Decrees origin pasta, rice, tomato, plant location. Uncertainties and dangers

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Charles Calenda e Paolo Gentiloni (in the capacity of Minister of Agriculture, Food and Forestry), as seen, signed the decree 9.5.18 that would extend until 31.3.20 the time effectiveness of the decrees source (wheat and semolina in pasta, rice, canned tomatoes, milk (in dairy products). It’s just too bad that the measures in question – as well as the one on the establishment headquarters, falsely claimed by Deputy Minister Andrea Olivero – are illegitimate. La carousel continues, to the detriment of confused authorities and to the detriment of operators forced to print new labels, consigning those already in use to waste. Let’s try to provide some clarity.

Decrees origin pasta, rice, canned tomatoes, plant location. Theories of a fallen government


Interministerial Decree 9.5.18
extends the theoretical application of the four DMs on mandatory labeling of the origin of wheat and semolina (in pasta), rice, canned tomatoes, and milk (in dairy products.

The relevant prescriptions should lapse, in the theory of former ministers, on 3/31/20. Instead of from 1.6.18, when EU Regulation 2018/775 came into force. (1)


L

Quality Control Inspectorate

à

of Food and Fraud Repression (

I


CQRF

), in turn, was forced to issuea circular
urbi et orbi
, on 16.5.18, (2) where the ‘
Cabinet of the Ministry – legislative office
‘ reaffirms the full force of the four interministerial decrees. On a note of only partial realism, where it refers to the effectiveness of the measures ‘
as not suspended ne
́
annulled by the administrative judge or other authority
̀
judicial authority that was competent
‘.


On closer inspection
, of the four decrees only one – the one on the origin of milk – was ritually notified to the European Commission, which confirmed its albeit provisional applicability. Conversely, the procedures of notification to Brussels (and dutiful suspension of the
legislative process
) of the pasta and rice origin decrees were deliberately interrupted, at the express wish of former ministers Carlo Calenda and Maurizio Martina. Who, in defiance of the rules that have been in place in Europe since 1983, decided to promulgate them instead. The decree on the origin of canned tomatoes, moreover, was not even notified.


The latest move by the MiPAAF
, in the final days of the Gentiloni – Olivero regency, therefore clashes with European law. Where, according to well-established case law of the EU Court of Justice, civil servants are the first to have to disapply national rules that conflict with the rules that apply in Europe.


From this

derives the concrete danger
– against individual public officials who dare to challenge the violation of illegitimate national regulations (such as precisely, the decrees of origin pasta, rice, tomato, plant headquarters) – of being in turn investigated for the crime of abuseofoffice (Criminal Code, Article 323). Where they fail to comply with their duty to disapply national rules that are formally in force but substantially unlawful (see the Costanzo judgment, in the next paragraph), causing therefore unjust harm to the controlled enterprises.

Decrees origin pasta, rice, canned tomatoes, plant location. The inescapable fate


National technical standards not notified to Brussels
– in accordance with dir. 2015/1535/EU or EU reg. 1169/11 (in the context of consumer information on foodstuffs) – are literally unenforceable against private parties, by virtue of solid ECJ case law.

The landmark Fratelli Costanzo judgment (Case C-103/88, paras. 31-33 in Note 2) made clear how the obligation to disapply rests on all national administrativeauthorities , at the central and local levels, and not only on national courts. (3)


The Unilever Italia judgment
(Case C-443/98, paras. 39-44, in Note 3), then clarifies the inapplicability of the national technical standard even if only for failure to comply with the suspension period of the
iter legis
provided by the directive on the obligation to notify technical regulations. As was precisely the case both in relation to the decrees on the origin of pasta, rice, and tomato preserves, and with regard to Leg. 145/17 (requiring the location of the production – or if different, packaging – establishment to be indicated on food products made and/or packaged as well as sold in Italy).

On these premises it appears imprudent, to say the least, for civil servants to apply national rules that have not been ritually notified to Brussels. Awaiting the inevitable fate of said measures, which sooner or later the European Commission will order Italy to repeal. Through a procedure ‘


EU-Pilot



‘ (pre-infringement), already activated by the counter-infringement representations of




Big Food



. Or a full-fledged information procedure, which could take the Italian Republic to the EU Court of Justice, to answer for the Gentiloni government’s poor performance.


