A Matter of Measure: Proportionality of Penalties and the Soft Dialogue Among Courts in the EU

Table of Contents: 1. Background. – 2. The strange case of the direct effect of the principle of proportionality of penalties. – 2.1. The NE II judgement and its shift in perspective. – 2.2. Implications of the NE ruling. – 3. Tensions with national constitutional structures: the Italian example. – 4. The Italian Constitutional Court’s response: decision no. 7/2025. – 4.1. A remedial solution? – 5. Critical reflections: questioning the (actual) effectiveness of Article 49(3) CFREU. – 5.1. Between justiciability and programmatic norms: the Charter’s internal tension. – 5.2. Article 49(3) and direct effect: the case for… – 5.3. … And the case against. – 6. Reconciling direct effect of proportionality with constitutional structures.

Abstract: This paper analyses the role of the principle of proportionality of penalties in shaping the constitutional architecture of EU enforcement. Building on the recognition of direct effect to a particular manifestation of the proportionality requirement in NE judgment (C-205/20) by the Court of Justice of the European Union, the article explores how proportionality operates as a criterion for allocating powers between national trial and constitutional courts in fields falling within the notion of ‘criminal matter’. Particular attention is paid to the tensions arising from the hypothetical EU‑mandated disapplication of disproportionate sanctions, especially in light of domestic principles such as legality, separation of powers, and – most of all – equality before the law. Against this background, the paper uses the Italian Constitutional Court’s judgment no. 7 of 2025 as a lens to examine the systemic consequences of an expansive reading of proportionality and its direct effect. It argues that this interpretative amplification of proportionality’s effectiveness raises broader questions concerning the balance between decentralized judicial enforcement of the Charter and centralized constitutional coordination at national level.

Keywords: proportionality of penalties – Art 49(3) CFREU – direct effect – courts dialogue – Charter of Fundamental Rights – criminal law safeguards.

1.   Background

At the core of the present investigation lies the NE ruling of the Court of Justice of the European Union (CJEU), which ‘overturned’ its earlier decision in Link Logistic.[1] In NE, the Court clarified that the principle of proportionality of penalties, as enshrined in the provision of a singular directive, which nonetheless reflects and reiterates the one contained in Article 49(3) of the Charter of Fundamental Rights of the European Union (CFREU), has direct effect. As a result, domestic courts are mandated, within the scope of EU law, to disapply national provisions that lead to disproportionate penalties – but only to the extent necessary to ensure proportionate enforcement.

Allegedly following the CJEU’s ruling – but partially extending its reach – the Italian Constitutional Court, in its judgment no. 7 of 2025, addressed, for the first time since the recognition of the direct effect of the principle, a case concerning the compatibility, in criminal matter, of EU-mandated disapplication of disproportionate sanctions with fundamental constitutional principles, including rule of law, separation of powers, and equality before the law. These concerns are particularly significant considering the broad scope of ‘criminal matter’ as defined by the European Court of Human Rights according to the Engel criteria, under the autonomous Convention concept.

Nevertheless, it is difficult to ignore that the reasoning of the Italian Constitutional Court is based on a somewhat ‘extensive’ interpretation of the CJEU’s ruling, which seems to go beyond what was explicitly stated therein. That is, the assertion of the direct effect of Article 49(3) of the Charter (and not only of the article that incorporates it into the specific directive relevant to the case at hand), of which, however, there is no trace – at least explicitly – in the CJEU’s judgment.

This paper thus aims, on one hand, to examine the Italian Constitutional Court’s attempt to reconcile the primacy of EU law and the direct effect of the principle of proportionality in criminal matters – and ultimately of a provision of the CFREU – with the national constitutional architecture governing criminal law, drawing on dialogue between courts to find a way to handle this delicate balance – between effective, decentralized enforcement and centralized constitutional coordination. On the other hand, however, it aims to highlight the broadening of the scope of the Court of Justice’s ruling, which ultimately led to a broad application of its findings, seeking to test the validity and compatibility of such an interpretation with the system.

2.   The strange case of the direct effect of the principle of proportionality of penalties

The debate on the proportionality of criminal sanctions is undoubtedly central, from both a strictly criminal and a constitutional perspective, and has gained further importance with the process of European integration and the explicit affirmation of the principle in the Charter of Fundamental Rights of the EU. An affirmation that has no equivalent in other international human rights instruments,[2] and that addresses both legislators, with a view to guiding their power to define crimes and penalties in abstract terms, and judges, to orient their power to impose penalties in specific cases, in concrete terms.

The requirement set out in Article 49(3) of the Charter, according to which ‘the severity of penalties must not be disproportionate to the criminal offence’ – thus requiring sanctions to be suitable, necessary, and not excessively burdensome in relation to the legitimate objectives pursued by the law –, is often incorporated into secondary legislation in specific provisions that replicate its scope, using the established triad, which forms part of a ‘model provision on EU substantive criminal law’, that criminal – as well as non-criminal but punitive[3] – sanctions must be ‘effective, proportionate, and dissuasive’.[4]

This debate raises the question, with potential repercussions on domestic criminal justice systems, of whether a principle such as that laid down in Article 49(3) CFREU can be considered as directly applicable in the Member States, thus allowing the disapplication of uncompliant national provisions by ordinary judges. This issue must be addressed in connection not only with the canonical distinction between principles and rights in the Charter, but also with questions such as the legal grounds for criminal sanctions, respect for the principle of equality, the relationship between domestic law and European Union law (especially in criminal matter), and even the compatibility of the usual criteria on which the direct effects of the Charter are based with rules such as those under consideration.

