Fraud in Commerce and CE Mark: Commentary on Judgment No. 28704 of 2024

The judgment No. 28704 of April 5, 2024, issued by the Court of Cassation, represents an important clarification regarding fraud in the exercise of commerce, concerning the affixing of the CE mark on products lacking a declaration of conformity. This issue is crucial for economic operators, as the legal consequences can be significant and involve criminal penalties.

The Meaning of the Judgment

The Court has established that the affixing of the CE mark on products, without the correct documentation certifying the declaration of conformity, constitutes the crime of fraud in commerce under Article 515 of the Penal Code. In particular, the judgment considered a case involving LED lamps that were found to be non-compliant with current regulations, as they lacked the certificate of conformity required by EU Directive 2014/30.

Affixing the "CE" mark on products for sale - Absence of the "declaration of conformity" from the manufacturer at the time of sale - Crime under Article 515, Penal Code - Configurability - Reasons - Case. The crime of fraud in commerce is constituted by the affixing of the "CE" mark on products for which the economic operator, at the time of sale, lacks documentation certifying the "declaration of conformity" from the manufacturer or producer, as these are items of a quality different from that declared, given that such declaration constitutes, under Regulation No. 765/2008/EC, a necessary precondition for marking. (Case regarding LED lamps not supported by a certificate of conformity to EU Directive 2014/30, in which the Court deemed irrelevant the production only in court of the certificate, not found at the time of the search).

The Implications for Economic Operators

The judgment offers reflections for economic operators, particularly for those involved in the import and sale of products. Here are some key points to consider:

  • The necessity to ensure that all products for sale are accompanied by the correct conformity documentation.
  • The risk of criminal penalties in case of violation of European and national regulations regarding product safety.
  • The importance of conducting rigorous checks on suppliers and marketed materials.

Conclusions

In conclusion, judgment No. 28704 of 2024 emphasizes the importance of regulatory compliance in commerce. To avoid incurring penalties and legal issues, economic operators must pay particular attention to the necessary documentation for affixing the CE mark. Awareness of legal responsibilities can make a difference in managing a business.

Bianucci Law Firm