Food crimes: the new provisions

It was published in the Ordinary Supplement n. 38/L to the Official Gazette, General Series n. 243 of 17.10.2022) Legislative Decree 10 October 2022, n. 150, implementing Law 134/2021 (the so-called " Cartabia reform "), delegating to the Government for the efficiency of the criminal process, as well as in the field of restorative justice and provisions for the rapid definition of judicial proceedings.

Of particular interest for the food sector is article 70 of Chapter III relating to "Amendments regarding the extinction of contraventions, substitute sentences for short prison sentences and pecuniary penalties".

In the explanatory report to the Legislative Decree of 10 October 2022, n. 150, in the Premises of Chapter V (Extinction of fines for fulfillment of prescriptions issued by the investigating body) the need is highlighted to reduce the number of proceedings that reach trial and the workload of the prosecutors, "thanks to the synergistic contribution of the investigating bodies (administrative supervisory authority/judicial police) ...".

"The subject areas have been identified taking into account the existence, at a regulatory and practice level, of supervisory administrative authorities and police or Carabinieri bodies (such as the Anti Sophistication and Health Nuclei - NAS) specialized in ascertaining crimes in those areas. The existence of specialized ascertaining bodies is an indispensable prerequisite for the success of the administrative procedure which leads to prescribing remedial/compensation procedures in order to extinguish the crime. On these premises, such areas of discipline are those of offenses relating to hygiene, production, traceability and sale of food and beverages, provided for by law No. 283 of 30 April 1962 and by other provisions having the force of law."

"The judicial police authority - writes Dario Dongo in his article Food crimes, posthumous coup of the Draghi government - since it has the powers referred to in article 55 of the code of criminal procedure, therefore regardless of the powers attributed by Legislative Decree 27/2021 and the training and audit requirements established by EU Reg. referred to in article 5 of law 283/1962.”

Legislative Decree 10 October 2022, n. 150

Article 70 of Legislative Decree 10 October 2022, n. 150 reports " Amendments to the law of 30 April 1962, n. 283 " by inserting after article 12-bis a series of new articles which modify the food law leading to a de facto decriminalization, "not without uncertainty also regarding its constitutional legitimacy", continues Dongo.

The new articles

Article 12-ter relating to the "Extinction of contraventions for fulfillment of instructions given by the investigating body" reads "Unless they contribute to one or more crimes, the contraventions provided for by this law and by other provisions having the force of law, ... which have caused damage or a danger susceptible to elimination through remedial or compensatory actions and for which the penalty of a single fine is envisaged, ..., the provisions of this article and of the articles 12-quater, 12-quinquies, 12-sexies, 12-septies, 12-octies and 12-nonies."

To allow the fine to be extinguished, six months are granted which can be extended for a period not exceeding a further six months.
“The ascertaining body is in any case obliged to report to the public prosecutor the news of the crime relating to the offence, pursuant to article 347 of the code of penal procedure, and to transmit the report with which the prescriptions were issued. The public prosecutor, ... may order by decree that the body that issued the prescriptions makes changes to them."

In the event that the offender is unable to pay the sum of money, he can request the public prosecutor to carry out public utility work as an alternative (Article 12-quinquies).

The new provisions will enter into force on November 1, 2022.

Article 96 "Transitional provisions on the extinction of fines relating to food" states:

1. “The provisions of article 70 do not apply to proceedings in progress on the date of entry into force of this decree in which criminal action has already been exercised.
2. Pending the adoption of the decree referred to in article 12-quinquies, paragraph 4, of the law of 30 April 1962, n. 283, the decrees of the Minister of Justice of 26 March 2001, published in the Official Journal of 5 April 2001, n. 80, and 8 June 2015, n. 88, published in the Official Journal of 2 July 2015, no. 151.” (Source: https://www.foodandtec.com/ )

For further information, please refer to the Legislative Decree .