| dc.description.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.
l
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] | it_IT |
