Carlo Calenda e Paolo Gentiloni (in the role of Minister of Agricultural, Food and Forestry Policies), as seen, signed the decree 9.5.18 which would extend the temporal effectiveness of the decrees origin (wheat and semolina in pasta, rice, tomato preserves, milk (in dairy products). It is a pity that the measures in question - as well as the one on headquarters of the plant, falsely claimed by Deputy Minister Andrea Olivero - are illegitimate. There carousel he continues, to the detriment of the confused authorities and to the detriment of operators forced to print new labels, throwing away those already in use. Let's try to shed some light.
Decrees of origin for pasta, rice, tomato preserves, factory location. The theories of a fallen government
The inter-ministerial decree 9.5.18 extends the theoretical application of the four DM on the mandatory indication on the label of the origin of wheat and semolina (in pasta), rice, tomato preserves, milk (in dairy products.
The relative prescriptions should lapse, in the theory of the former ministers, on 31.3.20. Instead of 1.6.18, date of entry into force of EU regulation 2018/775. (1)
L'Inspectorate for Quality Controlà of alimony and the Repression of Fraud (ICQRF extension), in turn, was forced to branchesre a circular Urbi et orbi, on 16.5.18, (2) where the 'Cabinet of the Ministry - Legislative Office'reaffirms the full validity of the four interministerial decrees. With a note of only partial realism, where it refers to the effectiveness of the measures'as they are not suspended́ canceled by the administrative judge or other authoritỳ judicial that was competent'.
On closer inspection, of the four decrees only one - that relating to the origin of the milk - was duly notified to the European Commission, which confirmed its provisional applicability. Conversely, the notification procedures in Brussels (and due suspension of thelegislative process) of the pasta and rice origin decrees were deliberately interrupted, at the express will of the ex-ministers Carlo Calenda and Maurizio Martina. Which, in defiance of the rules that have been in force in Europe since 1983, have instead decided to promulgate them. Moreover, the decree on the origin of tomato preserves has not even been notified.
The latest move by MiPAAF, in the final days of the Gentiloni - Olivero regency, therefore clashes with European law. Where, according to consolidated jurisprudence of the EU Court of Justice, public administration officials are the first to have to disregard national rules that are in contrast with the rules in force in Europe.
From that the real danger arises - against individual public officials who dare to contest the violation of illegitimate national regulations (such as the decrees of origin of pasta, rice, tomato, plant headquarters) - to be in turn investigated for the crime of abuse d'office (Criminal Code, Article 323). Where they fail to comply with the duty of disapplying the national regulations that are formally in force, but substantially illegitimate (see the Costanzo judgment, in the next paragraph), thus causing unfair damage to the subsidiaries.
Decrees of origin for pasta, rice, tomato preserves, factory location. The inevitable fate
National technical rules not notified to Brussels - in accordance with dir. 2015/1535 / EU o to reg. EU 1169/11 (in the context of consumer information on food products) - are literally unenforceable to private individuals, by virtue of the solid jurisprudence of the Court of Justice.
The historic Fratelli Costanzo judgment (case C-103/88, paragraphs 31-33 in Note 2) clarified how the obligation of non-application is serious for all theà national administrative authorities, at central and local level, and not only on national courts. (3)
The Unilever Italy ruling (case C-443/98, points 39-44, in Note 3), then clarifies theinapplicabilityà of the national technical standard even only for non-compliance with the period of suspension of thelegislative process provided for by the Directive on the obligation to notify technical regulations. As it happened both in relation to the decrees of origin of pasta, rice, tomato preserves, and with regard to Legislative Decree 145/17 (requiring the obligation to indicate the location of the production plant - or if different, of packaging - on the products food made and / or packaged and sold in Italy).
On these premises it appears, to say the least, imprudent on the part of public administration officials to apply the national rules not duly notified to Brussels. Pending the inevitable fate of the aforementioned measures, which sooner or later the European Commission will order Italy to repeal. By means of a procedure 'EU-Pilot'(pre-infringement), already activated by the counter-interested representatives of Big food. Or a real information procedure, which could bring the Italian Republic before the EU Court of Justice, to answer for the bad work of the Gentiloni government.