This debate is reflected in recent case law from the Court of Justice, with the NE case representing the culmination of a gradual shift in position on the issue. However, this conclusion is not without its ambiguities and problems.

2.1   The NE II judgement and its shift in perspective

The landmark judgment of the Court of Justice in NE, delivered by the Grand Chamber on March 8, 2022, represents a watershed moment in European criminal law approach to proportionality of penalties. The case arose from Austrian legislation implementing Directive 2014/67/EU on the enforcement of posted workers’ rights, which imposed severe pecuniary sanctions for documentation failures related to posted workers.[5]

The referring Court, an Austrian administrative tribunal, confronted Mr. NE’s challenge to a 54.000 euros penalty imposed for documentation violations concerning posted workers from a Slovak company operating in Austria. This case reached the CJEU through a second preliminary reference, following an earlier ordinance, dated 19 December 2019 (C-645/18),[6] in which the Court had declared the Austrian sanctions regime disproportionate in relation to Article 56 TFEU (freedom to provide services). However, the Austrian legislature failed to amend the legislation despite the Court’s findings, despite its established incompatibility with EU law; thus giving rise to doubts among Austrian courts as to how to respond to this legislative inertia.

The national court question was whether the requirement set out in Article 20 of the Directive (which replicates the one set out in the Charter), that penalties be proportionate, enjoys direct effect and whether national courts should disapply conflicting national law to restore proportionality.

The NE case required the Court to confront and ultimately overrule its recent precedent in Link Logistic (C-384/17, 2018).[7] In that case, the Fifth Chamber had held that a directive provision requiring Member States to impose ‘effective, proportionate and dissuasive’ sanctions did not possess direct effect. The Court reasoned that such provisions conferred broad discretionary power to Member States regarding sanction design and failed to establish specific criteria for assessing proportionality, thus lacking the precision and unconditionality required for direct effect. This is also because the opposite interpretation would, in practice, lead to the elimination of the discretionary power conferred solely on national legislators, who are responsible for establishing an appropriate system of penalties, undermining the principle of criminal legality and separation of powers.[8]

National judges confronting manifestly disproportionate sanctions were thus left without clear remedies beyond consistent interpretation, which itself encounters limits when faced with unambiguous legislative text.[9] And this becomes even more significant considering that – although the NE case surely concerns manifestly disproportionate sanctions – the legal issue under analysis goes beyond that range of situations, as it concerns even non-manifestly disproportionate penalties. Moreover, Link Logistic appeared to contradict the Court’s earlier jurisprudence on the direct effect of other vaguely formulated principles, including the requirement of ‘effective’ sanctions under Article 325 TFEU (protection of EU financial interests) as recognized in the Taricco case.[10]

The Grand Chamber, substantially following Advocate General Bobek’s reasoning,[11] actually overruled Link Logistic. The Court held that Article 20 of Directive 2014/67, requiring ‘effective, proportionate and dissuasive’ sanctions, possesses direct effect, enabling individuals to invoke it before national courts. The Court grounded this conclusion on three main elements.

First, the proportionality requirement – a negative rather than positive obligation – is unconditional, constituting an absolute prohibition against disproportionate sanctions rather than a policy objective subject to Member State discretion. While States retain discretion in sanction design, this discretion operates within the non-negotiable boundary of proportionality.[12]

Second, the requirement is sufficiently precise. The Court acknowledged that proportionality assessments require judicial evaluation of particular circumstances, but emphasized that such evaluation follows established methodologies amenable to judicial review.[13] Courts regularly apply proportionality analysis across multiple legal domains, demonstrating its operational feasibility.

Third – and most significantly – the Court anchored the proportionality requirement in Article 49(3) CFREU, which provides that ‘the severity of penalties must not be disproportionate to the criminal offence’.[14] The Court – albeit apparently in an obiter dictum – characterized this provision as having ‘imperative character’ and noted that the directive provision ‘merely recalls’ this fundamental guarantee. By linking, in its reasoning, the directive requirement to a Charter right with constitutional status, the Court seems to elevate proportionality beyond a mere directive obligation to a fundamental right constraint on national sanctioning power.[15]

The Court then addressed the remedial consequences of direct effect. National judges must disapply the part of the national legislation from which the disproportionate character of the sanctions derives, so as to ensure the imposition of proportionate sanctions which remain, at the same time, effective and dissuasive. This formulation contemplates partial rather than total disapplication: judges should excise disproportionate elements while preserving the sanction regime’s effectiveness.

Addressing concerns about legality and legal certainty in criminal matter, the Court emphasized that these principles require clear legislative formulations enabling individuals to foresee conduct consequences, not that judicial proportionality review violates legality. And this becomes all the more evident, considering that – drawing a distinction between NE and Taricco II – disapplication on grounds of proportionality applies in bonam partem. The legal certainty principle demands that sanctions remain within proportionate bounds, which judicial enforcement of the proportionality requirement actually promotes. Moreover, the principle of equal treatment is satisfied when similarly situated individuals receive similar treatment, which uniform judicial application of proportionality standards ensures.

