Space Balls. After Mel Brooks’ very likeable film, the one by Paolo Gentiloni Silveri, Carlo Calenda, Maurizio Martina and Andrea Olivero. A decidedly less sympathetic film, for the betrayed voters and the operators of the Italian food supply chain-farms, SMEs and micro-enterprises included-forced to face the costs of reviewing food labels and destined for the pulping of those in storage. Here is the story of the inglorious documentary, and the related evidence we gathered through access to the records of the European Commission.
Spaceballs, first half
Great Italian Food Trade, on 2.5.18
, published a copy of the letter sent on 1/28/18 by Commissioner Vytenis Andriukaitis
to the minister Angelino Alfano. In this letter, the European Commission informed the Italian government of the
‘
inadmissibility
à
Of the notification to Brussels of d.lgs. 145/17, by which the
‘
obligation to declare the location of the establishment (of production or, if different, of packaging) on labels of food products produced and/or packaged in Italy, as well as
é
marketed there.
The Ministry of Economic Development, on closer inspection, had at first notified Brussels of the outline of the measure in question, on 2.3.17. In compliance with EU rules requiring prior notification of any draft national regulations bearing technical standards for goods, and suspension of the‘
iter legis
for a minimum period of three months (c.d.
standstill period
). Period that the European Commission may decide to extend, as happened in this case (with extension until 2.10.17).
Ministers Carlo Calenda and Maurizio Martina
have, however Decided to discontinue the usual procedure of notifying technical standards. They thus withdrew the notification and proceeded to sign with subsequent enactment of Legislative Decree 145/17, providing for the‘Application as of 5.4.18. Anzichis, as a matter of right, to maintain the suspension of the
legislative process
until the green light from the European Commission.
The government then followed an anomalous path Of notification of the measure. Not in accordance with Regulation (EU) No. 1169/11 (c.d.
Food Information Regulation
),nor of the TRIS system (
Technical Regulation Information System
), introduced by Directive 98/34/EC as amended (most recently, dir. 2015/1535/EU). But rather under the Treaty on the Functioning of the‘European Union (TFEU, Article 114). Neglecting, however, the prerequisite for its application, namely, the pre-existence of the rule being notified in the‘national order.
L’
obligation to indicate the location of the establishment
of production on the labels of Italian food products had indeed been introduced by Legislative Decree 27.1.92, no. 109. However, this rule lapsed on 14.12.14, the date of implementation Of reg. EU 1169/11. Since thethen Minister for Economic Development Federica Guidi deliberately failed to notify the European Commission, as imperatively required by said regulation.
Legislative Decree 145/17 thus innovated the pre-existing rules, where from 14.12.14 (application of EU Reg. 1169/11) and until 5.4.18 (date of the planned application of the said decree) the location of the establishment was not provided as mandatory information on the label. As proof of this, Leg. 145/17 provided a special transitional regime precisely to allow operators to adjust to the new requirements. Which moreover partially differ from those of 1992.
Interlude. Plant headquarters, space bales
of the MiPAAF
By Paolo Gentiloni and Andrea Olivero
The
Ministry of Agriculture
, Food and Forestry – a following the articles published on the Great Italian Food Trade website, sent a request for correction on 9.5.18. This petition of was not granted because it lacked news evidenced by records and legal arguments to refute the information offered.
The
MiPAAF
– in a clumsy attempt to
‘
rectification
‘ of the information offered by Great Italian Food Trade – was careful not to challenge theauthenticity Of the missive sent by Commissioner Andriukaitis to Minister Alfano. He did not explain whyé this news has been kept secret for 67 days from citizens and especially companies in Italy, the latter of which have had to invest considerable resources to revise their labels and have had to consign those not used by 5.4.18 (the date of hypothetical application of Legislative Decree 145/17) to waste.
The department at Via XX Settembre
has not provided news of any letter of response to the Commission, as is appropriate in such cases, with good memory of theancient adage ‘
verba volant, scripta manent
‘. Instead, it entrusted its arguments to a self-referential narrative, perhaps even ‘self-extinguishing‘.
‘It is false – statesgoes l’lawyer Cristina Gerardis, head of the‘legislative office of MI.P.A.A.F. – what it said: the notification of the decree to the Commission was timely, our offices do do dozens of them, certainly we are not unfamiliar with this matter. As Deputy Minister Andrea Olivero made clear, there is an ongoing exchange of notes, a purely technical exchange of views, which those who do our work are used to handling, targeting the‘State interest in adopting appropriate legal disciplines to protect primary interests of citizens, such as health and the right to full information about food. (…)‘
Too bad
that
– as mentioned in the preceding paragraph and objected to by the European Commission-the European public registers where notifications of national standards are entered do not bear a record of what the Ministry alleges. Therefore, the writer filed an application for access to the records, in accordance with Law 241/1990. Request still unanswered, as of the date of compilation of this article.
The European Commission indeed, as our website revealed on 1.6.18, had already a year ago – on 3.7.17, to be exact – communicated to the Gentiloni government an opinion stating the absolute incompatibility of the draft decree on establishment location with EU Regulation 1169/11. That opinion, moreover, has also been kept secret, for almost a year, by the Gentiloni gang from its administrators.
The ministry has instead insisted In reiterating that ‘legislative decree no. 145 of 2017, which provides the‘compulsoryà of the indication of the production establishment on food packaging, has been fully binding in Italy since October 7, 2017, the date of its publication in the Official Gazette, and applicable since last April 5, after the six-month period for the‘Stock depletion by enterprises.‘
Spaceballs, second half
Following dn Gentiloni’s cryptic MiPAAF statements., the writer has requesto to the European Commission l’access to records relativi to the Italian notification of the ‘Legislative decree scheme regulating the‘mandatory indication in the‘location label and the‘Address of the manufacturing or, if different, packaging plant‘ – which occurred on September 28, 2017.
