A way out for the ECJ in Taricco II

The final countdown to the announcement of the long awaited judgment in case C-42/17, M.A.S. & M.B. (Taricco II) on 5 December 2017 has begun. The preliminary reference, by which the Italian Constitutional Court (the ‘ICC’) challenged the judgment of the European Court of Justice (the ‘ECJ’) in C-105/14, Taricco I, has already generated a heated debate online. The most fascinating question is whether for the first time the ECJ will authorise a national court to disapply an EU legal provision to protect its national constitutional identity or higher national standards of fundamental rights’ protection. We should first argue that the ECJ’s judgment in Taricco I is problematic under EU law because the ECJ left out from its reasoning the general principle of legal certainty and ensuing limits to the direct applicability of EU provisions. Second, It should be further explored whether the ECJ can still withdraw from its stance taken in Taricco I without opening the Pandora’s box of exceptions to the EU law primacy: either due to national constitutional identity (Article 4(2) TEU) or higher national standards of fundamental rights’ protection (Article 53 of the Charter of Fundamental Rights).