2.2   Implications of NE ruling

The NE judgment’s implications can extend far beyond posted workers’ documentation requirements. By grounding the core principle in Article 49(3) CFREU rather than solely in the directive’s specific proportionality clause (the only one that is, however, formally recognized as having direct effect in the ruling), the Court seems to suggest that this fundamental right possesses direct effect across all contexts falling within the scope of EU law.[16] This principle would apply not only to sanctions prescribed by directives explicitly requiring proportionate penalties but also to any criminal or quasi-criminal sanction imposed when Member States act within the scope of EU law.[17]

On the one hand, it should be noted that, for the purposes of recognizing direct effects, both the question referred by the referring court and the operative part of the judgment refer exclusively to the provision of the directive at issue requiring the proportionality of penalties (Article 20 of Directive 2014/67/EU). On the other hand, however, it cannot be ignored that the Court still links this principle to Article 49(3) of the Charter, recognizing its imperative value and sufficient precision, but without expressly declaring its direct applicability.

Nevertheless, it is also relevant to note that, upon closer scrutiny, the mentioned Article 20 has a completely overlapping content to that of Article 49(3) CFREU, or even a more generic one, so that it would be difficult – if not pointlessly formalistic – to consider that only the former is directly applicable, while the latter, contained in the Charter, is not.

It should also be noted that the Court of Justice in NE, in relation to the proportionality of penalties, identifies Link Logistic as a precedent to be superseded, despite the fact that the two directives at issue, both of which contain such requirement, are different in content and scope. It would therefore be short-sighted to consider that the investigation of the direct effect of the requirement is confined to the specific provision of the directives at issue; rather, it should be considered that the assessment concerns the principle itself, which remains the same regardless of the sectoral scope of application of the directive incorporating it.[18]

It can be assumed that the Court did not refer immediately to the direct applicability of the provision of the Charter, to avoid opening the way – explicitly and once for all – to the many implications that recognizing such an effect to the principle at issue may have on national criminal law systems.

Yet the way for such questions has been paved.

The NE decision, in this view, would empower national judges to act as frontline enforcers of fundamental rights, entrusted with the authority to partly disapply legislative provisions producing disproportionate results. This represents a significant expansion of judicial power in criminal matter, traditionally an area where legislative primacy and the strict requirements flowing from the legality principle constrain judicial discretion. Yet, the transformation of proportionality from an interpretive principle into a directly enforceable right can potentially alter the constitutional balance between legislative and judicial powers in Member States.

3.   Tensions with national constitutional structures: the Italian example.

The direct effect of the proportionality requirement, recognized in NE (albeit with reference to the provision of the sector-specific directive, which nevertheless incorporates and reproduces that laid down in Article 49(3) of the CFREU) faces relevant theoretical issues in Member States featuring centralized constitutional review systems, of which Italy provides a paradigmatic example. The Italian Constitution establishes a concentrated model of constitutional adjudication wherein the Constitutional Court has exclusive jurisdiction to declare legislation unconstitutional with erga omnes effect. Article 134 of Italian Constitution vests this power solely in the Constitutional Court, while ordinary judges lack authority to disapply legislation on constitutional grounds (thus beyond the limits of consistent interpretation).

This institutional architecture reflects a deliberate constitutional choice: the incidente di legittimità costituzionale (incidental constitutional review) procedure enables ordinary judges who doubt about the compatibility of legislation with the constitution to suspend proceedings and refer questions to the Constitutional Court, which is the only court entitled to annul unconstitutional legislation.

Italian criminal law additionally emphasizes strict legality and culpability principles enshrined in Articles 25(2) and 27 of the Constitution. These provisions require precise legislative definition of crimes and penalties, prohibit retroactive criminal laws, and mandate that penalties serve rehabilitative purposes. The principles of precision and ‘strict application’ (‘determinatezza’ and ‘tassatività’) demand that criminal statutes employ sufficiently determinate language to enable citizens to predict the consequences of their conduct and constrain judicial discretion.

Proportionality in punishment derives from the combined operation of Articles 3, 25, and 27 of the Constitution.[19] The Constitutional Court has developed extensive jurisprudence requiring that penalties bear rational relationship to offense gravity, that similarly severe offenses receive comparable treatment, and that sanctions not exceed what is necessary to achieve legitimate criminal objectives.[20] However, this proportionality review generally operates through constitutional adjudication resulting in legislative invalidation, not through individualized judicial adjustment of statutory penalties.

Similarly, another interesting example is the French one. In France, proportionality of penalties has constitutional status under Article 8 of the 1789 Déclaration des droits de l’homme et du citoyen, which requires sanctions to be ‘strictly and evidently necessary’, a principle consistently enforced by the Conseil constitutionnel in both abstract review and question prioritaire de constitutionnalité (QPC), including in sanctioning regimes and cumulative penalties.[21]

Alongside this centralized constitutional control, the French system also entrusts ordinary courts with a significant role in the application of proportionality at the level of individual cases. In particular, administrative courts, under the guidance of the Conseil d’État, carry out an in concreto review of administrative sanctions and may annul or reduce penalties that are manifestly disproportionate in light of the circumstances of the case.[22]

