In various forms of enforcement, such as an administrative fine, a penalty order or an administrative enforcement order, findings/observations of inspecting authorities are used. An example of such findings/observations is the "report of findings" that is usually drawn up after an inspection by the NVWA. Findings in those reports can be of great value, as they can then be used as the basis for potentially drastic sanctions to be imposed by the relevant administrative body. But what if an alleged offender disagrees with the findings made - to what extent can he challenge those findings?
The starting point in case law is that an administrative body may, in principle, rely on the correctness of the findings in a report drawn up on oath or promise of office, see, for example, paragraph 5 in a decision of the Trade and Industry Appeals Tribunal (CBb) (ECLI:NL:CBB:2022:168):
"In principle, an administrative body may rely on the findings in a report of findings, if the audit was carried out and the report was drawn up by a supervisor authorized to do so and the report itself does not provide any grounds for doubting the correctness of the findings. A supervisor is deemed to have the necessary expertise to carry out the statutory supervision."
However, this does not mean that observations in such reports are implacable truths, indeed see the addition to the above line:
"If the findings are contested, it will be necessary to examine whether, in view of the nature and content of that contestation, there are grounds for doubting those findings to such an extent that they cannot, or cannot fully, be relied upon to establish the violation. The manner in which the said observations are presented and substantiated in the report, as well as the nature of the observation and in particular to what extent this observation has appreciative elements, will generally be of importance in this respect."
In short, the above boils down to the fact that to the extent that a (finding in a) report is less clear and detailed and the disputing statement, on the other hand, is to a large extent plausible, it may still be the case that the finding in the relevant (inspection) report is not sufficient to establish a violation. In that case, a court can annul the fine imposed by the NVWA or another administrative body.
Case law shows that, as a rule, courts rule that administrative bodies were entitled to rely on findings/observations in (inspection) reports. However, it also regularly occurs that a judge rules that an (inspection) report should not have sufficed as substantiation for the observed violation. Two examples are given below.
In a case of the CBb of 16 June 2020, (ECLI:NL:CBB:2020:403), it followed from a report of findings of the NVWA that at a company there would be green, algae-like deposits on the wall and therefore a violation of the applicable hygiene regulations. However, further explanations and photographs were missing. The CBb found this finding too brief, too general and insufficiently clearly defined. The lack of accompanying clarifying photographs was also blamed on the administrative body. In contrast, the explanation of the relevant alleged offender, namely that there was no algae on a wall but rust spots, was considered plausible.
In another case of the CBb of 21 December 2021 (ECLI:NL:CBB:2021:187), a café was fined for violation of the smoking ban because a supervisor had noted in the report of findings that upon entry there was "the typical, pungent smell of tobacco smoke". However, the CBb ruled that this description was too brief and that this mere observation, without actual smoking people or other indications such as full ashtrays, was insufficient to establish a violation. According to the CBb, this meant that it could not be ruled out that the observed smell was not caused by tobacco smoked in the catering establishment, but tobacco smoked elsewhere.
It thus follows from the foregoing that it can thus certainly payoff to be critical of the report of findings/inspection report that underlies the alleged offence when violations are found by administrative bodies - such as the NVWA.
The specialists of our International Trade, Customs and Food and Product Compliance team can provide you with quick and effective assistance. If you have any questions on this topic or other issues surrounding International Trade, Customs or Food Safety, please contact one of our team members or contact Marijn van Tuijl directly.
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