of 2005 the last subparagraph of Article 160 of the Italian Criminal Code, in so far as this provides for the limitation period to be extended by only a quarter following interruption, thus conferring impunity on those who exploit the Community directive, unlawfully added a further exemption to those exhaustively listed by Article 158 of Council Directive 2006/112/EC of 28 November 2006?

In so far as it provides for the limitation period to be extended by only a quarter following interruption and, therefore, fails to penalise conduct that deprives the State of the resources necessary in order to meet its obligations to the European Union also, has the amendment to the last subparagraph of Article 160 of the Italian Criminal Code made by Law No 251 of 2005 led to breach of the principle of sound public finances laid down by Article 119 TFEU?’

Consideration of the questions referred

Admissibility of the questions

28Mr Anakiev and the German and Italian governments take the view that the questions referred by the national court are inadmissible. In that respect, Mr Anakiev submits that the provisions of national law establishing the rules on limitation periods for tax offences were recently changed, with the result that the considerations of the referring court are unfounded. The Italian and German governments submit, in essence, that the issues of interpretation raised by referring court are purely abstract or hypothetical and bear no relation to the actual facts of the main action or its subject matter.

29It must be borne in mind in that respect that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for in Article 267 TFEU, it is solely for the national court before which a dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (see, inter alia, Banco Privado Português and Massa Insolvente do Banco Privado Português, C‑667/13, EU:C:2015:151, paragraph 34 and the case-law cited).

30It follows that questions concerning EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (see, inter alia, judgment in Halaf, C‑528/11, EU:C:2013:342, paragraph 29 and the case-law cited).

31However, as the Advocate General essentially pointed out in paragraph 45 et seq. of her Opinion, the conditions which may lead the Court to refuse to rule on the questions referred are clearly not met in the present case. The information contained in the order for reference with respect to the facts of the main proceedings enable the Court to give a useful answer to the referring court. In addition, that information is sufficient to enable the interested parties referred to in Article 23 of the Statute of the Court of Justice of the European Union to express their views effectively.

32Furthermore, it is clear from the order for reference that the questions referred to the Court are in no way hypothetical and that they are related to the actual facts of the dispute in the main proceedings, since they concern the interpretation of several provisions of EU law that the referring court considers to be of crucial importance for its next decision in the main proceedings, particularly as regards the committal of the accused for trial.

33In those circumstances, the request for a preliminary ruling must be declared admissible.

The third question

34By its third question, which it is appropriate to deal with first, the referring court asks, in essence, whether a national rule in relation to limitation periods for criminal offences such as that laid down by the national provisions at issue — which provided, at the material time in the main proceedings, that the interruption of criminal proceedings in relation to VAT offences had the effect of extending the limitation period by only a quarter of its initial duration, with the result that accused persons were liable to enjoy de facto impunity — amounts to introducing a VAT exemption which is not laid down in Article 158 of Directive 2006/112. Furthermore, in the event that the response to that question is in the affirmative, the referring court asks whether it may disapply those provisions.

Whether a national rule such as that established by the national provisions at issue complies with EU law

35As a preliminary point, it must be noted that although the third question refers to Article 158 of Directive 2006/112, it is clear from the reasons stated for the order for reference that, by that question, the referring court essentially seeks to ascertain whether a national rule such as that established by the provisions at issue amounts to an impediment to the effective fight against VAT evasion in the Member State concerned, in a manner incompatible with Directive 2006/112 and, more generally, with EU law.

36In that respect, it must be recalled that, in relation to VAT, it follows from Directive 2006/112, read in conjunction with Article 4(3) TEU, that Member States are not only under a general obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on their territory, but must also fight against tax evasion (see, to that effect, judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 25 and the case-law cited).

37Furthermore, Article 325 TFEU obliges the Member States to counter illegal activities affecting the financial interests of the European Union through effective deterrent measures and, in particular, obliges them to take the same measures to counter fraud affecting the financial interests of the European Union as they take to counter fraud affecting their own interests (see judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 26 and the case-law cited).

38The Court noted, in that respect, that since the European Union’s own resources include, inter alia, as provided in Article 2(1) of Decision 2007/436, revenue from application of a uniform rate to the harmonised VAT assessment bases determined according to EU rules, there is thus a direct link between the collection of VAT revenue in compliance with the EU law applicable and the availability to the EU budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second (see judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 26).

39Although the Member States have freedom to choose the applicable penalties — which may take the form of administrative penalties, criminal penalties or a combination of the two — in order to ensure that all VAT revenue is collected and, in so doing, that the financial interests of the European Union are protected in accordance with the provisions of Directive 2006/112 and Article 325 TFEU (see, to that effect, judgment in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 34 and the case-law cited), criminal penalties may nevertheless be essential to combat certain serious cases of VAT evasion in an effective and dissuasive manner.

40Moreover, it must be recalled that, under Article 2(1) of the PFI Convention, the Member States are to take the necessary measures to ensure that conduct constituting fraud affecting the European Union’s financial interests is punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud, penalties involving deprivation of liberty.

41The concept of ‘fraud’ is defined in Article 1 of the PFI Convention as ‘any intentional act or omission relating to … the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the misappropriation or wrongful retention of funds from the general budget of the European [Union] or budgets managed by, or on behalf of, the European [Union]’. The concept therefore covers revenue derived from applying a uniform rate to the harmonised VAT assessment bases determined according to EU rules. That conclusion cannot be called into question by the fact that VAT is not collected directly for the account of the European Union, since Article 1 of the PFI Convention specifically does not lay down such a condition, which would be contrary to that convention’s objective of vigorously combatting fraud affecting the European Union’s financial interests.

42In the present case, it can be seen from the order for reference that the national legislation lays down criminal penalties for the offences at issue in the main proceedings, namely, inter alia, conspiracy to commit offences in relation to VAT and VAT evasion amounting to several million euros. Such offences constitute cases of serious fraud affecting the European Union’s financial interests.

43It follows from all of the considerations set out in paragraphs 37 and 39 to 41 of the present judgment that the Member States must ensure that such cases of serious fraud are punishable by criminal penalties which are, in particular, effective and dissuasive. Moreover, the measures adopted in that respect must be the same as those which the Member States adopt in order to combat equally serious cases of fraud affecting their own financial interests.

44Thus, it is for the referring court to determine, taking into account all the relevant facts and points of law, whether the applicable national provisions allow the effective and dissuasive penalisation of cases of serious fraud affecting the financial interests of the European Union.

45In that respect, it should be noted that neither the referring court nor the interested parties which submitted observations to the Court of Justice have called into question the dissuasiveness, in themselves, of the criminal penalties indicated by that court, namely a term of imprisonment of up to seven years, nor the compliance with EU law of the fact that there is a limitation period in Italian law in respect of acts constituting fraud affecting the financial interests of the Union.

46However, as can be seen from the order for reference, the national provisions at issue, by introducing — in the event of interruption of the limitation period by one of the events indicated in Article 160 of the Penal Code — a rule according to which the limitation period may in no case be extended by more than a quarter of its initial duration, have the effect, given the complexity and duration of the criminal proceedings leading to the adoption of a final judgment, of neutralising the temporal effect of an event interrupting the limitation period.

47If the national court concludes that the application of the national provisions in relation to the interruption of the limitation period has the effect that, in a considerable number of case, the commission of serious fraud will escape criminal punishment, since the offences will usually be time-barred before the criminal penalty laid down by law can be imposed by a final judicial decision, it would be necessary to find that the measures laid down by national law to combat fraud and any other illegal activity affecting the financial interests of the European Union could not be regarded as being effective and dissuasive, which would be incompatible with Article 325(1) TFEU, Article 2(1) of the PFI Convention as well as Directive 2006/112, read in conjunction with Article 4(3) TEU.

48In addition, it is for the national court to verify whether the national provisions in question apply to cases of VAT evasion in the same manner as they apply to fraud affecting the Italian Republic’s own financial interests, as required under Article 325(2) TFEU. That would not be the case, in particular, if the second subparagraph of Article 161 of the Penal Code laid down longer limitation periods for offences, similar in nature and seriousness, affecting the Italian Republic’s financial interests. As the European Commission observed at the hearing before the Court, and subject to verification by the national court, Italian law does not lay down any absolute limitation period in respect of the offence of conspiracy to commit crimes in relation to import duties on tobacco products.

The consequences of incompatibility of the national provisions at issue with EU law and the role of the national court

49In the event that the national court concludes that the national provisions at issue do not satisfy the requirement of EU law that measures to counter VAT evasion be effective and dissuasive, that court would have to ensure that EU law is given full effect, if need be by disapplying those provisions and thereby neutralising the consequence referred to in paragraph 46 above, without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure (see, to that effect, judgment in Berlusconi and Others, C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraph 72 and the case-law cited, and judgment in Kücükdeveci, C‑555/07, EU:C:2010:21, paragraph 51 and the case-law cited).

50In that respect, it must be emphasised that the Member States’ obligation to counter illegal activities affecting the financial interests of the European Union through dissuasive and effective measures, and their obligation to take the same measures to counter fraud affecting those interests as they take to counter fraud affecting their own financial interests, are obligations imposed, inter alia, by EU primary law, namely Article 325(1) and (2) TFEU.

51Those provisions of EU primary law impose on Member States a precise obligation as to the result to be achieved that is not subject to any condition regarding application of the rule, noted in the previous paragraph, which they lay down.

52The provisions of Article 325(1) and (2) TFEU therefore have the effect, in accordance with the principle of the precedence of EU law, in their relationship with the domestic law of the Member States, of rendering automatically inapplicable, merely by their entering into force, any conflicting provision of national law (see to that effect, inter alia, judgment in ANAFE, C‑606/10, EU:C:2012:348, paragraph 73 and the case-law cited).

53It should be added that if the national court decides to disapply the national provisions at issue, it must also ensure that the fundamental rights of the persons concerned are respected. Indeed, in that case penalties may be imposed on those persons which, in all likelihood, would not have been imposed if those provisions of national law had been applied.

54In that respect, several interested parties which submitted observations to the Court referred to Article 49 of the Charter of Fundamental Rights of the European Union (‘the Charter’) which enshrines the principles of legality and proportionality of criminal offences and penalties, according to which, inter alia, no one is to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed.

