Abstract
The chapter reviews the Italian state of the art in the fight against illicit tobacco trade and the various phenomena related to it. Starting from an overview of the general characteristics of the national strategy to combat illicit trade, it will analyse, in particular, the administrative and the criminal sanctions related to illicit conducts. In addition, the chapter addresses the issue of administration of justice with a focus on the authorities involved, as well as the procedural aspects of investigating unlawful conducts. Finally, the chapter takes a look, from an international point view, at the main issues of cooperation between judicial and administrative authorities dealing with this problem.
Professor Bernardi is author of Sect. 6.1, Dr Felisatti of Sects. 6.2, 6.4 and 6.6, Dr Masiero of Sects. 6.3 and 6.5.
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Notes
- 1.
Doxa (2017).
- 2.
11,7000,000 (smokers) × 13.6 (the average number of cigarettes smoked) × 365 (days of the year) = 57,919,680,000 cigarettes per year.
- 3.
Di Nicola and Espa (2017), p. 2. The document referred to here concerns a study carried out by a group of researchers at the University of Trento with the contribution of British American Tobacco (BAT) Italia.
- 4.
Art. 39-quinquies, Legislative Decree no. 504 of 16 October 1995.
- 5.
Poropat et al. (2006).
- 6.
- 7.
World Lung Association (2014). Taking into account the fact that there are fewer than 50 million adult citizens, these statistical data do not differ much from those previously mentioned.
- 8.
Ministero della Salute (2018a).
- 9.
Ministero della Salute (2020a).
- 10.
Dated 29 May 2020.
- 11.
Ministero della Salute (2020b).
- 12.
Doxa (2017).
- 13.
Istituto superiore di sanità (2020).
- 14.
Ceci (2015), p. 40. As for the obligation to accompany cigarette packs with pictures designed to disourage smoking, this obligation has been complied with, but—at least in the early days—has proved to have little effect. In Italy, some media reported an experiment, carried out before the implementation of the abovementioned rules, using functional magnetic resonance imaging (fMRI), which reveals those areas of the brain that light up as a result of certain stimuli, such as images, words and smells. The experiment in question had shown that the dissuasive photos on the sides, front and back and cigarette packets had no restrictive effect on smokers’ desire to smoke. See, among others, Venturini (2015).
- 15.
See, in particular, with observations that are also broadly applicable to the Italian penal system, Danti-Juan (2015).
- 16.
Bernardi and Zoda (2008).
- 17.
From 2005 to 2020 NAS units carried out over 55,000 checks throughout Italy and in the most diverse places (railway stations, hospitals, clinics, airports, post offices, museums, libraries, betting shops, discos, bars, pizzerias): see Ministero della Salute (2020a). As stated in this document, as a result of the NAS checks, 1.8% of the checks resulted in the imposition of a fine on those who contravened the ban and 3.5% of the checks resulted in the imposition of a fine for a failure to affix prohibition signs or when the places checked did not comply with the rules (especially with regard to ventilation).
- 18.
Ministero della Salute (2020a).
- 19.
Indeed, Italy was the third country in Europe to ban smoking in public places, after Ireland (1988) and Finland (1995).
- 20.
- 21.
Although some scholars do actually argue that a further increase in Italy’s tobacco excise duty burden could effectively pursue public health objectives without sacrificing tax revenues: Crespi et al. (2017). It is also true that, as will be seen later, further increases in tobacco prices would risk further benefiting the ever-active smuggling market. In the same sense, see, Formoso (2014).
- 22.
The Mayor of Milan, for example, has recently expressed his opinion in this regard: Simonetta (2020).
- 23.
This ban, moreover, meets the approval of 58.4% of citizens. Fondazione Umberto Veronesi (2019), p. 27.
- 24.
Tinghino e Rossin (2020).
- 25.
“Tobacco causes more deaths than alcohol, AIDS, drugs, road accidents, murder and suicide combined. The tobacco epidemic is one of the biggest public health challenges in history. WHO has defined tobacco smoke as ‘the biggest health threat in the European Region’”; Ministero della Salute (2009), p. 3. The same statements can be found in Ministero della Salute (2020c), p. 5.
- 26.
Following the example of Sweden, which aims to be entirely smoke-free by 2025.
- 27.
Lamberti (2020).
- 28.
Ministero della Salute (2018a).
- 29.
Among these campaigns, the following are worth mentioning: “Stili di vita: Corretta alimentazione e dissuasione del fumo (Lifestyles: Correct nutrition and smoking deterrence)” (2002–2003); “Liberi di respirare (Free to breathe)” (2005); “Il fumo uccide: difenditi (Smoking kills: defend yourself)” (2009); “sFRECCIA control il fumo (Fast track against smoking)” (2013); “Ma che sei scemo? Il fumo fa male (What are you, stupid? Smoking is bad for you)” “Chi non fuma sta una favola (Non-smokers feel fabulous)” (2018): Ministero della Salute (2018b).
- 30.
In Italy, the Ministry of Health estimates that between 70,000 and 83,000 deaths per year are attributable to tobacco smoke, with more than 25% of these deaths being of persons between 35 and 65 years of age: Ministero della Salute (2018a). Other sources speak of about 90,000 deaths per year: Russo e Scafato (2007); According to another document, 93,000 people died from tobacco in Italy in 2016: Ministero della salute (2020c).
- 31.
Giannini (2000).
- 32.
Written in 2012.
- 33.
For further, even more detailed data, see Crespi et al. (2017), p. 89.
- 34.
- 35.
Also, precisely, to increasingly exceed the health costs of smoking: Harari (2019).
- 36.
According to some, these costs would amount to € 12.5 billion per year.
- 37.
According to one study, 20.5% of smokers declare that they are ready to react to a “significant increase in the cost of tobacco” by using tobacco sold outside official channels, and in particular smuggled tobacco: Fondazione Umberto Veronesi (2019), p. 23.
- 38.
Di Nicola and Espa (2019), VI.
- 39.
