On 1 January 2024, a major change came into force in the sanctions policy of the Belgian Federal Agency for the Safety of the Food Chain (hereinafter "AFSCA"). From that date, the AFSCA is entitled to impose administrative fines on operators in the food sector. Until then, only a proposal for an administrative fine could be made.
System prior to January 1, 2024
The Royal Decree of 28 February 2001 organises the controls carried out by the AFSCA.
Until January 1, 2024, in the event of an infringement of food regulations (for example, non-compliant labelling, failure to comply with provisions relating to the composition of a foodstuff, hygiene, traceability, etc.), an administrative fine could be proposed to the offender, among other sanctions. If the offender paid the fine, the prosecution was dropped. In practice, these proposed administrative fines were akin to an administrative settlement, which the offender could decide whether or not to accept.
If the offender refused to pay the proposed fine, the offence report was forwarded to the public prosecutor, who decided whether to prosecute.
In practice, such cases were regularly dismissed due to the overload of the public prosecutor's office.
System applicable from January 1, 2024
From January 1, 2024, this procedure has been fundamentally modified.
If an infringement report is drawn up by the AFSCA, it will first be forwarded to the public prosecutor. The public prosecutor then has 30 days to decide whether to take legal action. If the prosecutor does not take up the case within this period, the case is returned to the AFSCA.
Within 60 days of receiving the official statement of the offence, the AFSCA may, except in cases of serious danger to public health, animal health or plant protection, continue to propose an administrative settlement to the offender. The cost of this administrative settlement is, in principle, lower than that of an administrative fine. It can range from a quarter of the statutory minimum to 80% of the maximum. The settlement proposal expires 30 days after receipt.
If the settlement is not paid, or in the event of serious danger, the AFSCA may from now on impose an administrative fine, after giving the offender the opportunity to present his defence.
The AFSCA is also expressly empowered to adapt this fine to each particular situation, taking into account any mitigating circumstances that allow it to impose a fine that is lower than the minimum of the range provided for the offence. Another new feature is the possibility for the AFSCA to impose a suspended sentence under certain conditions.
In the event of non-payment, the AFSCA can directly enforce its decision to recover the fine, if necessary, by means of seizure.
Given these powers and the fact that the Royal Decree makes no mention of the assessment criteria for setting fines, attention should be paid to the risk of arbitrary decisions by the AFSCA.
A judicial appeal is available against the AFSCA's decision. It must be brought before the civil section of the court of first instance, which rules in first and last instance. Such an appeal must be lodged within 60 days of the decision being sent and has suspensive effect.
The effectiveness of such an appeal appears to be relative at this stage. The amount of the fine (which is likely to be moderate) will have to be weighed against the strategic importance of lodging an appeal, the risk of the AFSCA taking other measures concerning the infringement (precautionary seizure of products, placing under seal, etc.) and the cost and duration of legal proceedings.
Continued violation of Article 7 of the European Convention on Human Rights?
Article 7 of the Royal Decree of 22 February 2001 has long provided that “infringements of the regulations and decisions of the European Union and insofar as it concerns an infringement of one or more provisions for which the AFSCA is responsible " are subject to criminal prosecution or an administrative fine ".
Article 9(2) and (3) of this decree defines the penalties applicable to such infringements.
However, in its opinion on the recent amendment of the Royal Decree, the Legislation Section of the Council of State pointed out that the general reference to infringements of European Union regulations and decisions, without specifying exactly which acts or which provisions of these acts would be concerned, would be contrary to the requirement of foreseeability of penalties enshrined in Article 7.1 of the European Convention on Human Rights.
However, the Royal Decree was adopted without this reference being amended. Legal uncertainty therefore continues to exist, insofar as the legality of certain fines imposed by the AFSCA could be called into question.
Partner THALES – Commercial, IP & Food Law
Associate THALES – Commercial, IP & Food Law
