- 19/07/2025
- Posted by: Marta
- Category: Questions and answers
Dear Dongo Lawyer,
Our supermarket chain has received an administrative fine for selling partially baked, frozen, and golden bread in bulk, in special display cases, at the point of sale.
Can you tell us your point of view on this matter?
Thank you very much, Anna
The lawyer Dario Dongo, Ph.D. in international food law, answers
Dear Anna,
Last century, Italian lawmakers had indeed introduced a ban on selling partially baked, frozen bread in bulk, the baking of which is then completed at the point of sale or nearby. The applicability of these regulations, however, is questionable, if not ruled out, due to their conflict with applicable European law. A more detailed discussion follows.
Frozen partially baked bread, Italian national standards
La Law 580 / 1967 and subsequent amendments:
- defines the 'bread' how 'the product obtained by the total or partial cooking of a suitably leavened dough, prepared with wheat flour, water and yeast, with or without the addition of common salt (sodium chloride)';
- provides that the bread 'obtained from partial cooking, if intended for the final consumer it must be contained in individually pre-packaged packaging bearing on the label the information required by the provisions in force and, clearly, the name “bread” completed by the mention “partially cooked” or other equivalent, as well as the warning that the product must be consumed after further cooking and the indication of the relevant methods of cooking.';
- provides that frozen bread, in addition to what is indicated above, must bear on the label 'the indications required by the legislation in force regarding frozen food products, as well as the mention "frozen";
- prescribes that 'bread obtained by completion of baking of partially baked bread, frozen or not, must be distributed and put on sale, after packaging and labelling showing the information required by current legislation on food products, in compartments separate from fresh bread and with the necessary indications to inform the consumer about the nature of the product' (Law 580/1967, Article 14, as replaced by Article 44 of Law 146/1994). (1)
The next one Presidential Decree 582/98, for the purposes of applying the aforementioned provision, establishes that: 'Bread obtained by completing the baking of partially baked bread, whether frozen or not frozen, must be distributed and put on sale in separate compartments from fresh bread and in pre-packaged packaging bearing, in addition to the indications provided for by Legislative Decree 27 January 1992, no. 109. [subsequently repealed by Legislative Decree 231/17, ed.], also the following:
to) "obtained from frozen partially baked bread” in case of origin from a frozen product;
b) “obtained from partially baked bread” in the case of origin from a product that is neither frozen nor deep-frozen.
Such specific wordings must 'also appear on a sign displayed in a manner clearly visible to the consumer in the sales area'(DPR 502/98, article 1).
Inapplicability of national rules
Il Regulation (EU) 1169/11 on consumer information on food products clarifies, among the general objectives, that 'Food information legislation aims to establish the conditions in the Union for the free movement of food legally produced and marketed, taking into account, where appropriate, the need to protect the legitimate interests of producers and to promote the manufacture of quality products' (Article 3, paragraph 2). (3)
The European legislator – in transferring the regulation of consumer information from a directive (2000/13/EC) to a regulation (EU 1169/11) – has introduced both precise limits and a specific notification procedure for the concurrent national legislation of the Member States in this area:
- prohibitions. ‘As regards the matters expressly harmonised by this regulation, Member States may not adopt or maintain national provisions unless Union law so authorizes. Such national provisions do not create obstacles to the free movement of goods, including discrimination against foods from other Member States.'(Article 38 - National provisions, paragraph 1);
- limits. ‘Member States may adopt, according to the procedure referred to in Article 45, provisions requiring additional mandatory information for specific types or categories of foods for at least one of the following reasons:
a) protection of public health;
b) consumer protection;
c) fraud prevention;
d) protection of industrial and commercial property rights, indications of provenance, controlled designations of origin and repression of unfair competition'(Article 39 - National provisions on additional mandatory information, paragraph 1);
- notification procedure. ‘Where reference is made to this Article, the Member States who believe it is necessary to adopt new legislation on food information notify the Commission in advance and to the other Member States the provisions envisaged, specifying the reasons that justify them'(Article 45 - Notification procedure, paragraph 1).
Concurrent national legislation is also subject to specific limitations in the regulation of non-prepackaged foods:
- '1. Where the foods are offered for sale to the final consumer or to communities without pre-packaging or are packaged at the point of sale at the request of the consumer or pre-packaged for direct sale,
(a) the provision of the information referred to in Article 9, paragraph 1, letter c) [allergens, ed.] it is mandatory;
b) the supply of other indications referred to in Articles 9 and 10 [the only ones 'additional mandatory particulars are provided for in Annex III for specific types or categories of foods', ed.] It is not mandatory unless Member States adopt national provisions requiring the provision, in part or in full, of such information or elements thereof.
- 2. Member States may adopt national provisions concerning the mezzi with which the indications or elements thereof as specified in paragraph 1 must be made available and, where applicable, their form of expression and presentation.