It should be remembered that the anti-smoking prohibitions are enforced with administrative sanctions of a pecuniary and/or prohibitory nature, while those regarding ITTP are primarily enforced through criminal sanctions, including imprisonment.
- 40.
Customs spaces are not only the areas directly occupied by customs, but also any premises, warehouse or vehicle rest area that, with the authorisation of the Agenzia delle Dogane, is used for customs operations and meets the criteria of general and fiscal security determined by the customs authorities and for checking goods crossing the State border, whether incoming or outgoing.
- 41.
Agenzia delle Dogane e dei Monopoli (2017), p. 41.
- 42.
Legislative Decree no. 4 of 17 January 1929.
- 43.
Galullo and Mincuzzi (2018).
- 44.
Among the large seizures (over one ton), the largest part (over 90%) do not exceed five tons. Seizures of larger loads are progressively fewer in number, but there have still been seizures of more than 30 and even 50 tons at a time. See Di Nicola and Espa (2017). It is worth pointing out that, in recent years, there has been an increase in the number of seizures compared to a lower average quantity of smuggled product seized in each operation, i.e. a greater splitting of loads over several transport operations in order to limit the damage in terms of losses for the smugglers when they are intercepted by the police (Di Nicola and Espa 2019, p. IV). Moreover, the fact that the median weight of individual seizures of tobacco products is very low (2.1 kg) shows that most smuggling operations are improvisations by non-professional smugglers.
- 45.
Di Nicola and Espa (2018), p. 21.
- 46.
Art. 7, Legislative Decree no. 158 of 13 September 2012: “1. The first and second paragraphs of Article 25 of the consolidated law on the protection and assistance of maternity and infancy, pursuant to Royal Decree no. 2316 of 24 December 1934, as amended, are replaced by the following: “Whoever sells tobacco products is obliged to ask the purchaser, at the time of purchase, to produce an identity document, except in cases where the purchaser is obviously an adult. An administrative fine of between 250 and 1000 euros shall be payable by anyone selling or administering tobacco products to persons under eighteen years of age. If the act is repeated, the applicable sanction shall be an administrative fine of between 500 and 2000 euros and the suspension, for three months, of the person’s licence to operate their business (…)””.
- 47.
The aforementioned Legislative Decree 158/2012, Disposizioni urgenti per promuovere lo sviluppo del Paese mediante un più alto livello di tutela della salute, introduced a provision according to which: “In Article 20 of Law no. 556 of 8 August 1977, as amended, the following is added after the first paragraph: ‘Automatic vending machines for the sale of tobacco products to the public shall be equipped with an automatic system to record the age of the purchaser. Systems for the automatic reading of identity documents issued by the government shall be considered suitable’. The fact remains that it is easy for persons under the age of 18 to circumvent this control, in particular by borrowing the identity document of an acquaintance over the age of 18. In such cases, moreover, there is no penalty for the person under the age of 18 who has illegally purchased nicotine-based or tobacco products, even if they have circumvented the controls. Likewise, no sanction can be imposed on the owner of the distributor, since they cannot be accused of having done anything wrong”.
- 48.
According to this decree “The advertising of any smoking product, domestic or foreign, is prohibited. Anyone who flouts the prohibition prescribed in the previous paragraph shall be subject to an administrative sanction ranging from 5 million to 50 million lire”.
- 49.
The latter decree also prohibited the sponsorship of tobacco products of a cross-border nature and the free distribution of tobacco products for promotional purposes. Since 2005, it has prevented the use of tobacco product brand names during Formula 1 and major motorcycle races held in Italy and San Marino.
- 50.
European Parliament and Council Directive (EU) 2014/40/EU, OJ L 127/1.
- 51.
According to this regulation, in fact:
-
1.
Smoking is forbidden in enclosed premises, with the exception of a) private premises not open to users or the public; b) premises reserved for smokers and marked as such.
-
2.
The establishments and workplaces referred to in paragraph 1, letter b) must be equipped with properly functioning ventilation and air exchange systems. In order to guarantee the essential levels of the right to health, the technical characteristics of ventilation and air exchange systems shall be defined, within one hundred and eighty days from the date of publication of this Law in the Gazzetta Ufficiale, with regulations to be issued pursuant to Article 17, paragraph 1, of Legislative Decree no. 400 of 23 August 1988, as amended, on the proposal of the Minister of Health. The said regulations shall define the premises reserved for smokers as well as the models of the signs connected with the implementation of the provisions of this article.
-
3.
In catering establishments, pursuant to paragraph 1, letter b), one or more rooms must be available for the use of non-smokers with a surface area that accounts for the greater part of the total surface area of the establishment.
-
4.
With regulations to be issued pursuant to Article 17, paragraph 1, of Legislative Decree no. 400 of 23 August 1988, as subsequently amended, on the proposal of the Minister of Health, any additional enclosed spaces in which smoking is permitted may be identified, in accordance with the provisions of paragraphs 1, 2 and 3. These regulations must prescribe that in all facilities where people are forced to remain involuntarily, smoking rooms must be provided.
-
5.
The sanctions referred to in Article 7 of Legislative Decree no. 584 of 11 November 1975, as replaced by Article 52, paragraph 20, of Legislative Decree no. 448 of 28 December 2001, shall apply to contraventions of the prohibition prescribed in this article.
-
6.
In order to permit adequate dissemination, to be undertaken in agreement with the most representative trade organisations, the provisions of paragraphs 1, 2, first sentence, 3 and 5 shall come into force one year after the date that the regulation referred to in paragraph 2 comes into force.
-
7.
Within one hundred and twenty days from the date of publication of this Law in the Gazzetta Ufficiale, with an agreement made at the Permanent Conference for relations between the State, the regions and the autonomous provinces of Trento and Bolzano, upon the proposal of the Minister of Health in agreement with the Ministers of Justice and Home Affairs, the procedures for the investigation of contraventions, the corresponding forms for the determination of sanctions as well as the identification of the persons entitled to formulate the related investigation reports, and those persons to whom the report on contraventions determined pursuant to Article 17 of Legislative Decree no. 689 of 24 November 1981 are to be directed, shall be redefined, and those responsible for imposing the relevant sanctions identified.
