La tutela penale degli interessi finanziari dell'Unione europea nel sistema "multilivello" delle garanzie fondamentali

Abstract

The protection of the financial interests of the European Union is a primary objective of the European political, legal and economic program. The profound iàea that inspires and connotes the community initiatives on the subject, in fact, starts from the assumption that the European budget, as a truly shared good, must be protected with a common strategy that shows community bodies and member countriès as protagonists together. The coordination between national and community authorities, both 6r the preiention and fight against crime, and for the conduct of lnvestigations, started wittr tfre Tampere European Council in 1999 and developed - over tÉe past twenty years - in several directions, aimed at affirming the need of a commott urìiorr. The latést landing on this direction shows, not surprisingly, the establishment of the European public prosecutor,s Office which is assigned the specific function of prosecuting crimes that harm (beyond a certain threshold) the financial interests of the Union. The aim pursued is to preserve common resources from systematic and structured fraud, yhich not only seriously harm public resources, bui also jeopardize democracy, fundamental rights and the Rule of law. The achievement of this objective, however, cannot be separated from the consolidation of protection techniques that draw on criminal law, thus imposing the overcoming of the traditional approach according to which taxation and grimes are traditional prero atives of national sovereignty, which prevent the intervention of the union. In this sense, Directive l37Il20l7lEU, in redesigning the criminal protection of the financial interests of the EU, marks a significant evolution. The present work therefore intends to dwell on this provision, starting first from a historical-evolutionary reconstruction of the discipline rèhting to the fighiagainst fraud affecting the financial interests of the European Union, to

-then propose In in-depth analysis of the same and a careful investigation aimed at assessing thé adequacy of ìhe solutions identified and the most critical aspects that, since its adopiion, ur" à"rging for the protection of the heritage and community policies. An exploration of the role of the institutions and bodies responsible for the prevention and repression of the same crimes will follow, in order to veri$' how the implementation of this protection nevertheless affects the fundamental rights and principle's recognized by the cultural traditions of each Member State, which are reaffirmed in the acts issued by the Union itself as well as in the European system of protection of human rights of the Council of Europe. The reference concerns, as is known, respectively the óharter of Fundamental Rights of the European Union and the European Convention for the Protection of Fundamental Rights and Freedoms as well as the related Courts which specify and update their scope in living law. In this regard, the contribution of the Courts of Luxembourg and Strasbourg, also made through i "Remote dialogue,,, in which the internal Courts do not fail to participate - in particular the Constitutional Courts, as well as the common judges - constitutes a valuable contribution aimed at ensuring the highest degree of guarantee for the values constituting the cultural, social and politiJal heritage - even before legal - European. The protection of financial interests, in fact, does not constitute an absolute value capable of limiting the assertion of any other right or interest; on the contrary, it is confronted with a series of other equally (or even more) fundamental prerogatives for the maintenance of a State and, consequently, of an organization of Statei, requiring the profusion, from every actor on the European political and legal stage, of the utàost effort in achieving a constant, effective and suitable balance between several interests worthy of being preserved.

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The relevance of traditionally constitutional issues also in the Community legal order, after the failure of the implementation process of a Treaty that adopts the Constitution for Europe, takes on, however, a not infrequently complex significance that does not always lead to unique and satisfactory answers. In the thematic field that highlights here, what has just been explained finds an emblematic example in the well-known "Taricco's saga": the protection of the f,rnancial resources of the European Union - as a vital tool not only for the existence and maintenance of the institutional system, but also for the implementation of European policies - as envisaged and imposed by art. 325 TFEU, must be safeguarded and made concrete, but its fulfillment cannot compromise the highest standard set aside for the protection of the fundamental rights of individuals. It follows that the oonormative polycentrism" that characterizes the individual legal systems and shapes their relations cannot ignore the constant hermeneutic adaptation of the sources carried out in the sign of the custody of a hard core of essential principles-values. The challenge of judicial cooperation therefore consists in making constant requests towards the harmonizafionof still distant and non-uniform levels ofprotection, preferring repressive systems that are not only efficient and effective, but also provide adequate guarantees of fundamental rights. The PIF directive, in this sense, certainly represents an improvement in the criminal protection system of the Union's financial interests, because it tries to synthesize the various existing guarantee instruments; however, due to the legislative technique used, that of "minimum standards", undoubtedly presents.critical profiles on a structural level, which risk endorsing a further fragmentation of the overall regulatory framework. On the other hand, this choice is not without positive aspects. It starts from a very specific criminal political vision: the extreme ratio of criminal intervention. Although there is no doubt about the consideration that the financial interests of the Union are legal assets in the,proper sense, deserving of criminal protection, there is, if anything, to ask "how mucho' criminal law to use to guarantee at the same time the general-preventive function of the criminal sanction and the principle of extremaratio. From this point of view, the chosen act remains more respectful of the aforementioned principle and, at the same time, guarantees a more incisive intervention at the discretion of the Member States. At the end of all the considerations proposed, it is certain, however, that the picture outlined, although rich in facets, remains incomplete and susceptible of more appropriate assessments in the light of the first concrete applications of the legislation - both in the internal States and by the newly established European Public Prosecutor's Office - which will make it possible to ascertain whether the path outlined by the PIF Directive and the related internal transposition acts (in particular inthe Italian one) will produce appreciable results or will give rise to new unfinished issues. [edited by author]