The fateful legislative decree 116/20 - which introduced packaging labeling requirements - is subject to further postponement, to 30.6.22, with guidelines arriving by 30.1.22.
However, officials from the Ministry of Ecological Transition have not yet made the notification to Brussels, which is essential for the effectiveness of the rules.
Packaging labeling, Legislative Decree 116/20
Legislative Decree 116/20, as we have seen, it amended the Environmental Code (Legislative Decree 152/06, new art. 219.5) to incorporate the so-called Circular Economy Package introduced by the European legislator. On that occasion, the Italian government introduced additional requirements, not envisaged in the EU directives of reference, in terms of packaging labeling. (1)
The so-called environmental labeling of packaging provides that operators in Italy report, only on goods destined for the national market:
1) the news'collection', followed by mention of the family (s) to which the packaging materials belong (e.g. glass, aluminum) and an invitation to check the rules applied in the Municipality where they are conferred (Legislative Decree 116/20, article 3.3.c , first period). Information to be applied only to packaging intended for the final consumer (Business to Consumer, B2C),
2) the alphanumeric code that identifies 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 packaging, regardless of B2C and / or B2B destination (Business to Business. Vdlgs. 116/20, article 3.3.c, second sentence).
DL 3.12.20 n. 183. First referral and questions of legitimacy to be resolved
The so-called milleproroghe 2021 decree - Legislative Decree 3.12.20, n. 183, converted into law 26.2.21 n. 21, article 15.6 - had postponed the application of the environmental labeling requirements of packaging to 31.12.21. Without, however, addressing, as we have also seen, the intrinsic vice of legitimacy of the original provision. (2)
National standards that contain 'technical specification'relating to the products must be notified in advance to the European Commission and to one standstill period 3 months, pending any comments from this or the Member States (EU directive 2015/1535, article 5.1).
Failure to comply of the notification procedure in Brussels entails the ineffectiveness of national technical rules and the duty of the authorities to disapply them, according to the consolidated jurisprudence of the EU Court of Justice. (3)
DL 31.12.21 n. 228. Further postponement and guidelines
The DL 31.12.21 n. 228 - Urgent provisions regarding legislative deadlines (4) - has provided for a further extension, to 30.6.22, for packaging labeling introduced by Legislative Decree 116/20. Products without the prescribed requirements and already placed on the market or labeled before 1.7.22 may be marketed until stocks are exhausted (Article 11).
The 'guidelines techniques for labeling'' Packaging must also be adopted by the Minister of Ecological Transition, by 30.1.22, with a decree of a non-regulatory nature specifically delegated through the Environmental Code (thanks to the introduction of the new paragraph 5.1 to its article 219, by the Legislative Decree 228/221. See note 5).
Notification in Brussels, a crucial step
Italian operators they are ready to apply environmental labeling to packaging, as they have largely already demonstrated pending subsequent postponements. Among other things, Italy is at the top of the rankings, among the member countries, for the overall recycling rate and that of materials such as paper and glass.
It is indispensable and urgent however, notify the rules to the European Commission, for the express purpose of guaranteeing their effectiveness and the effective possibility of sanctioning violations. Otherwise, a whisker - that is an administrative or judicial appeal, or a report to Brussels - will be enough to bring everything down.
(1) Dario Dongo. Legislative Decree 116/20, labeling of food packaging. Inapplicable rules. 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. The government offense 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, jurisprudence. On the duty of the administrative authorities to disapply the technical rules not notified, see the judgment 'Fratelli Costanzo' (case C-103/88, paragraphs 31-33). As for the ineffectiveness of the aforementioned regulations, see the sentences 'CIA Security International' (30.4.96, C-194/94, point 54) and 'Ince' (4.2.16, C-336/14, point 67). See also ECJ 'Unilever Italia' judgment (case C-443/98, paragraphs 39-44) and order of the Court of Rome, XVIII Civil Section, 3.1.19 (proc. Nrg 41840/2018)
(4) Decree-law 30.12.21, n. 228. Urgent provisions regarding legislative deadlines. (21G00255). In the Official Gazette 30.12.21, General Series n. 309. https://bit.ly/3zouwd9
(5) Legislative Decree 228/21 - like all law decrees, 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.