-
8.
The provisions referred to in this Article shall not entail any additional burden on the State budget.
-
9.
The provisions referred to in Articles 3, 5, 6, 8, 9, 10 and 11 of Legislative Decree no. 584 of 11 November 1975 shall remain in force mutatis mutandis.
-
10.
The provisions governing the prohibition of smoking on the premises of public administrations shall remain in force.
-
1.
- 52.
According to Art. 52, para. 20 Legislative Decree no. 448 of 28 December 2001, “Article 7 of Legislative Decree no. 584 of 11 November 1975 is replaced by the following:
-
1.
Persons who contravene the provisions of Article 1 shall be subject to an administrative fine ranging from 25 to 250 euros; the fine shall be doubled if the contravention occurs in the presence of a clearly pregnant woman or in the presence of infants or children under twelve years of age.
-
2.
The persons indicated in Article 2 who do not comply with the provisions contained in that article, shall be subject to a fine ranging from 200 to 2000 euros; this sum shall be increased by half in the cases referred to in Article 5, first paragraph, letter b).
-
3.
The obligation to pay the sums prescribed in this law is not transferable to the heirs of a deceased person”.
-
1.
- 53.
In particular, Art. 10 of the Directive states that:
-
1.
The overall minimum excise duty (the specific duty plus ad valorem duty excluding VAT) on cigarettes shall represent at least 57% of the weighted average retail selling price of all cigarettes made available for consumption. This excise duty may not be less than € 64 per 1000 cigarettes irrespective of the weighted average retail selling price. However, Member States which levy an excise duty of at least € 101 per 1000 cigarettes on the basis of the weighted average retail selling price shall not be required to comply with the 57% rule referred to in the first subparagraph.
-
2.
From 1st January 2014, the overall excise duty on cigarettes shall be at least 60% of the weighted average retail selling price of cigarettes made available for consumption. The excise duty may not be less than € 90 per 1000 cigarettes, irrespective of the weighted average retail selling price. However, Member States which levy an excise duty of at least € 115 per 1000 cigarettes on the basis of the weighted average retail selling price shall not be required to comply with the 60% rule referred to in the first subparagraph. Bulgaria, Estonia, Greece, Latvia, Lithuania, Hungary, Poland and Romania are granted a transitional period until 31 December 2017 in order to meet the requirements set out in the first and second paragraphs.
-
3.
Member States shall gradually increase excise duties in order to meet the requirements of paragraph 2 on the dates laid down therein.
On European and national excise duty policy see Tramontana (1995), p. 399; Marquez (2017).
-
1.
- 54.
Agenzia delle Dogane e dei Monopoli (2020a): “All categories are subject to VAT at the rate of 22% of the retail selling price excluding VAT and the excise duty which varies according to the category. The excise duty, for all categories, except for the inhalation tobacco without combustion which is subject to a specific excise duty per unit of product (item), is related to the selling price. If the products come from third countries, i.e. countries that do not belong to the European Union, the duty applies. The final retail price of a product is the sum of the following components: VAT, Toll, Excise and Quota to the supplier. The latter is residual with respect to the price chosen by the manufacturer. The basic rates for the calculation of excise duty are: 59.1%; cigars and cigarillos 23%; fine-cut to be used for rolling cigarettes 58.5%; other smoking tobacco 56%; snuff and chewing tobacco 24.78%. For cigarettes there is a minimum tax burden (Excise duty + VAT) of € 175.54 per conventional kilogram equal to 1000 cigarettes. For cigars, cigarillos and fine-cut tobacco to be used for rolling cigarettes, there is a minimum excise duty of € 25 per 200 items, € 30 per 400 items and € 120 per kg respectively. The State, therefore, intervenes in the sector in a decisive way by setting a level of taxation which, for cigarettes, exceeds 77% of the final price”.
- 55.
World Health Organization (2017).
- 56.
For a detailed examination of combat strategies see below para. 6.3.
- 57.
See below, para. 6.3.
- 58.
In the Italian sanctions system, a criminal fine of the same amount as an administrative fine has a greater stigmatising effect. In addition, it entails the creation of a criminal record for the person on whom it is imposed, and those who do not pay the fine are subject to alternative sanctions of a personal nature, which are not prescribed in the event of the non-payment of an administrative fine.
- 59.
More precisely, Legislative Decree no. 907 of 17 July 1942 prescribed only a pecuniary sanction for the crime of smuggling (a fine of 2500 to 5000 lire if the amount of tobacco smuggled did not exceed one kilogram, with an additional fine of between 1000 and 4000 lire for each kilogram over the first. Only aggravated offences were punished with imprisonment (in fact, a period of imprisonment for 6 months to 3 years was added to the fine when the culprit was caught with a firearm; in the case of a smuggling offence committed by three or more persons obstructing the police; in the case of a connection between the offence and another smuggling offence or against the government; or in the case of association aimed at smuggling).
- 60.
Decree of the President of the Republic no. 43 of 23 October 1973.
- 61.
Legislative Decree, no. 92 of 19 March 2001.
- 62.
See below, para 6.3.1.
- 63.
Legislative Decree no. 8 of 15 January 2016.
- 64.
Legislative Decree no. 75 of 14 July 2020.
- 65.
Directive 2017/1371/EU, OJ L 198/29.
- 66.
Council Decision 2016/1749/EU, OJ L 268/1.
- 67.
Transposition of Directive 2014/40/EU of the European Parliament and of the Council of 12 January 2016.
- 68.
European Parliament and Council Directive 2014/40/EU, OJ L 127/1.
- 69.
Legislative Decree no. 67 of 21 January 1929.
- 70.
- 71.
The Treaty establishing the European Economic Community is the international treaty establishing the EEC, signed on 25 March 1957.
- 72.
Ceci (2015), p. 42.