Although ordinary judges cannot annul statutes erga omnes, their ability to apply constitutional standards through case-by-case adjudication – whether by annulling, reducing, or maintaining sanctions within constitutionally defined limits – contributes to a concrete and decentralized implementation of the principle of proportionality. This mechanism does not replace constitutional review but rather complements it at the level of individual enforcement, reflecting a system that combines strongly centralized constitutional adjudication with limited, functionally differentiated forms of judicial proportionality control in ordinary litigation.[23]

The authorization for judges to disapply statutory penalties deemed disproportionate under the EU law principle of criminal proportionality – provided for by individual provisions of secondary legislation (and indirectly by Article 49, para 3, CFRUE), or even directly by Article 49(3) itself – would therefore create several tensions with Italian constitutional principles, enabling diffuse judicial (de facto ‘constitutional’) review through the backdoor and putting at risk equal treatment This is because – whilst it is true that the direct effect is generally a well-established principle in the EU legal order and uncontested mechanism, and so far the duty of disapplication of national provisions stemming from it has not been questioned as impairing the constitutional architecture of Member States – in this case it concerns a constitutional principle which, by its very nature, requires the court to exercise discretion in assessing what does and does not exceed the limits of proportionality. These tensions will be examined in greater detail in the following sections.[24]

4.   The Italian Constitutional Court’s response: decision no. 7/2025

In this framework, the tensions between two apparently different approaches to proportionality review emerged in a crystal-clear manner in the Italian Constitutional Court’s decision no. 7/2025, issued on January 14, 2025. The case arose from criminal proceedings concerning corporate offenses under Articles 2637 and 2638 of Italian Civil Code (market manipulation and obstruction of regulatory supervision), committed by directors of Banca Popolare di Vicenza. The trial court had imposed a confiscation order of approximately 963 million euros against four individual defendants under Article 2641 of the Civil Code, representing the value of loans the bank had extended to third parties for purchasing the bank’s own shares; loans the Court deemed instrumental to the criminal schemes.

The Court of Appeal of Venice lifted the confiscation, deeming it ‘manifestly disproportionate’ directly evoking Article 49(3) CFREU. The appellate court noted that the defendants had not personally profited from the offenses, that their conduct was already adequately punished through imprisonment, and that confiscating nearly one billion euros from individuals bore no rational relationship to their culpability. Relying on the NE judgment, the Court of Appeal directly disapplied Article 2641 as incompatible with the Charter’s proportionality requirement.

The Public Prosecutor appealed to the Court of Cassation, arguing that the appellate court had violated the mandatory character Article 2641 and usurped legislative functions reserved to Parliament. The Prosecutor suggested that if doubts existed regarding the proportionality of Article 2641, the proper remedy was constitutional referral, not direct disapplication. The Court of Cassation, Fifth Criminal Section, agreed that the case raised fundamental questions about reconciling EU law supremacy with Italian constitutional structures, prompting constitutional referral.

The referring Court questioned the constitutionality of Article 2641(1)-(2) of the Civil Code insofar as it subjected to mandatory confiscation (including substitute confiscation) both the proceeds and instrumentalities of corporate crimes, which constitutes a criminal penalty ‘in substance’ according to Engel criteria. The contested provisions allegedly breached several constitutional parameters: Articles 3 (equality), 27(1) and (3) (personal responsibility and rehabilitative punishment), 42 (property protection), and 117(1) (obligation to respect international constraints) in relation to Article 1 of Protocol 1 ECHR and Articles 17 and 49(3) CFREU.[25]

Critically, the referring Court explained why it chose constitutional referral over direct disapplication under NE. While acknowledging EU law’s primacy and the Charter provisions’ potential direct effect, it emphasized that Italian constitutional identity includes the legality principle as a ‘supreme principle of the constitutional order’. Disapplication by individual judges would create intolerable legal uncertainty, violating defendants’ right to know ex ante the sanctions to which their conduct may expose them. Only centralized constitutional review could provide the stability, predictability, and equal treatment that criminal justice demands.

4.1.  A remedial solution?

The Constitutional Court declared Article 2641 partly unconstitutional, but its reasoning carefully navigated between EU law obligations and Italian constitutional imperatives. The premise is acknowledging the ‘dual preliminarity’ issue: the same legal question could be addressed either through direct disapplication under EU law supremacy or through constitutional review.[26] While both remedies serve fundamental rights protection, the Court emphasized that constitutional adjudication offers particularly significant advantages in criminal matters.

First, the Constitutional Court’s declarations of unconstitutionality produce erga omnes effects, immediately benefiting all similarly situated individuals including those whose judgments have become final (under Article 30(4) of Law 87/1953). Instead, disapplication benefits only the parties involved in the specific case and creates no precedential obligation for other judges, potentially leading to systematic inequality. Second, constitutional review enables comprehensive evaluation of the challenged provisions’ compatibility with the full panoply of constitutional principles, not merely isolated EU law parameters. Third, centralized adjudication promotes legal certainty by providing definitive resolution rather than leaving proportionality assessment to potentially divergent judicial evaluations. Judicial disapplication based on case-specific proportionality assessments, while arguably enhancing substantive justice in individual cases, would introduce unpredictability undermining legality’s core functions.

