The draft bill (ddl) on the reform of agribusiness crimes passed the Council of Ministers, in an updated version, on 20.2.20. The text may be subject to further amendments, including substantial ones, in the subsequent stages of political consideration at the governmental and parliamentary levels.
Introduction of the proposal and first analysis of the planned regulations to protect agribusiness heritage, to follow.
Agribusiness malfeasance, the scenario
The ‘Ecomafia 2019’ report, edited by Legambiente, estimates the turnover of the underworld in the agri-environmental sector at 16.6 billion euros (2018, up 18 percent from 2017). 368 criminal organizations, 35 thousand complaints, 10 thousand seizures, 252 arrests. Offenses in the agribusiness sector-44,795, or 123 per day, 5 every hour) far outnumber eco-offenses (e.g., illegal waste dumping, construction abuse, environmental disaster). For a total value of seized assets of 1.4 billion euros.
However, the punishment of agribusiness offenses is anchored in a variety of disparate regulations, from the Rocco Penal Code (Royal Decree 1398/1930) to Law 283/1962 and numerous other acts having the force of law. Which date back to geological eras far removed from modern food law. The project to reform the administrative penalty regime that is still in progress, as noted above, is itself struggling to bring penalties in line with current criteria and precepts in the European Union. (2)
Agribusiness crimes, outline of draft law
The bill under consideration by the Council of Ministers introduces a number of amendments and addenda to the Criminal Code, in the parts dealing with public health (Articles 439 et seq.) and fraud in trade (Articles 515 et seq.). As well as the Code of Criminal Procedure, the so-called decriminalization law (Law 689/81) and various others.
The new features include new offenses, tightening of the main penalties, introduction of new accessory penalties, and extension of administrative liability of entities for crimes attributable to them (under Legislative Decree 231/01). A two-way closure, in the contexts of:
1) ‘Crimes against agri-food heritage‘ (new Chapter II-bis of Title VIII, Book II, Penal Code. Articles 517-quater to 517-octies),
2) ‘crimes against public safety and health’ (new Title VI, Book II, Criminal Code),
3) Felony offenses related to food, food safety, traceability and hygiene (Law 283/62, Legislative Decree 190/06),
4) Administrative pecuniary sanctions on the marketing of olive oils (Legislative Decree 103/16).
Counterfeiting of origin
‘Counterfeiting the signs of protected names and geographical indications of agri-food products’ is subject to an aggravated penalty. Imprisonment of one to four years and fine of 10 thousand to 50 thousand euros (in lieu of imprisonment of up to two years and fine of up to 20 thousand euros).
Criminal liability is extended to all operators in the supply chain who participate in commercial, logistical, distribution and administration operations:
‘Whoever, in order to profit from it, introduces into the territory of the State, including in temporary storage or customs warehousing, dispatches in transit, exports, transports, holds for sale, administers, offers or offers for sale or otherwise puts into circulation agri-food products whose designations of origin or geographical indication are counterfeited or altered’ (Article 517-quater of the Criminal Code).
Agropiracy
Agropiracy is a new crime hypothesis, to be applied against those who – outside the hypotheses of criminal conspiracy – ‘in order to profit, commits in a systematic manner and through the setting up of organized means or activities’ food fraud or trading food with misleading signs (see next paragraph).
The crime is punishable by imprisonment of 2 to 6 years and a fine of 15,000 to 75,000 euros, or by imprisonment of 3 to 7 years and a fine of 20,000 to 100,000 euros in cases of agro-piracy involving counterfeiting hypotheses. With further increase in punishment, from one-third to one-half, upon the occurrence of the specific aggravating circumstances indicated below (Art. 517-octies). To which are added ancillary penalties and confiscation (see penultimate and last paragraph to follow).
Penalties are decreased from one-half to two-thirds ‘in respect of the culprit who has worked to concretely assist the police or judicial authority in law enforcement action as well as in the collection of elements decisive for the reconstruction of the facts and for the identification of competitors in the same, or for the identification of the means necessary for the commission of the crime itself or the profits derived from it.’
Food trade fraud and trading food with false signs
The specific crimes of ‘trading food with misleading signs’ and ‘food fraud’ are added to the crime of fraud in commerce in Article 515 of the Criminal Code-which historically applies to any case of selling aliud pro alio-in the following terms.
