The Netherlands Food and Consumer Product Safety Authority (NVWA) checks whether companies comply with statutory regulations on food safety, consumer products, animal and plant health, animal welfare and nature legislation.
The NVWA conducts both announced and unannounced dawn raids as part of its supervision and investigation activities. The latter are also referred to as NVWA raids. The NVWA has broad powers during these raids. On the other hand, companies that are the subject of NVWA investigations have far-reaching rights, depending on the purpose of the investigation.
Dawn raids and unannounced raids in particular, but also an NVWA investigation, may have a drastic impact. It is therefore essential for companies and employees to be aware beforehand of their rights and obligations during a dawn raid.
In this blog we provide ten tips for companies during announced and unannounced NVWA raids.
Tip 1 – Be prepared
Draw up an internal raid manual and inform your reception staff about it. That way your reception staff will immediately know what they should and should not do in the event of an unannounced dawn raid.
Designate one or more raid contacts in the raid manual whom the reception desk can inform about the raid. Give instruction for the raid contact to inform the management, ICT department, spokesperson (possibly yet to be appointed) and legal advisor as soon as possible. Also ensure that the contact informs your employees about their rights and obligations, such as their duty to cooperate. More information on the rights and obligations of your company and its employees is provided below.
Tip 2 – Inquire about the purpose of the investigation
The NVWA investigation may relate to a (mere) routine inspection to check whether the company complies with the relevant laws and regulations. Or the NVWA may suspect that the company is breaking the law and is conducting an investigation with a view to imposing a punitive sanction on the company in question. The distinction between these scenarios is relevant to determine the extent to which you are obligated to cooperate with the NVWA investigation and what powers the NVWA has. This is explained in more detail in Tip 3 and Tip 6. Before the start of the actual investigation, you should therefore ask the NVWA about the actual purpose (and reason, see Tip 3) of the visit and investigation, and record its response in writing.
Tip 3 – Ensure that the supervisory officer does not exceed his or her powers
A supervisory officer, investigating officer or special investigating officer may not exceed his or her legal powers. The powers of NVWA supervisory officers are set out in the Algemene wet bestuursrecht (General Administrative Law Act) and the special laws enforced by the NVWA. The main powers of an NVWA supervisory officer are:
- to enter any premises (with the exception of a dwelling without the occupant’s consent, unless the supervision is conducted under the Wet dieren (Animals Act));
- to demand information;
- to demand access to proof of identity, business records and – if supervision takes place under the Meststoffenwet (Fertilisers Act) – the herd register;
- to make copies of business records and, if necessary, to take away records for a brief period of time;
- to investigate by opening packages and taking samples, among other things;
- to examine means of transport and their cargo; and
- to halt means of transport and to remove them if necessary.
A supervisory officer taking administrative enforcement action may also seal premises and items for the duration of the investigation.
In the case of an investigation into a criminal offence, you will be dealing with either an investigating officer or a special investigating officer. An investigating officer of the NVWA has special powers in that case, such as the power to interrogate and arrest people, and to observe, to make undercover purchases, and to tap phones.
Tip 4 – Inquire about what, where and how the supervisor wishes to investigate
The aforesaid powers are limited by the principle of proportionality set out in Article 5:13 of the General Administrative Law Act. That article provides that a supervisory officer may exercise his or her powers only insofar as reasonably necessary for the performance of his or her duties. Being aware of what, where and how the supervisory officer intends to investigate will allow you to check on the spot that his or her actions do not go beyond the purpose of the investigation, which is prohibited. The NVWA may not, for instance, go on a fishing expedition, i.e. randomly request large amounts of information on the basis of which it can later assess whether supervisory powers will be deployed.
Tip 5 – If a sample is taken, ask for a second sample to be taken
The NVWA may draw conclusions and impose obligations based on the results of a sample examination that you disagree with, or you may question the outcome of the NVWA’s sample examination. In that case it is important that you conduct your own investigation and make your own risk assessment (in a timely manner) to support your position. With a view to a countercheck, it is wise to request the supervisor to take a second sample. The supervisor must comply with such a request. The General Administrative Law Act provides that the NVWA must return all samples, insofar as possible – therefore also the first sample (after examination). The latter is not always done in practice. Precisely for that reason, it is advisable to request that a second sample be taken.