- 73.
- 74.
Nomisma (2012), p. 35.
- 75.
In fact, Italy currently produces over 59,000 tons of tobacco on about 17,100 cultivated hectares of land, located mainly in Campania, Veneto, Umbria and Tuscany: this is about a quarter of the total European production and 1% of the world production: Cricca (2020). According to some, BAT has developed the production of cigarettes in Italy also because of its proximity to important machinery and automation suppliers and many smaller companies that work for Philip Morris; De Francesco (2019).
- 76.
See above, Sect. 6.1.
- 77.
Art. 5 of Legislative Decree no. 504 of 16 October1995. More specifically, Art. 1, para. 2, letters e) and f), as amended by Legislative Decree no. 48 of 29 March 2010 transposing Directive 2008/118/EC, provides the following definitions: warehouse keepers: “natural or legal persons authorised by the competent authorities of a Member State to manufacture, process, hold, receive or dispatch excise goods under a duty suspension arrangement in a tax warehouse”; tax warehouses: “the places where the warehouse keeper is authorised to carry out such activities”.
- 78.
Art. 5, para. 1.
- 79.
Art. 5, para. 2, part 2.
- 80.
Ministerial Decree no. 67 of 22 February 1999.
- 81.
The regulatory figure refers to the Amministrazione Autonoma dei Monopoli di Stato (AAMS). This administration was established by Royal Decree no. 2258 of 8 December 1927 to operate the monopoly on salt and tobacco. However, with Legislative Decree no. 87 of 27 June 2012 (converted into Legislative Decree no. 135 of 7 August 2012), the Customs Agency absorbed the powers of the AAMS, becoming the Agenzia delle Dogane e dei Monopoli.
- 82.
Art. 2 of Ministerial Decree no. 67 of 22 February 1999.
- 83.
These requirements are identified in Art. 3 of Ministerial Decree no. 67 of 22 Feburary 1999. The producer must: (a) not have been subjected to measures restricting personal liberty in ongoing criminal proceedings for financial crimes; (b) not have been sentenced for financial crimes in trials still to be held; (c) not have been convicted of offences referred to in letter b); (d) not have committed serious and repeated violations of the provisions governing excise duty and value added tax; (e) not have been subject to bankruptcy proceedings, composition with creditors, receivership proceedings or liquidation; (f) not have reported administrative sanctions for smuggling offences; (g) not be in one of the circumstances provided for in Art. 15, para. 1, of Legislative Decree no. 55 19 March 1990 as replaced by Art. 1 of Law no. 16 of 18 January 1992.
- 84.
Art. 4 of Ministerial Decree no. 67 of 22 February1999.
- 85.
Art. 5 of Ministerial Decree no. 67 of 22 February1999.
- 86.
On transport, see below, in this Sect., para. 2.1, letter d).
- 87.
A list of authorised (production and distribution) tax warehouses is available on the ADM website. See Agenzia delle Dogane e dei Monopoli (2020c).
- 88.
Legislative Decree no. 1293 of 22 December 1957.
- 89.
On the procedures for opening retail points and issuing licences, see Arts. 17-23 of Law 1293/1957 and subsequent amendments. Moreover, pursuant to Decree Law no. 158 of 13 September 2012, Urgent provisions to promote the development of the country through a higher level of health protection, vending machines intended for the sale of tobacco products to the public must be equipped with a system for recording the age of the purchaser.
- 90.
Art. 5, Legislative Decree no. 50 of 18 January 1994.
- 91.
Legislative Decree no. 6 of 12 January 2016.
- 92.
Art. 18 Legislative Decree no. 6 of 12 January 2016.
- 93.
That is, as already seen, the subject authorised to produce tobacco.
- 94.
According to Art. 1, para. 2, letter e) of Legislative Decree 504/1995, a “registered consignor” means the natural or legal person authorised by the financial administration only to dispatch products subject to excise duty under a suspensive regime following the release for free circulation, i.e. following the entry of the product into the EU zone.
- 95.
Pursuant to Art. 1, para. 2, letter l) of Legislative Decree no. 504 of 16 October 1995, a “registered consignee” means the natural or legal person, other than the owner of the warehouse, authorised by the financial administration to receive products subject to excise duty under a suspensive regime.
- 96.
Council Directive 2007/74/EC, OJ L 346/6.
- 97.
Regulation laying down rules for the exemption from value added tax and excise duty of goods imported by travellers from third countries.
- 98.
See below, para 6.3.1, letter a).
- 99.
To determine whether products are purchased for personal use, Art. 32 of Directive CE/2008/118 identifies certain criteria, such as the commercial status of the holder, the mode of transport and the quantity of the imported product.
- 100.
Council Directive 2008/118/EC.
- 101.
Legislative Decree no. 48 of 29 March 2010, implementing Directive 2008/118/EC.
- 102.
With regard to tax warehouses, refer to the detailed explanation under (a). In contrast, with regard to registered consignees and consignors, we would simply point out that the regulations aimed at obtaining authorisation from the competent financial administration (Agenzia delle Dogane e dei Monopoli) are described in Arts. 8 and 9 of Legislative Decree no. 504 of 16 October1995, respectively, and that these regulations are exactly the same as those for the authorisation to operate a tax warehouse.
- 103.
This novelty was introduced by the already mentioned Directive 2008/118/EC (see Art. 21) and by Commission Regulation 684/2009/EC of 24 July 2009, OJ L 197/24. In Italy, the new rules were implemented by Legislative Decree No. 48 of 29 March 2010.
- 104.
Introduced into Legislative Decree no. 504 of 16 October 1995 by Art. 1, para. 660 of Legislative Decree no. 160 of 30 December 2019 (Budget Law).
- 105.
More specifically, Art. 62-quinquies, para. 3 states that: “the products referred to in para. 1 (i.e., cigarette papers, rolled paper without tobacco and filters used for rolling cigarettes) are sold to the public exclusively through the retailers specified in Law no. 1293 of 22 December 1957”.