55However, subject to verification by the national court, the sole effect of the disapplication of the national provisions at issue would be to not shorten the general limitation period in the context of pending criminal proceedings, to allow the effective prosecution of the alleged crimes, and to ensure, if necessary, that penalties intended to protect the financial interests of the European Union and those intended to protect the financial interests of the Italian Republic are treated in the same way. Such a disapplication of national law would not infringe the rights of the accused, as guaranteed by Article 49 of the Charter.

56It would in no way lead to a conviction of the accused for an act or omission which did not constitute a criminal offence under national law at the time when it was committed (see, by analogy, judgment in Niselli, C‑457/02, EU:C:2004:707, paragraph 30), nor to the application of a penalty which, at that time, was not laid down by national law. On the contrary, the acts which the accused are alleged to have committed constituted, at the time when they were committed, the same offence and were punishable by the same criminal penalties as those applicable at present.

57The case-law of the European Court of Human Rights in relation to Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, which enshrines rights corresponding to those guaranteed by Article 49 of the Charter, support that conclusion. Thus, according to that case-law, the extension of the limitation period and its immediate application do not entail an infringement of the rights guaranteed by Article 7 of that convention, since that provision cannot be interpreted as prohibiting an extension of limitation periods where the relevant offences have never become subject to limitation (see, to that effect, Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 149, ECHR 2000-VI; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 110 and the case-law cited, 17 September 2009, and OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, §§ 563, 564 and 570 and the case-law cited, 20 September 2011).

58In the light of the foregoing, the answer to the third question is that a national rule in relation to limitation periods for criminal offences such as that laid down by the national provisions at issue — which provided, at the material time in the main proceedings, that the interruption of criminal proceedings concerning serious fraud in relation to VAT had the effect of extending the limitation period by only a quarter of its initial duration — is liable to have an adverse effect on the fulfilment of the Member States’ obligations under Article 325(1) and (2) TFEU if that national rule prevents the imposition of effective and dissuasive penalties in a significant number of cases of serious fraud affecting the financial interests of the European Union, or provides for longer limitation periods in respect of cases of fraud affecting the financial interests of the Member State concerned than in respect of those affecting the financial interests of the European Union, which it is for the national court to verify. The national court must give full effect to Article 325(1) and (2) TFEU, if need be by disapplying the provisions of national law the effect of which would be to prevent the Member State concerned from fulfilling its obligations under Article 325(1) and (2) TFEU.

The first, second and fourth questions

59By its first, second and fourth question, which it is appropriate to examine together, the referring court asks, in essence, whether a limitation system applicable to criminal offences in relation to VAT, such as that established by the national provisions at issue in their versions in force at the material time, may be assessed in the light of Articles 101 TFEU, 107 TFEU and 119 TFEU.

60First, as regards Article 101 TFEU, that provision prohibits all agreements between undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. However, as the Advocate General noted, in essence, in point 60 of her Opinion, a potentially inadequate enforcement of national criminal law provisions in relation to VAT does not necessarily promote collusive conduct between undertakings, contrary to Article 101 TFEU, read in conjunction with Article 4(3) TEU.

61As regards, secondly, the prohibition of State aid laid down in Article 107 TFEU, it should be recalled that a measure by which the public authorities grant certain undertakings favourable tax treatment which, although not involving the transfer of State resources, places the recipients in a more favourable financial position than other taxpayers amounts to State aid within the meaning of Article 107(1) TFEU (see, inter alia, judgment in P, C‑6/12, EU:C:2013:525, paragraph 18 and the case-law cited).

62Although the ineffective and/or non-dissuasive nature of penalties laid down in relation to VAT may potentially give a financial advantage to the undertakings concerned, Article 107 TFEU is nevertheless not applicable in the present case, since all the transactions are subject to the VAT system and any offence committed in relation to VAT is punishable under criminal law, except in the specific cases in which the rules on limitation periods might eliminate the penal consequences of certain offences.

63Thirdly, as regards Article 119 TFEU, that provision mentions, in its third paragraph, as one of the guiding principles that are to govern the activities of the Member States in the adoption of an economic and monetary policy, the principle that Member States must ensure that their public finances are sound.

64It must be pointed out that the question whether the provisions of national law at issue that may give rise to impunity in respect of certain offences relating to VAT comply with that principle of sound public finances does not fall within the scope of Article 119 TFEU, since it is only very indirectly linked to that obligation on the Member States.

65In those circumstances, the answer to the first, second and fourth questions is that a limitations system applicable to criminal offences in relation to VAT, such as that established by the national provisions at issue in their versions in force at the material time, cannot be assessed in the light of Articles 101 TFEU, 107 TFEU and 119 TFEU.

Costs

66Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Grand Chamber) hereby rules:

A national rule in relation to limitation periods for criminal offences such as that laid down by the last subparagraph of Article 160 of the Penal Code, as amended by Law No 251 of 5 December 2005, read in conjunction with Article 161 of that Code — which provided, at the material time in the main proceedings, that the interruption of criminal proceedings concerning serious fraud in relation to value added tax had the effect of extending the limitation period by only a quarter of its initial duration — is liable to have an adverse effect on fulfilment of the Member States’ obligations under Article 325(1) and (2) TFEU if that national rule prevents the imposition of effective and dissuasive penalties in a significant number of cases of serious fraud affecting the financial interests of the European Union, or provides for longer limitation periods in respect of cases of fraud affecting the financial interests of the Member State concerned than in respect of those affecting the financial interests of the European Union, which it is for the national court to verify. The national court must give full effect to Article 325(1) and (2) TFEU, if need be by disapplying the provisions of national law the effect of which would be to prevent the Member State concerned from fulfilling its obligations under Article 325(1) and (2) TFEU.

A limitation system applicable to criminal offences in relation to value added tax such as that established by the last subparagraph of Article 160 of the Penal Code, as amended by Law No 251 of 5 December 2005, read in conjunction with Article 161 of that Code, cannot be assessed in the light of Articles 101 TFEU, 107 TFEU and 119 TFEU.

Signatures

[Signatures]

( *1 ) Language of the case: Italian.

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 30 April 2015 ¹

‛Protection of the European Union’s financial interests — Tax offences in the field of value added tax — Duty of the Member States to impose effective, proportionate and dissuasive penalties — Criminal penalties — Limitation period for proceedings — Statutory restriction of the overall length of the limitation period in the event of its interruption — National limitation regime which, in many cases, may have the effect of exempting offenders from punishment — Legality of the penalties — Prohibition on retroactivity — Article 325 TFEU — Directive 2006/112/EC — Regulation (EC, Euratom) No 2988/95 — Convention on the protection of the European Communities’ financial interests (‘PIF Convention’’

I – Introduction

1Does EU law require the courts of the Member States to refrain from applying certain provisions of their national law on the limitation periods applicable to the prosecution of criminal offences in order to guarantee the effective punishment of tax offences? That, in essence, is the question which the Court of Justice is called upon to consider in the present case in the light of a request for a preliminary ruling from an Italian criminal court.

2That question has arisen in the context of a case of organised tax fraud in the trade in champagne which was uncovered in Italy. Mr Taricco and several other defendants are charged, as members of a criminal organisation, with having submitted fraudulent value added tax (‘VAT’) returns using invoices relating to non-existent transactions. Their practices were apparently similar to carousel fraud.

3In all likelihood, the prosecution of the criminal offences alleged to have been committed in that context will become time-barred even before a final criminal judgment is given. According to the information supplied by the referring court, this is due not only to the circumstances of this particular case, but also to a structural problem in the Italian criminal justice system, which provides for various ways of interrupting the limitation period applicable to the bringing of proceedings but not for its suspension while criminal proceedings are ongoing. That system also provides for an absolute limitation period, introduced by a statutory provision of 2005, which, in the event of interruption, is now only a quarter longer than the original period and not — as before — half as long again. In many cases, it would seem, the absolute limitation period in particular has the effect of exempting the offender from punishment.

4Relating as it does to VAT, a share of the revenue from which forms part of the European Union’s own resources, ² the present case provides the Court with an opportunity to clarify a number of fundamental questions relating to the protection of the European Union’s financial interests. In so doing, the Court must give due consideration to the rights of the accused in criminal proceedings. In this respect, the present case may be vaguely reminiscent of the famous case Berlusconi and Others. ³ On closer consideration, however, the points of law raised here differ from those with which the Court was concerned on that occasion.

II – Legal framework

A – EU law

5The framework of EU law relevant to this case is, in essence, determined by various provisions on the protection of the financial interests of the European Union (formerly, the European Communities). Particular attention must be drawn to Articles 4(3) TEU and 325 TFEU, Regulation (EC, Euratom) No 2988/95 ⁴ and the ‘PIF Convention’. ⁵ Regard must also be had to Directive 2006/112/EC on the common system of value added tax. ⁶

6In addition, the Court is also invited to consider the interpretation of Articles 101 TFEU, 107 TFEU and 119 TFEU, the wording of which I shall not reproduce below.

1. Provisions of the FEU Treaty

7Article 325 TFEU provides as follows:

‘1. The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies.

2. Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests.

…’

2. Regulation (EC, Euratom) No 2988/95

8Regulation No 2988/95 establishes general rules relating to homogenous checks and to administrative measures and penalties concerning irregularities with regard to EU law (formerly, Community law). Article 1(2) defines the constituent elements of an irregularity as follows:

‘“Irregularity” shall mean any infringement of a provision of Community law resulting from an act or omission by an economic operator, which has, or would have, the effect of prejudicing the general budget of the Communities or budgets managed by them, either by reducing or losing revenue accruing from own resources collected directly on behalf of the Communities, or by an unjustified item of expenditure.’

9Article 3 of Regulation No 2988/95 governs the limitation period for proceedings:

‘1. The limitation period for proceedings shall be four years as from the time when the irregularity referred to in Article 1(1) was committed. However, the sectoral rules may make provision for a shorter period which may not be less than three years.

In the case of continuous or repeated irregularities, the limitation period shall run from the day on which the irregularity ceases. …

The limitation period shall be interrupted by any act of the competent authority, notified to the person in question, relating to investigation or legal proceedings concerning the irregularity. The limitation period shall start again following each interrupting act.

However, limitation shall become effective at the latest on the day on which a period equal to twice the limitation period expires without the competent authority having imposed a penalty, except where the administrative procedure has been suspended in accordance with Article 6(1).

