GPSR sanctions in Italy: analysis and future impact on Retail companies

Italian sanctioning system to the provisions of the Regulation (EU) 2023/988 on general product safety – GPSR .

This will be a crucial step for all economic operators active in the non-food consumer product supply chain.

AUTHOR: ENGR. ANTONIO GARGASOLE

Expert consultant in non-food product compliance.

20 years of direct experience in European Large-Scale Retail.

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What will change?

The GPSR Regulation requires Member States to establish penalties that are:

• effective
• proportionate
• dissuasive

In line with the guidelines already adopted or in the process of being adopted in other EU Member States, it is expected that the Italian decree will provide for much stricter penalties than those currently contained in the Consumer Code.

Economic-financial implications

• The penalties must not entail additional direct burdens on public finances.
• The amounts imposed will go to the expenditure chapters of the supervisory authorities (Ministry of Infrastructure and Sustainable Mobility – MIMS, Ministry of Health, Ministry of Labour and Social Policies, Ministry of the Interior, Ministry of Ecological Transition, Ministry of Agricultural, Food and Forestry Policies, ENAC – Italian Civil Aviation Authority) to cover the strengthening of human, technical, and financial resources necessary for control activities.
• The system will be structured to be self-sustaining, also ensuring a concrete strengthening of controls.

What will concretely change for retail companies

1. Renewed Consumer Code: in addition to current penalties, new GPSR violations will be introduced, punishable by more severe fines and, in serious cases, criminal sanctions.
2. Extended obligations: online sellers and logistics chain operators will also be directly responsible for violations, including the absence or defect of the technical file, non-compliant labeling, or failure to notify incidents.
3. Transitional phase:
   • Products placed on the EU market before December 13, 2024, will benefit from a time window to adapt.
   • For those placed on the market subsequently, the new penalties will be immediately applicable.
4. Stricter surveillance: thanks to funds from penalties, authorities will intensify spot checks, seizures, customs blockades, and inspections at retailers.

🔗 Official source: European Delegation Law 2024 – Chamber of Deputies

ARTICLE 24

Delegation for the adaptation of national legislation to Regulation (EU) 2023/988, concerning the general safety of consumer products placed or made available on the market

The rules delegate the Government to adopt, within six months from the date of entry into force of this law, one or more legislative decrees for the adaptation of national legislation to the provisions of Regulation (EU) 2023/988 of the European Parliament and of the Council, of May 10, 2023, concerning the general safety of consumer products placed or made available on the market (paragraph 1).

In exercising the delegation, the Government shall observe, in addition to the general principles and guiding criteria referred to in Article 32 of Law No. 234 of 2012, the following specific principles and guiding criteria (paragraph 2):

• make the necessary repeals, amendments, and additions to the Consumer Code, referred to in Legislative Decree No. 206 of 2005, to ensure coordination with the provisions issued in implementation of Regulation (EU) 2023/988 and to coordinate the remaining provisions, also with reference to the RAPEX/Safety Gate system¹²⁷ and the Safety Business Gateway¹²⁸, without prejudice to the competencies by product category, not covered by harmonized standards, vested in each market surveillance authority, as identified by Legislative Decree No. 157 of 2022 [paragraph 2, letter a)];

¹²⁷ Platform managed by the European Commission for the notification and exchange of information on dangerous products.
¹²⁸ Platform managed by the European Commission through which economic operators can fulfill the obligation to notify authorities and consumers about dangerous products and incidents.

It is recalled that the market surveillance authorities identified pursuant to Article 3, paragraph 1, of Legislative Decree No. 157 of 2022, adapting national legislation to the provisions of Regulation (EU) 2019/1020, as well as simplifying and reorganizing the relevant market surveillance system, are the following: Ministry of Economic Development; Ministry of Health; Ministry of Labour and Social Policies; Ministry of the Interior; Ministry of Ecological Transition; Ministry of Infrastructure and Sustainable Mobility; Ministry of Agricultural, Food and Forestry Policies; National Civil Aviation Authority (ENAC).