- 106.
Art. 62-quinquies, para. 6 of Legislative Decree no. 504 of 16 October1995.
- 107.
This is determination no. 242266/RU of the Agenzia delle Dogane e dei Monopoli of 31 December 2019.
- 108.
The list of authorized subjects and deposits was published on the ADM website on 11 August 2020; Agenzia delle Dogane e dei Monopoli (2020d).
- 109.
On the ADM website there is a list of marketing tables, divided according to the product: cigarette papers, rolled papers, filters and mixed packs. See www.adm.gov.it/portale/tabelle-commercializzazione-prodotti.
- 110.
Art. 62-quarter, para. 2 Legislative Decree no. 504 of 16 October1995.
- 111.
See above, in this Sect., para. 2.1, letter a).
- 112.
These are the implementing decrees, adopted according to Art. 62-quater, para. 4 of Legislative Decree no. 504 of 16 October 1995.
- 113.
See above, in this Sect., para. 2.1, letter a). On the ADM’s website there is a list of the subjects authorised to operate liquid inhalation product warehouses, updated as of 17 September 2020; Agenzia delle Dogane e dei Monopoli (2020e).
- 114.
Art. 62-quater, para. 5 Legislative Decree no. 504 of 16 October1995.
- 115.
A neighborhood business is a commercial business, i.e., a shop, with a sales area of up to 250 m2.
- 116.
Departmental Decree no. 47885/RU of 16 March 2018.
- 117.
On the ADM website there is a list of the authorized businesses pursuant to Art. 62-quater, para. 5-bis of Legislative Decree no. 504 of 16 October1995; Agenzia delle Dogane e dei Monopoli (2020f).
- 118.
Art. 21, para. 11, as amended by Legislative Decree no. 136 of 17 December 2018 implementing Legislative Decree no. 119 of 23 October 2018.
- 119.
Art. 1, para. 1, letter a) Legislative Decree no. 6 of 12 January 2016.
- 120.
According to Art. 2, para. 1, letter e), tobacco products for the purposes of the application of this decree are “products that can be consumed and consist, even partially, of tobacco, whether genetically modified or not”.
- 121.
Art. 6, para. 1 Legislative Decree no. 6 of 12 January 2016.
- 122.
Art. 6, para. 6 Legislative Decree no. 6 of 12 January 2016.
- 123.
Art. 20, para. 1, with regard to new-generation tobacco manufacturers; Art. 21, para. 2 as regards manufacturers of electronic cigarettes and refill liquids.
- 124.
Art. 20, para. 2, with regard to new-generation tobacco; Art. 21, para. 3, with regard to electronic cigarettes and refill liquids.
- 125.
To clarify: the “tracking” of a product can be defined as that process that keeps track of all the information related to the life of a product, from the beginning to the end of the supply chain, while the “tracing” is the opposite process, tracking from downstream to upstream, collecting the information previously issued. The second phase, however, depends entirely on the good functioning of the first: in fact, product traceability is guaranteed only when all the movements of the goods have actually been tracked; Natalini (2018).
- 126.
Ministero della salute (2020c).
- 127.
Commission Implementing Regulation 2018/574/EU, OJ L 96/7.
- 128.
Art. 28 Legislative Decree no. 6 of 12 January 2016.
- 129.
Decree of the Ministry of Health of 23 May 2019.
- 130.
However, pursuant to Art. 37 of the latter provision, cigarettes and rolling tobacco manufactured in the Union or imported into the Union before 20 May 2019 and not marked with a unitary UI may be released for consumption or remain in free circulation until 20 May 2020, while tobacco products other than cigarettes and rolling tobacco manufactured in the European Union or imported into the European Union before 20 May 2024 and not marked with a unitary UI may be released for consumption or remain in free circulation until 20 May 2026.
- 131.
Art. 16, para. 6 Legislative Decree no. 6 of 12 January 2016.
- 132.
Art. 16, para. 7 Legislative Decree no. 6 of 12 January 2016.
- 133.
Art. 16, para. 8 Legislative Decree no. 6 of 12 January 2016.
- 134.
Art. 6, para. 8 Legislative Decree no. 6 of 12 January 2016.
- 135.
Art. 21, para. 13 Legislative Decree no. 6 of 12 January 2016.
- 136.
This is 30% if the surplus does not exceed € 10,000 and 50% of the surplus in all other cases.
- 137.
On these subjects, see below, Sect. 6.4.
- 138.
Free economic zones or non-customs zones are traditionally called “free ports” and represent those territories where tax benefits are enjoyed. In Italy only the municipality of Livigno is such a zone. Campione was also a free economic zone until 1 January 2020.
- 139.
The control of goods in customs areas is aimed at verifying the regularity of import and export operations and the suppression of illegal trade, to ensure proper compliance by traders with all legislative provisions concerning the origin, provenance and classification of goods, to prevent attempts to evade or avoid the payment of any taxes due, and to prevent the introduction of illegally manufactured products into the Community.
- 140.
Art. 20, Decree of the President of the Republic no. 43 of 23 October 1973. The control of persons in customs areas is aimed at ensuring compliance with customs regulations, with reference to the possession of goods that could be concealed and smuggled in. On 13 October 2016, the Guardia di Finanza of Malpensa Airport—in collaboration with the ADM—completed the Tobacco Road operation. In that operation, 160 arriving passengers were found to have large quantities of tobacco, in violation of the limits set by customs regulations.
- 141.
Art. 30, Decree of the President of the Republic no. 43 of 23 October 1973.
- 142.
Art. 32, Decree of the President of the Republic no. 43 of 23 October 1973.
- 143.
The concrete implementation methods are then referred to in internal circulars.
- 144.
The object of the crime is only the FMT, i.e. cigarettes, cigars, smoking tobacco, snuff and chewing tobacco produced in a foreign country.
- 145.
See below, Sect. 6.3.
- 146.
In order to circumvent the controls during the crossing of national borders, the use of false waybills is generally used which, by indicating non-existent recipients, thereby allow the illicit cargo to be subsequently diverted to the national clandestine market.