…

3. Member States shall retain the possibility of applying a period which is longer …’

10Article 6(1) of Regulation No 2988/95 contains rules governing administrative proceedings when criminal proceedings in connection with the same facts are running in parallel:

‘Without prejudice to the Community administrative measures and penalties adopted on the basis of the sectoral rules existing at the time of entry into force of this Regulation, the imposition of financial penalties such as administrative fines may be suspended by decision of the competent authority if criminal proceedings have been initiated against the person concerned in connection with the same facts. Suspension of the administrative proceedings shall suspend the period of limitation provided for in Article 3.

…’

3. The PIF Convention

11A series of common provisions on the protection of the European Union’s financial interests under criminal law is also contained in the PIF Convention signed in Luxembourg on 26 July 1995, which was concluded by the then 15 Member States of the European Union on the basis of Article K.3(2)(c) EU ^{7 8} and entered into force on 17 October 2002.

12Under the heading ‘General provisions’, Article 1 of the PIF Convention defines the constituent elements of fraud and requires the Member States to make the acts so covered criminal offences:

‘1. For the purposes of this Convention, fraud affecting the European Communities’ financial interests shall consist of:

…

in respect of revenue, any intentional act or omission relating to:

the use or presentation of false, incorrect or incomplete statements or documents, which has as its effect the illegal diminution of the resources of the general budget of the European Communities or budgets managed by, or on behalf of, the European Communities,

non-disclosure of information in violation of a specific obligation, with the same effect,

misapplication of a legally obtained benefit, with the same effect.

2. Subject to Article 2(2), each Member State shall take the necessary and appropriate measures to transpose paragraph 1 into their national criminal law in such a way that the conduct referred to therein constitutes criminal offences.

3. Subject to Article 2(2), each Member State shall also take the necessary measures to ensure that the intentional preparation or supply of false, incorrect or incomplete statements or documents having the effect described in paragraph 1 constitutes a criminal offence if it is not already punishable as a principal offence or as participation in, instigation of, or attempt to commit, fraud as defined in paragraph 1.

…’

13Article 2 of the PIF Convention contains the following obligation on the Member States to introduce penalties:

‘1. Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1, and participating in, instigating, or attempting the conduct referred to in Article 1(1), are punishable by effective, proportionate and dissuasive criminal penalties, including, at least in cases of serious fraud, penalties involving deprivation of liberty which can give rise to extradition, it being understood that serious fraud shall be considered to be fraud involving a minimum amount to be set in each Member State. This minimum amount may not be set at a sum exceeding ECU 50000.

2. However, in cases of minor fraud involving a total amount of less than ECU 4000 and not involving particularly serious circumstances under its laws, a Member State may provide for penalties of a different type from those laid down in paragraph 1.

…’

4. The VAT Directive (Directive 2006/112/EC)

14Under Title IX of Directive 2006/112, which carries the heading ‘Exemptions’, Article 131, which forms part of the ‘General provisions’ of Chapter 1, provides:

‘The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the Member States shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse.’

15Article 138(1), which is one of the provisions concerning ‘exemptions for intra-Community transactions’ under Chapter 4 of Title IX of Directive 2006/112, provides as follows in connection with exemptions related to the supply of goods:

‘Member States shall exempt the supply of goods dispatched or transported to a destination outside their respective territory but within the Community, by or on behalf of the vendor or the person acquiring the goods, for another taxable person, or for a non-taxable legal person acting as such in a Member State other than that in which dispatch or transport of the goods began.’

16In addition, the provisions on ‘exemptions for transactions relating to international trade’, contained in Chapter 10 of Title IX of Directive 2006/112, include Article 158, paragraph 1 of which, concerning ‘customs warehouses, warehouses other than customs warehouses and similar arrangements’, reads, in part, as follows:

‘1. By way of derogation from Article 157(2), Member States may provide for warehousing arrangements other than customs warehousing in the following cases:

where the goods are intended for tax-free shops, for the purposes of the supply of goods to be carried in the personal luggage of travellers taking flights or sea crossings to third territories or third countries, where that supply is exempt pursuant to point (b) of Article 146(1);

where the goods are intended for taxable persons, for the purposes of carrying out supplies to travellers on board an aircraft or a ship in the course of a flight or sea crossing where the place of arrival is situated outside the Community;

where the goods are intended for taxable persons, for the purposes of carrying out supplies which are exempt from VAT pursuant to Article 151.’

2. Where Member States exercise the option of exemption provided for in point (a) of paragraph 1, they shall take the measures necessary to ensure the correct and straightforward application of this exemption and to prevent any evasion, avoidance or abuse.

…’

B – Italian law

17Article 157 of the Italian Codice penale, ⁹ as amended by Law No 251 of 5 December 2005 ¹⁰ (‘Law No 251/2005’) provides as follows under the heading ‘Limitation, limitation period’:

‘Prosecution of an offence shall be time-barred after a period equal to the maximum duration of the penalty laid down in the criminal-law provision for the offence itself; the foregoing notwithstanding, the limitation period shall be no less than six years for serious offences and four years for other offences, even where the latter are punishable only by a fine.

For the purposes of determining the limitation period, regard shall be had to the penalty laid down by law for the committed or attempted offence, with no account being taken of mitigating or aggravating circumstances, with the exception of those circumstances for which the law provides a penalty other than the standard penalty …

…’

18Article 158 of the Codice penale governs the starting point of the limitation period:

‘Time shall start to run from the day on which the offence was committed or, in the case of attempted or continuing offences, from the date on which the offender’s activity or continuing activity ceased.

…’

19Article 159 of the Codice penale determines the cases in which the limitation period is suspended. These include cases where the matter is brought before another court or where the defence counsel or the accused is prevented from entering an appearance. ‘Time shall start to run again on the date when the cause of its suspension ceases to exist.’

20Article 160 of the Codice penale contains the following provision on the interruption of the limitation period:

‘The limitation period shall be interrupted by judgment or conviction.

An order applying protective measures ratione personae or confirming detention in custody or arrest; examination before the court or public prosecuting authority or an invitation to appear before the public prosecuting authority for questioning; an order fixing the hearing on the request for the case to be discontinued; a committal for trial; and an order fixing the preliminary hearing … shall also interrupt the limitation period.

Where it is interrupted, the limitation period shall start to run again from the day of the interruption. If there is more than one interruption, the limitation period shall start to run from the last such interruption; however, the periods laid down in Article 157 may not, in any circumstances, be extended beyond the periods fixed in the second subparagraph of Article 161 …’

21Prior to the revision of the rules on limitation introduced by Law No 251/2005, the limitation period could be extended by no more than half in the event of an interruption of that period.

22The effects of suspending and interrupting the limitation period are determined as follows in Article 161 of the Codice penale:

‘The suspension and interruption of the limitation period shall affect all those who committed the criminal offence.

With the exception of the prosecution of offences provided for in Article 51(3)(b) and (c) of the Code of Criminal Procedure, an interruption of the limitation period may give rise to an extension of that period by no more than one quarter, an extension by no more than half in the cases provided for in the second indent of Article 99, an extension by no more than two thirds in the cases provided for in the fourth indent of Article 99, or an extension by no more than double in the cases provided for in Articles 102, 103 and 105.’

23Article 416 of the Codice penale provides that the establishment of an organisation the purpose of which is to commit crime shall be punishable by a term of imprisonment of between three and seven years. The mere participation in such an organisation shall be punishable by a term of imprisonment of between one and five years.

24In accordance with Article 2 of Decreto legislativo ¹¹ No 74 of the President of the Republic of 10 March 2000 (‘Legislative Decree 74/2000’), ¹² the submission of a fraudulent VAT return through the use of invoices or other documents relating to non-existent transactions (false invoices) is punishable by a term of imprisonment of between one year and six months and six years. In accordance with Article 8 of Legislative Decree 74/2000, the issuing of false invoices to enable third parties to evade VAT is punishable by the same penalty.

III – Facts and main proceedings

25Mr Ivo Taricco and a number of other persons (also referred to as ‘the accused’) are charged with having established a criminal organisation or having participated as a member in such an organisation in the period from 2005 to 2009. The purpose of that criminal organisation is said to have been the commission of the criminal offences of producing false invoices and submitting fraudulent VAT returns through the use of false invoices.

26The false invoices, which amounted in total to several million euros, related to commercial transactions involving champagne. It is alleged that, on the basis of agreements between the accused, domestic sales of champagne were, with the assistance of a number of undertakings each statutorily represented by persons from among the accused, falsely recorded as intra-Community supplies.

27At the centre of those activities was the company Planet Srl. It knowingly took receipt of false invoices from a number of other undertakings (so-called ‘missing traders’ ¹³) which in turn acted as purported importers of champagne. Planet entered those invoices in its accounts, deducting the VAT recorded in each of them as input tax and, subsequently, submitting false annual VAT returns. In this way, Planet was able to procure champagne at costs far below the market price and, ultimately, to distort competition. As for the ‘missing traders’, some of them did not submit any annual VAT returns at all, while others submitted returns but did not actually pay the corresponding VAT.

28On completion of the preliminary investigations, charges were brought against the defendants. The application to commit the defendants for trial was initially made to the Tribunale di Mondovì (District Court, Mondovì). Following a series of objections raised by the defendants’ lawyers at the preliminary hearing, ¹⁴ as a result of which the proceedings were put back to the preliminary investigation stage, the criminal proceedings are again at the stage of the preliminary hearing, now pending before the Tribunale di Cuneo (District Court, Cuneo), the referring court. ¹⁵ At this point in the proceedings, the judge conducting the preliminary hearing ¹⁶ has to determine whether, on the basis of the results of the investigations, there are grounds for committing the defendants for trial and fixing a date for the trial.

29The referring court states that, under the Italian provisions on the limitation period for proceedings, the prosecution of all the tax offences with which the defendants are charged will — even taking into account the statutory extension of the limitation period on account of various measures which have caused that period to be interrupted — become time-barred on 8 February 2018 at the latest. Indeed, the prosecution of one of the defendants, Mr Anakiev, has been time-barred since 11 May 2013.

30As the referring court points out, it is ‘quite likely’ that the prosecution of all the defendants in the present case will become time-barred before a final judgment is given. As the referring court says, that state of affairs is not peculiar to the present case but is found in many criminal proceedings brought in Italy, particularly those relating to economic offences, which, by their very nature, often require particularly extensive investigations and are highly complex.

