The Supreme Court upheld the conviction of the legal representative of a supermarket chain for the presence of pesticide residues in fruit in amounts exceeding the limits set by the regulations (1,2,3,4,5). It is as easy to get into trouble as it is useful to organize to prevent it. Insight.
Pesticide residues in fruit, the facts
The crime report in the present case was registered following inspection by the relevant authorities at a Sicilian supermarket on 12.6.17. Tests conducted on a sample of nectarine peaches found ‘the presence of pesticides that are permitted but exceed legal limits.’
The charge was executed against the ‘legal representative of a complex corporate structure that operated 51 direct outlets and about 200 franchisees.’ Who was convicted by the Court of Caltanissetta in a ruling 4.2.20 confirmed by the Court of Cassation on 9.2.21.
Residues of agrochemicals in food over EU permissible thresholds. Offense and penalty
‘It is prohibited to employ in the preparation of food or beverages, sell, hold for sale or give as gratuity to its employees, or otherwise distribute for consumption, food substances: (…)
(h) that contain residues of products, used in agriculture for the protection of plants and in defense of stored foodstuffs, which are toxic to humans’ (Law 30.4.62, No. 283. Article 5, paragraph 1, letter ‘h’).
The offence currently occurs, according to established interpretation, in the case of exceeding the maximum residue levels set by European regulations (which have taken over from the ministerial orders to which the law originally referred). The penalty is set in the fine of €103.29 to €2,582.30, which can be raised up to €10,329.14 (Law 283/1962, Art. 6). Subject to ‘the greater penalties provided for in the Penal Code‘. (6)
Law 283/1962, Article 5. Subjective element
Law 283/1962, as noted, was the subject of a recent attempt to repeal it. (7) With the possible falsification of the text of the novella approved by the Council of Ministers, by a ministerial official, and the restoration of legality within hours of the reform taking effect. (8)
Therefore, Article 5 of Law 283/1962 remained in effect and a misdemeanor offense. That is, punishable whenever the material fact of the offense-in this case, the exceeding of maximum levels of contaminant residues-can be attributed to the responsible party by way of:
– malice. That is, consciousness and will of the fact, (9)
– Possible intent, i.e., awareness of the risk and its acceptance, (10)
– Fault. Negligence, recklessness, inexperience. (11)
Professional guilt
Professional negligence is assessed by considering all measures that the practitioner should have taken, by reason of the professional position held, in order to avoid the occurrence of the harmful or dangerous event. And the level of diligence, prudence and expertise to be expected of the professional in each field – according to established doctrine and case law – coincides with the best science and experience applicable to the historical context (12,13).
The legal representative of the organization is therefore liable on the basis of culpability – of the crime under consideration in the proceedings under review and other more serious ones, such as trading in harmful food substances (14) – in cases where the harmful or dangerous event can be traced back to shortcomings in the policies and procedures established to guarantee food hygiene and safety. (15) Which must ensure, in the case of modern distribution, compliance with all applicable product standards. (16)
Delegation of authority, conditions of effectiveness
The court of legitimacy clarified that for the purposes of exonerating the legal representative from criminal liability for crimes under Art. 5 of Law 283/1962 ‘the dimensional and organizational characteristics that characterize the corporate structure should be such as to justify the decentralization of tasks and responsibilities from the legal representative to other parties.
Otherwise, even a formal delegation of functions could not operate as a limitation on the criminal liability of the company’s legal representative.” (17) In the present case ‘however, no evidence was provided to the court regarding the size and internal organization, nor an organizational chart of the company, nor any documentation regarding any specific delegations and powers given to individual managers.’
Delegation and release from liability
The indemnification from liability of the legal representative of a complex organization, as the best doctrine has always taught (13), can be recognized only on the condition that there is a formal delegation of management powers of a specific sphere of activity to a person with the necessary competence to do so. And it is on closer inspection essential in a number of areas, such as food quality and safety, occupational safety, environmental legislation, management of co-product waste and wastes, and privacy.
Powers of autonomous management-even over expenditures and personnel-of a given area or activity are the only justification for effective delegation with hold harmless responsibilities. And the delegated person in turn must be made aware of the responsibilities assigned to him, confirm his suitability and willingness to fulfill them, informing where appropriate from the outset of the needs to be addressed. (17)
Risk prevention
‘It is the responsibility of food and feed business operators to ensure that in the enterprises under their control, food or feed complies with the provisions of food law relevant to their activities at all stages of production, processing and distribution, and to verify that these provisions are met’ (EC Reg. 178/02, Article 17).
Integrated corporate responsibility postulates an effective and suitable organization of internal policies and procedures, to be coordinated following comprehensive review of regulations to be applied, risk analysis and gap analysis. A seemingly trivial case should be understood as a symptom of a systemic underestimation of risk that under the banner of nonoperating cost savings can cause damage even more serious than a simple fine.
