On 14.1.22, the Ministry of Economic Development finally notified the European Commission of Italy’s requirements for the environmental labeling of packaging, aimed at encouraging its proper disposal in separate waste collection containers and increasing material recycling levels. (1)
An indispensable step to ensure the conformity of national technical standards with European rules, and thus their applicability. (2) One must now await the outcome of the notification procedure, the implementing ministerial decree, and possible amendments when converting the so-called ‘milleproroghe decree‘ into law. (3)
Environmental labeling of packaging, Italian notification to Brussels
The notification made by the Italian government refers to the ‘New provision introduced by Decree Law No. 30.12.21. 228 (Milleproroghe) and relating to the amendment of Article 219, paragraph 5, of Leg. 152/2006. This provision deals with labeling requirements on packaging by product manufacturers, which will come into effect on 1.7.22.’
‘The regulatory intervention aims to provide proper information to consumers about the final destination of packaging and consequently facilitate the collection, reuse and recovery, including recycling of packaging waste. The impacts resulting from this rule will have repercussions on the production, social and environmental sectors.’
Legislative references
The path chosen to overcome the lack of notification of the original measure (Legislative Decree 116/2020) and its first theoretical referral (DL 3.12.20, no. 183, c.d. Milleproproghe 2021. See notes 4,5) was the notification of Decree-Law No. 30.12.21. 228, Urgent provisions on legislative deadlines (Article 11, Extension of deadlines on ecological transition, paragraphs 1 and 2).
On the occasion, they were thus recalled as basic texts:
– The Environmental Code – Leg. 152/2006 (Part Four, Title II, as amended by Legislative Decree 116/20), and especially
– dir. 94/62/EC on packaging and packaging waste, on the basis of which the European Commission (by decision 97/129) defined the codification of materials in fact prescribed by Leg. 116/00 (e.g. PP 5 plastic, PAP 21 paper, GL 70 glass).
Reasons for urgency
The need to proceed urgently ‘stems from the labeling requirement for packaging manufacturers as of July 1, 2022, from which the application of penalties for non-compliance with the same obligation follows.’
The MiSE then points out that ‘the provision is contained in an emergency measure (decree law).’ And it is subject to possible changes in the conversion law, which must be passed within 60 days after the decree law is published in the Official Gazette.
Sword of Damocles
‘Moreover, the provision in question postpones the regulation of labeling arrangements to an implementing measure to be adopted prior to the entry into force of the obligation for producers, who, in the absence of certain rules, would not have the possibility of complying with the regulations.’ (1)
Certainty of law
Following the notification of a national technical standard outline, the member state that has done so must suspend its legislative process for a minimum period of three months, known as the standstill period. During this phase, the European Commission, member states and private individuals may express comments and reasoned opinions. With two possible outcomes:
– in the absence of detailed opinions in the first three months after notification, the member state may take the measure as early as the day after their expiration,
– otherwise, the standstill period is extended by 6 months to allow for an interlude that must end with Brussels’ green light on the notified standards.
Perspectives
Legislative Decree. 116/20 may be enforced-albeit as a result of late notification-if the Italian government complies with the standstill period. Otherwise, according to the dictate of the European Court of Justice, the rules will be found to be contrary to EU law and cannot be enforced against the administrators. (6)
The Ministry of Ecological Transition must now urgently publish the implementing decree so that operators can really know the details of the rules to be applied on environmental labeling of packaging. The EU principle of reliance (in legal certainty) also postulates the establishment of an appropriate transitional period.
Dario Dongo
Notes
(1) Notification 2022/0018/I – S00E. https://ec.europa.eu/growth/tools-databases/tris/index.cfm/en/search/?trisaction=search.detail&year=2022&num=18&mLang=IT
(2) EU Dir. 2015/1535, which provides for an information procedure in the field of technical regulations and rules on information society services. https://bit. ly/3qUA78n
(3) Dario Dongo. Packaging labeling, postponement to 30.6.22. Guidelines coming soon. GIFT (Great Italian Food Trade). 2.1.22, https://www.greatitalianfoodtrade.it/imballaggi-e-moca/etichettatura-imballaggi-rinvio-al-30-6-22-in-arrivo-le-linee-guida
(4) Dario Dongo. Legislative Decree. 116/20, Food packaging labeling. Inapplicable standards. GIFT (Great Italian Food Trade). 3.10.20, https://www.greatitalianfoodtrade.it/imballaggi/d-lgs-116-20-etichettatura-degli-imballaggi-alimentari-norme-inapplicabili
(5) Dario Dongo. Packaging labeling, theoretical postponement to 31.12.21. Government tort is renewed. GIFT (Great Italian Food Trade). 6.1.21, https://www.greatitalianfoodtrade.it/etichette/etichettatura-imballaggi-rinvio-teorico-al-31-12-21-si-rinnova-l-illecito-governativo
(6) European Court of Justice, ECJ. See judgments ‘Fratelli Costanzo’ (Case C-103/88, paragraphs 31-33), ‘CIA Security International’ (C-194/94, paragraph 54) ‘Unilever Italia’ (C-443/98, paragraphs 39-44), ‘Ince’ (C-336/14, paragraph 67). See also Court of Rome, XVIII Civil Section, order 3.1.19 (proc. no. r.g. 41840/2018)
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
