Balancing effective criminal sanctions with effective fundamental rights protection in cases of VAT fraud : Taricco

Abstract

The Taricco case is about VAT fraud. Since VAT revenue forms part of the EU’s own resources, VAT fraud is a matter of Union law.1 As a consequence, the duty to provide effective sanctions for violations of EU law applies to cases of VAT fraud. Because the duty under EU law to provide effective sanctions is usually based on Article 4(3) TEU, the primacy of Union law clearly precludes the application of national rules that would render sanctions ineffective. Matters are more complicated, however, when the disapplication of the national rules would violate a fundamental right that is protected by national constitutional law.2 In that case, underlining the precedence of the duty to provide effective sanctions exposes the inherent tension between effective sanctions and fundamental rights.3 It moreover reveals that a tension exists between EU law’s principles of effectiveness and primacy on the one hand, and fundamental rights as protected by national constitutions on the other.4 This tension is clearly visible when EU law requires the imposition of criminal penalties, because these sanctions, by definition, have a serious impact from the perspective of the individual. In the field of criminal law it is therefore widely acknowledged that fundamental rights provide legitimate grounds for limiting the effectiveness of sanctions.