In fact, proportionality review in criminal matters operates at two distinct levels: abstract proportionality (whether statutory sanctions broadly correspond to offense gravity) and concrete proportionality (whether sanctions imposed in concrete cases exceed necessity). Constitutional review primarily addresses abstract proportionality, determining whether legislative choices fall within acceptable ranges. This institutional allocation reflects the separation of powers: legislatures determine the range of sanctions; judges apply them; Constitutional Courts ensure that legislative choices remain within constitutional boundaries.

Turning to the merits, the Court held that mandatory confiscation of instrumentalities (and their equivalents) in corporate crime cases violates constitutional proportionality when extended beyond profit to the entire value of means used to commit offenses.[27]

The Constitutional Court’s remedial approach deserves particular attention. Rather than invalidating Article 2641 entirely (which would eliminate all confiscation), the Court engaged in selective invalidation, removing only the provisions mandating substitute confiscation of instrumentalities. This ‘surgical’ approach – conceptually similar to Advocate General Bobek’s metaphor in NE – preserved confiscation of actual instrumentalities and of profit while eliminating the disproportionate extension to substitute confiscation of instrumental means.

This solution balances multiple imperatives. It respects legislative prerogatives by maintaining the confiscation regime’s basic structure while correcting constitutional defects. It promotes effectiveness by ensuring serious economic crimes remain subject to meaningful asset forfeiture. It achieves proportionality by eliminating provisions capable of imposing unlimited financial liability unrelated to actual benefit obtained. And it provides legal certainty by establishing a clear rule applicable uniformly across all cases.

The Court noted that its approach harmonizes Italian constitutional requirements with Article 49(3) CFREU while respecting institutional structures and constitutional identity. The decision demonstrates that constitutional courts can effectively enforce Charter rights through traditional constitutional adjudication, achieving outcomes compatible with EU law while preserving national procedural and institutional autonomy.

Yet, to do so, the Constitutional Court, while accepting the possibility of disapplication by ordinary judges, emphasized that in such cases the option of raising a constitutional question is deemed preferable. It reaffirms its broader position that in cases of dual preliminary relevance with constitutional tone ‘tono costituzionale’, the national judge must assess the most appropriate remedy on a case-by-case basis, balancing the potential for disapplication against the value of centralized constitutional review. This dual-track approach is designed to avoid institutional conflict with the ECJ while reaffirming the Constitutional Court’s ideal role as a coordinating and stabilizing authority.

5.   Critical reflections: questioning the (actual) effectiveness of Article 49(3) CFREU

What stands out is, first of all, that the Italian Constitutional Court goes even a step further than the Court of Justice, reading something into its words that is not expressly stated. It affirms, in fact, with utter certainty that the CGEU in its NE II judgment, recognized the direct effect of Article 49(3) of the Charter, unlike what actually happens in the aforementioned ruling, where it is the provision of the directive at issue in the case,[28] which incorporates and replicates the principle of proportionality, that is recognized as directly applicable.

Article 49(3) CFREU is then treated, regardless of its direct effect or otherwise, as a constitutional parameter, as such directly invocable as a parameter of constitutional legitimacy of internal rules that fall within the scope of EU law (and therefore implement it, pursuant to Article 51 of the Charter),[29] as in the case under examination. However, as mentioned above, the Constitutional Court confirmed the understanding of the NE ruling according to which the principle of proportionality of penalties has direct effect, referring, however, directly to Article 49(3) CFREU. Confirmed as well is the consequent possibility for ordinary courts to disapply conflicting national provisions without any need to find specific secondary law provision incorporating the principle of proportionality. In other words, according to the Constitutional Court’s understanding, what is directly applicable is the principle itself, not its mere reiteration in a directive.

Essentially, the NE’s ruling is taken to a further level: the Constitutional Court bypasses the ECJ’s reluctance to declare the direct applicability (albeit expressly stating that it is imperative) of a provision, such as Article 49(3), provided for in the Charter and commonly framed as a principle rather than an enforceable right.

At the same time, however, it could be inferred that the Court of Justice, by limiting itself to strictly responding to the question raised by the referring court on Article 20 of the Directive alone, affirming its direct effects without explicitly mentioning the equivalent provision of the Charter in the operative part, turned an ‘half-blind’ eye to the issue, avoiding to expose itself in a clear-cut way on an issue of such magnitude, whilst still providing a glimpse into is view.

5.1   Between justiciability and programmatic norms: the Charter’s internal tension

The ECJ’s reluctance can be explained in light of the controversial nature and effect that characterizes the provisions of the Charter, such as Article 49(3).

Needless to say, the twin principles of primauté (supremacy) and direct effect ensure that EU law operates uniformly across Member States and that individuals can invoke EU law rights before national courts. The principle of supremacy, first articulated in Costa v ENEL (Case C-6/64),[30] establishes that EU law takes precedence over conflicting national legislation, including constitutional provisions. Direct effect, first recognized in Van Gend & Loos (Case C-26/62),[31] enables individuals to invoke EU law provisions directly before national courts when such provisions are sufficiently clear, precise, and unconditional.[32]

Besides, ECJ case law has shown a lenient approach to the direct effect test over time: a provision has direct effect when it is capable of being applied in a specific case, by a court.[33] It can be observed, as noted in the literature, that direct effect has been recognized to many treaty prohibitions, including to some of the most general ones, and some general (and vague) ‘principles’ of EU Law.[34]

The legal force of the Charter of Fundamental Rights of the European Union (CFREU) following the Treaty of Lisbon in 2009 added a crucial dimension to this ‘constitutional’ architecture. Article 6(1) of the Treaty on European Union grants the Charter the same legal value as the Treaties, thereby elevating fundamental rights to primary law status.

