The decision of the Trade and Industry Appeals Tribunal (Cbb) dated 28 February 2017 discussed the evidential value of an inspection report. It is generally assumed that an inspection report drawn up by an inspector of the Netherlands Food and Consumer Product Safety Authority (NVWA) is correct. However, evidence to the contrary is possible. In this decision, the farmer who had received a fine presented insufficient evidence (to the contrary) and was too late in doing so. It is important to sound the alarm on time, for example by submitting an opinion, if an inspection report assumes incorrect or incomplete data.
The facts
An NVWA inspector established that 68 cows were kept in a pasture that also includes a pile of rubble with protruding parts of concrete and rebar. The cows may injure themselves on these as they have free access to this rubble.
Pursuant to this report, a 3% preconditions deduction was imposed on the series of payments applied for by the fined farmer in 2015.
The farmer who received the fine did not communicate an opinion. However, he did lodge an objection. This objection was rejected because an agrarian who received direct payments is obliged to comply with the management requirements arising from Annex II to Regulation 1306/2013 (Section 1.6 of the Producers of Animals Decree). The fined farmer submitted an objection on appeal to this decision to the Cbb.
The farmer who was fined acknowledges that there was a pile of rubble in the pasture, but he considers that this does not entail risk for the cows because the rubble was located behind an electric fence. Allegedly, the inspector mistakenly failed to notice the electric fence. Two other witnesses confirmed the presence of the electric fence.
Opinion Cbb
An inspection report may generally be assumed to be correct. This is only different if there are specific indications to doubt the accuracy of those findings. The farmer who had been fined should have pointed out the presence of the alleged electric fence specifically to the inspector. This was not done. In addition, it was possible to submit an opinion in response to the inspection report. This was not done either.
There are also no indications that the persons designated as witnesses were present at the inspection. They merely co-signed the notice of objection.
The Cbb is of the opinion that no evidence has been found that the inspection report is incorrect, which means the report was used correctly for the purpose of decision-making.
Conclusion
A great deal of value is attached to the inspector’s inspection report. The findings included therein are generally considered to be correct. If you are of the opinion that an inspection report is incomplete, it is essential that you notify this without delay. Objecting to the content of the report after fact has little chance of succeeding.
Should you have any questions relating to the inspections performed by the NVWA, please contact José Jochemsen-Vernooij, Food & Agri lawyer.