Luxembourg, 03/05/2005 (Agence Europe) - The Grand Chamber of the Court of Justice (13 judges) has just ruled that an Italian court cannot invoke the first European directive on companies as part of a trial against Silvio Berlusconi, because this would have the consequence of increasing the penal responsibility of the President of the Italian Council, who has been charged with publishing false accounts. The Court states that a directive cannot itself have the result of determining or increasing the criminal responsibility of a person charged with a crime. Silvio Berlusconi will be judged as his lawyers have requested, on the basis of recent provisions of the criminal code which are much less harsh that the provisions applicable at the time of the facts.
The question the legal and political world was waiting for an answer to was essentially whether the new articles 2621 and 2622 of the civil code, which entered into force in April 2002, and which provided for sanctions in the case of false publication, responded to the criteria given in the European directive on companies. According to article 6 of the EC directive, the punishment should be “appropriate” and, in its rulings, the Court added “effective, proportionate and dissuasive”.
The Court opted for another route, with the following reasoning: if the Italian judge was to state that these new Italian criminal sanctions did not fulfil these criteria, the new articles of the Italian penal code, which provide for these sanctions, would not be applicable. However, the Court continues, the result of this could be that a manifestly harsher criminal sanction would be applicable, as per the previous article 2621 of this code, which was in force at the time the actions which led to the case being brought were committed. Such a consequence, the Court concludes, would be against the limitations under the very nature of any and every directive, which prevent a directive from having the effect of determining or increasing the penal responsibility of those accused of a crime.
The Court also took position on the principle of the retroactive application of the lightest penalty, which has not yet been established in Community law. This principle is part of the constitutional traditions shared by the Member States, it states. It should be considered as one of the general principles of Community law, which a national judge must respect, the Court states.
Advocate General Kokott's opinion was not followed. She was proposing the application of the most lenient legal provisions, those of the sanctions of 2002, but as long as this was compatible with the European directive- which she felt was unlikely. The question of how it is possible to return to the older, stricter law which had been repealed in due form is no longer an issue, due to the Court's reasoning, which resulted in the application of the less harsh penalties adopted in 2002 (for details of the cases involving Berlusconi, Adelchi and dell'Utri, Luzi and Comincioli which were ruled on at the same time by various Italian courts, see EUROPE 8814).