The compatibility of direct effects with fundamental rights protection raises several outstanding issues. On the one hand, the direct effect of Charter provisions strengthens individual rights by enabling immediate judicial enforcement. On the other hand, questions arise concerning the institutional balance between the Court of Justice of the European Union and national Constitutional Courts, particularly regarding the interpretation and enforcement of rights that may have counterparts in national constitutional traditions.[35]

The applicability of the Charter is first and foremost shaped by the principle of conferral. Article 51 delineates its scope, providing that the Charter’s provisions are binding on the institutions, bodies, offices and agencies of the Union and on the Member States only when the latter are acting within the scope of EU law. These actors are required to respect the rights and observe the principles enshrined in the Charter, and to promote their application within the limits of their respective competences and in compliance with the constraints laid down in the Treaties. Paragraph 2 of the same provision, in continuity with Article 6 TEU, further clarifies that the Charter neither extends the scope of application of Union law nor introduces new competences or tasks for the Union, thus placing a structural limit on the natural expansive force of fundamental rights.[36]

Within this framework, Article 51 introduces a fundamental distinction between ‘rights’ and ‘principles’, a distinction that acquires substantive significance when read in conjunction with Article 52 of the Charter and the related Explanations,[37] that the Court of Justice and the national courts are required to take due account of.[38]

A combined reading of Articles 51 and 52 reveals a differentiated legal status. Pursuant to Article 52(5), principles must be implemented through legislative or executive acts of the Union institutions or of the Member States when they are implementing Union law. They may be relied upon before a court solely for the purposes of interpretation and legality review of legislative and implementing acts, but they cannot serve as a basis for direct claims seeking positive action by public authorities. This results in a regime of ‘limited justiciability’, which entails the absence of direct effect and the need for an intermediate normative act giving concrete expression to their content.[39]

Rights, by contrast, are characterised by a sufficient degree of precision to theoretically allow individuals to invoke them directly. In such cases, a provision of the Charter may constitute an immediate source of subjective rights enforceable before a court, with the consequent obligation on the judge to disapply incompatible national legislation.[40]

The distinction between rights and principles thus may lie precisely in the capacity of a provision to produce direct effects and to confer immediately enforceable subjective legal positions upon individuals. Principles, to paraphrase the classic case law of the Union, lack full prescriptive force and are not, as such, capable of grounding rights that national courts are required to safeguard.[41]

This position, however, appears to stand in some tension with earlier case law of the Court of Justice, notably the Defrenne judgment of 1976. On that occasion, the Court held that the classification of a primary law provision as a ‘principle’ does not allow its direct effect to be excluded a priori, emphasizing instead that such terminology could indicate the fundamental importance of the provision and that reducing it to a merely vague guideline would risk undermining the very foundations of the Community legal order. Compared with that approach, the current framework of the Charter thus marks a significant shift towards a clearer separation between immediately enforceable rights and programmatic principles.[42]

Ultimately, the Explanations themselves attest to the non-exhaustive nature of the distinction, indicating, for instance, the rights of the elderly (Article 25), of persons with disabilities (Article 26) and environmental protection (Article 37) as principles, while acknowledging that certain Charter provisions may contain elements of both rights and principles, as is the case with Articles 23, 33 and 34. In the absence of clear and predetermined criteria, it therefore falls to the Court of Justice of the European Union to determine, on a case-by-case basis, the nature of each provision and the corresponding regime of protection, thereby completing through its case law the process of concretisation of the Charter of Fundamental Rights.

The determination of whether a provision possesses direct effect requires examination of whether the provision is sufficiently clear and precise, ‘imperative’ in character, and it is unconditional, meaning its application is not subject to further implementing measures.[43] These requirements must be assessed with particular care in the criminal law context – a legal domain in which, given the individual rights at stake, States have traditionally guarded their sovereignty – where the principles of legality, legal certainty, and predictability demand rigorous scrutiny.

When it comes to criminal law safeguards, the Court adopts a fairly cautious approach. Among the cases in which the court has gone so far as to recognize the direct effect of criminal law safeguards provided for in the Charter – apart from the Taricco case in which the direct effect of another vaguely formulated sanction-related principle was at issue, i.e. the ‘effectiveness’ of penalties under Article 325 TFEU –[44] are, for example, those regarding Article 47 of the Charter, as recognized in Egenberger (C-414/16, paragraph 78).[45] In this case-law the Court relies on the direct effect of Article 47 of the Charter to allow the disapplication of conflicting national provisions, even reading specific provisions of EU secondary law in light of Article 47 of the Charter (as in Torubarov; Deutsche Umwelthilfe and, more recently Alace and Canpelli; and Barouk).[46] In all these cases, it is the Court’s reliance on Article 47 of the Charter that enables national courts to disapply conflicting national provisions. The EU secondary law provisions at stake, in fact, were not sufficiently clear, precise and unconditional to allow disapplication in themselves and without additional reference to Article 47 of the Charter.[47]

And therefore, given the vagueness of the case law, it is difficult for the assessment to yield definitive results when faced with a requirement such as that of the proportionality of the penalties. Indeed, arguments can be found to support either position and, as it is often the case with the guarantees enshrined in the Charter, a definitive assessment is difficult to reach, relying more on practical reasoning than on rock-solid legal precision on a case-by-case basis.

