Legislative Decree. 231/17. ABC penalty calculation. MiPAAF Errors

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The
d
legislative decree 231/17, in implementing and punishing violations of the reg. EU 1169/11, provides some facilities in cases of immediate payment, agricultural enterprises and microenterprises. But the accounts proposed by the MiPAAF do not return. To meet the standards of the d.lgs. 231/17, ABC calculation of penalties.

Consumer information, Leg. 231/17. ABC calculation administrative penalties

The official inspection report, remember, must report the actions taken by the competent authority. (1) Administrative penalties, except in exceptional cases, must therefore be calculated and issued at the same time as the inspection report and the prescription of corrective actions that the Authority considers appropriate.


Legislative Decree 231/17
specifies, in Article 27, how to apply the administrative fines provided for in the decree itself, on the subject of consumer information.

A) First, the amount of the penalty is determined by applying the lesser of one-third of the maximum and twice the minimum of the sentencing range. (2) A facility provided by the law 689/1981 For payment within the 60 days from the dispute or related notification. (3)


B) Second, if the operator is an

agricultural enterprise
(4)(5) and the Authority determines ‘
for the first time
‘ the existence of ‘
sanctionable violations
‘ in the hands of the same, it ‘
warns him to comply with the violated requirements
‘ within the 20-day period. (6).




In case of failure to comply with the requirements contained in the notice

‘ within the said period, the Authority shall proceed to contest the penalty without applying the benefit of paragraph A above.

The 30% reduction is in any case due, to agricultural enterprises, where payment is made ‘
within five days of the dispute or notification
‘ (7),


C) If the operator is a

microenterprise
, Finally, the Authority may reduce the penalty as determined above by up to one-third. (8) Therefore, by applying a ‘sentence discount’ of less than or equal to to a third party (See Legislative Decree 231/17, Article 27.3).


Legislative Decree 231/17, penalties and discounts.


The


error


i


of the MiPAAF

The MiPAAF circular 8.5.18 Has already been briefly described. It was pointed out, among other things, the inadmissibility of the theorem that branding on the label could be equivalent to the dutiful indication of the name or business name of the responsible operator. (8)


A closer reading
of the table attached to the said circular, however, shows several errors made by MiPAAF in calculating the penalty amounts established by Legislative Decree 231/17.


By reversing the order of operations
,
l’


ICQRF

applied the reduction in favor of microenterprises – to the maximum extent of one-third, moreover, which is by no means ‘discounted’ (10) – on the edict penalty. Instead of on the lesser amount defined (between one-third of the maximum and twice the minimum of the sentencing range) under the expressly mentioned facility firstly. (11)


In practice.
, MiPAAF’s accounts do not add up. Let us take an example, referring to thethe penalty provided
for failure to indicate allergens on the
vending machines
,
from € 5,000 to € 40,000
: (12)


A) the
calculation should start from the lowest sum
t
between the third of the maximum and do
p
pious of the minimum. In this case the Double the minimum, amounting to € 10.000
,


B) where it is
a first-time offender agricultural enterprise, a penalty of € 7,000 (€ 10.000 – 30%)
,


C)

in the case
of a
microenterprise, the
maximum reduction of one-third
would lead to a penalty of
€ 6666,67 (€ 10.000 – 1/3). To reduce further, for payment within 5 days
, up to
€ 4.667,67 (€ 6.666,67-30%)
.

Applying the ICQRF accounts, however, the results are quite different. Following table.

MiPAAF Table

Dario Dongo

Notes

(1) See reg. EC 882/04, art. 9

(2) Thus Leg. 231/17 in Article 27, Paragraph 1

(3) By express reference to Law 689/81, Article 16 –
Reduced payment

(4) See Law 116/14, c.d. Free field, Article 1. By express reference in the d.lgs. 231/17, in paragraph 2 of Art. 27



(5) As provided for in the Civil Code



Fifth Book of Labor







Title II Of Labor in the Enterprise Chapter I Of the Enterprise in General – Section I Of the Entrepreneur Art. 2135

(6) See Law 116/14, art. 1.3

(7) See Law 116/14, , article 1.4

(8) Microenterprise qualifies for a turnover (i.e., the amount of money earned in the fiscal year) or a balance sheet (i.e., the statement of assets and liabilities) of less than 2 million annually and fewer than 10 employees. The two requirements, economic and employment, it should be noted, must concur (see EC Recommendation 6.5.03)

(9) The duty to state the name or business name of the responsible operator under reg. EU 1169/11, Article 8.1, is specified in Article 9.1.h below.

(10) The legislative decree refers to the decrease ‘up to one-third’ in favor of microenterprises. This means that the larger decrease


(equal to




one-third




)


may be consistently applied to an operator with truly minimal turnover and employment, when violations are not particularly serious (e.g., https://www.greatitalianfoodtrade.it/etichette/controlli-il-ruolo-dellamministrazione-sanitaria/), in the absence of repeat offenses. Conversely, in cases of enterprises whose turnover or budget is close to 2 million euros, with serious and repeated violations, the ‘discount’ should be limited to the minimum. And in any case, the extent of the decrease d


ovre




bbe come motivated

(11) According to the provisions of Legislative Decree 231/17, Article 27.1, which refers to Article 16 of Law 689/81

(12) See d.lgs. 231/17, Article 18

(13) Cf. https://www.politicheagricole.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/12598

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Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.