The Lazio Regional Administrative Court, in a ruling Jan. 25, 2023, asserts the legitimacy of the interministerial decree that introduced in Italy the mandatory indication of wheat origin on pasta labels.
However, the cryptic pronouncement of the administrative judges in Rome seems to ignore the substantive disapplication of EU law by successive governments. Brief background. (1)
1) Decree on the origin of wheat on the label in pasta
Ministerial Decree 26.7.17 introduced the requirement to indicate the origin of wheat and the country of origin of the relevant semolina on the labels of pasta produced and sold in Italy, through the terms:
‘(a) ‘Wheat growing country’ means the name of the country in which the durum wheat was grown ;
(b) ‘Country of milling’ means the name of the country in which the durum wheat semolina was obtained‘ (Article 2).
However, it is enough to blend grains from various countries to refer the grain to a ‘Planet Earth origin‘ (“EU,” “non-EU,” “EU and non-EU“). With the option to indicate a country-e.g., ‘Italy and other EU and non-EU countries‘-when at least 50 percent of the durum wheat was grown in that country (Art. 3. See notes 2,3).
2) National standards and EU law
National technical standards on production and sale of goods must always be notified to the European Commission before they are finalized, based on:
- Directive 2015/1535/EU(Technical Regulations Information System), viz.
- EU Regulation 1169/11(Food Information Regulation), when they aspire to introduce labeling requirements (Art. 45).
2.1) National rules on origin labeling, EU rules
The Court of Justice of the European Union, in a ruling Dec. 1, 2020, clarified that member states may adopt ‘Provisions for additional mandatory indications of origin or provenance. Provided that these meet the conditions listed in Regulation No. 1169/2011‘. That is to say:
- obligations must come justified on one or more grounds (protection of public health, consumer protection, prevention of fraud, protection of industrial property rights, indications of source and controlled designations of origin, suppression of unfair competition),
- member states must demonstrate the existence of a link between certain qualities of the foods in question and their origin or provenance. As well as the significant value placed by most consumers on the availability of such information. (5)
2.2) Notification to Brussels and standstill period.
In all the above cases , following notification to Brussels, the member state must suspend the application of the rule for a minimum period of three months(standstill period), pending comments and observations from the European Commission and member states.
In the absence of notification-as well as in the case of failure to comply with the duty to suspend-the national rule is unlawful and must be disapplied ex officio. The same is true in the case of non-compliance with the suspension period of thelegislative process provided for in the above-mentioned EU rules (EUCJ, Unilever Italia judgment, Case C-443/98, paragraphs 39-44).
2.3) Decree of wheat origin in pasta, what notification to Brussels?
The decree on the labeling of the origin of wheat in pasta was reportedly notified to the European Commission by the Italian government on September 8, 2017, ‘i.e., well in advance of the date set for the decree’s entry into force (February 2018), without any negative findings on the merits being made.’ (1)
2.4) The notification defects of the national standard.
The notification to Brussels of the ‘wheat origin in pasta decree’ – contrary to the theorizing of TAR Lazio – does not in any case comply with the above-mentioned EU rules. (5) In several respects:
– First, the notification would have been made at a date after the adoption of the decree (July 26, 2017), rather than as it should have been at its preparatory stage,
– second, it is not known whether the notification was addressed to the 27 member states, as well as to the European Commission (as required by EU Reg. 1169/11, Article 45.1). Having to exclude that the Italian government has made a notification under EU dir. 2015/1535, of which there is no trace in the TRIS system),
– third, there is no record of the demonstration that the Italian government should have provided, on notification, about ‘a proven link between certain qualities of the food and its origin or provenance‘ (EU reg. 1169/11, Article 39.2). And yet
– the Lazio Regional Administrative Court ignored the circumstance that the DM 26.7.17 lost its effectiveness as of June 1, 2018 (the date of the entry into force of EU Reg. 2018/775, so-called Planet Earth Origin).
2.5) Origin, the expired decrees.
The four ministerial decrees bearing mandatory raw material origin prescriptions on dairy products, wheat pasta, rice and canned tomatoes had been presented as ‘experimental,’ with time effectiveness limited to June 1, 2018.
The then prime ministers and ministers for Economic Development, Paolo Gentiloni and Carlo Calenda, by decree May 9, 2018, resorted to an unconstitutional stratagem-amending the decrees with a ministerial decree (6)-to resurrect the decrees themselves.
Subsequent extensions of the aforementioned decrees, inapplicable ab origine due to defects in notification and disapplication of the standstill periods (with the exception of the one on the origin of milk) are consequently unlawful and ineffective (see notes 8,9,10,11,12).
3) European Commission, the stone guest.
The European Commission has completely ignored Italy’s four decrees on the mandatory indication of the origin of wheat and semolina in pasta, paddy rice in rice, and tomatoes in canned goods. Conversely, it has been activated in the only cases of Italic norms related to:
– indication on the label of the location of the establishment (Legislative Decree 145/17. See footnote 13),
– ‘simplifications decree‘, in the part that theorized delegation of power to the government for new obligations to indicate the origin of raw materials on labels (Decree-Law 135/2018, converted into Law 12/2019, art. 3a. See footnote 14).
3.1) Commission’s formal notice, recourse to the European Ombudsman.