• ensure consistency with the European Union’s regulatory framework on market surveillance and product compliance, as per Legislative Decree No. 157 of 2022 [paragraph 2, letter b)];
• update the sanctioning system for violations of general product safety provisions and integrate new sanctionable offenses arising from the implementation of Regulation (EU) 2023/988, also in relation to the different stages of the commercial chain and the subjects involved, without prejudice to the competencies by product category, not covered by harmonized standards, vested in each market surveillance authority, as identified by Legislative Decree of October 12, 2022, No. 157 [paragraph 2, letter c)];
• identify, in cases of products supplied online or through other means of distance selling, the responsible parties in the supply chain against whom sanctions and other administrative measures for committed violations can be imposed [paragraph 2, letter d)];
• provide for transitional arrangements to ensure the marketability of products placed on the market before December 13, 2024 (the date of application of Regulation (EU) 2023/988), in accordance with the previous Directive 2001/95/EC of the European Parliament and of the Council, of December 3, 2001 [paragraph 2, letter e)];
• provide for, after payment into a specific revenue chapter of the State budget, the reallocation of sums collected following the imposition of the new administrative pecuniary sanctions referred to in letter c) above, to the appropriate expenditure chapters of the market surveillance authorities pursuant to Legislative Decree No. 157 of 2022, to be allocated to strengthening market surveillance. It is also established that for surveillance authorities that are not central administrations, the reallocation occurs to the central administration responsible for guidance, supervision, and control activities for subsequent transfer to these authorities [paragraph 2, letter f)];

The implementation of this article must not result in new or increased burdens on public finances. The concerned authorities shall carry out the tasks arising from the implementation of the delegation in question using the human, instrumental, and financial resources available under current legislation (paragraph 3).

The summary table does not attribute any effects on public finance balances to the rules.

The technical report reiterates the content of the rules and states that the principles and guiding criteria specified by the rules under examination do not entail new or greater burdens on public finances. Regarding, in particular, the delegation criterion referred to in the aforementioned letter f), which provides for the reallocation of collected sums, following the imposition of new administrative pecuniary sanctions, to the appropriate expenditure chapters of the market surveillance authorities for the implementation of the regulation, to be allocated to strengthening market surveillance, after payment into a specific revenue chapter of the State budget, the technical report states that this criterion does not entail impacts on public finances under current legislation, as the new sanctions constitute new revenue and their reallocation to the surveillance authorities will finance the increased costs arising from the implementation of the control system. The sums deriving from the payment of the new sanctions will be reallocated to each of the surveillance authorities that imposed said sanctions. In particular, for surveillance authorities that are not central administrations, the reallocation occurs to the central administration responsible for guidance, supervision, and control activities for subsequent transfer to these authorities. Therefore, the provision is financially neutral.

With regard to paragraph 3, the technical report also states that the sanctions intended to be introduced constitute a completely new sanctioning system, which is not a recognition of pre-existing sanctions, as the sanctioning apparatus for cases of violation of the obligations under Regulation (EU) 2023/988 is not already provided for under current legislation. This is to avoid duplication and consequent possible litigation. The TR (Technical Report) specifies, in this regard, that the amounts cannot be prudently quantified, as it is a newly established regime. Lastly, the TR confirms the division of competencies of the surveillance authorities already attributed by Legislative Decree No. 157 of 2022, relating to the surveillance of individual products, therefore not determining a burden on public finances.

Regarding quantification profiles, it is preliminarily noted that the provisions under examination delegate the Government to adopt one or more legislative decrees to adapt national legislation to the provisions of Regulation (EU) 2023/988, concerning the general safety of consumer products placed or made available on the market, prescribing, in particular, the updating of the sanctioning framework in case of violation of the relevant provisions [paragraph 2, letter c)]. It is envisaged that the revenues deriving from the imposition of the aforementioned new administrative pecuniary sanctions are reallocated, after payment into a specific revenue chapter of the State budget, to the appropriate expenditure chapters of the market surveillance authorities already identified under current legislation¹²⁹, to be allocated to strengthening market surveillance [paragraph 2, letter f)].

Finally, the provision is accompanied by a specific financial neutrality clause (paragraph 3), according to which the implementation of the article in question must not result in new or increased burdens on public finances, and the concerned authorities shall ensure its implementation using the human, instrumental, and financial resources available under current legislation.

In this regard, it is highlighted that the technical report, in noting that the rules under examination do not entail new or greater burdens on public finances, states, with reference to paragraph 2, letter f), that the increased costs for public surveillance authorities arising from the implementation of the control system will be financed through revenues from the new pecuniary sanctions related to the implementation of the regulation in question. Furthermore, the same technical report points out that such revenues have not been quantified for prudential reasons, as they are associated with a newly established sanctioning regime. In this respect, while taking note of what is stated in the technical report, it seems necessary to clarify whether the framework of tasks attributable to the aforementioned market surveillance authorities, being consistent with the institutional functions already assigned to them under current legislation, can be carried out with the human, instrumental, and financial resources available under current legislation, in accordance with the financial invariance clause, without therefore resorting to revenues from the new sanctioning apparatus, given that such revenues do not appear suitable for covering new burdens both because their amount is uncertain and because they could flow to the interested entities even in financial years subsequent to those in which the burdens arise.

¹²⁹ Pursuant to Legislative Decree No. 157 of 2022.