- 147.
A widespread technique involves the use of so-called “mother ships” which, stationed outside national territorial waters, allow the transport of tobacco along the national coasts with the help of motorboats and fishing vessels.
- 148.
In particular, the system of customs controls for goods entering or leaving the EU is based on the so-called “Customs Control Circuit” which, on the basis of a risk analysis, identifies the customs declarations to be checked and the type of control to be carried out.
- 149.
Agenzia delle Dogane e dei Monopoli (2018), p. 9.
- 150.
Art. 23, Decree of the President of the Republic no. 43 of 23 October 1973.
- 151.
Circular no.156685 of 15 February 2011.
- 152.
See below, Sect. 6.4.
- 153.
Circular no. 321800 of the Guardia di Finanza General Command of 18 September 2002.
- 154.
Art. 10, para. 4 Ministerial Decree no. 67 of 22 February 1999 and Art. 2 Ministerial Decree of 30 June 2000.
- 155.
With regard to the latter, as already seen (see above in this Sect., para. 2.1, letter f), an exception is allowed, since the distance selling of such products, carried out in the national territory by persons who have been authorised to set up and operate a warehouse for liquid inhalation products is permitted. Therefore, only online sales by manufacturers and importers of authorised refill liquids, established on Italian territory, is possible.
- 156.
Whose online offer is prohibited tour court (see above, in this Sect., para. 2.1, letter b).
- 157.
In violation of the rules set out in Art. 21 of Legislative Decree no. 6 of 12 January 2016, on which, see above, in this Sect., para. 2.1, letter e).
- 158.
Moreover, this provision was recently repealed by Art. 102 of Legislative Decree no. 104 of 14 August 2020, which provides that the ADM, in the exercise of its functions, shall order those who provide internet or other telematic or telecommunications networks to remove the initiatives for anyone offering or advertising products or services in a manner that does not comply with those defined by the regulations in force in the aforementioned sectors. The recipients of such orders are obliged to prohibit the use of the sites in the networks they operate or in relation to which they provide services, and a failure to do so shall result in the imposition by the ADM of administrative fines ranging from € 30,000 to 180,000 for each contravention ascertained.
- 159.
Amendments to the legislation on the suppression of smuggling of manufactured tobacco.
- 160.
The penalty is in fact proportional because it depends on the number of grams of smuggled tobacco, but it is at the same time fixed because its measure is always set at € 5.16 per gram. On the other hand, “variable proportional penalties” are those penalties in which the fine applicable on the basis of the actual scale of the offence varies from a minimum to a maximum. For example: “a fine of between € 2 and 10 for every gram of illicit goods”.
- 161.
Goisis (2008), p. 99.
- 162.
In the Italian legal system, the punishment, whether custodial or monetary, is identified by applying the determination criteria laid down in Art. 133 of the Criminal Code, including those relating to the seriousness of the offence and all the objective indices of the offence, as well as those relating to the offender’s ability to commit a crime and the subjective profiles of his or her conduct (including previous offending).
- 163.
Cass. Pen. 18.102.1997, no.11836.
- 164.
Art. 295 of the Customs Act establishes a series of aggravating circumstances for smuggling offences, not only those offences related to FMT. Some of these are superimposable on those specifically prescribed for FMT smuggling offences in Art. 291-ter. It must be inferred that in the case of convergence, for the same offence of smuggling FMT, of an aggravating circumstance of Art. 291-ter and one of Art. 295, the more serious one must be applied. In case of divergence, both should be applied.
- 165.
Cass. Pen. Sect. III, 10.01.2012, no. 7619; Cass. Pen. Sect. III, 19.01.2012 no. 12106, from which we can deduce that FMTs must necessarily enter the territory of the State, even only temporarily.
- 166.
“The object of the crime is only the FMT, i.e. cigarettes, cigars, smoking tobacco, snuff and chewing tobacco produced in a foreign country”.
- 167.
In the Italian legal system, attempted intentional crime is punished to a lesser extent than the completed crime, as set out in Art. 56 of the Criminal Code (more precisely, with a reduction of between one third and two thirds).
- 168.
Art. 110 of the Criminal Code constitutes the legal basis for the participation of persons in the offence. The combined provisions of Art. 110 and an incriminating circumstance make it possible to punish the offence as conspiracy.
- 169.
For example, Art. 112 of the Criminal Code provides for an increase in the penalty for the “promoter” of the offence, i.e. the person who has promoted or organised cooperation in the offence or directed the activities of the persons who participated in the offence; while Art. 114 of the Criminal Code provides for a reduction in the penalty for a person who has made a minimal contribution.
- 170.
- 171.
In this regard, a very recent ruling by the Supreme Court of Cassation (Cass. Pen. 28.1.2020, no. 3465) should be noted: this sanctions the applicability of the smuggling offence set out in Art. 291 of the Customs Act also to liquids for electronic cigarettes: a conversion operation whereby 1 ml of inhalation liquid corresponds to 5.63 g of tobacco must be carried out.
- 172.
This decriminalisation, defined as “blind” because it is unrelated to the type of crime [see Palazzo (2014), p. 1715], was therefore different from that of Legislative Decree no. 507 of 22 February 1999 which introduced Art. 295-bis to the Customs Act, whereby if the amount of border duties due did not exceed seven million lire and there were no aggravating circumstances pursuant to Art. 295 of the Customs Act, an administrative penalty was imposed instead of the fine. However, this mechanism did not apply to FMT smuggling offences. In any case, the decriminalisation introduced by Legislative Decree no. 8 of 12 January 2016 does not mean that smuggling in itself is less serious: this can be deduced from the minimum established for the administrative fine, which is particularly high (€ 516 previously, € 5000 now).
- 173.
Art. 7, Directive 2017/1371/EU of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law [2017] OJ L 198/29 (PIF Directive).
- 174.
See below, in this Sect., para. 3.1, letter c).
- 175.