5.2.  Article 49(3) and direct effect: the case for…

Recognizing Article 49(3) CFREU direct effect would imply substantial normative and functional considerations. First, proportionality in punishment constitutes a fundamental principle of criminal justice recognized across all European legal traditions. The principle’s centrality to human dignity and rule of law justifies robust protection through immediately enforceable individual rights rather than mere interpretive guidelines.

Second, direct effect enhances fundamental rights protection by enabling immediate judicial remedies without awaiting legislative reform or Constitutional Courts’ judicial review. National legislatures may prove recalcitrant in revising disproportionate sanction regimes, particularly when political pressures favour ‘tough on crime’ postures. Empowering judges to enforce proportionality provides crucial safeguards against legislative excess or inertia.

Third, from the NE’s ruling perspective, judicial proportionality review reinforces rather than undermines legality. Legality’s core concern is preventing arbitrary state punishment power; ensuring sanctions remain proportionate to offenses advances this objective by constraining potential governmental abuse. Individuals possess stronger guarantees when assured that sanctions, whatever their formal statutory levels, will be adjusted to proportionate bounds.

Fourth, recognizing direct effect aims at promoting uniform fundamental rights protection across the European Union. Without enforceable proportionality standards, Member States could impose draconian sanctions in areas governed by EU law, undermining harmonization objectives and creating unequal rights protection depending on accident of geography. Direct effect enables consistent Charter application across the Union.

Fifth, the principle of effectiveness (effet utile) supports direct applicability. EU law’s practical efficacy requires that individuals can invoke and enforce their EU rights before national courts. If Charter fundamental rights lack direct effect, their practical significance diminishes substantially, reducing the Charter to aspirational rhetoric rather than enforceable law.

Sixth, judicial capacity to apply proportionality standards, by this perspective, should not be doubted. Courts routinely engage in proportionality analysis across multiple legal domains. While proportionality assessments involve value judgments and multi-factor analysis, they are not indeterminate: established methodologies provide structured frameworks channelling judicial discretion.

This approach would be similar to that adopted overseas. In fact, The U.S. Constitution’s Eighth Amendment prohibition of ‘excessive fines’ offers a useful comparative lens on proportionality in monetary sanctions and asset forfeiture, despite major structural differences from European systems. U.S. Supreme Court case law highlights, however, the practical difficulties of applying proportionality to punitive or quasi-punitive measures.

Rooted in English common law, the Excessive Fines Clause long received limited attention and applied only to federal action.[48] This changed with Timbs v Indiana (2019),[49] where the Court incorporated the Clause against the states via the Fourteenth Amendment, recognizing it as a fundamental right.

Substantively, United States v Bajakajian (1998)[50] established a multi-factor proportionality test, requiring comparison between the severity of the offense and the forfeiture or fine, considering the nature of the crime, its connection to other illegal conduct, statutory penalties, and the harm caused.[51]

Despite Timbs, enforcement remains uneven. Courts apply Bajakajian inconsistently, defer heavily to legislative judgments, and procedural barriers often prevent effective challenges.[52]

The U.S. experience thus mirrors European debates under Article 49(3) CFREU: both systems struggle with indeterminate proportionality standards, institutional allocation of review, and the gap between formal rights and effective judicial enforcement. The American case illustrates that proportionality guarantees require active, sustained judicial engagement to be meaningful.

The NE judgment’s subtle endorsement of direct disapplication moves European practice toward American-style diffuse review, creating precisely the concerns that motivated the Italian Constitutional Court’s decision 7/2025.

5.3.  … And the case against

Notwithstanding these considerations, substantial arguments challenge recognizing Article 49(3) direct effect, particularly in criminal matter. First, the principle of legality in criminal law demands exceptional clarity and precision in defining punishable conduct and applicable sanctions.

Second, separation of powers concerns warrant careful attention. Determining appropriate punishment levels represents a quintessentially legislative function involving policy choices about deterrence philosophy, resource allocation, and societal values. When judges disapply or modify statutory sanctions, they effectively substitute judicial for legislative policy judgments. This judicial incursion into criminal policy-making raises – despite its pro-defendant effect – democratic legitimacy questions.[53]

While it is true that the remedy of selective disapplication developed by the Court of Justice merely requires national courts to set aside those specific provision elements that give rise to the conflict with EU law – and thus does not entail judicial law-making, since the resulting sanctioning regime continues to rely on normative choices already made by the national legislature – the Court’s reasoning may prove less persuasive in more indeterminate normative settings or where several alternative solutions are available.[54] In such cases, national courts may be required to exercise a degree of discretion that stretches the limits of judicial interpretation and may significantly reshape domestic law.

This highlights the importance of judicial dialogue, including constitutional adjudication, as a means of addressing the most complex cases and mitigating the tensions inherent in the application of this remedy.

