Italian Supreme Court: litigation between Control Bodies and businesses operating in the field of organic farming falls within the jurisdiction of the ordinary judge

By their decision no. 9678 of April 5, 2019, the Joint Sections of the Italian Court of Cassation clarified that the disputes between businesses operating in the field of organic products and subjects charged with issuing all necessary certifications and with the relevant control activity fall within the scope of the ordinary judge’s jurisdiction, as opposed to administrative courts.

As it is known, the law on organic farming provides for the establishment of a specific “Control System” aimed at certifying that businesses and products meet all necessary requirements for the products to be defined as “organic”. In Italy the apex of such system is the Ministry for Agriculture, Food and Forestry (“Ministero delle Politiche Agricole, Alimentari e Forestali”); however, the practical implementation of the relevant rules is entrusted to private-law subjects, i.e., the Control Bodies.

The Control Bodies’ nature has led to several practical doubts. In fact, on one hand, said Bodies are authorized by ministerial decree to performing activities stemming from controlling, certifying and enforcing the measures prescribed by relevant law vis-à-vis the concerned businesses in case of their alleged or proven non-conformity; on the other hand, however, in order to exercise such prerogatives Control Bodies need to establish a specific contractual relationship, based on private law, with each of the businesses concerned.

The Joint Sections have now clarified the issue, overcoming the former prevailing stance of administrative courts (see, for instance, State Council, decision no. 4114/2019). The Supreme Court has thus found that Control Bodies cannot be considered as “public administrations”, nor as exercising any public power, as “they perform, under the public authority’s surveillance, an auxiliary, evaluative and certifying (sampling and examining) activity, consisting in assessments and inquiries to be performed based on exclusively technical and scientific criteria, expression of a merely technical discretionary power”. Therefore, according to the Court of Cassation, “the positions of the private subjects which represent the recipients of said activity have to be considered as ‘subjective rights’ the protection of which falls within the scope of the jurisdiction of ordinary judges”.

Some merit courts - both ordinary (Court of Appeal of Bologna, decision no. 2465/2019) and administrative (Administrative Regional Court of Emilia-Romagna, Bologna, decision no. 737/2019) - have already conformed to the Supreme Court’s stance.