Art. 25, para. 1 of Legislative Decree no. 6 of 12 January 2016.
- 176.
Art. 25, para. 2 of Legislative Decree no. 6 of 12 January 2016.
- 177.
Art. 25, para. 3 of Legislative Decree no. 6 of 12 January 2016.
- 178.
Art. 25, para. 4 of Legislative Decree no. 6 of 12 January 2016.
- 179.
Art. 25, para. 3 of Legislative Decree no. 6 of 12 January 2016.
- 180.
Art. 25, para. 5 of Legislative Decree no. 6 of 12 January 2016.
- 181.
See above, in this Sect., para. 2.1, letter a).
- 182.
Art. 25, para. 5 of Legislative Decree no. 6 of 12 January 2016.
- 183.
- 184.
Negri (2020), p. 92.
- 185.
The rules contained in Legislative Decree no. 231 of 8 June 2001 apply to entities with legal personality, companies and associations even if they do not have legal personality, whether their registered office is in Italy or abroad.
- 186.
Only the crimes laid down in Art. 25-sexiesdecies of Legislative Decree no. 231 of 8 June 2001 may lead to the liability of a legal person.
- 187.
Marinucci et al. (2020), p. 892.
- 188.
For a review of the reform see Tebaldi (2020).
- 189.
The financial penalty for legal persons is calculated in “shares”, the value of which ranges between € 250 and € 1500.
- 190.
The list of special operational departments is available on the Guardia di Finanza website (http://www.gdf.gov.it/chi-siamo/organizzazione/reparti/reparti-operativi/reparti-speciali). It should be noted that Circular 1/2018 of the Guardia di Finanza General Command has recently been published, Guardia di Finanza (2018).
- 191.
The preliminary investigation phase involves the Public Prosecutor and the Polizia Giudiziaria (Judicial Police, JP). The Public Prosecutor is in control of preliminary investigations and, pursuant to Art. 109 of the Constitution, directly allocates police authority. Within the JP, there are, on the one hand, the JP Sections established at each Public Prosecutor’s Office, composed of officers from various police corps, who carry out exclusively judicial police tasks, and, on the other hand, the JP Services, which are instead established within the police bodies to which they belong.
- 192.
In addition, according to Article 32 of Legislative Decree no. 7 of 21 January 1929, when an officer or agent of the ordinary Criminal Investigation Police becomes aware of an offence which falls within the competence of officers and agents from the tax police, he or she must notify them.
- 193.
In addition to the ADM, two other tax agencies operate in our system: the “Agenzia delle Entrate” and the “Agenzia del Demanio”.
- 194.
Art. 39-quater and 39-quinquies of Legislative Decree no. 504 of 16 October 1995.
- 195.
See above, Sect. 6.2.
- 196.
On sanctions, see above, Sect. 6.3.
- 197.
Art. 325, para. 4, Decree of the President of the Republic no. 43 of 23 October 1973.
- 198.
Art. 325, para. 1 Decree of the President of the Republic no. 43 of 23 October 1973.
- 199.
Art. 325, para. 4, Decree of the President of the Republic no. 43 of 23 October 1973.
- 200.
Annex I to the Convenzione triennale per gli esercizi 2019-2021 between the Ministry of Economy and Finance and the ADM, p.
- 201.
See above, Sect. 6.2.1.
- 202.
Art. 147 Code of Criminal Procedure.
- 203.
Art. 325, Decree of the President of the Republic no. 43 of 23 October 1973.
- 204.
This is information taken on the initiative of the judicial police pursuant to Art. 351 of the Code of Criminal Procedure.
- 205.
Art. 195, para. 4 of the Code of Criminal Procedure.
- 206.
Memorandum of Understanding between BAT and the Agenzia delle Dogane e dei Monopoli.
- 207.
Finally, BAT Italia organises courses, workshops and training on the counterfeiting of its products for the authorities involved in the fight against smuggling and counterfeiting.
- 208.
The types of offences included in the “double track” are: actual or attempted criminal conspiracy (to commit various crimes, including those relating to slavery, prostitution and child pornography, the counterfeiting of trademarks and patents, kidnapping for extortion), mafia-type criminal conspiracy, illegal trafficking in waste, drug trafficking and the smuggling of FMT.
- 209.
Inspections, searches, evidence seizures and interceptions.
- 210.
Art. 253 of the Code of Criminal Procedure defines the body of the offence as the thing on or through which the offence was committed, as well as what constitutes its product, price and profit. To give an example with regard to smuggling offences, the body of the offence is the consignment of smuggled tobacco, as well as the proceeds derived and earned from the exchange of this tobacco.
- 211.
Testimony, examination, cross-examination, identification, reconstruction, expertise and documentary evidence.
- 212.
The means of evidence differ from the means of searching for evidence because they are carried out exclusively during the course of the trial and provide the judge (the trial judge) with a directly usable result, as the object of his or her observation and evaluation. The means of searching for evidence, on the other hand, are carried out during the preliminary investigation phase, before a different judge, who does not take part in the final decision (referred to, in fact, as the judge for preliminary investigations); however, they can enter the trial file and be used by the trial judge if they are materially unrepeatable in the next phase, which is normally dedicated to the formation of evidence. For example, the search of a warehouse for the seizure of a smuggled tobacco consignment can be carried out within the preliminary investigation phase, but the report on this operation can be used by the trial judge for the court’s decision in the proceedings against the smugglers.
- 213.
These are covered by the Vienna Convention of 20 December 1988 (ratified in Italy by Legislative Decree no. 328 of 5 November1990).
- 214.
See above, Sect. 6.3.1.
- 215.
In fact, Art. 240 of the Criminal Code excludes the confiscation of property belonging to a person not involved in the offence: however, belonging is not to be understood in the strict sense of the term as mere property but is also considered to include ownership of all other real rights.
- 216.
ECHR, 8 June 1976, Engel v. The Netherlands.
- 217.
