If the inspectors of the Netherlands Food and Consumer Product Safety Authority (NVWA) discover a banned substance in animal feed, the State Secretary of Economic Affairs, Netherlands Enterprise Authority (RVO) can impose an administrative fine on the basis of the Animals Act (Wet dieren). On the basis of sections 2.17 and 2.18 of the Animals Act in conjunction with section 3(1) opening words and under f of the Animal feed regulations 2012, it is prohibited to market, store or have animal feed available containing a substance listed in table 2 of EU Regulation 37/2010. If such a substance is nevertheless traced in a batch of animal feed, the power exists to impose an administrative fine. An objection to, and subsequent appeal against, this fine can be lodged. On the basis of section 5:41 of the General Administrative Law Act (Awb), an administrative body will not impose an administrative fine if the breach cannot be attributed to the offender.

An administrative body may presume the imputability if the capacity of being an offender is established. In that case, the imputability does not have to be proven by the administrative body. The ‘no punishment without guilt’ principle also applies to an administrative fine. If an offender wishes to avoid (having to pay) an administrative fine, the offender must rely on the absence of all guilt. This absence of all guilt must also be made plausible by the offender. This includes all measures taken by the offender that could reasonably be demanded of him to prevent a breach.

District Court Rotterdam
In the judgement of the District Court Rotterdam of 5 January 2017, it was determined that the offender had not made it plausible that she had exercised the maximum care that could be expected from her. This meant that she had been unable to prevent there being a banned substance in the animal feed in her storage. The District Court considered that there was no absence of all guilt.

Wrongfully not heard
The argument of the offender that the State Secretary wrongfully decided not to hear the parties, was successful. This breach of section 7:2 of the General Administrative Law Act was, however, disregarded by the District Court on the basis of section 6:22 of the Awb. During the appeal proceedings, the offender had been given ample opportunity to put her views forward and had made use of this. In addition, she indicated during the hearing not to have been prejudiced in her interests now that she was heard on appeal. The District Court therefore deemed it plausible that by not hearing the parties in the objection proceedings, the offender had not been prejudiced (see ECLI:NL:RvS:2016:101).

In this issue, the State Secretary could reasonably use his authority to impose an administrative fine of €5,000 for the observed breach of the Animals Act. The appeal was dismissed as unfounded. After the breach of the obligation to hear the parties with application of section 6:22 of the Awb, the District Court did see reason to determine that the State Secretary must refund the court fee paid by the offender.

It is often possible to object to, and subsequently appeal against, an administrative fine. An important argument for awarding the lodged objection may be found in the fact that the offender cannot be blamed for the breach. It is always recommended to have the facts (i.e. the course of events) relating to breaches on the basis of the Animals Act in order. Should you have any questions relating to the Animals Act, imposed administrative fines due to breaches of this act or other agricultural law related issues, please contact José Jochemsen-Vernooij, Food & Agri lawyer.

By José Jochemsen- Vernooij