Origin, EU puts Italy on notice

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Once again, unfortunately, the announcement of the introduction of mandatory food origin labelling in Italy is denied by Brussels. After the repeated lies, abuses, and omissions of the government led by Paolo Gentiloni, comes now the news of the formal notice of the executive led by Giuseppe Conte. The European Commission, this time, challenges non-compliance with EU rules in the so-called ‘simplification decree.’ Text and details to follow.

Food origin, the big lie

Italian citizens should have ‘grown accustomed’ to the false promises about food origin labeling that various multicolored governments have continued to propose for 15 years now. The lie is an electoral bargaining chip, resold by Coldiretti to the citizen-voters with the complicity of every newspaper and journalist who even though they claim their independence, as most recently Milena Gabanelli. Le
fake news
are systematically taken up by everyone, consumer associations and supply chain representatives included. And the losers are not only the mocked consumers, but also the the operators who with frequent periodicity find themselves forced to revise labels, discarding those believed to be non-compliant, in order to follow up on regulations that are only formally in force but illegitimate and unenforceable due to their blatant conflict with the ‘rules of condominium Europe. And the country-system, ça va sans dir, loses credibility as always.

The writer has repeatedly pointed out and denounced the falsity of the many national measures that have followed one another over the years. The first was Law 204/04 (Article 1-bis), by which the then Minister of Agriculture Gianni Alemanno tried in vain to introduce a requirement to indicate the origin of raw materials on the labels of all food products. Except to be warned by the Commission to refrain from implementing the rule, which in fact never happened. Instead, the latest lies date back to the ‘Gentiloni circus‘ Maurizio Martina, Carlo Calenda, Andrea Olivero, at his side. With the decrees that provided, only in words, for mandatory labeling of the location of the factory, as well as the origin of pasta, rice and tomatoes. With the final mockery of a final act by which Paolo Gentiloni and Carlo Calenda clumsily tried to extend the temporal effectiveness of decrees that were not only illegitimate but also already expired due to planned obsolescence.

The only voice out of the chorus of these lies has also suffered a lawsuit and an emergency appeal to the Civil Court of Rome for spreading – on this very independent site, GIFT(Great Italian Food Trade) – the news of the Gentiloni government’s space lies. But both the criminal and civil courts proved wrong reckless litigant Andrea Olivero, who has already been ordered to pay legal costs and will also answer for his false accusations.

Food origin, the yellow-green lie

It is even more regretful to note that the ‘government of change’ has also decided to follow in the footsteps of previous ones. In strategic relations with Russia and toxic treaties with Japan and the US(TTIP) and other countries (Singapore and Vietnam most recently), but also on origin labeling. It has not had the strength, Giuseppe Conte’s government, to emancipate itself from Coldiretti’s ‘vote factory’. And it re-proposed, with the simplification decree, a rule that this writer had already pointed out was in blatant conflict with EU law. Smoke in the eyes, as has already been written. And now, inexorably, comes the bill to pay.

For good memory and par condicio, one cannot refrain from recalling Coldiretti’s press releases and institutional ones-followed closely by newspapers and TV-that accompanied the so-called simplification decree in January 2019. ‘‘Introduced mandatory origin labeling for all food products in Italy!’, shouted the shouters and headlined the newspapers. Without anyone bothering to carry out fact checking, an ancient rule of common sense as well as journalism. Indeed even, mimeographs carried press releases without even paying attention to the true content of the decree. Article 3 of which-as opposed to what is falsely reported- merely delegates the government to consider introducing new obligations in the future through legislative decrees (by virtue of the aforementioned delegation, without the need to resort to further passage through Parliament).

