On 14.1.22 the Ministry of Economic Development finally notified the European Commission of the Italian provisions on environmental labeling of packaging, aimed at promoting their correct disposal in separate collection containers and increasing the recycling levels of materials. (1)
An essential step to ensure the compliance of national technical standards with European rules, and thus their applicability. (2) The outcome of the notification procedure, the implementing ministerial decree, and possible amendments during the law conversion phase of the so-called ‘Milleproroghe decree’.”
Environmental labeling of packaging, Italian notification to Brussels
The notification carried out by the Italian government refers to the ‘new provision introduced by decree-law 30.12.21 no. 228 (Milleproroghe) and concerning the amendment of article 219 paragraph 5, of Legislative Decree 152/2006. The provision in question concerns the labeling obligations on packaging by the product producers, which will enter into force on 1.7.22.‘
‘The regulatory intervention aims to provide correct information to consumers on the final destination of packaging and consequently facilitate collection, reuse, and recovery, including recycling of packaging waste. The impacts resulting from this regulation will affect the production, social, and environmental sectors.’
Legislative references
The chosen path to overcome the notification defect of the original measure (Legislative Decree 116/2020) and its first theoretical postponement (Decree-Law 3.12.20, no. 183, so-called 2021 Milleproproghe) was the notification of the decree-law 30.12.21 no. 228, Urgent provisions on legislative terms (article 11, extension of terms regarding ecological transition, paragraphs 1 and 2).
On this occasion, the following were cited as basic texts:
– the Environmental Code – Legislative Decree 152/2006 (Part Four, Title II, as amended by Legislative Decree 116/20), and above all
– Directive 94/62/EC on packaging and packaging waste, on the basis of which the European Commission (with decision 97/129) defined the coding of materials as prescribed by Legislative Decree 116/00 (e.g. PP 5 plastic, PAP 21 paper, GL 70 glass).
Reasons for urgency
The necessity to proceed urgently 'arises from the labeling obligation for packaging producers starting from July 1, 2022, from which the application of penalties in case of non-compliance with the same obligation derives’.”
The MiSE then reports that 'the provision is contained in an emergency measure (decree law)'. And it is subject to possible changes in the conversion law that must be approved within 60 days from its publication in the Official Gazette of the decree law.
Sword of Damocles
‘Moreover, the provision in question postpones the regulation of labeling methods to an implementing measure that must be adopted before the obligation for producers comes into force, who, in the absence of definite rules, would not have the possibility to comply with what is normatively provided.' (1)
Legal certainty
Following the notification of a draft national technical standard, the Member State that provided it must suspend its legislative process for a minimum period of three months, so-called standstill period. During this phase the European Commission, Member States and private parties may submit reasoned comments and opinions. With two possible outcomes:
– in the absence of detailed opinion within the first three months from the notification, the Member State may adopt the measure from the day following their expiry,
– otherwise, the standstill period it is extended by 6 months to allow a dialogue that must conclude with the green light from Brussels on the notified rules.
Prospects
Legislative Decree 116/20 it may be applied – even after a late notification – if the Italian government complies with the standstill period. Otherwise, according to the wording of the European Court of Justice, the rules will be in conflict with EU law and cannot be enforced against the administered parties. (3)
The Ministry of Ecological Transition must now urgently publish the implementing decree, so that operators can truly know the details of the rules to be applied on environmental labeling of packaging. The EU principle of reliance (legal certainty) also requires the definition of an adequate transitional period.
Dario Dongo
Notes
(1) Notification 2022/0018/I – S00E. https://ec.europa.eu/growth/tools-databases/tris/index.cfm/en/search/?trisaction=search.detail&year=2022&num=18&mLang=IT
(2) EU Dir. 2015/1535, which provides for an information procedure in the field of technical regulations and rules relating to information society services. https://bit.ly/3qUA78n
(3) European Court of Justice, ECJ. See judgments ‘Fratelli Costanzo’ (case C-103/88, points 31-33), ‘CIA Security International’ (C-194/94, point 54) ‘Unilever Italia’ (C-443/98, points 39-44), ‘Ince’ (C-336/14, point 67). Also see Rome Court, XVIII Civil Section, ordinance 3.1.19 (proc. no. r.g. 41840/2018)
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT – Food Times) and Égalité.
