Great Italian Food Trade revealed the letter 28.1.17 from Commissioner Andriukaitis to ex-Minister Alfano, advising that the notification to Brussels of the d.lgs. 145/17, by which the requirement to cite the location of the establishment on the label was reinstated (of production or, if different, packaging) on the labels of food produced and/or packaged and sold in Italy. The government led by da Paolo Gentiloni had kept such a missive hidden for months during the election campaign. But there is more, the Commission had already ruled negatively on the issue, without consumers and operators being informed of this. Omertà and abuse, details to follow.
Plant headquarters, the Brussels Niet
The Gentiloni government
, as has been repeatedly pointed out, decided at the time to interrupt the dutiful procedure of notification to Brussels of the draft decree on the obligation to indicate the place of establishment on the labels of food products
Made in Italy
. Because of this, the subsequent Legislative Decree 145/17, of the same subject, must now be disapplied by the public administration as unlawful, according to established case law of the EU Court of Justice.
The abuse and the omertà of the previous government are even more serious, however. As early as 3.7.17, the European Commission sent Italy a detailed opinion (see Annex) signed by Elżbieta Bieńkowska, Commissioner for Internal Market, Industry, Enterprise and SMEs. Regarding the ‘
legislative decree scheme regulating the mandatory indication on the label of the location and address of the production or, if different, packaging establishment
‘, which the ministry then headed by Carlo Calenda had notified to Brussels on 3.3.17.
On July 3, 2017, the Commission had clarified
to the Italian government that the list of mandatory information to be provided in food labeling – as defined in the reg. EU 1169/11, Article 9.1 – should be understood as mandatory. That is, no member state is allowed to introduce additional mandatory information on the labels of the generality of pre-packed foods, outside of the common ones.
‘For the above reasons, the Commission issues, in accordance with Article 6(2) of Directive (EU) 2015/1535, a detailed opinion that the notified scheme would violate Regulation (EU) No. 1169/2011-in particular, Article 9(1)-if it was adopted without due consideration of the comments made above.
At the same time, the Commission recalls that Regulation (EU) No. 1169/2011 allows food business operators to provide additional information to consumers on a voluntary basis, including information on the location of the production establishment.’ (EC, detailed opinion 3.7.17)
The Italian government was at the same time intimated
– under the dir. EU 2015/1535, Article 6.2 – to postpone the adoption of the said legislation for six months from the date of the notification. That is, until 2.10.17. ‘
It also draws the Italian government’s attention to the fact that, under this provision, a member state that receives a detailed opinion must report to the Commission on the action it intends to take on that opinion.
‘
‘
The Commission also invites the Italian government
to notify it of the final text of the draft technical regulation concerned as soon as it has been adopted, in accordance with Article 5(3) of Directive (EU) 2015/1535.
‘
‘Should the Italian government fail to comply obligations under Directive (EU) 2015/1535 or if the text of the draft technical regulation under consideration is adopted without taking into account the above objections or otherwise violates European Union law, the Commission may initiate proceedings in accordance with Article 258 of the Treaty on the Functioning of the European Union.’
Plant headquarters, the Gentiloni government’s abuses and omertà
On 9/15/17, President of the Republic
Sergio Mattarella issued Legislative Decree no. 145, bearing ‘Regulation of the mandatory indication on the label of the location and address of the production or, if different, packaging establishment, pursuant to Article 5 of Law Aug. 12, 2016, no. 170 – European Delegation Act 2015.‘ (1)
Paradoxically, Leg. 145/17 was published in the Official Gazette on the same day by which the Italian government should have refrained from adopting it, according to what Brussels indicated in the detailed opinion attached here. Without the Italian Republic (to the best of our knowledge, having made a request for access to the records) having either contested or even responded to the European Commission’s findings. Paolo Gentiloni and his gang acted ‘as if they were at home’ instead of in Europe.
