The Lazio Regional Administrative Court, with a sentence of 25 January 2023, asserts the legitimacy of the interministerial decree which introduced in Italy the mandatory indication of the origin of the wheat on the pasta label.
However, the cryptic pronouncement of the administrative judges in Rome seems to ignore the substantial disapplication of EU law by successive governments. A brief insight. (1)
1) Decree on the origin of the wheat on the pasta label
The Ministerial Decree of 26.7.17 has introduced the obligation to indicate on the label the origin of the wheat and the country of origin of the relative semolina, on the labels of pasta produced and sold in Italy, through the words:
'a) "Country of cultivation of the wheat": name of the country in which the durum wheat was grown;
b) «Country of milling»: name of the country in which the durum wheat semolina was obtained'(article 2).
But just mix grains from various countries to refer grain to a 'Planet Earth origin' («UE","non-EU","EU and non-EU»). With the ability to indicate a country – e.g. 'Italy and other EU and non-EU countries' – when at least 50% of the durum wheat has been grown in that country (art. 3. See notes 2,3).
2) National regulations and EU law
National technical standards on production and sale of the goods must always be notified to the European Commission before their final development, on the basis of:
- directive 2015/1535/EU (Technical Regulations Information System), or
- EU regulation 1169/11 (Food Information Regulation), when they aim to introduce labeling requirements (art. 45).
2.1) National rules on origin labelling, EU rules
The Court of Justice of the European Union, with a sentence of 1 December 2020, clarified that the member states can adopt 'provisions which provide for further mandatory indications of origin or provenance. Provided that the latter comply with the conditions listed in regulation no. 1169/2011'. That is to say that:
- the obligations must be justified by one or more reasons (protection of public health, consumer protection, fraud prevention, protection of industrial property rights, indications of source and registered designations of origin, repression of unfair competition),
- the Member States must demonstrate the existence of a link between certain qualities of the foods in question and their origin or provenance. As well as the significant value attributed by most consumers to the availability of such information. (5)
2.2) Notification in Brussels e stand still period
In all cases following the notification to Brussels, the Member State must suspend the application of the rule for a minimum period of three months (stand still period), awaiting observations and comments from the European Commission and the Member States.
Failing notification – as well as in the event of non-compliance with the suspension duty – the national rule is unlawful and must be disregarded ex officio. The same applies in the event of non-compliance with the suspension period of theiter legis provided for by the aforementioned EU rules (EUCJ, Unilever Italy judgment, case C-443/98, points 39-44).
2.3) Wheat origin decree in pasta, which notification to Brussels?
The decree on origin labelling of wheat in pasta, according to reports from the Lazio TAR, would have been notified to the European Commission by the Italian government on 8 September 2017, 'or well in advance of the date set for the entry into force of the decree itself (February 2018), without any negative remarks being raised on the merits. ' (1)
2.4) Notification defects of the national standard
Notification in Brussels of the 'wheat in pasta decree of origin' – unlike what theorized by the Lazio TAR – is not in any case compliant with the aforementioned EU rules. (5) In several respects:
– first of all, the notification would have been carried out after the adoption of the decree (26 July 2017), rather than as required in its preparatory phase,
– secondly, it is not known whether the notification was addressed to the 27 Member States, as well as to the European Commission (as required by EU regulation 1169/11, article 45.1). Having to exclude that the Italian government has made a notification pursuant to dir. EU 2015/1535, of which there is no trace in the TRIS system),
– thirdly, there is no news of the proof that the Italian government should have provided, on the occasion of the notification, about 'a proven link between certain qualities of the food and its origin or provenance' (EU regulation 1169/11, article 39.2). It's still
– the Lazio Regional Administrative Court ignored the circumstance that the Ministerial Decree of 26.7.17 ceased to be effective as of 1 June 2018 (date of entry into force of EU regulation 2018/775, so-called Origine Pianeta Terra).
2.5) Origin, expired decrees
The Four Decrees ministerial decrees containing the mandatory prescription of the origin of the raw material on dairy products, wheat pasta, rice and tomato preserves had been presented as 'experimental', with limited effectiveness until 1 June 2018.
The then prime minister and minister for Economic Development, Paolo Gentiloni and Carlo Calenda, with a decree of 9 May 2018, resorted to an unconstitutional stratagem - modification of the pre-laws with a ministerial decree (6) - to resurrect the decrees themselves.
Subsequent extensions of the aforementioned decrees, inapplicable ab origine for defects in notification and disapplication of the stand still period (with the exception of that on the origin of the milk) are consequently illegitimate and ineffective (see notes 8,9,10,11,12).
3) European Commission, the stone guest
The European Commission has completely ignored the four Italian decrees on the mandatory indication of the origin of wheat and semolina in pasta, paddy rice in rice, tomato in preserves. Vice versa, it is activated only in the cases of the Italian regulations relating to:
– indication on the label of the headquarters of the plant (legislative decree 145/17. See note 13),
- 'simplification decree', in the part where the delegation to the government was theorized for new obligations to indicate the origin of raw materials on the label (DL 135/2018, converted into law 12/2019, art. 3 bis. See note 14).
