Plant location, origin and expiration decrees milk, GIFT denounces the Commission to the European Ombudsman

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The legal uncertainty associated with the application of Leg. 145/17 (plant location) and ministerial decrees on the origin of pasta, rice, milk, and tomato exceeded all limits. As the European Commission nevertheless persists in tolerating the formal survival of unenforceable national rules–as contrary to EU law–GIFT(Great Italian Food Trade) complained on 22.1.20 about its maladministration to theOmbudsman. European Ombudsman, last call.

Italian standards reported to Brussels

In 2017, the Italian state adopted four decrees on food labeling:

– Legislative Decree 145/2017, on the obligation to indicate the location of the production (or if different, packaging) plant on the labels of Made in Italy food products,

– Ministerial Decree 26.7.17, on mandatory labeling of the origin of wheat in pasta, (1)

– Ministerial Decree 26.7.17, on the mandatory indication of origin of paddy rice in rice,

– Ministerial Decree 16.11.17, about the mandatory indication of origin of tomatoes.

A further decree, making it compulsory to indicate the origin of milk on the label of Made in Italy dairy products, has in turn received a manifestly unlawful extension of effectiveness, through DM 7.5.18.

The labeling of fresh milk is also the subject of a previous national constraint, which, as previously reported, in imposing an ex lege expiration date, causes unjustified food waste.

Illegality of Italian regulations reported to Brussels

All of the above provisions affect consumer information related to food products, a subject of harmonized regulation in the EU. As well as qualifying as technical standards on the marketing of goods. Their effectiveness is therefore conditional on compliance with special EU rules, which require their prior notification to the European Commission and the suspension of the relevant legislative processes (for a minimum period of three months, so-called standstill period), pending the green light from Brussels. (2)

However, the Italian state has taken the reported measures in defiance of applicable European rules. By omission of their prior notification to Brussels in some cases, violation of standstill period rules and requirements received from Brussels in other cases. In blatant violation of, among other things, the Treaty on the Functioning of the European Union (TFEU 34 and 36).

The Court of Rome (XVIII Civil Section, order 3.1.19 in proceedings no. r.g. 41840/2018, Andrea Oliviero vs. Dario Dongo) recognized the inapplicability and unenforceability to third parties of Legislative Decree 145/2017 (relating to the location of the plant). But the conviction of the former vice-minister of Agriculture was not enough to bring back legal certainty.

Public documents that this writer has submitted to the European Commission, however, show a situation of continuing legal uncertainty, also caused by senior figures in public administration. Resulting in risks not only for food chain operators, who are still exposed to the risk of challenges of illegitimate regulations, but also for control authority officials. Who risk being prosecuted personally for abuse of office if they challenge rules that they should instead disapply ex officio because they are illegitimate.

The starvation of the European Commission

The European Commission has received repeated warnings about the inapplicability of the aforementioned Italian decrees. And it was also put on notice by the writer himself, on 11.8.19, but without providing the proper feedback.

The indolent officials in Brussels continue to fail in their duty to oversee the proper implementation of the Treaties. And instead of doing their job-as in a similar episode in the past (3)-Eurocrats even dare to arrogate to themselves the arbitrariness of deciding whether and when to intervene. And thus, to contribute to the alteration of competition in the Internal Market.

The serious damage to Italian operators

The principles of free movement of goods, proper functioning of the Internal Market and competitiveness of European businesses redound in every statement and policy of the European Commission. But they are blatantly defiled by the same institution when it comes to having to look after the interests of millions of SMEs, micro-enterprises and family farms above all. (4)

The European Commission’s maladministration in these dossiers has caused and still causes immeasurable damage to the various players in the Italian agrifood supply chain. Uncertainties and fears, illegitimate administrative penalties, and even criminal trials. Where the machinery of justice, often animated by figures with no expertise in European food law, can build Dantesque circles. (5)

Last Call, Oudsman

The European Ombudsman will now have to order the Commission to open infringement proceedings against the Italian state, through the EU-Pilot procedure. To put an end to a debacle that puts European as well as Italian institutions in a very bad light. And it is perhaps the political link between Rome and Brussels – where Count Paolo Gentiloni Silveri, signer of all the outlawed decrees, is now Commissioner for Economic Affairs – that explains the obfuscation of the law.

TheOmbudsman is tasked with investigating complaints from EU-based residents and organizations about instances of maladministration by EU institutions or other bodies. Cases of unfair behavior, discrimination, unjustified delays or unfair procedures such as those precisely reported.

Ireland’s Emily O’Reilly (pictured on the cover) was re-elected European Ombudsman by the European Parliament (by secret ballot in plenary session, 320 votes out of 600) on 3.12.19. Emily O’Reilly took office on 1.10.13 and has already distinguished herself through several brilliant initiatives, such as prodding the European Commission to adopt a Code of Conduct. To her, therefore, the last call before she has to appeal to the Court of Justice.

What about trade associations? The intermediate bodies that are supposed to represent farmers and artisans, industry and distribution have not been seen or heard in the three years of abuse their members have suffered. Vassalage to power or conflict of interest?

Dario Dongo

Notes

(1) The indication of the origin of the wheat used to produce the semolina used in pasta has, among other things, been the subject of a recent antitrust initiative in Italy. See previous article https://www.greatitalianfoodtrade.it/etichette/origine-grano-in-etichetta-della-pasta-tre-naufragi-per-timore-dell-antitrust

(2) See reg. EU 1169/11, EU dir. 1535/2015

(3) Cf. Pilot 5938/2013/SNCO

(4) Dongo, Dario (2019). Food Regulations and Enforcement in Italy. Reference Module in Food Science. Elsevier, pp. 1-5. doi: http://dx.doi.org/10.1016/B978-0-08-100596-5.21172-

(5) Among other examples, the writer most recently reported on the indictment of the owners of a café-pastry shop in Florence, on trial for fraud (!), for failing to mention on the label the location of the factory where some festivity sweets were produced. A Kafkaesque situation where the delusional accusatory theorem, in this case of the NAS, was taken up by the Public Prosecutor’s Office without any scrutiny of legal (in)soundness

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