Legislative Decree. 27/21 – in adapting national rules on official controls on the agrifood chain to reg. EU 2017/625 – repealed the measures and penalties under Law 283/1962. (1)
However, a question of constitutional legitimacy is evident and it is hoped that it will be resolved by the Draghi government before 2.3.21, the effective date of Legislative Decree 2.2.21, no. 27.
Repeal of Law 283/62, question of constitutionality
On 11.3.21 four legislative decrees were published in the Official Gazette aimed at updating the regulation of official controls with respect to the new features introduced by Reg. EU 2017/625 (2,3,4,5).
Legislative Decree. 27/21 – Accompanying the d.lgs. 23, 24, 32 – lays a clean slate on, among other things, almost all of the regulations established by Law No. 30.4.1962. 283 to guard food safety. (6)
Some would thus have intended to relegate to history, after 59 years of honored service, the sanitary seizure order (Law 283/62, Art. 1), as well as the contravening offenses stipulated therein (in Art. 5 below).
Legislative Decree. 27/21 and reform of the sanctions apparatus, the delegation of authority to the government
The delegation of powers to the government was to ‘redefine the penalty system for violating the provisions of Regulation (EU) 2017/625 through the provision of administrative sanctions that are effective, dissuasive and proportionate to the seriousness of such violations.’ (7)
The Italian Parliament, it should be noted, has not, however, delegated the government to decriminalize any criminal offenses, let alone referred to the offenses in Article 5 of Law 283/62. Legislative Decree. 27/21 appears to be flawed in this part (Article 18.1.b) by over delegation. And it could be declared unconstitutional as soon as a magistrate called upon to rule on the fateful Article 5 not to proceed decides to refer the matter to the Constitutional Court.
Excess delegation, the limits imposed in European delegation laws
The excess of delegation is all the more evident since the source of the delegated power resides in a European delegation law. Which is ‘aimed exclusively at the implementation of European directives and framework decisions to be transposed into national law, excluding any other legislative delegation provisions not directly attributable to the transposition of European legislative acts.’ (8)
The European legislature, after all-in reforming the regulation on the principles to be followed by member states in official public controls on the agri-food supply chains-has merely updated the Hygiene Package. (9) And reg. EU 2017/625, in repealing reg. EC 882/04, required member states to ensure the dissuasive nature of penalties to be applied to operators responsible for sanitation deficiencies. (10)
Good governance and governance
The government headed by Mario Draghi is now faced with the opportunity to correct Legislative Decree. 27/21 in the part where it had provided for the repeal of Law 283/62. If the correction takes place before the entry into force of the legislative decree, it may prevent the dismissal of hundreds of investigations that are still ongoing and the non-prosecution of as many (and perhaps more) prosecutions for sanitation violations.
Governance in the process of forming agribusiness laws, decrees and circulars must then come into line with the principles of good governance in a mature democracy. Operators and users of farm-to-fork supply chains, intermediary bodies, academia and industry experts as well as supervisory authorities need to be involved through online public consultations, as has been used for years in the EU and the US.
Democracy, transparency, justice
Democracy is the mother and child of governance, which this writer has been humbly calling for years in the agribusiness sector (11,12). Over the past two years, there have been informal reports of reforms to the control system that were later dropped due to serious inadequacies (13) and draft criminal sanctions of extraordinary impact (14,15) on an extremely fragmented supply chain exposed to the alternating moods of the dominant Coldiretti and Confindustria lobbies (16,17).
Transparency about government initiatives can wait no longer. Operators, public officials, and citizens need to know in good time what’s boiling in the boilers so they can expose possible application problems and opportunities to promote in a sector crucial to the economy and employment. Vice versa, ‘surprise’ decrees are the cause of enormous difficulties for businesses and for the competent authorities in the territories, which clearly cannot implement new regulations without first understanding their application implications.