31In the light of the foregoing, the referring court expresses the concern that the limitation regime in Italy — contrary to the purpose it is actually intended to serve — is in reality becoming a ‘guarantee of impunity’ for economic criminals and that Italy is effectively neglecting its obligations under EU law. It attributes this primarily to Law No 251/2005, under which limitation periods which are interrupted are now extended by only a quarter, whereas they were previously extended by half.

IV – Request for a preliminary ruling and procedure before the Court

32By order of 17 January 2014, received on 5 March 2014, the Tribunale di Cuneo referred the following questions to the Court for a preliminary ruling:

In so far as it provides for the limitation period to be extended by only a quarter following interruption and, therefore, allows crimes to become time barred, resulting in impunity, even though criminal proceedings were brought in good time, has the amendment to the last subparagraph of Article 160 of the Italian Criminal Code made by Law No 251 of 2005 led to infringement of the provision protecting competition in Article 101 TFEU?

Has the Italian State, in amending by Law No 251 of 2005 the last subparagraph of Article 160 of the Italian Criminal Code, in so far as this provides for the limitation period to be extended by only a quarter following interruption, which means therefore that there are no penal consequences for crimes committed by unscrupulous economic operators, unlawfully introduced a form of aid prohibited by Article 107 TFEU?

Has the Italian State, in amending by Law No 251 of 2005 the last subparagraph of Article 160 of the Italian Criminal Code, in so far as this provides for the limitation period to be extended by only a quarter following interruption, thus conferring impunity on those who exploit the Community directive, unlawfully added a further exemption to those exhaustively listed by Article 158 of Council Directive 2006/112/EC of 28 November 2006?

In so far as it provides for the limitation period to be extended by only a quarter following interruption and, therefore, fails to penalise conduct that deprives the State of the resources necessary in order to meet its obligations to the European Union also, has the amendment to the last subparagraph of Article 160 of the Italian Criminal Code made by Law No 251 of 2005 led to breach of the principle of sound public finances laid down by Article 119 TFEU?’

33Mr Anakiev was the only one of the accused in the dispute in the main proceedings to take part in the preliminary ruling procedure by submitting written pleadings. The Italian, German and Polish Governments and the European Commission also took part in the written procedure. With the exception of Mr Anakiev and the Polish Government, the same parties were also represented at the hearing on 3 March 2015.

V – Preliminary remarks of a procedural nature

34Before I turn to the substantive assessment of the questions referred, I must first, in the light of the doubts expressed by a number of parties to the proceedings, make a number of preliminary points of a procedural nature which have to do, on the one hand, with the Court’s jurisdiction to answer the questions referred (see Section A immediately below) and, on the other hand, with the admissibility of those questions (see Section B below).

A – The Court’s jurisdiction to answer the questions referred

35In accordance with Article 267 TFEU, the Court has jurisdiction to give preliminary rulings on the interpretation of the Treaties and the acts of the institutions, bodies, offices or agencies of the Union, which is to say that its powers extend in principle to the interpretation of the whole of EU law. ¹⁷

36In the present case, that jurisdiction is not precluded by the fact that the main proceedings concern tax offences under national law. Even though competence in matters of criminal law and criminal procedure continues to lie largely with the Member States, the national authorities are none the less required to exercise their respective powers in accordance with the provisions of EU law. ¹⁸ Moreover, with regard specifically to criminal proceedings in the field of VAT, the Court held only recently that such proceedings fall within the scope of EU law. ¹⁹

37In this context, the Court has jurisdiction to interpret EU law in its entirety, including the PIF Convention, in so far as the latter may prove to be relevant to the resolution of the present case. It is true that that convention was concluded in 1995, under the former ‘third pillar’ of the European Union, on the basis of the original version of the EU Treaty. ²⁰ In accordance with Article 9 of the Protocol on transitional provisions, ²¹ however, the PIF Convention continues to apply even after the abolition of the European Union’s pillar structure following the entry into force of the Treaty of Lisbon. It therefore remains an integral part of EU law.

38Furthermore, since 1 December 2014, there have been no restrictions on the jurisdiction of the Court of Justice to give preliminary rulings in the area covered by the former third pillar of the European Union (see Article 10(1) and (3) of the Protocol on transitional provisions). This also applies to requests for a preliminary ruling made even before 1 December 2014, such as the present request. ²²

39That said, even before 1 December 2014, the Court of Justice had jurisdiction in any event to hear and determine requests for a preliminary ruling made by any Italian court with respect to the interpretation of the PIF Convention. This is because the Italian Republic had from the outset already recognised on other bases the Court’s jurisdiction to give such preliminary rulings, that is to say, on the one hand, on the basis of an additional protocol to the PIF Convention, ²³ and, on the other hand, on the basis of Article 35(2) and (3)(b) EU, ²⁴ having consistently granted all national courts the right to make a reference for a preliminary ruling. ²⁵

40In the light of the foregoing, the Court’s jurisdiction to consider all the legal issues raised by the present request for a preliminary ruling is beyond question.

B – Admissibility of the questions referred

41A number of parties to the proceedings also raise objections to the admissibility of the questions referred to the Court (Article 267 TFEU, Article 94 of the Rules of Procedure). In essence, they doubt whether those questions are relevant to the judgment to be given in resolution of the dispute in the main proceedings.

42It should be pointed out in this regard that, in accordance with settled case-law, it is solely for the referring court to determine, in the light of the particular circumstances of the case, the need for a preliminary ruling by the Court as well as the relevance of the questions submitted to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling. Where a national court refers to the Court of Justice questions relating to EU law, there is also a presumption of relevance in favour of the request for a preliminary ruling. ²⁶

43Accordingly, the Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ²⁷

44There is no such risk in the present case.

45The information contained in the order for reference with respect to the facts of the main proceedings, the applicable national law and the need for a preliminary ruling is sufficient to enable both the Court and the parties to the proceedings within the meaning of Article 23 of the Statute of the Court to adopt an informed position on the questions referred.

46It is after all readily apparent from the account given by the referring court what the subject-matter and issues of the dispute in the main proceedings are, in other words that charges have been brought against a number of persons in Italian criminal proceedings relating to tax offences and the referring court fears that they — like many other suspected offenders in similar situations — may escape the penalty prescribed for those offences because the time-limits for proceedings laid down in the domestic provisions on limitation periods, in particular the period by which those time-limits are extended where they are interrupted, are too short, with the result that the prospect of the defendants being definitively convicted before the proceedings become time-barred seems illusory.

47Furthermore, it cannot be said that the questions referred to the Court are of a hypothetical nature or that they obviously have no bearing on the actual facts of the dispute in the main proceedings. For, according to the order for reference, the answer to be given by the Court is crucial to determining whether the provisions on limitation periods laid down in the national law are applicable in the main proceedings and whether a final resolution of the dispute in the main proceedings before the limitation period expires is realistically possible.

48What is more, contrary to the view taken by the Italian Government, the referring court is not prevented from making the systemic shortcoming of Italian criminal law identified by it the subject-matter of a reference to the Court on the basis of a specific dispute pending before it. On the contrary, the Court has on a number of occasions already considered structural problems alleged to exist in a domestic system of penalties, including, in particular, in response to requests for a preliminary ruling made in ongoing national criminal proceedings. ²⁸

49Even if the general principles of EU law, such as the principle of the legality of penalties, prohibited a deviation from the national provisions on limitation periods at issue, this would not, contrary to the view of the Italian Government and of Mr Anakiev, affect the admissibility of the request for a preliminary ruling, but would at most require the Court to provide some clarification in this regard as part of its substantive response to the questions referred. ²⁹

50There may, it is true, be some uncertainty as to the relevance of the questions referred in so far as the referring court asks the Court for an interpretation of a number of provisions of primary law (Articles 101 TFEU, 107 TFEU and 119 TFEU) which at first sight appear to have no bearing on the matters relating to limitation periods in criminal law at issue here. None the less, it does not strike me as being obvious that the aforementioned provisions bear no relation at all to the dispute in the main proceedings. Only an examination — however brief — of the substance of the aforementioned provisions of the TFEU by the Court can show whether or not they preclude rules on limitation in criminal law such as those laid down in the Italian legislation at issue. ³⁰

51Finally, for the sake of completeness, it must also be pointed out that the comparatively early stage of the dispute in the main proceedings — that is to say the stage prior to committal for trial — also does not detract from the admissibility of the request for a preliminary ruling. ³¹

52In short, the concerns expressed to the Court with respect to the admissibility of this request for a preliminary ruling must therefore be dismissed.

VI – Substantive assessment of the questions referred

53As is clear from the order for reference, the Tribunale di Cuneo proceeds on the assumption that the limitation period applicable to most of the criminal offences relevant to the main proceedings is six years and that the limitation period applicable to the establishment of a criminal organisation is seven years. If, as in this case, the limitation period is interrupted by particular investigative or prosecution measures, it is, according to the order for reference, extended by one quarter, thus increasing the six-year limitation period to seven years and six months and the seven-year limitation period to eight years and nine months, with those periods, in principle, continuing to run as a pending criminal trial progresses. In many cases, that absolute limitation regime has the effect of exempting offenders from punishment.

54Against that background, the referring court, by its request for a preliminary ruling, seeks to ascertain, in essence, whether EU law precludes a provision of domestic law on the limitation of criminal prosecutions such as the fourth paragraph of Article 160 of the Codice penale, as amended by Law No 251/2005, pursuant to which, the limitation period applicable to tax offences in the field of VAT, if interrupted, is extended by only one quarter of the original period, after which action is absolutely time-barred.

55More specifically, by its four questions, the referring court seeks information on how to interpret Articles 101 TFEU, 107 TFEU and 119 TFEU and Article 158 of Directive 2006/112.

56I shall now look first of all at those provisions (see in this regard Section A immediately below), before making a number of further comments concerning the duty of the Member States to impose effective penalties (see in this regard Section B below) and going on, finally, to examine the impact which any incompatibility on the part of the domestic limitation regime with EU law will have on the dispute in the main proceedings (see Section C below).

A – The provisions of EU law raised by the referring court

57The Tribunale di Cuneo has devoted its questions, four in total, to EU competition law (see in this regard Section 1 immediately below), the possibilities of exemption from VAT (see Section 2 below) and the principle of sound public finances (see Section 3 below).

