Virgin or extra virgin? Civil cassation off the road

0
14

Virgin or extra virgin olive oil? The difference is not insignificant, as it expresses the quality and value of a pivotal food in the Mediterranean diet. But the Supreme Court, Sixth Civil Section, completely loses sight of European food law. Therefore, it is good to clarify the fundamentals before dismissing a shameful precedent that cannot be followed.

Virgin or extra?

Regulation (EC) 2568/91, as amended, distinguishes between different categories of olive oils-extra virgin, virgin, olive oil (refined), lampante, and olive-pomace oil-on the basis of process and product requirements. (1) Both extra virgin and virgin olive oils are obtained ‘directly from olives and solely by mechanical processes.’ (2)

Extra virgin, however, differs from virgin in that it is of ‘superior quality,’ which is identified (and must be verified) through a series of objective parameters:

– chemical-physical criteria such as acidity (<0.8 vs. <2%), fatty acid ethyl esters, spectrophotometric values (with decimal variations which express oxidation levels),

– organoleptic criteria. In extra virgin is prescribed the total absence of defects, at the sensory analysis of the panel of tasters. (3)

Virgin olive oil is in fact a second-class oil. Where allowed, albeit within certain limits, are certain flavor defects such as reheat/mildew, mold-moisture-soil, vinegary-acid-acid, rancid, frozen olives (damp wood). Rather than cooked or overcooked, hay-wood, coarse, lubricants, vegetable water, brine, metallic, sparto, worm, cucumber. (4)

Larks’ mirrors

Bottles of extra virgin olive oil (EVOO), for more than two decades in Italy, have topped the list of mirrors for larks. That is, the references that various supermarket chains promote at bargain prices, even below cost, in order to attract consumers to their storefronts.

This phenomenon exacerbated the competition on EVOO in the so-called ‘first price’ segment. With the aggravation of the competition between IDM (Brand Industry) and MDD (Retailer Brand), the unfairness of which is blatant where one considers the asymmetry of knowledge (on value chain and price dynamics) and power, in favor of the GDO (Large Scale Retailing).

The lark is the consumer, attracted to go to a supermarket or hypermarket precisely by the idea of being able to buy ‘extra virgin olive oil‘ at a generally bargain price. A legitimate expectation that must be matched by the exact performance of the promised service. That is, the sale of a product that actually meets the characteristics of EVOO, as recalled in the paragraph above.

Who protects consumers and the market

‘Where it is found that an oil does not correspond to the description of its category, the Member State concerned shall apply effective, proportionate and dissuasive penalties established on the basis of the seriousness of the irregularity established, without prejudice to other possible penalties’ (EC Reg. 2568/1991, Article 3.1).

The ‘Repressione Frodi‘ (now ICQRF) and the NAS (Nucleo Anti-Sofisticazioni at the Carabinieri Corps) have always carried out and still carry out a crucial activity of supervising the trade of olive oils (as well as various other products) on the Italian territory and sometimes also abroad. (5)

The criminal law frequently finds application in cases of the sale of aliud pro alio, such as a virgin oil labeled as extra virgin. This may indeed be fraud in trade, punishable under Criminal Code Article 515. But the authorities, in recent times, have favored applying only the administrative penalty.

The administrative procedure is indeed quicker, but authorities with a judicial police function cannot and should not evade the duty to forward the report of an ex officio prosecutable offense-such as fraud in trade-to the competent public prosecutor’s office. As prescribed in the Code of Criminal Procedure, Article 330.

ICQRF vs. PAM, 1-2

ICQRF officials had established the possession for sale of virgin olive oil drums labeled as EVOO by the PAM S.p.A. Group. Instead of forwarding to the Public Prosecutor’s Office the report of the crime of fraud in trade, collecting any useful documentary evidence to assess its merits (e.g., purchase price, criteria adopted to qualify the supplier), ICQRF applied an administrative penalty of €44,404.

ICQRF then failed to intervene in the court case opposing the above sanction order. And the Civil Court of Velletri, in the (culpable) default of the ministry, upheld the objection on the most futile of grounds, the lack of the subjective element. Namely, the absence of fault on the part of the distributor in having held for sale a product of lower quality than that stated on the label.

