Establishment location on label, controls at risk

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News has been gathering in recent weeks of official public controls on the indication of the factory location on the label of Made in Italy food products. Insight.

Background, reg. EU 1169/11

Regulation (EU) no. 1169/2011, referred to as the ‘Food Information Regulation‘ (FIR), makes harmonized general rules for consumer information on food products.
Articles 9 and 10 of the FIR indicate the exhaustive list of mandatory label claims. Such as the name of the food, thelist of ingredients (with graphic evidence of the keywords of so-called allergens), the name or business name and address of theresponsible operator, the country of origin or place of provenance of the food, where provided for in Article 26 below, etc.

As for the subjects expressly harmonized by this regulation, member states may neither adopt nor maintain national provisions unless authorized by Union law. Such national provisions do not create obstacles to the free movement of goods, including discrimination against food from other member states‘ (EU reg. 1169/11, Article 38).

Location of the establishment, Leg. 145/17

Legislative Decree no. 145/17 reads ‘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.’ This legislation, however, was enacted in violation of the reporting rules in Brussels. Rules provided by the FIC itself as well as, for the generality of national technical regulations affecting the production and placing on the market of goods and certain services, by Directive (EU) 2015/1535.

The Ministry of Economic Development then headed by Carlo Calenda had in fact notified Brussels of the draft decree, 2.3.17. However, without suspending itslegislative process, as it should have been, for a minimum period of three months (so-called standstill period), which the European Commission had extended to 2.10.17. Thus, on 3.7.17, the Commission notified the Italian government of a detailed opinion clarifying the inadmissibility of the national measure. Then confirmed by subsequent notification of inadmissibility of d.lgs. 145/17, signed by Commissioner Vytenis Andriukaitis, from GIFT(Great Italian Food Trade) published exclusively.

Establishment headquarters, decree inapplicable

In the absence of ritual notification to the European Commission, national measures are also not applicable in their respective territories. Under penalty of infringement proceedings and severe sanctions against the member state. According to well-established European case law, they cannot be opposed to the administered (in this case, food chain companies in Italy) and must indeed be disapplied by the authorities. (1)

The European Court of Justice (ECJ ) has clarified how the obligation of disapplication falls on all national administrative authorities, at the central and local levels, and not only on the judiciary. (2) The Court also clarified the inapplicability of state regulations even if only for failure to comply with the standstillperiod prescribed by Directive 98/34/EC et seq. (now EU Dir. 2015/1535) on national technical regulations. (3)

Legislative Decree no. 145/17 – on a par with national decrees on the origin of pasta, rice, canned tomatoes – is therefore a measure that is only formally in force but is illegitimate due to its conflict with European law. The latter of which, in the hierarchy of sources of law, has a superordinate role over constitutional norms. And it must be systematically disapplied by any authority, national or local.

National case law

Former v.minister of agricultural policies Andrea Olivero – after having in vain intimated the removal from the GIFT site (Great Italian Food Trad(e) of one of the many articles dedicated to the topic at hand, had had the temerity to sue the writer for defamation, in regard to which the Public Prosecutor’s Office immediately asked for a dismissal. He also filed an emergency appeal to the Civil Court of Rome, which dismissed the appeal and ordered Andrea Olivero to pay court costs.

Legislative Decree 145/2017, requiring food manufacturers to list on food labels the location of the production or, if different, packaging establishment on the packaging, published in the Official Gazette on 7/10/2017, is lacking in its finalization and effectiveness process because it has not been duly notified to the European Commission, based on Directive 98/34 EU, replaced by Directive 2015/1535 /EU.

Based on the interpretation on several occasions provided by the Court of Justice, the failure to comply with the obligation to notify a technical regulation, due to the consequent contrast to the Union legislation, entails the inapplicability of the domestic regulation and its unenforceability against private individuals, with the consequence that the latter can make use of the procedural defect – the failure to notify – to plead the inapplicability of the domestic technical regulations against them before the national courts, which are responsible for the disapplication of a domestic technical regulation that has not been notified in accordance with the aforementioned directive.’ (4)

Establishment headquarters, a moral duty without obligation. Controls at risk

The location of the factory on the label of food products-as this writer has always maintained and still reiterates-is a Must for safeguarding and enhancing Made in Italy globally. Therefore, current government officials are urged to work for such information to be prescribed at the EU level on the labels of all products, food and non-food, placed on the internal market. To supplement what is called for in the European citizens’ initiative. #EatORIGINal! Unmask your food!

However, the indication of the location of the plant remains merely optional to date. Because the government then headed by Paolo Gentiloni deliberately violated European rules that preside over the adoption of national technical standards, and these violations are irremediable. The indication of the location of the factory can therefore be maintained on a voluntary basis, and we recommend its use partly because Italian consumers have finally understood the value of choosing products that contribute to the economy and employment in Italy.

Public officials that violate their duty to disapply national technical regulations that have not been notified or are otherwise unlawful because they are clearly contrary to EU law – on establishment and source – Instead, they incur the concrete risk of charges against them for the crime of abuse of office. They thus find themselves unfairly exposed to criminal liability because of irresponsible and unpunished former ministers who deliberately violated the rules that have been in place in Europe since as far back as 1983.

Imposition and penalty orders, moreover, are sure to be overturned if appealed. And public agencies may be ordered to pay compensation for damages unjustly, albeit in good faith, caused to the recipients of these measures. Therefore, clarifying action from both the relevant ministries and the ICQRF, and especially the European Commission, is urgently needed. Which continues to omit due acts in this regard, in these cases as in the even more obscene one on the ‘forced expiration‘ of fresh milk in Italy.

This is not the modus operandi of the institutions, Italian and European, that we want. For the political convenience of a few, the serious harm to the supply chain operators and officials of the authorities who with commendable diligence ensure their public controls. Shame!

#Égalité!

Dario Dongo

Notes

(1) See, on all, the EU Court of Justice (ECJ) judgments ‘CIA Security International‘ (30.4.96, C-194/94, para. 54) and ‘Ince‘ (4.2.16, C-336/14, para. 67)
(2) ECJ, ‘Fratelli Costanzo’ judgment (Case C-103/88, paras. 31-33)
(3) ECJ, ‘Unilever Italia’ Judgment (Case C-443/98, paras. 39-44.
(4) Court of Rome, XVIII Civil Section, order 3.1.19 in proceedings no. r.g. 41840/2018