The fateful Legislative Decree. 116/20-which introduced packaging labeling requirements-is subject to further postponement, to 6/30/22, with guidelines coming by 1/30/22.
However, officials at the Ministry of Ecological Transition have not yet notified Brussels, which is essential for the regulations to be effective.
Packaging labeling, Leg. 116/20
Legislative Decree. 116/20, as noted, amended the Environmental Code (Legislative Decree 152/06, new Art. 219.5) to implement in Italy the so-called
Circular Economy Package
introduced by the European legislature. On this occasion, the Italian government introduced additional requirements, not provided for in the relevant EU directives, on packaging labeling. (1)
The so-called environmental labeling of packaging requires operators in Italy to report on goods destined for the domestic market only:
1) the news item ‘separate collection,’ followed by citation of the family(ies) to which the packaging materials belong (e.g., glass, aluminum) and an invitation to check the regulations applied in the municipality where they are delivered (Legislative Decree 116/20, Article 3.3.c, first sentence). News to be applied only to packaging intended for the end consumer(Business to Consumer, B2C),
(2) the alphanumeric code identifying each of the materials used in all packaging (primary, secondary and tertiary), in accordance with Decision 129/97/EC. Code to be applied to all packages, regardless of B2C and/or B2B(Business to Business. V.d.lgs. 116/20, Article 3.3.c, second sentence).
DL 3.12.20 no. 183. First referral and questions of legitimacy to be resolved
The so-called milleproroghe decree 2021 – DL 3.12.20, no. 183, converted into law 26.2.21 no. 21, Article 15.6 – had postponed the implementation of environmental labeling requirements for packaging to Dec. 31.21. Without, however, addressing the inherent flaw in the legitimacy of the original measure, as also noted. (2)
National standards that contain ‘technical specification‘ related to products must come under prior notification to the European Commission and a 3-month standstill period, pending any comments from it or the member states (EU dir. 2015/1535, Art. 5.1).
Failure to comply with the notification procedure in Brussels results in the ineffectiveness of national technical regulations and the duty of the authorities to disapply them, according to established case law of the EU Court of Justice. (3)
DL 31.12.21 no. 228. Further referral and guidelines
DL 31.12.21 no. 228 – Urgent provisions on legislative deadlines (4) – provided an additional extension, to 30.6.22, for packaging labeling introduced by Leg. 116/20. Products without the prescribed requirements and already marketed or labeled before 1.7.22 may be marketed until stocks are exhausted (Article 11).
The ‘technical guidelines for labeling‘ packaging must also be adopted by the Minister of Ecological Transition, by 30.1.22, by a decree of a nonregulatory nature specially delegated through the Environment Code (thanks to introduction of new paragraph 5.1 to its article 219, by DL 228/221. See footnote 5).
Notification to Brussels, a crucial step
Italian operators are ready to apply environmental labeling to packaging, as they have largely already demonstrated during the delays that have followed. Among other things, Italy tops the rankings among member countries for overall recycling rates and recycling rates for materials such as paper and glass.
It is essential and urgent, however, to notify the European Commission of the rules, for the express purpose of ensuring their effectiveness and the effective possibility of sanctioning violations. Otherwise, all it will take is a whiff-that is, an administrative or judicial appeal, or a report to Brussels-to bring everything down.
Dario Dongo
Notes
(1) 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
(2) Dario Dongo. Packaging labeling, theoretical postponement to 31.12.21. Government tort is renewed. 6.1.21, https://www.greatitalianfoodtrade.it/etichette/etichettatura-imballaggi-rinvio-teorico-al-31-12-21-si-rinnova-l-illecito-governativo
(3) European Court of Justice, ECJ, case law. About the duty of administrative authorities to disapply unnotified technical regulations see the ‘Fratelli Costanzo’ judgment (Case C-103/88, paras. 31-33). As for the ineffectiveness of the aforementioned regulations, see ‘CIA Security International’ (30.4.96, C-194/94, para. 54) and ‘Ince’ (4.2.16, C-336/14, para. 67). See also ECJ judgment ‘Unilever Italia’ (Case C-443/98, paras 39-44) and order Tribunale di Roma, XVIII Sezione Civile, 3.1.19 (proc. no. r.g. 41840/2018)
(4) Decree-Law 30.12.21, no. 228. Urgent provisions on legislative deadlines. (21G00255). In Official Gazette 30.12.21, General Series no. 309. https://bit.ly/3zouwd9
(5) DL 228/21–like all decree laws, pursuant to Article 77 of the Constitution of the Italian Republic–must be converted into (parliamentary) law within 60 days of publication, under penalty of retroactive ineffectiveness
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