Ad maiora
.

Dario Dongo

Notes

(1) Cf. reg. EU 2018/775, Article 4

(2) See ICQRF Circular 16.5.18, download at %252FD.c48e37b3a8b44a65751d/P/BLOB%

(3) ECJ Fratelli Costanzo judgment (Case C-103/88, paragraphs 31-33:

31) Moreover, it would be contradictory to rule that individuals can invoke before the national courts the provisions of a directive having the above-mentioned requirements in order to have the administration’s actions censured, while at the same time holding that the administration is not obliged to apply the provisions of the directive by disapplying national rules that do not comply with them. It follows that if the necessary conditions are met, according to the case law of the Court, for theé́
provisions of a directive are invocable by individuals before national courts, all organs of the administration, including those of territorial authorities, such as municipalities, are obliged to apply those provisions.

(32) Regarding specifically Article 29, no. 5, of Directive 71/305, it appears from the examination of the first question that this provision and̀ unconditional and precise enough to be invoked by individuals against the state. Individuals can then avail themselves of them before the national courts, and, as is clear from the above considerations, all organs of the administration, including those of territorial authorities such as municipalities, are required to apply them.


(33) Therefore, the fourth question must be resolved to the effect that, like the national court, the administration, including municipal, and
̀ obliged to apply Article 29, no. 5, of Council Directive 71/305 and to disapply the rules of national law that are inconsistent with this provision.

(4) ECJ Unilever Italia judgment (Case C-443/98, paragraphs 39-44):

(39) However, in setting out the reasoning behind this finding, the Court alsò examined the obligations arising from Article 9 of Directive 83/189/EC. Now, this justification shows that, in light of the objective of Directive 83/189/EC as well asé́
of the wording of its Article 9, the said obligations should be treated in the same way as those arising from Article 8 of the same directive.

(40) Thus., in paragraph 40 of the CIA Security International judgment, and̀ It was pointed out that Directive 83/189 and̀ aimed at protecting, through preventive control, the free movement of goods, which is one of the foundations of the Community.à̀, and that such control and̀ effective if all draft technical rules included in it are to be notified and if the adoption and entry into force of said rules except those whose urgency warrants an exception must be suspended during the periods stipulated in Article 9.

(41) Thus, in paragraph 41 of the same judgment, the Court held that the notification and the postponement period of adoption allow the Commission and the other Member States to ascertain whether the project in question poses obstacles to trade contrary to the EC Treaty or obstacles that should be avoided by adopting common or harmonized measures, as well asé́ To propose changes to the planned national measures. This procedure, moreover, allows the Commission to propose or issue community rules governing the subject matter of the planned measure.


(42) In paragraph 50 of the CIA Security International judgment, the Court made it clear that the purpose of Directive 83/189 is not
̀ simply that of informing the Commission, but, from a broader perspective, that of eliminating or limiting barriers to trade, of informing other member states of a state’s planned technical regulations, of allowing the Commission and member states time to react and propose an amendment to reduce restrictions on the free movement of goods resulting from the planned measure, and of allowing the Commission time to propose a harmonization directive.

(43) The Court went on to note that the text of Articles 8 and 9 of Directive 83/189 and̀ clear, since they provide for a procedure of community control of draft national regulations and for making the date of their entry into force subject to the approval or non-opposition of the Commission.

(44) Also in paragraph 48 of the CIA Security International judgment, after mentioning that the purposè of Directive 83/189 and̀ the protection of the free movement of goods by means of preventive control and that the notification requirement is an essential means of implementing the said Community control, the Court noted that the effectiveness of such control will beà̀ even greater if the directive is interpreted to mean that failure to comply with the notification requirement constitutes a substantive procedural defect likely to result in the inapplicability of the directive.à̀ to individuals of the technical rules referred to and̀ case, it follows from the considerations set forth in paragraphs 40-43 of this judgment that the failure to comply with the deferral of adoption requirements dictated in Article 9 of Directive 83/189 also constitutes a substantive procedural defect capable of resulting in the inapplicability of theà̀ of the technical rules’.