Italian decrees on the origin of pasta, rice and tomato ingredients-while illegal ab origine, due to blatant conflict with EU law-are being brought back into the light.
Waste paper
The new abuses bear the signatures of Teresa Bellanova and Stefano Patuanelli, ministers of Agriculture and Economic Development, respectively. Which decree the extension of (in)effect of the aforementioned ‘origin decrees’ until Dec. 31.21. Suddenly and for no reason, on 3/30/20. Overlapping with, among others, reg. EU 2018/775, on the origin of the primary ingredient, which applies right from 1.4.20.
The risk is forcing hundreds of thousands of food workers-already plagued in their jobs and families by the coronavirus pandemic-to throw away thousands of tons of packaging, meanwhile adjusted for the reg. EU 2018/775.
A misplaced April Fool ‘s joke, which, however, will not produce any legal effect. Since once again these are national technical standards on food labeling that are not subject to prior notification to the European Commission, as can be verified on the relevant webpage. And this is the condition, which is missing, for state regulations to be enforced.
It is waste paper in short. Rather, papier-mâché, at a time when agribusiness operators in Italy have far more pressing issues to address. Insight.
The saga of abuse in Italy
In 2017, the Italian government, then led by Paolo Gentiloni, repeatedly trampled on the rules laid down in the Treaty, Regulation (EU) 1169/11 and EU Directive 2015/1535. By adopting Leg. 145/17 (requiring the location of the establishment to be indicated on the label), already declared inapplicable by the Civil Court of Rome, by order 3.1.19. And three inter-ministerial decrees, equally unenforceable for the same reasons, regarding the labeling of the origin of wheat and semolina in pasta, paddy rice in rice, and tomatoes in its preserves. (1)
The aforementioned ‘decrees of origin’ – by their express provisions and although, it is reiterated, inapplicable – lost their effectiveness on 1.6.18, the date when reg. EU 2018/775 (c.d. Planet Earth Origin, OPT). But the stubborn Paolo Gentiloni and Carlo Calenda-with the interministerial decree 7.5.18, which is unconstitutional due to its conflict with the prelegislations (para-constitutional norms)-tried to extend the application of the ‘origin decrees’ until 1.4.20. (effective date of the OPT regulation).
On 7.3.19 Italy then notified the European Commission of Art. 3a of the ‘simplification decree’ (Decree Law 135/2018, converted into Law 12/2019) on food origin. However, on 5/21/19, the European Commission notified Italy that the rule in question was unlawful in substance, as well as form. With a missive that, it should be noted, was made public not by the first Conte government then in power but by the writer, on 6/27/19, on the GIFT(Great Italian Food Trade) website. In the deafening silence of the press and supply chain representatives.
The shame in Brussels and Strasbourg
The EU Court of Justice has repeatedly stated that failure to notify Brussels in advance of any national technical standard affecting goods and services results in its unenforceability. (3) The European Court of Justice (ECJ) has also clarified the duty of all administrations to refrain from applying any national technical standard that has not been duly notified and received the green light (albeit by silent consent) from the European Commission.
In 2017, the European Commission was notified by the writer that the ‘decrees of origin’, Legislative Decree. 145/17 (establishment location) and the rule providing for the ‘forced expiration’ of fresh milk. (4) Following repeated unanswered reminders, GIFT(Great Italian Food Trade) put the Brussels Executive on notice on 11.8.19. Unnecessarily unfortunately, once again. (5)
The Ombudsman was therefore concerned, again by the writer, on 22.1.20. But the Strasbourg Ombudsman, in a letter dated 20.2.20 (see Appendix), affirmed the arbitrariness-in the European Commission’s hands-to decide whether and when to take action against states that violate EU rules.
Meat and dairy companies in all member countries, represented in Brussels by the confederations CLITRAVI(Centre de Liaison des Industries Transformatrices de Viande) and EDA(European Diary Association), in turn appealed to the European Commission led by Ursula von der Leyen. Also calling on them, in letter 4.3.20, for Brussels’ dutiful intervention to safeguard the Internal Market from the proliferation of national technical standards that vary from state to state.
Does Pantalone pay?
Pantalone always pays, unfairly. It pays for the delays of the civil service, from which money is still awaited for March salaries of workers forced to lay-off due to Covid-19 (‘Cure Italy’ or ‘Placebo Italy’?). It pays for ministers’ blindness to the crisis in farmers’ agriculture and direct markets. And now he should also have to pay for the uncertainty of possible controls on the application of unenforceable rules due to conflict with EU law? Just No, no way (!).
We are going back to the drawing board, at the cost of investing additional resources in legal action at the EU Court of Justice. Contributions and participation welcome to support a principle of civilization, legal certainty.
Dario Dongo
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