The writer put the European Commission on notice to exercise its duty as the guarantor of the Treaty on the Functioning of the European Union. Initiating infringement proceedings against Italy for adopting a series of national rules contrary to EU law. Which are in fact the decrees on the origin of pasta, rice and tomatoes but also the one on plant location and the ‘ ex legeforced expiration’ of fresh milk (see notes 15,16).
The European Commission’s starvation, moreover, has continued, so that the writer has made a referral to the European Ombudsman. (17) But the Strasbourg Ombudsman in turn, in letter 20.2.20, affirmed the arbitrariness — in the hands of the European Commission — to decide whether and when to take action against states that violate EU rules. So much for, among other things, the principle of free movement of goods (TFEU 34.36). (18)
4) Interim Conclusions
We are witnessing, once again, the abjuration of European law on the basis of which all legislation affecting production and the free movement of goods in the internal market is based. With serious detriment to competition among the operators of the 27 member states, which is not resolved in the two lines of circumstance of the Lazio Regional Administrative Court. And yet another mockery of the administrative judges in Rome who seem to be inspired by the political dictates of Coldiretti and other industry representatives rather than the sources of law of supra-constitutional rank. (19)
For more details, see the scholarly publication on this topic (Dongo, 2019). (20)
#CleanSpades
Dario Dongo
Notes
(1) TAR Lazio, Section Five. Judgment 25.1.22 on appeal 9405/2017
– presented by Molitoria Umbra S.r.l., Semoliere Giuseppe Sacco & Figli S.r.l., Molino Grassi S.p.A., Molino Casillo S.p.A., Candeal Commercio S.r.l., Deis S.r.l. De Sortis Industrie Semoliere, Industria Molitoria Mininni S.r.l., Moderne Semolerie Italiane S.p.A., Industria Agroalimentare De Vita S.r.l., Grandi Molini Italiani S.p.A., Semolificio Loiudice S.r.l., Molino S. Paolo di Paolo Gallo & C. S.p.A.
– against Ministry of Agriculture, Food and Forestry, Ministry of Economic Development,
– with the intervention of Adusbef Consumer Association, Ghigi 1870 S.p.A. sole proprietorship https://bit.ly/3Hijbja
(2) Dario Dongo. Pasta origin, what labels? GIFT (Great Italian Food Trade). 6.11.17
(3) A case in point is De Cecco, where authorities persist in tolerating the fraudulent boasting of ‘Italian grains’ in quantities <50%. V. Dario Dongo. Filippo Antonio De Cecco and the mysteries of Italian justice. GIFT (Great Italian Food Trade). 10.8.21
(4) Dario Dongo. National rules on origin labeling, green light from EU Court of Justice. GIFT (Great Italian Food Trade). 4.10.20
(5) Dario Dongo. Origin of wheat and rice, unnecessary chaos. GIFT (Great Italian Food Trade). 5.9.17
(6) Dario Dongo. Origin decrees, the Gentiloni circus continues. GIFT (Great Italian Food Trade). 8.5.18
(7) Dario Dongo. Decrees origin pasta, rice, tomato, plant location. Uncertainties and dangers. GIFT (Great Italian Food Trade). 31.5.18
(8) Dario Dongo. Origin decrees, last act. GIFT (Great Italian Food Trade). 12.6.18
(9) Dario Dongo. Decrees origin pasta, rice and tomato. New abuse from Bellanova and Patuanelli. GIFT (Great Italian Food Trade). 31.3.20
(10) Dario Dongo. Origin wheat, rice, and tomato. Theoretical renewal of decrees. GIFT (Great Italian Food Trade). 13.7.20
(11) Dario Dongo. Decrees origin pasta, rice, milk, tomato, pork. Theoretical extension to 31.12.22. GIFT (Great Italian Food Trade). 5.11.22
(12) MASAF (Ministry of Agriculture, Food Sovereignty and Forestry). Ok to decree extending labeling, Italy leads the way on information transparency. Press release. 23.12.22
(13) Dario Dongo. Establishment headquarters, omertà on Brussels Niet. Criminal complaint to Gentiloni & Co.. GIFT (Great Italian Food Trade). 1.6.18
(14) Dario Dongo. Origin, EU puts Italy on notice. GIFT (Great Italian Food Trade). 27.6.19
(15) Dario Dongo. Plant location, decrees of origin, milk expiration. GIFT puts the European Commission on notice. GIFT (Great Italian Food Trade). 14.8.19
(16) Dario Dongo. Food waste, our battle over fresh milk. GIFT (Great Italian Food Trade). 24.7.19
(17) Establishment headquarters, decrees of origin and expiration of milk, GIFT denounces the Commission to the European Ombudsman. GIFT (Great Italian Food Trade). 27.1.20
(18) Dario Dongo. Farm to fork, appeal of the meat and dairy industries to the European Commission. GIFT (Great Italian Food Trade). 3.5.20
(19) A recent case of Italian administrative justice’s ignorance of European law and jurisprudence is cited in Dario Dongo’s article. Precooked bread, the edict of the Council of State and EU food safety rules. GIFT (Great Italian Food Trade). 10.11.21
(20) Dongo, Dario (2019). Food Regulations and Enforcement in Italy. Reference Module in Food Science. Elsevier, pp. 1-5. doi: http://dx.doi.org/10.1016/B978-0-08-100596-5.21172-
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