1. EU competition law (first and second questions referred)

58By its first two questions, the referring court wishes to ascertain, in essence, whether a limitation regime such as that laid down in Italian law adversely affects competition on the European internal market and thus infringes the provisions of Article 101 TFEU and 107 TFEU.

59It should be noted in this regard that, while an excessively lax limitation regime and the associated absence of effective criminal penalties for irregularities in matters of VAT may well afford the undertakings involved in such irregularities an unfair competitive advantage on the internal market, this does not constitute an infringement of Article 101 TFEU or 107 TFEU.

60It is true that Article 101 TFEU, read in conjunction with Article 4(3) TEU, prohibits the Member States from creating a situation in which it is easier for undertakings to conclude anti-competitive agreements with each other. ³² However, it would be going too far to conclude from a potentially inadequate enforcement of the national provisions of criminal law governing tax offences in matters of VAT that such a state of affairs necessarily promotes collusive conduct between undertakings. Moreover, should any anti-competitive agreements between undertakings none the less be concluded, these are – entirely independently of criminal law in matters of taxation – punishable under the procedures provided for in competition law and by the specific penalties laid down there.

61With regard to the prohibition on State aid under Article 107 TFEU, it is true that the inadequate enforcement of penalties in matters of VAT may potentially give rise to a financial advantage for undertakings. However, that advantage is not selective because it does not favour certain undertakings or sectors over others, but applies equally to all undertakings which are subject to the national criminal law. ³³

62The referring court is right to say that systemic shortcomings in the regime which a Member State applies to the punishment of tax offences in matters of VAT may give rise to a distortion of competition vis-à-vis undertakings from other Member States in which the national authorities adopt a stricter response to irregularities. However, that issue cannot be assessed by reference to antitrust or State aid law but must be considered in the context of the system of VAT and the associated duty to impose effective penalties. ³⁴

2. Exemptions under the VAT Directive (third question)

63By its third question, the referring court wishes to ascertain whether a limitation regime such as that laid down in Italian law has the effect of creating a new exemption from VAT not provided for in Directive 2006/112.

64In this regard, it should be pointed out first of all that the Tribunale di Cuneo appears to have made an error in its determination of the applicable provision of Directive 2006/112. Article 158 of that directive, cited in the order for reference, concerns the exemption from VAT of certain transactions in very specific circumstances, for example in tax-free shops, on board aircraft or ships and in diplomatic and consular exchanges. Such circumstances quite clearly do not exist here.

65As the Commission has rightly pointed out, however, the applicable provision might conceivably be Article 138 of Directive 2006/112, which governs the circumstances in which the intra-Community supply of goods is exempt from VAT. There is definitely a connection between that provision and the facts of the main proceedings, in so far as the defendants are accused of having fraudulently misrepresented their domestic trade in champagne as intra-Community supplies.

66However, the situation described by the referring court, whereby, in many cases, criminal prosecutions of tax offences become time-barred on account of shortcomings in national law, does not in itself have the effect of exempting the undertakings in question from VAT. After all, the existence of a right to levy tax on them is not dependent upon the enforceability of any right on the part of the State to punish them.

3. The principle of sound public finances (fourth question)

67Last but not least, by its fourth question, the referring court seeks information on whether a limitation regime such as that laid down in Italian law is consistent with the principle of sound public finances, as expressed in Article 119 TFEU.

68As the introductory provision on the Economic and Monetary Union in Title VIII of the FEU Treaty, Article 119(3) TFEU sets out certain ‘guiding principles’ applicable to the activities of the Member States and the European Union, including, among others, the principle of sound public finances.

69Contrary to the view which the Commission appears to take, Article 119(3) TFEU not only provides the Member States with guidance on policy; it also imposes on them a binding EU-law requirement as regards the formulation of their public budgets. That requirement is no less legal because its content is not particularly specific and requires further clarification by other provisions and legal acts. ³⁵ However, it does necessarily follow from the comparatively general nature of Article 119(3) TFEU that the Member States have a broad discretion in the choice of the national measures which they consider — on the basis of complex economic assessments — to be best suited to guaranteeing sound public finances within their respective areas of competence. ³⁶

70Not every measure impacting on expenditure or revenue that is adopted by national authorities, nor every failure to enforce a right to tax that actually exists, is necessarily to be regarded as an infringement of the principle of sound public finances. What matters is, rather, whether the finances of the Member State in question, when considered in their entirety, may be described as ’sound’, a factor which is measured by reference in particular to the provisions and criteria relating to the avoidance of excessive government deficits (Article 126(1) and (2) TFEU in conjunction with Protocol No 12 to the EU Treaty and the FEU Treaty).

71Consequently, the mere fact that the Italian rules on limitation in matters relating to the criminal prosecution of tax offences may exhibit the systemic shortcomings described by the referring court is not such as to support the assumption of an infringement of the principle of sound public finances as enshrined in Article 119(3) TFEU.

4. Interim conclusion

72In summary, it may be concluded that none of the provisions of EU law specifically referred to by the referring court precludes a regime applicable to limitation periods for proceedings such as that introduced into Italian criminal law by the last subparagraph of Article 160 of the Codice penale, as amended by Law No 251/2005.

73However, that conclusion is not in itself sufficient to provide the referring court with a useful response that will facilitate its decision on the dispute in the main proceedings. A number of further comments on the duty on the Member States to impose effective penalties are required (see in this regard Section B immediately below); we must also look briefly at the impact which any incompatibility on the part of the national limitation regime with EU law will have on the dispute in the main proceedings (see Section C below).

B – The duty on the Member States to impose effective penalties

74The question of the duty on the Member States to impose effective penalties for tax offences in matters of VAT is not expressly raised by the referring court in its request for a preliminary ruling.

75It is true that it is, in principle, for the referring court alone to determine the subject-matter of the questions it intends to refer to the Court, ³⁷ and that, for its part, the Court does not have jurisdiction to consider points of law which the national court has expressly or implicitly omitted from its request for a preliminary ruling. ³⁸

76That said, the Court does have jurisdiction, when ruling on a request for a preliminary ruling, to give clarifications, in the light of the information in the case-file, to guide the referring court in giving judgment in the main proceedings and, in so doing, also to consider provisions to which the referring court has not referred. ³⁹

77A theme that runs throughout the order for reference in the present case is the national court’s concern that the limitation regime laid down in the last subparagraph of Article 160 of the Codice penale, as amended by Law No 251/2005, might reflect a systemic shortcoming which, in the case of many tax offences in Italy, has the effect of exempting offenders from punishment.

78As a result, the request for a preliminary ruling raises — at least implicitly — the additional question of whether a limitation regime such as that laid down in Italian law is compatible with the duty on the Member States under EU law to impose penalties for irregularities in matters of VAT. A useful response to the request for a preliminary ruling is inconceivable without an analysis of that additional question.

79I shall now consider first of all whether a regime such as that laid down in Italian law discharges the general duty incumbent on the Member States to impose effective penalties for infringements of EU law (see Section 1 below), before then turning to the more specific duty incumbent on the Member States to punish as a matter of criminal law fraud affecting the European Union’s financial interests (see in this regard Section 2 below).

1. The general duty to impose effective penalties

80It is a general principle of EU law, which can ultimately be traced back to the duty of sincere cooperation (Article 4(3) TEU), that for infringements of EU law by individuals Member States must provide penalties which are effective, proportionate and dissuasive, ⁴⁰ and that infringements of EU law must also — at the very least — be punishable under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance. ⁴¹ These principles are, ultimately, specific expressions of the principles of effectiveness and equivalence

81With regard, first, to the principle of equivalence, the Commission argued at the hearing that there are indeed offences under Italian criminal law which are not subject to any absolute limitation period at all. If these were to include offences in the field of economic crime which are equivalent to VAT fraud, an absolute limitation period could not be applied to VAT fraud either.

82The Court recently made express reference to the requirement of effective, proportionate and dissuasive penalties that follows from the principle of effectiveness in connection with VAT too. Alongside various provisions of Directive 2006/112, the Court again relied in this regard on the Member States’ duty of sincere cooperation under Article 4(3) TEU. ⁴²

83A functioning system of penalties for infringements of EU law is particularly important in matters of VAT, since it not only serves to ensure that all undertakings active on the internal market are treated equally, but is also intended to protect the European Union’s financial interests, the own resources of which include part of the VAT charged by Member States. ⁴³ In accordance with Article 325 TFEU, Member States are therefore required to counter illegal activities affecting the financial interests of the European Union ‘through effective deterrent measures’. ⁴⁴ The same requirement follows from Regulation No 2988/95, which also serves to protect the financial interests of the European Union.

84It is true that neither the provisions of primary law (Article 4(3) TEU and Article 325 TFEU) nor the relevant provisions of secondary law (Regulation No 2988/95 and Directive 2006/112) impose any kind of obligation on Member States to punish irregularities in the field of VAT necessarily as matters of criminal law. On the contrary, Member States are free — subject to the provisions of the PIF Convention ⁴⁵ — to choose the applicable penalties, with the result that the national system may even, in principle, comprise a combination of administrative and criminal penalties. ⁴⁶ It is, however, inherent in the concept of a ‘penalty’ that Member States must do more than simply collect VAT that is owed anyway, together with any default interest due.

85The penalties actually applied in the Member State concerned — be they administrative or criminal in nature — must none the less be effective, proportionate and dissuasive. ⁴⁷ It is contrary to the requirements of EU law for a Member State to found its national system of penalties, drawn from a combination of administrative- and criminal-law provisions, on two pillars which neither individually nor jointly satisfy the criteria of being effective, proportionate and dissuasive.

86It is for the referring court to assess whether the penalties provided for in the national system are effective, proportionate and dissuasive. As part of that assessment, the provision laying down the penalty in question must be analysed by reference to the role of that provision in the legislation as a whole, including the progress and special features of the procedure before the various national authorities, in each case in which that question arises. ⁴⁸

87As I stated in my Opinion in Berlusconi and Others, ⁴⁹ there is in principle no reason why Member States should not make subject to limitation penalties which they are required to introduce under EU law, since limitation periods serve to ensure legal certainty and protect defendants, and do not in principle preclude the effective imposition of penalties. Furthermore, Article 3 of Regulation No 2988/95 also provides for a limitation period applicable to the administrative penalties laid down there.

