â Not only may a directive not be relied on to create crim law obligations, a directive may also not be used to set aside national law which would preclude crim law obligations
Context:
* false tax info
* applicable penal code (in this case, Italian civil code) was in line with directive at the time of the commission of the offence â once proceedings ongoing, code changed, so now false acoounting was subject to STRICTER limitation periods but subject to lesser penalties, treated as lesser offence â not in line anymore with directive
* Specific council directive that requires MS to criminalize offences and impose penalties
Question: is Italian legislation in compliance with directive? And if it wasnt, is there an obligation to dis-apply national provisions that are not in compliance with EU obligations?
* Court: obligation to dis-apply, but obligation cannot be imposed if leads to a breach of legality
* Breach of legality identified by court = principle of application of more lenient penalties (civil law systems) â if current law that is applicable at the time would lead to more favorable treatment of defendant, then we apply this, even if not in force anymore
* This case you ALLOW RETROACTIVE application
* However, if previous legislation results in harsher penalties, then breach of legality because against lex meteor (milder penalty applies)
* Impunity, then newer EU law would be applied, because cannot rely on directive to justify application of former laws if former laws result in impunity