Dario Dongo and Elena Bosani
Notes
(1) Reg. EC 396/2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin, as amended. Consolidated text as of 6.1.21 at https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32005R0396&qid=1618601948272
(2) Reg. EU 609/2013 on food intended for infants and young children, food for special medical purposes and substitutes for the whole daily ration for weight control. Testo consolidato all’11.7.17 su https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32013R0609&qid=1618601948272
(3) Reg. EU 2018/848, on organic production and labeling of organic products. Consolidated text as of 14.11.20 at https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32018R0848&qid=1618601948272
(4) EU Dir. 2020/2184, concerning the quality of water intended for human consumption. https://eur-lex.europa.eu/eli/dir/2020/2184/oj
(5) Criminal Cassation, Section III, Judgment 9.2.21 no. 9406 http://www.italgiure.giustizia.it/xway/application/nif/clean/hc.dllverbo=attach&db=snpen&id=./20210310/snpen@s30@a2021@n09406@tS.clean.pdf
(6) The so-called Caselli reform, ideally approved in the Council of Ministers on 25.2.20, aspires, among other things, to drastically strengthen the penalty framework established by the Criminal Code in this area. V. Dario Dongo, Camilla Fincardi. Agribusiness crimes bill, 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
(7) Dario Dongo. Legislative Decree. 27/21 and repeal of Law 283/1962, question of constitutionality. GIFT (Great Italian Food Trade). 17.3.21, https://www.greatitalianfoodtrade.it/sicurezza/d-lgs-27-21-e-abrogazione-della-legge-283-1962-questione-di-legittimità-costituzionale
(8) Dario Dongo. Food crimes, Draghi government saves Law 283/1962. #CleanSpades. GIFT (Great Italian Food Trade). 3/20/21, https://www.greatitalianfoodtrade.it/sicurezza/reati-alimentari-il-governo-draghi-salva-la-legge-283-1962-vanghepulite
(9) ‘The crime is intentional or according to intention, when the harmful or dangerous event, which is the result of the action or omission and on which the law makes the existence of the crime depend, is foreseen and intended by the agent as a consequence of his action or omission‘ (Penal Code, Article 43)
(10) ‘In the case of malice aforethought, the agent merely accepts the risk of the occurrence of the event, which remains unintended (in the strict sense); in the case of direct malice, the agent foresees it as probable and the acceptance invests not the risk but the event itself, which, therefore, is intended by the perpetrator of the conduct’ (Criminal Cassation, Joint Sections, Judgment 12.4.96 No. 3571. In the same sense Cass. Pen. Sec. I, 29.1.08 no. 12954)
(11) ‘The offense is culpable, or against intent, when the event, even if foreseen, is not intended by the agent and occurs due to negligence or recklessness or inexperience, or due to failure to comply with laws, regulations, orders or discipline‘ (Penal Code, Article 43)
(12) Giovanni Fiandaca Enzo Musco. Criminal Law, General Part. 2019, 8th edition. Zanichelli, Bologna. ISBN: 9788808620316
(13) Tullio Padovani. Criminal Law. 2019, 12th edition. Giuffrè, Milan. ISBN 8828809937
(14) Trading in noxious foodstuffs is punishable under the Criminal Code on the grounds of intent and negligence, respectively, in Articles 444 and 452
(15) Dario Dongo. Reg. EU 2081/382. Allergen management, safety culture, food redistribution. GIFT (Great Italian Food Trade). 9.3.21, https://www.greatitalianfoodtrade.it/sicurezza/reg-ue-2081-382-cultura-della-sicurezza-redistribuzione-alimenti-gestione-allergeni/
(16) Dario Dongo. The responsibilities of large-scale retail trade. GIFT(Great Italian Food Trade). 12.3.18, The responsibilities of large-scale retail – cases | GIFT (greatitalianfoodtrade.co.uk)
(17) The court of legitimacy has recently reiterated that the legal representative of a company operating a chain of supermarkets can only be exempted from liability if it is a large company with multiple autonomous territorial units. And it appears beyond reasonable doubt that-with respect to certain functions-another qualified and suitable person, equipped with the necessary autonomy and indispensable discretionary powers for the complete management of the store, has taken over. (Cass. Pen. sec. III, ruling 9406/2021. Thus Cass. Pen. Sec. VI, judgment no. 4650/1983)
Marta Strinati, Dario Dongo. Apples, grapes, pears. Too many pesticide residues in food. Legambiente report. 25.12.20, https://www.greatitalianfoodtrade.it/sicurezza/mele-uva-pere-troppi-residui-di-pesticidi-negli-alimenti-rapporto-di-legambiente
Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.
Lawyer in Milan and Frankfurt am Main. An expert in family, juvenile and criminal law, she is now enrolled in a university master's programme in food law
