Reclassification of the offence and access to alternative proceedings: preliminary reference to the EU Court of Justice

By order no. 27371, filed on 21 July 2026, the Sixth Criminal Section of the Court of Cassation stayed the proceedings and referred to the Court of Justice of the European Union, under Article 267 TFEU, a preliminary question on the interpretation of Article 6(4) of Directive 2012/13/EU and Article 48(2) of the Charter of Fundamental Rights of the European Union. The question concerns the legal reclassification of the offence made by the court directly in its judgment. The issue arises where the new classification would give the defendant access to an alternative procedure that the original charge ruled out: in the case at hand, messa alla prova (probation-based suspension of proceedings). The reclassification, however, comes in the judgment without prior notice, when the time limit for requesting that procedure has already expired; and the question arises even where the new classification was foreseeable.

For business criminal defence the question is far from academic: patteggiamento (plea bargaining), the abbreviated trial and messa alla prova decisively shape procedural strategy and the exposure of the entity and its senior management. Should the Court of Justice find that EU law requires the defendant to be informed in good time of a possible reclassification, even a foreseeable one, so that the choice of procedure can be reconsidered, a new avenue of defence would open in economic proceedings, where the classification of the facts often remains fluid and contested until the final instance.

Summary note by Studio Legale Petrali, based on specialised legal sources (Giurisprudenza Penale Web, ISSN 2499-846X). This text does not reproduce the original contribution and does not constitute legal advice.