88It must be ensured, however, that the limitation rules applicable do not have the general effect of undermining the effectiveness and dissuasiveness of the penalties provided for. Consequently, irregularities in matters of VAT must not be subject to penalties in theory alone. The system of penalties must rather be framed in such a way as to ensure that anyone who provides false information in connection with VAT or participates in such practices fears, in fact also, that penalties will be imposed on him. ⁵⁰

89Account must also be taken, as the Commission rightly points out, of any interaction between criminal and administrative penalties. Thus, deficiencies in the system of criminal penalties may adversely affect the system of administrative penalties. This will be the case, for example, where the national law provides that administrative proceedings are to be stayed for the duration of ongoing criminal proceedings ⁵¹ and, once the limitation period for criminal prosecution has expired, cannot subsequently be resumed because the infringement concerned has become time-barred in accordance with criteria laid down in administrative law, too.

90In this connection, it is worth mentioning the existing case-law on certain rules of procedure in Italian tax law. According to that case-law, although Member States may in certain circumstances terminate lengthy tax proceedings, ⁵² they must not refrain on a general and indiscriminate basis from verifying the taxable transactions effected in a series of tax years from the point of view of any liability to VAT. ⁵³

91If, in the light of all those criteria, the effect of national rules on limitation periods is, by virtue of the scheme of those rules, that the effective, proportionate and dissuasive penalties provided for are, in reality, likely to be imposed only rarely, those rules will be contrary to the general duty on Member States to impose effective penalties for infringements of EU law. ⁵⁴

2. The specific duty to provide for effective criminal penalties

92In addition to the general duty to impose effective penalties which we have just considered, there is a further specific duty on Member States to punish as a matter of criminal law fraud affecting the European Union’s financial interests.

93That duty to provide for criminal penalties arises from the PIF Convention, in particular from Article 2(1) thereof, which stipulates that fraud affecting the European Union’s financial interests must be punished by effective, proportionate and dissuasive criminal penalties; in cases of serious fraud, provision is even to be made for criminal penalties involving deprivation of liberty.

94It is true that the Council of the European Union interprets the scope of the PIF Convention narrowly and would like to exclude VAT from it. In its Explanatory Report, ⁵⁵ it adopted the position that, for the purposes of the PIF Convention, ‘revenue’ means the first two categories of the European Union’s own resources only, that is to say, on the one hand, customs duties and, on the other hand, certain agricultural levies and contributions. Conversely, the Council takes the view that European Union revenue within the meaning of the PIF Convention does not include revenue from the application by Member States of a uniform rate of VAT, as that own resource is not collected directly for the account of the European Union.

95Consequently, in accordance with the view expressed by the Council in its Explanatory Report, which was also endorsed by Germany at the hearing before the Court, the duty under EU law to impose criminal sanctions would not apply to irregularities in matters of VAT. ⁵⁶

96However, the Council’s Explanatory Report is simply the non-legally binding opinion of an institution of the European Union which, moreover, is not itself a party to the PIF Convention but merely took part in the associated preparatory work by drawing up the text of the Convention and recommending it to the Member States for adoption in accordance with their respective constitutional requirements (Article K.3(2)(c) EU).

97The Council’s Explanatory Report cannot therefore be regarded as the authoritative interpretation of the PIF Convention, particularly since neither the Convention itself nor the additional protocol thereto makes any reference whatsoever to that report. The Court alone is entitled to give an interpretation of the PIF Convention which is legally binding within the European Union; this was made apparent from the very outset by the additional protocol to the PIF Convention, which empowered the Court to interpret that convention, and now follows from the second sentence of Article 19(1) TEU, Article 19(3) TEU and Article 267 TFEU.

98In my view, the Court should not treat the Council’s Explanatory report on the PIF Convention any differently from the press releases which the EU institutions issue in connection with legislative acts or the statements entered in the minutes on the occasion of the adoption of such legal acts: it is settled case-law that such communications cannot be used for the purposes of interpreting a provision of secondary law if they are not referred to in the wording of that provision. ⁵⁷

99That is the situation here. In order to justify the exclusion of VAT from the scope of the PIF Convention, the Council, in its Explanatory Report, refers only to the fact that VAT ‘is not an own resource collected directly for the account of the [European Union]’. ⁵⁸ That particular consideration does not, however, appear in the wording of the PIF Convention and is not capable of justifying a restrictive interpretation of its scope.

100The scope of the PIF Convention is actually very broadly defined. It is clear from Article 1(1)(b) of the Convention that its scope extends without restriction to all of the European Union’s ‘revenue’ from the ‘resources’ of its ‘general budget’. Those resources include not least the European Union’s own resources arising from VAT. ⁵⁹ There is, after all, a direct link between the collection of VAT by the Member States and the availability to the European Union budget of the corresponding VAT resources. ⁶⁰

101Furthermore, a broad interpretation of its scope as including VAT is consistent with the objective of the PIF Convention, which is intended, very generally, to combat fraud affecting the European Union’s financial interests and by means of which such fraud is to be combatted with the utmost vigour. ⁶¹

102Restricting the scope of the PIF Convention exclusively to cases of fraud relating to customs duties and agricultural levies and contributions, on the other hand, would significantly reduce the contribution made by that legal instrument to the protection of the European Union’s financial interests. Such a narrow interpretation of the scope of the PIF Convention, as the Council appears to have in mind, would be contrary to the rule to the effect that the interpretation of a provision of EU law proposed by an institution of the European Union must not affect the effectiveness of that provision. ⁶²

103The PIF Convention therefore imposes a duty on the Member States to punish as a matter of criminal law cases of fraud affecting the European Union’s financial interests in the field of VAT — and in any event fraud of some seriousness. That duty is particularly important here, given that, because of the circumstances in which VAT fraud often takes place, administrative penalties alone — in particular fines and additional charges for late payment — would be unlikely to have a sufficiently dissuasive effect. After all, many individuals and undertakings involved in such fraud are in an extremely precarious financial position in any event.

104It is for the referring court to assess whether the criminal penalties provided for in the national system are ‘effective, proportionate and dissuasive’ within the meaning of Article 2(1) of the PIF Convention. That assessment must take into account the submissions made above: ⁶³ the provision laying down the penalty in question must be analysed by reference to the role of that provision in the legislation as a whole, including the progress and special features of the procedure before the various national authorities, in each case in which that question arises.

105If, in the light of all those criteria, the effect of national rules on limitation periods is, by virtue of the scheme of those rules, that the effective, proportionate and dissuasive penalties provided for are, in reality, likely to be imposed in fact only rarely, those rules will be contrary to the duty incumbent on Member States under Article 2 of the PIF Convention to provide for adequate criminal penalties for fraud affecting the European Union’s financial interests.

C – The impact on the dispute in the main proceedings of any incompatibility on the part of the national limitation regime with EU law

106In the event that the referring court reaches the conclusion, on the basis of the criteria set out above, that the national limitation regime, and in particular the provision, as referred to in the order for reference, contained in the last subparagraph of Article 160 of the Codice penale, as amended by Law No 251/2005, is contrary to EU law, consideration must be given finally to what impact that conclusion has on the dispute in the main proceedings.

107It is settled case-law that the national courts are required to give full effect to EU law. ⁶⁴

108To that end, they have a duty first and foremost to interpret and apply national law as a whole in a manner consistent with EU law. In so doing, the national courts are required to interpret national law as far as possible in the light of the wording and the purpose of the applicable provisions of EU law in order to achieve the result envisaged by those provisions. ⁶⁵ Taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, they must do whatever lies within their jurisdiction with a view to ensuring that the provisions of European Union are fully effective and achieving an outcome consistent with the objective pursued by EU law. ⁶⁶

109In particular, the referring court will have to assess whether, on the basis of an interpretation consistent with EU law, it is able to achieve an outcome the effect of which is to suspend the limitation period for such time as the main proceedings are pending before the Italian criminal courts — or at least before particular judicial bodies.

110Nevertheless, the obligation to interpret national provisions in a manner consistent with EU law is limited by general principles of law and it cannot serve as the basis for an interpretation of a national law contra legem. ⁶⁷

111If the referring court were unable to interpret the national law in such a way as to achieve an outcome consistent with EU law, it would be required to give full effect to EU law, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, there being no requirement for that court to request or await the prior setting aside of such provision by legislative or other constitutional means. ⁶⁸

112Consequently, the referring court would, if appropriate, have to refrain from applying a provision such as the last subparagraph of Article 160 of the Codice penale, as amended by Law No 251/2005, in the main proceedings if that provision were to reflect a systemic shortcoming which prevents the achievement of an outcome consistent with EU law because the limitation periods are excessively short.

113More detailed consideration must be given first, however, to the question of whether such an approach is precluded by the general principles of EU law, namely the principle of the legality of penalties (nullum crimen, nulla poena sine lege). That principle is one of the general legal principles underlying the constitutional traditions common to the Member States ⁶⁹ and now enjoys the status of a fundamental right of the European Union under Article 49 of the Charter of Fundamental Rights. In accordance with the requirement of homogeneity (first sentence of Article 52(3) of the Charter), in interpreting Article 49 of the Charter, regard must be had not least to Article 7 ECHR and the case-law of the European Court of Human Rights (ECtHR) on that provision.

114The principle of the legality of penalties states that no one is to be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed, and, furthermore, that a heavier penalty is not to be imposed than the one that was applicable at the time the criminal offence was committed (first and second sentences of Article 49(1) of the Charter). That principle goes hand in hand with the rule that directives cannot be relied upon directly in order to determine or aggravate liability in criminal law. ⁷⁰

115Contrary to the view taken by Mr Anakiev and the Italian Government, however, in a case such as that at issue, there is no risk of any conflict with the principle of the legality of penalties. After all, from a material point of view, that principle requires only that legislation must provide a clear definition of offences and the penalties which they attract. ⁷¹ Provisions on limitation periods, however, say nothing about the criminal liability of an act or the penalty which that act attracts, but deal only with whether a criminal offence may be prosecuted, and, consequently, are not even caught by the rule of nullum crimen, nulla poena sine lege. ⁷² For the same reason, the principle of the retroactive application of the more lenient penalty (third sentence of Article 49(1) of the Charter of Fundamental Rights ⁷³) also does not apply to matters of limitation periods.