- 3. The Member States communicate immediately to the Commission the text of the provisions referred to in paragraph 1, letter b), and paragraph 2'(Article 44 - National provisions for non-prepacked food).
Member States, consequentially:
- they had to notify to the European Commission and the Member States, by 13 December 2014 (date of entry into force of EU Regulation 1169/11) all previous national provisions on matters not expressly harmonised by the regulation itself which they intended to maintain after its entry into force;
- must notify to the European Commission in advance of any new national legislative project that affects the production and marketing of goods, pursuant to the procedure established by Regulation (EU) 1169/11 in Article 45 (in the matters falling within its scope) or by EU Directive 2015/1535 (Technical Regulation Information System, TRIS);
- they can not in any case, introduce, for non-prepacked foods, mandatory information in addition to that established by Regulation (EU) 1169/11 in Articles 9 (the mandatory information established at EU level for prepackaged foods in general) and 10 (the additional mandatory information provided for in Annex III to the regulation itself for certain specific types or categories of foods).
In light of the European rules set out above – which have a higher rank than national constitutional laws in the hierarchy of sources of law – the labelling requirements established by Presidential Decree 502/98 are inapplicable as they were not notified to the European Commission and the Member States after publication in the Official Journal and before the entry into force of Regulation (EU) 1169/11. In this regard, reference is made to the consolidated case law of the Court of Justice (CIA International, Sapod Audic cases. See notes 4,5). The Court of Justice has also clarified the duty to disapply national technical standards not subject to a regular notification procedure in Brussels, not only by judicial authorities but also by administrative authorities of all levels (F.lli Costanzo case). (6)
About the ban on selling partially baked frozen bread in bulk – established in Italy by law 580/1967 – reference is also made to the official interpretation of Regulation (EC) No. 852/04, so-called Hygiene 1 (Annex II, Chapter IX, point 3), by the Court of Justice of the European Union, in the Todorov case (ECJ, 2011). Where the Court ruled the illegitimacy of restrictive decisions by national authorities regarding the preparation of containers intended for sale in self-service of baked goods. (7)
Perspectives
The Italian government – confirming that it has (at least partially) understood the need to submit draft national technical standards to prior notification – in fact notified the European Commission, through the TRIS system, on 5 June 2025, of the draft law no. 415 containing 'provisions regarding the production and sale of bread' (8,9).
Dario
Note
(1) Law 4 July 1967, n. 580. Regulations for the processing and trade of cereals, flours, bread and pasta. Last updated on the act published on 22/05/2001. Legislation https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1967;580
(2) Presidential Decree 30 November 1998, n. 502. Regulation containing provisions for the revision of the legislation on the processing and trade of bread, pursuant to article 50 of law 22 February 1994, n. 146. Legislation https://www.normattiva.it/uri-res/N2Ls?urn:nir:presidente.repubblica:decreto:1998–11–30;502
(3) Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers and amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006. Consolidated text: 01/04/2025 http://data.europa.eu/eli/reg/2011/1169/2025-04-01
(4) Court of Justice of the European Union. (1996, April 30). CIA Security International SA v. Signalson SA and Securitel SPRL, C-194/94, ECLI:EU:C:1996:172. European Court Reports (ECR) 1996 I-02201 https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A61994CJ0194
(5) Court of Justice of the European Union. (2002, June 6). Sapod Audic v. Eco-Emballages SA, C-159/00, ECLI:EU:C:2002:343. European Court Reports (ECR) 2002 I-05031.https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A62000CJ0159
(6) Court of Justice of the European Union. (1989, June 22). Fratelli Costanzo SpA v. Municipality of Milan, C-103/88, ECLI:EU:C:1989:256. European Court Reports (ECR) 1989 I-01839. https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A61988CJ0103
(7) Court of Justice of the European Union. (2011). Judgment of the Court (Second Chamber) of 21 June 2011 — C-382/10 — Todorov [ECLI:EU:C:2011:419]. EUR-Lex. https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX:62010CJ0382
(8) European Commission. (2025). Draft technical regulation – Italy: Bill on 'Provisions on the production and sale of bread'. [TRIS notification 2025/0282/IT]. Technical Regulation Information System (TRIS). https://technical-regulation-information-system.ec.europa.eu/en/notification/26970/print
(9) Italy, bill no. 415 containing 'provisions regarding the production and sale of bread'. See the text notified to the European Commission on 5 June 2025 (https://technical-regulation-information-system.ec.europa.eu/en/notification/26970/text/D/IT) and the file on the relevant legislative process, published by the Senate on June 22, 2025 (https://www.senato.it/leg/19/BGT/Schede/FascicoloSchedeDDL/ebook/56327.pdf)