The President of the Republic
– who boasts, among other things, a legal education – should have supervised the constitutional legitimacy of the legislative decree before signing it. European rules indeed rank even higher in the hierarchy of sources of law than Italian constitutional rules, according to the jurisprudence of the consulta. So he did not, Sergio Mattarella, who is nevertheless exempt from liability for ‘
acts done in the performance of his duties, except for high treason or an attack on the Constitution’
. (2)
The criminal responsibility of members of the Gentiloni government
deserves attention instead. Indeed, the Council of Ministers adopted a special resolution approving the decree on the location of the plant, ‘
at its meeting on Sept. 15, 2017
‘. In blatant violation of EU rules on the notification of national technical standards, as well as in defiance of the Commission’s July 3, 2017 detailed opinion. Liability for the crime of abuse of office should fall on the entire college, and it is particularly serious for the members of the government who proposed the adoption of the decree. Namely:
- Paolo Gentiloni, then president of the Council of Ministers,
- Carlo Calenda, former minister of economic development,
- Beatrice Lorenzin, former minister of health,
- Maurizio Martina, alloreché holder of the department of agricultural food and forestry policies.
Abuse of office. ‘Unless the act constitutes a more serious crime, a public official or public service appointee who, in the performance of his or her duties or service, in violation of laws or regulations, or by failing to refrain in the presence of his or her own interest or that of a close relative or in other prescribed cases, intentionally procures for himself or herself or others an unfair pecuniary advantage or causes unfair damage to others, shall be punished by imprisonment of six months to three years.
The punishment is increased in cases where the benefit or damage is of a significant seriousness
‘ (Criminal Code, Article 323).
Paolo Gentiloni, Carlo Calenda, Beatrice Lorenzin and Maurizio Martina
have deliberately violated European rules that prescribe the notification of technical standards to the European Commission and the suspension of the
legislative process
during the period fixed for this purpose (so-called.
standstill period
). Thus causing unjust damage to food chain operators in Italy, who found themselves forced to change the labels of their branded products under illegitimate regulations. With the greater harm caused by the need to send labels that do not comply with Legislative Decree 145/17 for pulping if not used by April 5, 2018 (the date of theoretical application of the measure.
Andrea Olivero – in his capacity as former vice-minister
of agricultural, food and forestry policies – will in turn have to answer for abuse of office and false statements in public acts such as press releases and ministerial circulars that fall under his delegated authority. Where, instead of disapplying as dutifully the unlawful national rule as contrary to EU law, neither publicly reaffirmed the theoretical ‘full force’.
‘The crime of abuse of office is likely to harm, in addition to the public interest in the good performance and transparency of public administration and the impartiality of public officials, the interest of the private individual in not being disturbed in his constitutionally guaranteed rights and not being harmed by the illegitimate and unjust behavior of the public official.’ (3) E ‘
‘the President of the Council and ministers, even if they have ceased to hold office, shall be subject, for crimes committed in the ‘exercise of their functions, to ordinary jurisdiction, subject to the authorization of the Senate or the Chamber of Deputies, in accordance with the rules established by constitutional law
.’ (4)
The complaint against the aforementioned ministers
is executed in this same writing, which is therefore forwarded to the kind attention of the Public Prosecutor’s Office at the Court of Rome. With a prayer of receiving notice in the unbelieving of a request to dismiss the proceedings.
Dario Dongo
Attachment
European Commission Detailed Opinion 3.7.17 on Italy’s Notification 2017/135)
Notes
(1) In Official Gazette General Series 7.10.17 no. 235
(2) See Constitution of the Italian Republic, Article 90. The crime of attacking the Constitution, moreover, punishes only ”
Whoever, by violent acts, commits an act directed and suitable to change the Constitution of the State or the form of government
‘ (Penal Code, Article 283)
(3) Criminal Cass., Section VI, judgment 16.12.10, no. 1231
(4) Cf. Constitution of the Italian Republic, Article 96
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
