Commercial fraud and CE marking: commentary on judgment no. 28704 of 2024

Judgment no. 28704 of April 5, 2024, issued by the Court of Cassation, represents an important clarification on commercial fraud in relation to 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 sanctions.

The meaning of the judgment

The Court ruled that affixing the CE mark on products, without the correct documentation attesting to the declaration of conformity, constitutes the crime of commercial fraud under Article 515 of the Criminal Code. In particular, the judgment considered a case concerning LED lamps, which 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 offered for sale - Absence of the "declaration of conformity" by the manufacturer at the time of placing the products on the market - Offence under art. 515, criminal code - Configurability - Reasons - Case. The affixing of the "CE" mark on products for which the economic operator, at the time of placing them on the market, lacks documentation attesting to the manufacturer's or producer's "declaration of conformity" constitutes the crime of commercial fraud, as these are goods of a different quality from that declared, given that such a declaration constitutes, pursuant to Regulation (EC) No 765/2008, a necessary precondition for marking. (Case concerning LED lamps not accompanied by a certificate of conformity to EU Directive 2014/30, in which the Court deemed irrelevant the production of the certificate only during judicial proceedings, as it was not found at the time of the search).

Implications for economic operators

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

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

Conclusions

In conclusion, judgment no. 28704 of 2024 underscores the importance of regulatory compliance in trade. To avoid incurring sanctions and legal problems, economic operators must pay particular attention to the documentation required for affixing the CE mark. Awareness of legal responsibilities can make a difference in managing a commercial activity.