Ad maiora.
Dario Dongo
Footnotes
(1) Cf. reg. EU 2018/775, article 4
(2) See ICQRF Circular 16.5.18, download on https://www.politicheagricole.it/flex/cm/pages/ServeAttachment.php/L/IT/D/a%252F9%252Ff%252FD.c48e37b3a8b44a65751d/P/BLOB%3AID%3D12662/E/pdf
(3) ECJ Fratelli Costanzo judgment (case C-103/88, paragraphs 31-33:
'31) It would also be contradictory to rule that individuals can invoke before the national courts the provisions of a directive having the aforementioned requirements, in order to have the administration's work censored, and at the same time to hold that the administration is not required to apply the provisions of the directive by disapplying national rules which do not comply with them. It follows that, if the necessary conditions exist, according to the jurisprudence of the Court, forAnd the provisions of a directive can be invoked by individuals before national courts, all administrative bodies, including those of local authorities, such as municipalities, are required to apply the aforementioned provisions.
(32) As regards in particular article 29, n. 5, of Directive 71/305, it emerges from the examination of the first question that this provision è unconditional and precise enough to be invoked by individuals against the state. Individuals can therefore avail themselves of them before national courts and, as is clear from the foregoing considerations, all administrative bodies, including those of local authorities, such as municipalities, are required to apply them.
(33) Therefore, the fourth question must be answered in the sense that, like the national court, the administration, even municipal, and̀ required to apply article 29, n. 5, of Council Directive 71/305 and disapplying the provisions of national law which do not comply with this provision.'
(4) ECJ Unilever Italy judgment (case C-443/98, paragraphs 39-44):
'(39) However, in setting out the reasoning which led to this finding, the Court also examined the obligations deriving from Article 9 of Directive 83/189 / EC. Now, this reasoning shows that, in the light of the objective of Directive 83/189 / EC as well asAnd of the wording of its Article 9, these obligations must be treated in the same way as those deriving from Article 8 of the same directive.
(40) So, in paragraph 40 of the CIA Security International judgment, and̀ it was pointed out that Directive 83/189 è aimed at protecting, through preventive control, the free movement of goods, which is one of the foundations of the Communityto, and that such control è effective if all the draft technical regulations included in it must be notified and if the adoption and entry into force of said rules — except those whose urgency justifies an exception — must be suspended during the periods established by article 9.
(41) Therefore, in paragraph 41 of the same judgment, the Court held that the notification and the postponement period 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 must be avoided by adopting common or harmonized measures, as well asAnd to propose changes to the planned national measures. This procedure also allows the Commission to propose or issue Community rules governing the subject matter of the proposed measure.
(42) In paragraph 50 of the CIA Security International judgment, the Court clarified that the purpose of Directive 83/189 is not̀ simply to inform the Commission, but, in a broader perspective, to eliminate or limit obstacles to trade, to inform other Member States of technical regulations planned by a State, to allow the Commission and the Member States the necessary time to react and propose an amendment to reduce the restrictions on the free movement of goods resulting from the proposed measure and to allow 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 è clear, since they provide for a Community control procedure for draft national regulations and the subordination of the date of their entry into force to the approval or non-opposition of the Commission.
(44) Also in paragraph 48 of the CIA Security International judgment, after having recalled that the purposè of Directive 83/189 è the protection of the free movement of goods by means of prior checking and that the notification obligation constitutes an essential means for the implementation of that Community control, the Court found that the effectiveness of such control will beto even greater if the directive is interpreted as meaning that the non-fulfillment of the obligation to notify constitutes a substantial procedural defect capable of entailing the inapplicabilityto to the individuals of the technical rules referred to in è case, from the considerations set out in paragraphs 40-43 of this judgment it appears that the failure to comply with the obligation to postpone adoption set out in Article 9 of Directive 83/189 also constitutes a substantial procedural defect capable of entailing the inapplicabilityto technical rules'.
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