Third, equal treatment problems (enshrined in Article 20 of the Charter as the principle of equality before the law) emerge from diffuse proportionality review. Individual judges may reach divergent conclusions regarding particular sanctions proportionality, leading to systematic inequality where similarly situated defendants receive different treatment depending on their judges’ views, especially given that proportionality assessments involve multi-factorial balancing without mechanical decisional algorithms, and that a shared European approach to proportionality review remains lacking.[55]

Two defendants convicted of identical offenses under identical circumstances might receive different sanctions depending on whether their respective judges deem statutory penalties disproportionate. Even if appellate review eventually harmonizes divergent approaches, transitional periods would witness systematic inequality. Moreover, the finality of judgments would prevent retroactive correction of earlier disproportionate sanctions once courts subsequently recognize their excessiveness. Without centralized guidance, regional and individual variations fragment the uniform application of criminal law. Concentrated constitutional review avoids these problems by providing authoritative, uniformly applicable precedent.[56]

Fourth, Article 49(3) CFREU’s language may lack the precision required for direct effect. The provision states that ‘the severity of penalties must not be disproportionate to the criminal offence’ – a negative formulation prohibiting excess but providing limited positive guidance regarding appropriate sanction levels. While the Court of Justice characterized such requirement – which is incorporated in Article 20 of the Directive 2014/67 (requiring that ‘penalties provided for shall be effective, proportionate and dissuasive’), deemed directly applicable – as sufficiently precise, reasonable disagreement exists regarding whether it provides adequately determinate standards for judicial application.

Fifth, institutional competence considerations lean in favour of judicial restraint. Legislatures and Constitutional Courts possess superior capacity to gather empirical evidence about sanction effectiveness, to balance competing criminal philosophies, and to make systematic policy choices in the first case, or to correct a disproportionate penalty with erga omnes effect in the latter. Judges deciding individual cases lack comparable institutional resources and perspective. Excessive judicial intervention in sanction design may produce suboptimal outcomes from systemic perspectives even if improving justice in particular cases.

Nevertheless, not all Charter norms should possess direct effect; many require legislative implementation giving concrete content to abstract principles.[57] But fundamental rights protecting human dignity in core areas receive direct effect when sufficiently determinate, particularly when addressing state power over individuals in criminal contexts.

Article 49(3) of the Charter, however, while surely protecting essential aspects of human dignity, puts to the test the criteria, resulting from constant jurisprudential elaboration, that characterize direct effectiveness. This is because, although it can be argued that it complies with them, it still requires a comparative assessment implying a wide margin of discretion, with the highlighted significant repercussions in terms of equal treatment. The principle in question therefore remains ambiguous, perhaps escaping precise classification due to its breadth and its repercussions on the system.

6.   Reconciling direct effect of proportionality with constitutional structures

The Italian Constitutional Court’s approach in Decision 7/2025 suggests potential reconciliation paths. Rather than dismissing what can be inferred from the NE judgment, denying that the principle in question might have direct effect (which is, on the contrary, explicitly asserted, even beyond the words of the CJEU), or insisting that direct disapplication provides the sole remedy, the Court acknowledges both EU law supremacy and the value of constitutional adjudication. This approach permits judges to choose between direct disapplication and constitutional referral based on context-specific considerations. Yet it invites judges to carefully consider – deeming it preferable – the option to refer the matter to the Constitutional Court and obtain erga omnes correction of the disproportionate penalty.

Several factors might guide this choice. Direct disapplication appears more appropriate when: i) the disproportionality is manifest and undebatable; ii) the case involves individual circumstances making sanctions particularly excessive; iii) delay pending constitutional adjudication would cause irreparable harm; and iv) the legal question is narrow and fact-specific. Constitutional referral appears preferable when: i) the disproportionality involves systemic rather than case-specific factors; ii) the question implicates fundamental constitutional principles beyond EU law parameters; iii) the issue affects numerous pending and future cases requiring uniform resolution; and iv) remedial solutions require legislative-type choices among multiple alternatives.

This flexible approach respects both EU law primacy and national constitutional identity. The ECJ jurisprudence requires that EU law receive effective application and that individuals enjoy Charter rights protection. These requirements do not, however, preclude the possibility of intervention by the Constitutional Court, provided that judges are not radically deprived of their power of disapplication.[58] This solution appears, in fact, to be the result of a ‘consensual’ compromise between ordinary courts and the Constitutional Court, since the latter cannot impose it on the former, nor are there any binding forms of enforcement where the former decide to proceed with non-application outside the criteria developed by the Court.

This reconciliation can find support in ECJ jurisprudence on national procedural autonomy. While EU law imposes substantive requirements, Member States generally retain discretion regarding procedures for enforcing EU rights, subject to equivalence and effectiveness principles. Constitutional referral procedures satisfy these principles when they provide effective fundamental rights protection without discriminating against EU law claims, nor prohibiting the power of disapplication or preliminary referral to the Court of Justice. The Constitutional Court’s expedited review and erga omnes effect actually provide superior protection compared to disapplication benefiting only immediate parties.[59]

Acknowledging dual preliminarity – by recognizing both disapplication and constitutional referral as legitimate remedies – can therefore lead to charting a middle path between rigid EU law supremacy and defensive constitutional nationalism.

This approach embodies constitutional pluralism: recognizing multiple, overlapping constitutional orders (national and European) that must coordinate and accommodate each other rather than maintaining strict hierarchical relationships. Constitutional pluralism accepts that constitutional conflicts may arise and that perfect harmony remains elusive, but insists on good-faith dialogue and mutual respect among constitutional actors in this multi-level framework.