Ihe opinion of the Commission and correspondence intervened between it and the authorities italianand under the Gentiloni government, unfortunately, unveil any doubts definitively.
The 14.12.17 – shortly after the notification of the Italian decree under Article 114 of ,
Treaty on the Functioning of the‘European Union (TFEU), executed on 9/29/17 – the DGSANTÉ (General Directorate of Health and Food Safety) had already proposed its rejection. (1) ICommissioner Vytenis Andriukaitis has in fact then release this decision to the government Gentiloni, with note 30.01.2018 which is reattached here in its final version. (2)
L’Article 114 TFEU is in fact about ‘only the maintenance, after the‘Adoption of a harmonization measure, existing national provisions‘, While the draft legislative decree was not in effect at the time of notification.
L’
legal department of MiPAAF tried in vain to insist, inferring the pre-existence of the regulations and therefore invoking the
review of the decision
.
(3)
The Commission
however
h
a declared the review unwarranted and confirmed the
‘
inadmissibility
à
of the draft decree
. With a communication
13.4.2018
– Which MiPAAF was careful not to make public.
(4)
– in which Commissioner Andriukaitis specifies the following.
:
‘
V
or I should point out that Regulation (EC) no. 1169/2011 repealed Directive 2000/13/EC as of December 13, 2014. According to Article 3(2) of that directive, member states were allowed to maintain national provisions requiring the indication on the labeling of foodstuffs of the manufacturing or packaging establishment for their domestic production,
Λ According to the regulation, member states may not maintain such provisions after December 13, 2014 (…) By that date, theItalianauthorities had not sent any notification to the Commission in accordance with Article 114(4) TFEU as towhether the national provisionsalready in force under Directive 2000/13/EC that required the‘indication on the labeling of food products of the manufacturing or packaging establishment for their domestic production.
In this context, the Commission services note that the national provisions requiring the indication of the manufacturing or packaging establishment, namely Legislative Decree Jan. 27, 1992, no. 109, are no longer compatible with Regulation (EU) No. 1169/2011 since the entry into force of that regulation.
In conclusion, the Commission services believe that the review of the Commission’s decision of January 30, 2018 (C(2018)421 final) is not warranted.
Finally, it should also be noted that on March 30, 2017, the authoritiesà Italians notified the Commission under Directive (EU) 2015/1535 of a draft legislative decree that-similar to the legislative decree that was the subject of Commission Decision C(2018) 421 final-required the indication of the manufacturing or packaging establishment. Following this notification, on July 3, 2017, the Commission issued a circumstantial opinion that the draft ministerial decree was incompatible with Regulation (EU) No. 1169/2011.’
L’Italy could have maintain national provisions that prescribed to indicate la seat of the establishment in the label, thus effectively ensuring that consumers have the opportunity toà Of knowing where the products were made. But such standards should have come be notifiedate – precisely in accordance with‘Article 114(4) of the TFEU – by the 13th.12.14. And not three years later!
In right substantiated opinion 3.7.17, (5) of the rest, the Commission had already warned Carlo Calenda and Maurizio Martina about the illegitimatetity of the regulatory design in question. Heralding the possible initiation of infringement proceedings against the
‘
Italy, pursuant to Article 258 TFEU.
The incompatibility ofDecree No. 145 of 2017 with the European framework unequivocally renders this decree inapplicable.
Spaceballs, epilogue
Great Italian Food Trade has alreadyà denounced allto the Public Prosecutor’s Office at the Court of Rome the abuses, the omissions and the falsità Of former ministers in the government led by Paolo Gentiloni. And of the same nobleman (from Filottrano, Cingoli and Macerata), at the stage when he fulfilled the duties of minister of agriculture. By causing serious and unjust damage to Italian food businesses, which were falsely made to believe in the applicability of rules that Brussels had recisely censured. In addition to creating confusion among civil servants, exposing themselves to the personal risk of ending up on trial for failing to disapply unlawful regulations
.
They have
Space Balls, Now Enough!
The time has come
Gian Marco Centinaio
, the new Minister for Agriculture, Food and Forestry, distance himself from the abuses carried out by the Gentiloni circus and bring legal certainty back to Italy. Illegal regulations should be repealed immediately, to prevent further damage that could also result from infringement proceedings. Thus, retiring Leg. 145/17 on establishment location and the five DMs on origin of milk, pasta, rice, canned tomatoes. And remove senior officials who have contributed to the serious damage already done.
The battle for the protection of ‘
Made in Italy
‘
must be conducted head-on in Europe, in order to achieve the establishment location requirement as a prerequisite for the traceability of all food and feed circulating in the EU (under EC Reg. 178/02, Article 18). Compulsory indication of the origin of the primary ingredient is in turn to be demanded by the European Commission on a wide range of products (single-ingredient and with primary ingredient more than 50 percent, dairy and meat products), as repeatedly stated by the European Parliament, so far in vain. Without forgetting the dutiful
origin of meat in restaurants
which can instead be introduced nationwide, following the French example.
Dario Dongo
Notes
1) Proposed Decision of the DGSANT
É
dated 14.12.2017
2) Note dated 01/30/2018 from Commissioner Vytenis Andriukaitis,
3) Request for the
‘
Italy for reconsideration of the decision
4) Decision of the European Commission on the review of the decision of 13.04.2018
5) Detailed opinion dated 3.07.2017 by the European Commission.
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