116It is in this respect, moreover, that the present case differs fundamentally from Berlusconi and Others, which, unlike this dispute, concerned an amendment of the substantive provisions of the national law, in particular the applicable framework of penalties for certain criminal offences, that gave rise, inter alia, to more lenient penalties and thus had an indirect impact on the limitation period for proceedings. ⁷⁴

117Against that background, the requirements governing the legality of penalties are fully satisfied in a case such as that at issue here, given that the criminal liability of the conduct of which the defendants are accused and the penalty which that conduct attracts follow unaltered from Italian criminal law, more specifically from Articles 2 and 8 of Legislative Decree 74/2000. Neither the criminal liability of, nor the penalty for, the conduct in question follows in any way directly from provisions of EU law such as Article 4(3) TEU, Article 325 TFEU, Directive 2006/112, Regulation No 2988/95 or the PIF Convention.

118Unlike in Berlusconi and Others, therefore, in this case, the application of requirements under EU law would not, by itself, give rise to obligations on the part of an individual. In particular, it would not determine or aggravate the liability in criminal law of individuals. It would simply — at a procedural level — release the national prosecution authorities from shackles which are contrary to EU law.

119It cannot be inferred from the principle of the legality of penalties that the applicable rules on the length, course and interruption of the limitation period must of necessity always be determined in accordance with the statutory provisions that were in force at the time when the offence was committed. No legitimate expectation to that effect exists.

120Rather, the period of time within which a criminal offence may be prosecuted can still be altered even after the offence has been committed, so long as the limitation period has not expired. ⁷⁵ The position here is ultimately no different from that which obtains in the context of the application of new procedural rules to situations which, although they began in the past, have not yet come to an end. ⁷⁶

121Within the context of the procedural autonomy enjoyed by the Member States, this means that, in all cases where the limitation period has not yet expired, ⁷⁷ a measure of discretion is available to take into account assessments of EU law which the courts of the Member States must fully exhaust, with due regard for the principles of equivalence and effectiveness, when applying their respective national laws.

122This does not mean, however, that new limitation periods would be derived directly from EU law. In any event, there are no provisions in Article 4(3) TEU, Article 325 TFEU, Regulation No 2988/95 or the PIF Convention that are sufficiently specific to be capable of being applied directly to individuals. The same is true — by reason not least of its legal nature — of Directive 2006/112. ⁷⁸

123The length and course of the limitation periods must, rather, be the subject of specific provisions of national law which are consistent with EU law. In this regard, EU law has, at most, an indirect effect on the dispute in the main proceedings, in so far as it helps the national courts to set the correct parameters for applying domestic law in a manner consistent with EU law.

124This does not involve the complete abolition of limitation but the application of an adequate limitation regime ⁷⁹ which makes the imposition of effective, proportionate and dissuasive penalties in a fair trial of an appropriate length (second paragraph of Article 47 of the Charter of Fundamental Rights; first sentence of Article 6(1) ECHR) seem like a realistic prospect.

125One of the steps to be taken by the referring court in this regard might be to apply the provisions on limitation without the absolute limitation period laid down in the last subparagraph of Article 160 of the Codice penale, as amended by the Law No 251/2005. As I have already said, ⁸⁰ it would appear from information supplied by the Commission at the hearing that Italian law does indeed provide for criminal offences — including in the area of economic crime — which are not subject to an absolute limitation period at all.

126An alternative approach might conceivably be to apply the revised limitation periods applicable to tax offences, which have been extended by a third, as now provided for in Law No 148/2011. ^{81 82} Finally, a further possibility would be to regard the earlier rules on limitation periods, as provided for in the Codice penale before its amendment by Law No 251/2005, as still being applicable to the present case.

127Which of those various options is to be selected is ultimately a matter of national law and its interpretation, the assessment of which falls to the national courts alone. From the point of view of EU law, the only requirement is that the solution adopted should be applied in a fair trial (second paragraph of Article 47 of the Charter of Fundamental Rights, first sentence of Article 6(1) ECHR), in a non-discriminatory manner and on the basis of clear, comprehensible and generally applicable criteria.

VII – Conclusion

Conclusion

128In the light of the foregoing considerations, I propose that the Court reply as follows to the questions referred to it by the Tribunale di Cuneo:

Articles 4(3) TEU and 325 TFEU, Regulation (EC, Euratom) No 2988/95 and Directive 2006/112/EC are to be interpreted as meaning that they require the Member States to provide for effective, proportionate and dissuasive penalties for irregularities in matters of VAT.

Article 2(1) of the Convention on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995, requires the Member States to punish fraud in matters of VAT by means of effective, proportionate and dissuasive criminal penalties which must, in serious cases of fraud at least, also include penalties involving deprivation of liberty.

A provision of national law on limitation periods for proceedings which, for reasons relating to the scheme of that provision, has the effect in many cases of exempting from punishment the perpetrators of fraud in matters of VAT is incompatible with the aforementioned provisions of EU law. In pending criminal proceedings, the national courts must refrain from applying such a provision.

¹ Original language: German.

² See Article 2(1)(b) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17), ‘the Own Resources Decision’.

³ Judgment in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270).

⁴ Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities’ financial interests (OJ 1995 L 312, p. 1).

⁵ Convention on the protection of the European Communities’ financial interests, signed in Luxembourg on 26 July 1995 (OJ 1995 C 316, p. 49). The abbreviation ‘PIF’ stands for the French version of the phrase ‘protection of financial interests’ (‘protection des intérêts financiers’).

⁶ Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).

⁷ Treaty on European Union, as amended by the Treaty of Maastricht.

⁸ OJ 1995 C 316, p. 48.

⁹ Criminal Code.

¹⁰ GURI No 285 of 7 December 2005.

¹¹ Legislative Decree.

¹² Legislative Decree 74/2000 is entitled ‘Nuova disciplina dei reati in materia di imposte sui redditi e sul valore aggiunto’ (New rules governing offences in matters of income tax and VAT) and is published in GURI No 76 of 31 March 2000.

¹³ The term ‘missing traders’ refers to undertakings exclusively engaged in the production of tax documentation for the purposes of tax evasion.

¹⁴ In the language of the case: udienza preliminare.

¹⁵ The functions of Tribunale di Mondovì were since consolidated with those of the Tribunale di Cuneo.

¹⁶ Giudice dell’Udienza Preliminare.

¹⁷ The only exceptions to its jurisdiction to give preliminary rulings are certain parts of EU law relating to the Common Foreign and Security Policy (see the sixth sentence of the second subparagraph of Article 24(1) TEU and Article 275(1) TFEU).

¹⁸ Judgments in Cowan (186/87, EU:C:1989:47, paragraph 19); Placanica (C‑338/04, C‑359/04 and C‑360/04, EU:C:2007:133, paragraph 68); and Achughbabian (C‑329/11, EU:C:2011:807, paragraph 33).

¹⁹ Judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 27 and 28).

²⁰ Treaty on European Union, as amended by the Treaty of Maastricht.

²¹ Protocol No 36 to the EU Treaty and the FEU Treaty (OJ 2008 C 115, p. 322).

²² See to this effect the judgment in Weryński (C‑283/09, EU:C:2011:85, paragraphs 30 and 31).

²³ Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the protection of the European Communities’ financial interests, signed in Brussels on 29 November 1996 (OJ 1997 C 151, p. 1). Like the PIF Convention itself beforehand, this additional protocol was also concluded on the basis of Article K.3(2)(c) EU and entered into force on 17 October 2002.

²⁴ Treaty on European Union, as amended by the Treaty of Amsterdam.

²⁵ See, on the one hand, the declaration by the Italian Republic under Article 35(2) and (3)(b) EU (notice published in OJ 1999 L 114, p. 56) and, on the other hand, the declaration by the Italian Republic of 19 July 2002 under the additional protocol to the PIF Convention, the latter being available for download on the following webpage of the Council of the European Union (last visited on 20 February 2015): http://www.consilium.europa.eu/en/documents-publications/agreements-conventions/ratification/?v=decl&aid= 1996090&pid=I.

²⁶ Judgments in Beck and Bergdorf (C‑355/97, EU:C:1999:391, paragraph 22); Régie Networks (C‑333/07, EU:C:2008:764, paragraph 46); and Križan and Others (C‑416/10, EU:C:2013:8, paragraph 54).

²⁷ Judgments in Bosman (C‑415/93, EU:C:1995:463, paragraph 61); Beck and Bergdorf (C‑355/97, EU:C:1999:391, paragraph 22); Régie Networks (C‑333/07, EU:C:2008:764, paragraph 46); and Križan and Others (C‑416/10, EU:C:2013:8, paragraphs 53 and 54).

²⁸ See, inter alia, judgments in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270) and Åkerberg Fransson (C‑617/10, EU:C:2013:105).

²⁹ See to this effect judgment in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270) and order in Mulliez and Others (C‑23/03, C‑52/03, C‑133/03, C‑337/03 and C‑473/03, EU:C:2006:285), in which the Court made no mention of the objections of inadmissibility raised by various parties to the proceedings but proceeded directly to give answers on the substance of the questions referred.

³⁰ See points 57 to 72 of this Opinion, below.

³¹ The Court replied to the same effect, in the judgment in E and F (C‑550/09, EU:C:2010:382), to a request for a preliminary ruling from a German court which was also required to rule on the opening of the criminal trial on the basis of an indictment drawn up by the Public Prosecutor’s Office. See also — more generally — judgments in AGM-COS.MET (C‑470/03, EU:C:2007:213, paragraph 45) and Coleman (C‑303/06, EU:C:2008:415, paragraphs 28 to 32).

³² Judgments in Asjes and Others (209/84 to 213/84, EU:C:1986:188, paragraphs 71 and 72); Vlaamse Reisbureaus (311/85, EU:C:1987:418, paragraph 10); Cipolla and Others (C‑94/04 and C‑202/04, EU:C:2006:758, paragraphs 46 and 47); and API and Others (C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraphs 28 and 29).

³³ See to that effect judgments in Germany v Commission (C‑156/98, EU:C:2000:467, paragraph 22); Commission v Government of Gibraltar and United Kingdom (C‑106/09 P and C‑107/09 P, EU:C:2011:732, paragraphs 72 and 73); 3M Italia (C‑417/00, EU:C:2012:184, paragraphs 41 to 44); and P (C‑6/12, EU:C:2013:525, paragraph 18).

³⁴ See in that regard points 74 to 121 of this Opinion, below.