ECHR, Sect. II, 4 March 2014, Grande Stevens v. Italy; ECHR, 20 May 2014, Nykänen v. Finland; ECHR, 27 November 2014, Lucky Dev v. Sweden; ECJ, Grand Chamber, 26 February 2013, Case C-617/10, Fransson.
- 218.
ECHR, Grand Chamber, 15 November 2016, A and B v. Norway; ECJ, 20 March 2018, Case C-524/15, Menci; ECJ, 20 March 2018, Case C-537/16, Garlsson Real Estate. In this regard, Italian case law has also adapted to this evolution, admitting the double-track administrative and criminal procedure. See, for example, Criminal Court, Sect. VI, 16 July 2018, no. 45829 on market abuse.
- 219.
It is in fact unlikely that those who smuggle, or counterfeit tobacco products will fulfil their declaratory duties.
- 220.
With reference to the concurrence between smuggling and a failure to declare, there are no particular problems, since the crimes seem to arise from two distinct forms of conduct: the entry of the product into Italian territory, on the one hand; the omitted declaration for VAT purposes, on the other. More problematic is the relationship between the crime of smuggling and the crime of tax evasion, on which different orientations have been recorded regarding the nature of this concurrance, also due to the difficult legal qualification of the nature of VAT; Verrigni (2015), p. 319.
- 221.
Dissociation occurs when the accused merely admits his or her responsibility, for example by means of a confession, without providing further elements that are useful for the investigation.
- 222.
Cooperation in court proceedings consists of somewhat more than mere dissociation, as the accused strives to ensure that the criminal activity does not lead to further consequences and provides assistance to the authorities.
- 223.
There is cooperation with the justice system in the event that the accused provides the authority with all of his or her knowledge, also allowing the identification of accomplices.
- 224.
In accordance with Art. 19, the remaining crimes are: (a) illicit trafficking in drugs and psychotropic substances, weapons, ammunition, explosives, cultural goods, dangerous and toxic waste, nuclear materials or materials and plants intended for the manufacture of atomic, biological and/or chemical weapons; (b) trafficking in substances listed in Tables I and II of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, intended for the illicit production of drugs (precursors); (c) illicit cross-border trade in goods subject to tax, with evasion of tax obligations, or for the purpose of illegally obtaining public financial services linked to the import or export of the goods in question, where, in view of the scale of the transactions and the risk associated with the tax and subsidy aspect, there is a risk of heavy financial burdens on the budget of the European Communities or the Member States; (d) any other trade in goods subject to prohibitions under Community or national customs legislation.
- 225.
Last amended by Regulation 2015/1525/EU of the European Parliament and of the Council of 9 September 2015 amending Council Regulation 515/97/EC on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters [2015] OJ L 243/1.
- 226.
See below, para. 6.6.3.
- 227.
ADM press release (8 November 2005).
- 228.
ADM press release (24 April 2007).
- 229.
ADM press release (24 January 2014).
- 230.
Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams.
- 231.
Legislative Decree no. 34 of 15 February 2016. For a review of JITs see Perrotti (2016), p. 1007.
- 232.
On the concept of judicial police, see above Sect. 6.4.1, letter b).
- 233.
However, it should be made clear that a reading in accordance with the Framework Decision would always require the requirement of the transnationality of the investigation, which is not necessarily present in sub (α) offences.
- 234.
Italy established the first two JITs (one with France and one with Poland) on 31 May 2018.
- 235.
Legislative Decree no. 108 of 21 June 2017.
- 236.
For example, an EIO cannot be issued to set up joint investigation teams (see Recital 7 and Art. 1 of the Directive).
- 237.
Calvanese (2019), p. 480. With reference to the seizure of evidence, the EIO replaces Framework Decision 2003/577/JHA (implemented by Italy with Legislative Decree no. 34 of 15 February 2016) on freezing orders. The main limitation of the Framework Decision, which the EIO aims to overcome, is that such measures merely affect the freezing of assets or evidence, with the consequence that they must be accompanied by a separate request for the transfer of the source of evidence to the issuing State.
- 238.
It is true that the Directive also identifies other limits to the execution of the EIO, but these relate to the double criminality requirement, the subjective characteristics of the suspect or national security and not to the evidence itself, for which there are no limits other than those highlighted in the text.
- 239.
Legislative Decree no.69 of 22 April 2005.
- 240.
Art. 8, letter a).
- 241.
Art. 8, letter aa).
- 242.
On which, see above, Sect. 6.3.1 respectively letter a) and letter b).
- 243.
Unless, of course, there are grounds for the (mandatory or optional) refusal of surrender, pursuant to Art. 18 and 18-bis of Legislative Decree no. 69 of 22 April 2005, adopted in implementation of Art. 3 and 4 of the Framework Decision.
- 244.
See above, para. 6.3.1 letter a): following the entry into force of Law 8/2016, smuggling a quantity of less than 10 kg of tobacco was no longer a crime, but a mere administrative offence.
- 245.
Cass. Pen. Sect. VI, 1.3.2018, no. 10251.
- 246.
These are the agreements signed with Albania (signed in 1998), Algeria (1986), Azerbaijan (2005), Belarus (2003), Ethiopia (2006), the Russian Federation (1998), Finland (1987), Japan (2009), Jordan (2007), Iran (2004), Israel (1999), Yugoslavia (2002), Macedonia (1999), Norway (2004), the United States of America (1985), the United Mexican States (2011), Tunisia (1989), Turkey (2001), Ukraine (2003), Uzbekistan (2000).
- 247.
On the use of the results of these investigations in Italian criminal proceedings, see De Amicis (2019), p. 244.
- 248.
OLAF Report 2019 (11 September 2020).
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Bernardi, A., Felisatti, V., Masiero, A.F. (2022). Enforcement of Policies Against the Illicit Trade in Tobacco Products in Italy. In: Tosza, S., Vervaele, J.A.E. (eds) Combatting Illicit Trade in Tobacco Products. Springer, Cham. https://doi.org/10.1007/978-3-030-67802-9_6
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