The ministry woke up-after losing 44,000 euros (sic!)-and appealed to the Rome Court of Appeals. The lower court thus agreed with the civil service, but its ruling was appealed and set aside by the lower court. ICQRF – PAM, 1-2.

Cassation off the road

The Supreme Court of Cassation, Sixth Civil Section (President Pasquale D’Ascola), by order 9.1.20 no. 10946, censured the judgment of the Rome Court of Appeals mentioned above. Accepting the defense theory that the distributor was irresponsible because the supplier had guaranteed in writing the contents of the drums and they were found unopened.

‘Indeed, from a reading of the judgment under appeal, the circumstance highlighted by the appellants, which was also capable of significantly affecting the judgment of the existence of liability for the configured administrative violation, does not appear in any way. In this regard, continuity should be given to the principle that the error on the lawfulness of the fact is decisive and justifies the exclusion of liability when it has the character of inevitability and depends on an element or fact extraneous to the offender‘ (Cass. Civ., Order 10946/2020)

Completely off track ended up the Supreme Court. In blatantly ignoring the distributor’s responsibility for full compliance of the food products it markets with all applicable regulations. An enhanced responsibility that concurs with that of the producer (and any intermediaries), stated with crystal clarity in Regulation (EU) 1169/11. (6) A European regulation that ranks higher in the hierarchy of sources of law than Italian constitutional rules.

The lower court therefore ignored the Food Information Regulation altogether. And before that, European food law in its essence, starting from the General Food Law. (7) Which supplements national law and should be taken into the highest consideration when estimating the level of prudence, diligence and expertise to which professional operators must adhere throughout the food and feed supply chains.

Professional fault of the distributor

Professional misconduct thus arises in all cases in which the operator is unable to demonstrate that it has performed all the activities that should be expected of it-in the light of the best science and experience applicable to the field, at the relevant historical moment-to prevent the non-conformity from occurring.

The distributor must therefore demonstrate the actual inevitability of the event, despite the application of self-control systems that in large-scale retail today are based not on blind trust in the written declarations of suppliers, nor on the sealing of packages (an element that in itself is only worth excluding post-delivery adulteration or adulteration phenomena).

Instead, the best science and experience translates into the effectiveness and efficiency of supplier qualification protocols (preliminary checks, certifications and audits) and product acceptance (with dutiful sample testing). In the context of a quality system consistent with the applicable mandatory rules and voluntary standards. These find a shared reference point on an international scale in the Global Food Safety Initiative (GFSI) guidelines.

Endnotes.

The judges of the Supreme Court, once again unfortunately, show that they do not know that branch of law on which Europe’s leading manufacturing sector rests. Therefore, the Minister of Justice should ensure the proper training of magistrates to be entrusted with handling cases (civil, criminal and administrative) in this area.

Official public control authorities must not lose confidence in superficial decisions such as the one under consideration. Rather, keep in mind the criminal relevance of various phenomena of label non-compliance and do not lose sight of the reasons for the penalty measure, to which a special section is devoted in our free ebook1169 penis. Reg. EU 1169/11, food news, controls and penalties’.

Dario Dongo

Notes

(1) Reg. EC 2568/91, consolidated text at https://eur-lex.europa.eu/legal-content/IT/TXT/?qid=1594503187359&uri=CELEX%3A01991R2568-20191020
(2) Reg. EU 29/12 as amended, Article 3.2 (a) and (b). Consolidated text at https://eur-lex.europa.eu/eli/reg_impl/2012/29/2019-02-06
(3) EC Reg 2568/91 as amended, Annex 1b.
(4) Idem c.s., Annex XII, points 3.1 and 3.1.1
(5) The synergies of our authorities with theEuropean Anti-Fraud Office (OLAF) are also noted. Over the decades, numerous frauds to the detriment of the EEC, then EC and now EU, related to illicit receipt of CAP (Common Agricultural Policy) subsidies on false olive oil production, have been foiled.
(6) Reg. EU 1169/11, Art. 8.3
(7) Reg. EC 178/02, Articles 16 and 17 in particular
(8) On distributor’s liability, see previous articles https://www.greatitalianfoodtrade.it/etichette/le-responsabilità-della-gdo, https://www.greatitalianfoodtrade.it/etichette/responsabilità-del-distributore-approfondimenti, https://www.greatitalianfoodtrade.it/idee/responsabilità-amministrativa-d-impresa-nella-filiera-alimentare