Diritto penale e Unione Europea: “the dark side of the moon”. Le esigenze esistenziali e logiche del primato, i limiti dei controlimiti e l’inerzia del legislatore nazionale

Those who have translated criminal law over the years from the national state to the European Un- ion have certainly lost something in terms of personal guarantees. Many academics have thought of the counter-limit as a protection from a particular type of judge. We refer to those who took advantage of the enormous freedom of interpretation granted by EU law would aim to maximize the needs of the fight against crime at the expense of those of guarantee. The problem this article would like to highlight is the threat that the counter-limits represent for the existential and logical needs of EU law: primacy and direct effects. This paper aims to offer a key to the approach taken by the Italian Constitutional Court to the problem. This research then tries to place the inter-ordinamental conflict in an ex-ante phase of normative production rather than an ex-post jurisdictional phase.