Tip 6 – Cooperate (in principle)
In principle, companies are obligated to cooperate with the NVWA’s investigation (insofar as the supervisory officer does not exceed his or her powers). If a company refuses to cooperate, the NVWA may take administrative enforcement action or impose an order subject to penalty. This is a decision whereby the NVWA obligates the party in question to cooperate within a compliance period, subject to forfeiture of penalties or administrative enforcement action. In the event of failure to cooperate, an administrative and/or criminal fine or imprisonment may also be imposed. It is also not permitted to remove any evidence or seal affixed by the NVWA.
But a company is not always obligated to cooperate. The duty to cooperate does not apply if the claims are inconsistent with the principle of proportionality, as explained in Tip 3 above. This is the case if the supervisory officer’s investigative action goes beyond what is reasonably necessary.
You are also not obligated to allow inspection of documents or to submit documents to the NVWA that are covered by lawyer-client privilege, such as a lawyer’s legal advice to the company concerned.
A company or its representative that is suspected of an offence for which the NVWA may impose a punitive sanction is furthermore not obligated to cooperate in its own conviction. This is due to the nemo tenetur principle, which means that those persons have the right to remain silent during an interrogation by the NVWA. The right to remain silent applies insofar as the NVWA’s claim relates to what is known as ‘will-dependent material’, such as a statement. An NVWA claim to obtain ‘will-independent material’ (such as existing administrative documents) is not covered by the right to remain silent. In the case of an NVWA claim to provide access to will-independent material, however, cooperation is mandatory, in principle (note: this does not apply to correspondence with your lawyer; see above).
Tip 7 – Inquire about a decision within the meaning of Article 1:3 of the General Administrative Law Act
A request for information from the NVWA is not a decision within the meaning of Article 1:3 of the General Administrative Law Act. This means that it is not subject to objection and appeal. If you disagree with the NVWA information request, you may request the NVWA to make a decision within the meaning of the General Administrative Law Act. Usually this is an order subject to a penalty or administrative enforcement. You may object to this and, if your objection is rejected, appeal to the court. This way, the lawfulness of the information request can be tested. Examples of cases where this comes into play are cases where you have good reason to fear that the NVWA will initiate a recall on the basis of the requested tracing information, or where the provision of the requested information is unnecessary.
Tip 8 – Request an extension of the term if necessary
The NVWA should grant a reasonable period within which to comply. If you believe that the compliance period is unreasonably short, you may ask the NVWA for an extension.
You may furthermore object to any order subject to a penalty or administrative enforcement by the NVWA and request the court to suspend the order. This is done in the form of preliminary relief. This makes sense only if the compliance period is sufficiently long to apply to the court before the end of that period, because after the end of the compliance period the court will rule that the urgent interest required for preliminary relief no longer exists. If you fail to submit an application for preliminary relief in time, you may object to the unreasonable term in possible objection and/or appeal proceedings.
Tip 9 – When in doubt, consult your lawyer
It is often not immediately clear in what context an NVWA raid is being conducted and to what extent you are obligated to cooperate. To avoid unwittingly contributing to your own conviction or being punished with administrative enforcement or a criminal sanction, you may consult a lawyer. Your lawyer may be present during the NVWA investigation to ensure that the supervisory officer does not exceed his or her powers and that your rights are respected. If the NVWA wishes to interrogate you, it is usually willing to wait for your lawyer to arrive.
Tip 10 – End of the investigation: take legal action if necessary
At the end of the investigation, the supervisory officer will draw up a report of findings and/or an investigating officer will draw up an official report. If the NVWA establishes a violation during its investigation, it may take a wide range of corrective measures, including issuing a warning, suspending or withdrawing an approval, imposing a product recall, and shutting down production. The NVWA may also impose an administrative penalty. You may object to NVWA decisions within six weeks and, if your objection is rejected, lodge an appeal with the Rotterdam District Court. To suspend the effect of a decision, you may also institute preliminary relief proceedings.
In the case of a criminal offence, an official report will be drawn up. The public prosecutor may decide to take the case to court, to settle the case by imposing a penalty order, or to dismiss the case. You may oppose a penalty order within 14 calendar days. In that case be sure not to pay any penalty until your objection has been dealt with. Paying the penalty before your objection is dealt with is an acknowledgement of guilt.
See www.invalacm.nl for information on dawn raids by the ACM.
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