Dario Dongo
Notes
(1) Dario Dongo, Amaranta Traversa, Sarah Lanzilli, Claudio Biglia. Official controls, d .lgs. 27/21. Implementation of EU reg. 2017/625. GIFT (Great Italian Food Trade). 14.3.21, https://www.greatitalianfoodtrade.it/sicurezza/controlli-ufficiali-d-lgs-27-21-attuazione-del-reg-ue-2017-625
(2) Legislative Decree. 2.2.21, n. 23. Adaptation of national legislation to the provisions of Regulation (EU) 2017/625 on official controls on animals and goods from other EU Member States and related responsibilities of veterinary offices for EU compliance of the Ministry of Health. Effective from 19.3.21
(3) Legislative Decree. 2.2.21, n. 24. Adjustment of national legislation to the provisions of Regulation (EU) No. 2017/625 on official health checks on animals and goods entering the Union and establishment of border checkpoints of the Ministry of Health. Effective Date: 20.03.2021
(4) Legislative Decree. 2.2.21, n. 27. Provisions for the adaptation of national legislation to the provisions of Regulation (EU) 2017/625. In force on 26.03.2021
(5) Legislative Decree. 2.2.21, n. 32. Provisions for the adaptation of national legislation to the provisions of Regulation (EU) 2017/625. Entry into force 28.3.21
(6) Legislative Decree. 2.2.21 n. 27, Article 18.1.b. In Official Gazette 11.3.21 General Series no. 60, at https://www.gazzettaufficiale.it/atto/serie_generale/caricaDettaglioAtto/originario?atto.dataPubblicazioneGazzetta=2021-03-11&atto.codiceRedazionale=21G00034&elenco30giorni=true&fbclid=IwAR1bp9gqB0n3ZAuzXV-9JGHmsjYuLPflQo_zpqpQTnpaYRrrtoE603qxnyI
(7) Law 4.10.2019 no. 117, so-called ‘2018 European delegation law,’ at https://www.gazzettaufficiale.it/eli/id/2019/10/18/19G00123/sg
(8) Law 234/12. General rules on Italy’s participation in the formation and implementation of European Union law and policies. See Article 12
(9) For more on the Hygiene Package see the author’sebook ‘Food Safety, Mandatory Rules and Voluntary Standards‘. Download at https://www.greatitalianfoodtrade.it/libri/sicurezza-alimentare-regole-cogenti-e-norme-volontarie-il-nuovo-libro-di-dario-dongo
(10) Strengthening penalties is part of the goals of preventing and mitigating food fraud. Without prejudice to the primary competence of member states over judicial and administrative procedures, which fall within their sovereignty
(11) Dario Dongo. Transparency and governance, what ministerial work and government acts lack. FARE(Food and Agriculture Requirements). 4.2.17, https://www.foodagriculturerequirements.com/approfondimenti_1/trasparenza-e-governance-ciò-che-manca-a-lavori-ministeriali-e-atti-di-governo
(12) Dario Dongo. To the new government, some proposals for the agribusiness sector. GIFT(Great Italian Food Trade). 8/21/19, https://www.greatitalianfoodtrade.it/idee/al-nuovo-governo-alcune-proposte-per-il-settore-agroalimentare
(13) Dario Dongo. Official controls, decree scheme to be revised. GIFT(Great Italian Food Trade). 9/20/19, https://www.greatitalianfoodtrade.it/sicurezza/controlli-ufficiali-schema-di-decreto-da-rivedere
(14) Dario Dongo. Agribusiness crimes, outline of bill 20.2.20. GIFT (Great Italian Food Trade). 27.2.20, https://www.greatitalianfoodtrade.it/sicurezza/reati-in-ambito-agroalimentare-schema-di-disegno-di-legge-20-2-20
(15) Dario Dongo. Draft law on agribusiness crimes, crimes against public health. GIFT (Great Italian Food Trade). 6.3.20, https://www.greatitalianfoodtrade.it/sicurezza/disegno-di-legge-sui-reati-agroalimentari-i-delitti-contro-la-salute-pubblica
(16) Dario Dongo. The minister of agriculture we want. GIFT(Great Italian Food Trade). 1.2.21, https://www.greatitalianfoodtrade.it/idee/il-ministro-dell-agricoltura-che-vogliamo
(17) Dario Dongo. Unfair trade practices, double-down supply chain agreement. GIFT(Great Italian Food Trade). 7.2.21, https://www.greatitalianfoodtrade.it/mercati/pratiche-commerciali-sleali-accordo-di-filiera-al-doppio-ribasso
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
