Netherlands, , 30 November 2021 No. 18/2974

Identification of the case

• Presumption of innocence and right of defence (art. 48 CFREU)

• Article 5:9, 5:481, 5:531, 7:111 General Administrative Law
• Article 6.2 Animal Law
• Article 2.4 par. 1(c) and (d) Regulation of animal products

• Article 6, 7 of Regulation (EC) No 178/2002
• Article 5 of Regulation (EC) No 852/2004
• Preamble; Article 3; Annex III, Section I, Chapter IV, par. 9 of Regulation (EC) No 853/2004
• Article 2, 5, Annex I Section III Chapter III par. 1 and 2, Annex I Section II Chapter V par. 1(s) of Regulation (EC) No 854/2004

Summary of the case

In the first instance case, the appellant contested the €5000,- fine imposed upon her by the Minister of Agriculture, Nature and Quality of Food (Minister van Landbouw, Natuur en Voedselkwaliteit) on the basis of Regulation 853/2004. Upon inspection by the Dutch Food and Goods Authorities (Nederlandse Voedsel- en Warenautoriteit) supervisor in her slaughterhouse, multiple bristles were located on a pig carcass at the end of the slaughter process. This is a violation of the HACCP principles (Article 5 of Regulation 852/2004). Before the lower court, the appellant contested the basis upon which the fine was imposed, namely the rapport submitted by the inspector. The court upheld the ministers’ fine but decreased it to €2.250, taking into account the proportionality of the fine and the fact that the reasonable period within which the court had to issue a judgment had been surpassed. Before the court of appeal, the lower court’s judgment was contested on several grounds. First of all, the appellant argued that the lower court had inadequately reviewed her claim that the Minister’s findings were insufficiently motivated. Further, imposing a punitive sanction allegedly required a higher standard of proof; in line with the CFEU and ECHR right to defence, a ‘double confirmation’ is needed rather than merely a declaration from one inspector. Secondly, the appellant believed that the Minister should have substantiated their report with scientific proof that bristles on a carcass encompasses a health risk. According to the appellant, the presence of bristles at the end of the slaughter process was not a violation of EU standards, as after locating the bristles, action was undertaken to remove them and thereafter the carcass was approved by a veterinarian for human consumption. The appellant believed the minster violated the rights of defence as specified in the CFREU and ECHR.

• Administrative judicial enforcement

Claim for annulment of punitive sanction (fine).

An essential element of the court’s reasoning regards the alleged inadequacy of the proof provided by the Minister. The court commenced its assessment by stating that when a fine is imposed upon a citizen by an administrative organ, the latter bears the burden of proof, taking into account the presumption of innocence. The relevant proof is a single report issued by the supervisor that visited the slaughterhouse for inspection, signed by an oath of office. In principle, an administrative organ may rely on the findings of the report as truthful, as long as the findings reflect those of the drafter of the report imposing the fine themselves. Review of a report is necessary when its contents are contested, however the Court was not convinced by the argument raised by appellant; her only objection raised was that the report was ‘unclear on essential points’ and lacked photographs. The court finds this statement insufficiently substantiated to question the accuracy of the report. Only if ambiguities or doubt arises due to the report’s contents is there a requirement to include photographs. As the inspecting supervisor’s conclusions were implemented in the report in a clear and detailed manner, its validity was not questioned. Furthermore, from Article 47 CFREU and Article 6 ECHR no conclusion could be derived that the right to a fair trial was violated; the provisions do not require at least two pieces of evidence to always be present. The court moved on to interpret specifically Annex III, Section I, Chapter IV, par. 9 of Regulation 853/2004 to determine whether the appellant had violated this provision. The relevant chapter describes the hygiene standards in the process of slaughtering porcine animals in chronological order. Following the strict order provided by the Regulation, the Court concluded that before the post-mortem inspection, all bristles are to be removed. Thereafter, the veterinarian is to decide whether the meat is suitable for human consumption and they are to reject it if there are signs of contamination, in line with Article 5, par. 3 Regulation 854/2004. It was concluded that the appellant violated the relevant provision. Furthermore, the Court reviewed whether the Minister was required to provide scientific proof of the harmful consequences to peoples’ health, to conclude a violation under paragraph 9. The appellant submitted a scientific report alleging that hair stubs do not form a health risk for humans. The Court considered the precautionary principle as according to Article 7 of Regulation (EC) No 178/2002: where scientific uncertainty exists, but a possibility of harmful effects to health are identified, temporary measures are preferred to uphold the high level of the consumer health protection required by the Union. Moreover, the scientific report raised by the appellant does not change the court’s stance; the evidence concerns ‘hair stubs’ instead of ‘visible hairs’. Lastly, the CJEU case invoked by the appellant concerned poultry carcasses rather than farm animals and the hygiene standards prescribed by that case were consequently irrelevant. The Court concluded that it did not see any reason to pose a preliminary question to the CJEU. Thus, the Minister acted within their discretion to fine the appellant and the appeal was rejected.

Role of the Charter and role of the general principles on enforcement

The appellant invoked the CFREU and ECHR rights of defence to support her claim.

• The obligation of the administration to give reasons for its decisions
• Explicit reference to Art. 6 ECHR

The appellant argued that as according to the CFREU and ECHR right of defence, two pieces of evidence were required for a punitive sanction in the form of a fine to be imposed. The Court simply stated that no such requirements exist under either article, without further elaborating on the matter.

Elements of judicial dialogue

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)
• Dialogue between high court - lower instance court at national level

• CJEU Case C-347/17, A and Others

Conform interpretation with EU law as interpreted by the CJEU.

The appellant had raised paragraphs 57 through 59 of C-347-17 as part of her argument. The Court reviews its relevance to the specific case in determining whether the CJEU’s findings of the case should be applied in the present case.

The CJEU judgment had no implications for the Court’s judgment, as it concerned hygiene standards for a different type of animals than those relevant to their case. Although the referenced CJEU preliminary ruling interpreted the same Regulation (No 853/2004), the Court did not find it necessary to request a preliminary ruling in the present case, as they were certain how to interpret the provisions of the Regulation.

Additional notes on the decision