Supervisors may take samples of products, substances, food etc. during their investigation to determine whether it complies with the applicable rules. If these samples are found to be non-compliant, the result of the sample can be used as evidence of a violation in an enforcement decision. This raises questions practice as to are whether, in such a case, the legal person or entity involved is entitled to perform a countercheck. This blog post discusses the rules regarding sampling and counterchecking, and provides practical advice for companies and persons who are facing an investigation in which samples are taken.
Sampling
Many supervisors have the authority to take samples during their investigation. This is regulated in Article 5:18 of the General Administrative Law Act (GAL). This means that during an inspection a supervisor can, for example, use all or part of a foodstuff or substance to determine whether it complies with the applicable legal requirements.
Consequences of sampling
If the supervisor concludes that the sample of the case does not meet the legal requirements, these findings can be used as evidence of a violation of a provision, if enforcement actions follow. These potentially serious consequences make it crucial that the person or entity concerned has the opportunity to have a second sample taken for self-investigation purposes.
Right to counter-expertise?
The basic rule in the GAL is that the supervisor is only required to take a second sample at the request from the legal person or entity being supervised. The GAL does not regulate when the company or person concerned must submit a request for a second sample to be carried out. However, it is clear that this request should be made as soon as possible, even if only to ensure that such countercheck remains a possibility; which can be relevant in if substances are mixed or destroyed, making subsequent counterchecks impossible.
Practical advice
- If a person or legal entity is confronted with an investigation from a supervisor, and the supervisor takes a sample of a substance or products and the person concerned wishes to conduct a countercheck of the same substance or product, the person or entity must request the supervisor to take a second sample. This request should be made as soon as possible, to ensure a countercheck based on a second sample remains possible.
- By conducting a countercheck, the person subject to supervision can more easily contest a possible enforcement case in which the supervisor relies on the results of the sample.
- If a second sample was not performed by the supervisor, a person or entity may still be able to contest the evidence presented by the supervisor. The person or entity involved can provide evidence to the contrary, for example by taking photos, camera recordings, and data and documents of the case concerned.
Date: 29 March 2022
Author: Christien Saris