3.1) Formal notice by the Commission, appeal to the European Ombudsman
The writer put in default the European Commission, so that it could exercise its duty as guarantor of the Treaty for the Functioning of the European Union. By launching an infringement procedure against Italy for adopting a series of national rules contrary to EU law. In fact, what are the pasta, rice and tomato origin decrees but also the one on the plant headquarters and the 'forced deadline ex lege' of fresh milk (see notes 15,16).
The starvation of the European Commission however, it continued, so as to induce the writer to report it to the European Ombudsman. (17) But the Strasbourg mediator in turn, with a letter of 20.2.20, affirmed the arbitrariness – on the part of the European Commission – to decide whether and when to intervene against the States that violate EU rules. With all due respect, among other things, to the principle of free movement of goods (TFEU 34,36). (18)
4) Provisional conclusions
It assists, once again, to the renunciation of European law on which all legislation affecting the production and free movement of goods in the internal market is based. With serious prejudice to competition between the operators of the 27 Member States, which cannot be resolved in the two lines of circumstance of the Lazio TAR. It is yet another mockery of the administrative judges of Rome who seem to be inspired by the political dictates of Coldiretti and other sector representatives rather than by the sources of law of supra-constitutional rank. (19)
for further, see the scientific publication on the subject in question (Dongo, 2019). (20)
Footnotes to the story
(1) Lazio Regional Administrative Court, Fifth Section. Judgment 25.1.22 on appeal 9405/2017
– presented by Molitoria Umbra Srl, Semoliere Giuseppe Sacco & Figli Srl, Molino Grassi SpA, Molino Casillo SpA, Candeal Commercio Srl, Deis Srl De Sortis Industrie Semoliere, Industria Molitoria Mininni Srl, Moderne Semolerie Italiane SpA, Industria Agroalimentare De Vita Srl, Grandi Molini Italiani SpA, Semolificio Loiudice Srl, Molino S. Paolo di Paolo Gallo & CSpA
– against the Ministry of Agricultural, Food and Forestry Policies, the Ministry of Economic Development,
– with the intervention of the Adusbef Consumers' Association, individual company Ghigi 1870 SpA https://bit.ly/3Hijbja
(2) Dario Dongo. Pasta origin, which labels? GIFT (Great Italian Food Trade). 6.11.17
(3) A special case is that of De Cecco, where the authorities persist in tolerating the fraudulent boast of 'Italian grains' in quantities <50%. See Dario Dongo. Filippo Antonio De Cecco and the mysteries of Italian justice. GIFT (Great Italian Food Trade). 10.8.21
(4) Dario Dongo. National rules on origin labeling, green light from the EU Court of Justice. GIFT (Great Italian Food Trade). 4.10.20
(5) Dario Dongo. Origin of wheat and rice, useless chaos. GIFT (Great Italian Food Trade). 5.9.17
(6) Dario Dongo. Origin decrees, continues the Gentiloni circus. GIFT (Great Italian Food Trade). 8.5.18
(7) Dario Dongo. Decrees of origin for pasta, rice, tomato, factory location. Uncertainties and dangers. GIFT (Great Italian Food Trade). 31.5.18
(8) Dario Dongo. Origin decrees, last act. GIFT (Great Italian Food Trade). 12.6.18
(9) Dario Dongo. Decrees of origin for pasta, rice and tomato. New abuses by Bellanova and Patuanelli. GIFT (Great Italian Food Trade). 31.3.20
(10) Dario Dongo. Origin of wheat, rice and tomato. Theoretical renewal of the decrees. GIFT (Great Italian Food Trade). 13.7.20
(11) Dario Dongo. Decrees of origin for pasta, rice, milk, tomato, pork. Theoretical extension to 31.12.22. GIFT (Great Italian Food Trade). 5.11.22
(12) MASAF (Ministry of Agriculture, Food Sovereignty and Forests). Ok to the labeling extension decree, Italy at the forefront of information transparency. Press release. 23.12.22
(13) Dario Dongo. Headquarters of the establishment, silence on the Niet in Brussels. Criminal report to Gentiloni & Co. GIFT (Great Italian Food Trade). 1.6.18
(14) Dario Dongo. Origin, the EU puts Italy in default. GIFT (Great Italian Food Trade). 27.6.19
(15) Dario Dongo. Plant location, origin decrees, milk expiry date. GIFT puts the European Commission in default. GIFT (Great Italian Food Trade). 14.8.19
(16) Dario Dongo. Food waste, our battle over fresh milk. GIFT (Great Italian Food Trade). 24.7.19
(17) Establishment headquarters, milk origin and expiry decrees, GIFT denounces the Commission to the European mediator. GIFT (Great Italian Food Trade). 27.1.20
(18) Dario Dongo. Farm to fork, appeal by the meat and dairy industries to the European Commission. GIFT (Great Italian Food Trade). 3.5.20
(19) A recent case of ignorance of European law and jurisprudence by the Italian administrative justice is mentioned in the article by Dario Dongo. Pre-cooked bread, the edict of the Council of State and the EU rules on food safety. GIFT (Great Italian Food Trade). 10.11.21
(20) Dongo, Dario (2019). Food Regulations and Enforcement in Italy. Reference Module in Food Science. Elsevier, pp. 1–5. doi: http://dx.doi.org/10.1016/B978-0-08-100596-5.21172-
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.