The Italian criminal judge of the Court of Varese requested a preliminary ruling to the ECJ in order to know whether the national criminal tax penalties …
The Italian criminal judge of the Court of Varese requested a preliminary ruling to the ECJ in order to know whether the national criminal tax penalties (after the law reform) are compatible with article 4 and 325 of TFUE and the PIF convention on EU’s financial interest and the fight against tax fraud.
The questions referred are three and they are related to the amendments made to the criminal law, in particular to the rule that settles penalties for the omission of payment of VAT. The threshold for the application of the penalty has been increased determining, in the view of the national judge, a sort of discrimination with the penalties applied for the omission of payment of direct taxes which is lower, with prejudice to the EU’s own resources. The same rule provides also that, in case of full payment of the VAT amount due (and the related interest or administrative penalty) after the tax assessment, the criminal liability is excluded. In the opinion of the judge this kind of exoneration from the criminal punishment breaches the principle of effectiveness and proportionality of penalties, with a strong limitation of their dissuasive power that has to be ensured in the light of EU law. The final remark and request of interpretation is related to the interpretation of the scope of article 1 of PIF convention that provides the notion of fraud and settles a threshold for the application of criminal penalties much lower than the Italian law.
The case, likewise the Taricco case of September, deals with the request of intervention of the EU in fields of national legal orders that are traditionally of competence of Member States, like criminal law. However when it seems that the VAT collection and the recovery are not ensured with the application of national rules the national judge is interested in invoking the protection of EU’s own resources.
Prof. Paolo Centore