‘Art. 517-sexies. Food trade fraud. Outside the cases referred to in Article 517-septies, anyone who, in the exercise of an agricultural, commercial, industrial or intermediary activity, imports, exports, ships in transit, places in temporary storage or in customs warehouses, transports, holds for sale, offers or places for sale, administers distributes or otherwise puts into circulation foodstuffs, including water and beverages, which, due to their origin, provenance, quality or quantity, are different from those declared or agreed upon, shall be punished, if the act is not provided for as a crime by any other provision of law, by imprisonment from four months to two years and a fine from 4.000 up to 10,000 euros.
Article 517-septies. Trading food with false signs. Anyone who, in the exercise of an agricultural, industrial, commercial, import or export business or in the intermediation of food, including water and beverages, including by introduction into temporary storage or customs warehousing, in order to mislead the consumer about the origin, provenance, quality or quantity of food or ingredients, uses distinctive signs or indications, even if figurative, that are false or misleading shall be punished by imprisonment from six months to three years and a fine from 5,000 euros to 30,000 euros.’
Specific aggravating circumstances
Specific aggravating circumstances-which are in addition to the common aggravating circumstances in Article 61 of the Criminal Code-occur when the aforementioned violations relate to:
– designation of origin or geographical indication of foods or ingredients,
– activities committed ‘by means of false transport documents or false statements to the supervisory body‘,
– Foods falsely presented as organic,
– facts ‘of particular gravity in relation to the size of the enterprise or the degree of harmfulness or quantity of the food‘.
Upon the occurrence of two or more of the aforementioned aggravating circumstances-even one of them in cases of agropiracy-the punishment shall be increased by one-third to one-half (Art. 517-octies, Aggravating circumstances).
Incidental penalties and confiscation
Conviction for the crime of agro-piracy – as well as for the crimes of criminal association (including mafia-type), if the association is directed to the commission of any of the above crimes – entails the application of the accessory penalty of theban (1 month to 5 years, pursuant to Article 30 of the Criminal Code). (3) With the prohibition to obtain:
‘a) registrations or measures, however named, with authorizing, granting or enabling content, for the performance of business activities,
(b) access to grants, loans or subsidized loans or other disbursements of the same type, however named, granted or disbursed by the state, other public bodies or the European Union, for the conduct of business activities.’
Temporary closure of the establishment or business where the act was committed, from 1 to 12 months, may be ordered by the court ‘if the act is particularly serious or in case of specific recidivism.’ On the other hand, permanent closure, as well as revocation of permits, licenses, or similar administrative measures allowing the operation of the business may be ordered upon the occurrence of both conditions of particular seriousness of the act and specific recidivism. (Article 518-encore. Additional ancillary penalties)
The ‘mandatory forfeiture’ ‘and for equivalent’ – that is, of a sum equivalent to the profit, when it is not possible to execute ‘the confiscation of the things that served or were intended to commit the crime and the things that are the object, product, price or profit thereof, to anyone belonging to it’ (formerly Art. 474-encore c.p.)-applies to all the crimes analyzed above (Article 518-ter). (4)
Confiscation of property assets
‘The confiscation of money, property and of the other utilities of which the convicted person cannot justify the provenance or of which, even through an intermediate natural or legal person, he appears to be the owner or to have the availability in any capacity in a disproportionate value with respect to his declared income or economic activity‘ is ordered by the criminal court against individuals already convicted of agropiracy or associative crimes that include the commission of any of the crimes under consideration. In both cases of conviction and application of penalty on request under Article 444 of the Code of Criminal Procedure (so-called ‘plea bargaining’).
Dario Dongo
Notes
(1) Legambiente’s ‘Ecomafia 2019’ report. See press release 4.7.19, at https://www.legambiente.it/legambiente-presenta-ecomafia-2019/
(2) The situation in Europe is not any better, as we have seen. In several respects:
– Food fraud, lack of a shared approach,
– sanctions and controls. Unevenness in spite of the implementation of the new Regulation (EU) 2017/625,
– Judicial police, name & shame, international cooperation. Deficiencies,
– official public controls in decline
(3) The disqualification shall also apply in case of conviction for food counterfeiting, upon the occurrence of one or more of the specific aggravating factors
(4) Food products confiscated but still fit for human (or animal, as the case may be) consumption may be assigned by the court for free distribution to needy people, through territorial or other public agencies, associations or welfare consortia. Subject to removal, where applicable, of any trademark or distinctive sign or indication that constitutes an offense (new Article 86-quater of the Code of Criminal Procedure)
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
