Brussels may start an infringement procedure against Italy for the incorrect application of the so-called SUP Directive (Single Use Plastics) aimed at products that cannot be placed on the markets of EU Member States. The SUP Directive applies to straws, stirrers, cutlery, plates, cotton bud sticks, sticks for balloons as well as to certain types of food and beverage containers made of EPS. The draft legislative decree was notified on 22 September 2021 to the Commission, which submitted its observations in December. However, despite the fact that the European Commission has issued a detailed opinion highlighting some discrepancies between the original text and the decree implementing it into the Italian legal system, the SUP Directive entered into force in Italy on 14 January 2022 after publication in Italy’s Gazzetta Ufficiale.
The detailed opinion of the Commission criticizes two points of the Italian legislative decree, which was already at the center of a debate last summer: one concerns the thin plastic coating (lining or coating), which is not included in the definition of plastic in the Italian decree when its weight is inferior to 10% of the total weight of the product, provided that the product in question does not constitute a main structural component of other finished products. The other point concerns the exclusion from Italian legislation, but not from the EU laws, of biodegradable and compostable plastics for the single-use items that cannot be placed on the EU market.
At any rate, it must be considered that the detailed opinion of the European Commission obliges a Member State to postpone the adoption of the amended legislative decree by six months from the date of notification, which would expire on 23 March 2022. However, since the implementation law entered into force on 14 January without taking into account the observations of Brussels, Italy is risking an infringement procedure.
As a result, there are two possible solutions available: either modifying the law that has already entered into force or waiting for the measures that the Commission will take against Italy.