³⁵ The latter point is emphasised in the judgment in Caja de Ahorros y Monte de Piedad de Madrid (C‑484/08, EU:C:2010:309, paragraph 46), in connection with the principle of an open market economy with free competition, also enshrined in Article 119 TFEU.

³⁶ See to the same effect the judgment in Échirolles Distribution (C‑9/99, EU:C:2000:532, paragraph 25), again in connection with the principle of an open market economy with free competition enshrined in Article 119 TFEU.

³⁷ Judgments in Franzén (C‑189/95, EU:C:1997:504, paragraph 79) and Belgian Electronic Sorting Technology (C‑657/11, EU:C:2013:516, paragraph 28), as well as order in Szabó (C‑204/14, EU:C:2014:2220, paragraph 16).

³⁸ Judgments in Alsatel (247/86, EU:C:1988:469, paragraphs 7 and 8) and Hennen Olie (C‑302/88, EU:C:1990:455, paragraph 20); see also the recent Opinion of Advocate General Mengozzi in Wagner-Raith (C‑560/13, EU:C:2014:2476, points 16 to 48).

³⁹ Judgments in SARPP (C‑241/89, EU:C:1990:459, paragraph 8); Ritter-Coulais (C‑152/03, EU:C:2006:123, paragraph 29); Promusicae (C‑275/06, EU:C:2008:54, paragraph 42); Aventis Pasteur (C‑358/08, EU:C:2009:744, paragraph 50); and Centre public d’action sociale d’Ottignies-Louvain-La-Neuve (C‑562/13, EU:C:2014:2453, paragraph 37).

⁴⁰ Judgments in Commission v Greece (68/88, EU:C:1989:339, paragraph 24); Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraph 65); Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 94); and Fiamingo and Others (C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraphs 62 and 64).

⁴¹ Judgments in Commission v Greece (68/88, EU:C:1989:339, paragraphs 23 and 24) and Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 64 and 65); see to the same effect the judgment in SGS Belgium and Others (C‑367/09, EU:C:2010:648, paragraph 41).

⁴² Judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 25 and 36).

⁴³ Article 2(1)(b) of the Own Resources Decision; see also the judgments in Commission v Italy (C‑132/06, EU:C:2008:412, paragraph 39); Belvedere Costruzioni (C‑500/10, EU:C:2012:186, paragraph 22); and Commission v Germany (C‑539/09, EU:C:2011:733, paragraphs 71 and 72).

⁴⁴ Judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraphs 26 and 36).

⁴⁵ See points 92 to 105 of this Opinion, below.

⁴⁶ Judgment in Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 34). It is clear from Article 6 of Regulation No 2988/95 that Member States are free to use criminal penalties.

⁴⁷ See to that effect — albeit in a different context — the judgments in Colson and Kamann (14/83, EU:C:1984:153, paragraph 28); Adeneler and Others (C-212/04, EU:C:2006:443, paragraphs 102 to 104); and Fiamingo and Others (C‑362/13, C‑363/13 and C‑407/13, EU:C:2014:2044, paragraph 61 in fine).

⁴⁸ As I have pointed out before, in my Opinion in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 91).

⁴⁹ See again in this regard my Opinion in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 107).

⁵⁰ See my Opinion in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 108).

⁵¹ This possibility is made available to the Member States by Article 6 of Regulation No 2988/95.

⁵² Judgment in Belvedere Costruzioni (C‑500/10, EU:C:2012:186, paragraph 28).

⁵³ Judgment in Commission v Italy (C‑132/06, EU:C:2008:412, paragraphs 43 to 47 and 52).

⁵⁴ See to the same effect my Opinion in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2004:624, point 110).

⁵⁵ Explanatory Report on the Convention on the protection of the European Communities’ financial interests, approved by the Council on 26 May 1997 (OJ 1997 C 191, p. 1); in that report, see in particular the explanations relating to Article 1(1) of the Convention (OJ 1997 C 191, p. 4, last paragraph).

⁵⁶ The German Government takes the view that the inclusion of VAT within the areas in which EU law requires the Member State to introduce criminal penalties is only provided for in a legislative proposal by the Commission, which is still pending: Proposal for a Directive of the European Parliament and of the Council on the criminal-law protection of the Community’s financial interests, COM(2001) 272 final (OJ 2001 C 240 E, p. 125).

⁵⁷ Judgments in Antonissen (C‑292/89, EU:C:1991:80, paragraph 18); Skov and Bilka (C‑402/03, EU:C:2006:6, paragraph 42); and Quelle (C‑404/06, EU:C:2008:231, paragraph 32).

⁵⁸ See in this regard the relevant passage from the Explanatory Report in OJ 1997 C 191, p. 4, final paragraph.

⁵⁹ Article 2(1)(b) of the Own Resources Decision.

⁶⁰ Judgments in Commission v Germany (C‑539/09, EU:C:2011:733, paragraph 72) and Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 26).

⁶¹ First and second recitals in the preamble to the Council Act drawing up the PIF Convention (OJ 1995 C 316, p. 48).

⁶² Commission v Belgium (C‑437/04, EU:C:2007:178, at the end of paragraph 56).

⁶³ See above, points 86 to 90 of this Opinion.

⁶⁴ Opinion 1/09 (EU:C:2011:123, paragraph 68); with specific regard to directives, see also, inter alia, the judgment in Kücükdeveci (C‑555/07, EU:C:2010:21, paragraph 48).

⁶⁵ With regard to the interpretation of national law in a manner consistent with primary law, see the judgments in Murphy and Others (157/86, EU:C:1988:62, paragraph 11) and ITC (C‑208/05, EU:C:2007:16, paragraph 68); with regard to the interpretation of national law in a manner consistent with secondary law, see the judgments in Marleasing (C‑106/89, EU:C:1990:395, paragraph 8); Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraph 113); Dominguez (C‑282/10, EU:C:2012:33, paragraph 24); and Asociaţia Accept (C‑81/12, EU:C:2013:275, paragraph 71).

⁶⁶ Judgments in Pfeiffer and Others (C‑397/01 to C‑403/01, EU:C:2004:584, paragraphs 115 to 119); Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 111); Dominguez (C‑282/10, EU:C:2012:33, paragraph 27); Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 38); and Schoenimport ‘Italmoda’ Mariano Previti (C‑131/13, C‑163/13 and C‑164/13, EU:C:2014:2455, paragraph 52); similarly, see the earlier judgment in Colson and Kamann (14/83, EU:C:1984:153, paragraph 28: ‘in so far as it is given discretion to do so under national law’).

⁶⁷ Judgment in Association de médiation sociale (C‑176/12, EU:C:2014:2, paragraph 39); see also judgments in Kolpinghuis Nijmegen (80/86, EU:C:1987:431, paragraph 13) and Adeneler and Others (C‑212/04, EU:C:2006:443, paragraph 110).

⁶⁸ Judgments in Simmenthal (106/77, EU:C:1978:49, paragraphs 21 and 24); Melki and Abdeli (C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 43); and Åkerberg Fransson (C‑617/10, EU:C:2013:105, paragraph 45).

⁶⁹ Judgments in Advocaten voor de Wereld (C‑303/05, EU:C:2007:261, paragraph 49) and Intertanko and Others (C‑308/06, EU:C:2008:312, paragraph 70).

⁷⁰ Judgments in X (14/86, EU:C:1987:275, paragraph 20); Kolpinghuis Nijmegen (80/86, EU:C:1987:431, paragraph 13); X (C‑74/95 and C‑129/95, EU:C:1996:491, paragraph 24); Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraph 74); and Grøngaard and Bang (C‑384/02, EU:C:2005:708, paragraph 30).

⁷¹ Judgments in Advocaten voor de Wereld (C‑303/05, EU:C:2007:261, paragraph 50); Intertanko and Others (C‑308/06, EU:C:2008:312, paragraph 71); and Lafarge v Commission (C‑413/08 P, EU:C:2010:346, paragraph 94).

⁷² See in this regard the judgments of the ECtHR in Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 149, ECHR 2000-VII, and Scoppola v. Italy (no. 2), no. 10249/03, § 110, 17 September 2009; in connection with the judgment of the ECtHR in Coëme and Others v. Belgium, see: judgment No 236 of the Italian Constitutional Court (Corte costituzionale) of 19 July 2011, paragraph 15; to the same effect, see the earlier judgment of the German Federal Constitutional Court (Bundesverfassungsgericht) (BVerfGE 25, 269, 286 et seq.).

⁷³ On the fact that that principle is enshrined in the constitutional traditions common to the Member States and in the general legal principles of EU law, see also the judgment in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 68 and 69) and my Opinion in that case (EU:C:2004:624, points 155 to 157). The ECtHR, too, has recently recognised that principle in the context of Article 7 ECHR (judgment in Scoppola v. Italy (no. 2), no. 10249/03, §§ 105 to 109, 17 September 2009).

⁷⁴ See the judgment in Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraphs 18 to 22) and my Opinion in that case (EU:C:2004:624, point 31).

⁷⁵ Judgment of the ECtHR in Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 149, ECHR 2000-VII.

⁷⁶ See to that effect judgments in Meridionale Industria Salumi and Others (212/80 to 217/80, EU:C:1981:270, paragraph 9); Pokrzeptowicz-Meyer (C‑162/00, EU:C:2002:57, paragraph 49); Molenbergnatie (C‑201/04, EU:C:2006:136, paragraph 31); and Commission v Spain (C‑610/10, EU:C:2012:781, paragraph 45). See also my Opinion in Commission v Moravia Gas Storage (C‑596/13 P, EU:C:2014:2438, points 28 to 31).

⁷⁷ According to the information supplied by the referring court, prosecution of the offences forming the subject-matter of the indictment against one of the defendants, Mr Anakiev, has already become time-barred.

⁷⁸ Judgments in Arcaro (C‑168/95, EU:C:1996:363, paragraph 36); X (C‑74/95 and C‑129/95, EU:C:1996:491, paragraph 23); and Berlusconi and Others (C‑387/02, C‑391/02 and C‑403/02, EU:C:2005:270, paragraph 73).

⁷⁹ See in this regard points 87 and 88 of this Opinion, above.

⁸⁰ See in this regard point 81 of this Opinion, above.

⁸¹ See Article 2(36-21)(1) thereof (GURI No 216 of 16 September 2011).

⁸² One of the defendants, Mr Anakiev, referred to these new rules in the proceedings before the Court.