‘Made in Italy wins, honest producers win, and consumers will now be able to choose in total transparency. No more misleading or false information on our tables. We promised it, and now we bring home this important result. Citizens, trade associations and our companies that every day, with their work and the excellent agri-food products they produce, carry our country’s name high in the world had asked us to do so. We are on their side.’(ipse dixit Gian Marco Centinaio, minister of agriculture, food, forestry and tourism policies, January 2019)

National standards, the rules to be followed in the EU

National technical regulations pertaining to production and marketing of goods and certain services are always subject to a duty of prior notification to the European Commission. Based on a rule dating back to 1983, now contained in Directive 2015/1535/EU. That is, when national regulations concern consumer information on food products, according to Reg. EU 1169/11. Following notification, 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 cannot be enforced. That is, it is worth as waste paper, in spite of its only apparent, formal vigor. And it exposes the disrespectful state to the real risk of being subjected to infringement proceedings under Art. 278 TFUE.

‘A member state that deems it necessary to adopt new food information legislation may adopt the envisaged provisions only three months after the notification referred to in paragraph 1, provided that it has not received a negative opinion from the Commission.’ (EU Reg. 1169/11, Art. 45).

The EU Court of Justice has consolidated its jurisprudence on these issues over the years with a series of pronouncements now familiar even to university freshmen (or at least one hopes) that are literally unenforceable against private individuals, by virtue of solid ECJ case law. In particular:

the ‘Fratelli Costanzo’ rulingclarified how failure to notify entails the obligation to disapply the national rule by all administrative authorities, at the central and local levels, and not only by the judiciary. (1) The unnotified rule is therefore unenforceable against private parties, pending Brussels orders its repeal,

the ‘Unilever Italia’ rulingalso confirmed the inapplicability of the national technical standard even if only because of the failure to comply with the standstill period of thelegislative process provided by the above-mentioned EU rules. (2)

Simplification decree, putting Italy on notice

On 7.3.19 Italy had notified the European Commission of Art. 3a of the ‘simplification decree’ (Decree Law 135/2018, converted into Law 12/2019) on food origin. Too late, given that the ‘Food Information Regulation’ requires member states to suspend the application of any national consumer information regulation for a minimum period of three months from its due prior notification to Brussels. So that the European Commission and member states can comment on its compatibility with common law, and if necessary discuss it with the state that took the initiative, including with a view to possible corrections. With the aim of ensuring the free movement of goods-first pillar of the TFEU (Treaty for the Functioning of the European Union) in the Internal Market.

On 21.5.19 the European Commission – in a missive that we collected, unfortunately, only today – informed Italy that it had received notification of the simplification decree after its entry into force. (3) Brussels also notes that the measure falls outside the scope of concurrent legislation reserved by the ‘Food Information Regulation‘ for member states, and is therefore contrary to said regulation. Since this is a general provision, insisting on subject matter already regulated in detail by Reg. EU 1169/11. The Commission therefore highlights the Italian government’s violation of applicable European law. In form, due to late notification, and in substance for the above reasons.

Italy will now have to repeal the rule under consideration-which is already, it is reiterated, illegitimate and unenforceable-under pain of facing infringement proceedings. And if anything useful is to be done, to ensure that consumersAre provided with transparency about the origin of products and the provenance of their raw materials, it will rather be to work hard on the European consumer initiative #EatORIGINal! Unmask your food! Instead, within its competence, Italy will be able to ensure transparency by introducing arequirement for the origin of meat in restaurants, referring to the draft decree that this writer has already prepared on behalf of the Italia Zootecnica Consortium. It may also establish a requirement in Italy to indicate the origin of fruits and vegetables used in juices and smoothies served by communities. Under the banner of #SpremutaItalianaLibera, which even this isolated voice has vainly proposed, to enhance Italian citrus farming. Providing, even in such cases, for due notifications to Brussels. Nothing more, nothing less. Transparency and honesty.

Dario Dongo

Missive European Commission 21.05.19

Notes

(1) Case C-103/88, paragraphs 31-33. See also cases C-194/94 CIA Security International and cases C-144/16, Municipio de Palmela

(2) Case C-443/98, paragraphs 39-44

(3) See reg. EU 1169/2011, Art. 39

 

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