Italian Supreme Court tackles improper use of the Italian flag and of the expression “PRODOTTO ITALIANO” on goods that are merely packaged in Italy.

On 14 October 2014 (decision No 42874/14) the Italian Supreme Court established that indicating “ITALIAN PRODUCT” and using the Italian flag on the packaging of goods without giving further information on the provenance of goods that goods originate from abroad and are merely packaged in Italy, is a criminal offence under the Italian Criminal Code.

Background

The case relates to mushrooms packaged in Italy but originating from countries outside the European Union. The mushrooms did not undergo a substantial transformation in the Italian territory but were merely packaged in Italy, for sale both in Italy and abroad.

Previously, on 24 February 2014 the Judge in the preliminary proceedings before the Court of Benevento had ordered the seizure of the machinery for packaging the mushrooms as well as the already packaged mushrooms, holding that the use of the wording “PRODOTTO ITALIANO” (“ITALIAN PRODUCT”) and the use of the Italian flag on the packaged goods was to be considered fraud in trade under Article 515 Italian Criminal Code. On 24 March 2014 the Court of Review of Benevento had confirmed this order. An appeal against this decision of the Court of Review was filed before the Supreme Court.

The Decision

The Italian Supreme Court held that the mere packaging of goods in the Italian territory cannot qualify as a substantial transformation under Article 36 section II of Regulation 450/08 which has updated amongst others the so-called Community Customs Code (established by Council Regulation (CE) No 2913/92), according to which the last substantial transformation that the products, whose production involves more than one country, have undergone may determine the origin of the goods.

In conclusion, the Supreme Court confirmed that the use of the wording “ITALIAN PRODUCT” and of the Italian flag, on the packaging of products coming from abroad and merely packaged in Italy, is to be held misleading for consumers. As a consequence, this behaviour was held to be illegitimate and constituting trade fraud under Article 515 of the Italian Criminal Code.

The decision (in Italian) is available here: http://www.avvocatopenalista.org/sentenza.php?id=9147.