How can I defend myself against a fine from the State Agricultural and Food Inspectorate or the Regional Veterinary Administration?

If you are reading this article, you are probably in the following situation: you have been inspected by the State Agricultural and Food Inspectorate or the Regional Veterinary Administration (hereinafter referred to as "the Inspectorate") and the Inspectorate has found a violation of a regulation. You are now at risk of paying a fine and you are wondering whether there are ways to successfully defend yourself or at least minimise the amount of the fine. While this is an unpleasant situation, defenses do exist.

Author of article: ARROWS (Jakub Oliva, LL.M., MSc., office@arws.cz, +420 245 007 740)

This article was written in 2021. If you are looking for up-to-date information on this topic, please feel free to contact us at office@arws.cz or by phone at +420 245 007 740. We will be happy to advise you.

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What is the next inspection process and what is your role in it?

The options for defence depend on the Inspection's next steps. If the inspectorate does not refrain from imposing a fine, which in our practice is very rare, it will probably send you a notice of initiation of infringement proceedings. You will then act as the accused in these proceedings. After collecting the evidence, the inspectorate will issue a decision imposing a fine. Alternatively, the inspectorate can take the quicker option of issuing an order, which both initiates the offence and imposes a fine directly, without first issuing a notice of initiation.

As regards the role in the proceedings, if the inspectorate wants to fine you, it must prove and justify how you have specifically violated which particular provision of the law. The onus is therefore on the inspectorate to be proactive in this respect. The accused is not obliged to be active in the proceedings, but it is certainly not advisable to just wait and see what happens. On the contrary, based on our experience, it can be recommended that the accused should actively defend himself during the inspection and take the opportunity to object to the inspection report. If the accused properly puts up a defence from the outset, his defence will be perceived as more credible, he will be able to mount further defences more effectively at later stages of the proceedings, the quality of the proceedings will be enhanced and the final resolution of the case will be expedited.

In addition to the above-mentioned objections to the inspection report, specific defences include opposition to the order and appeal against the decision. The order may be opposed within 8 days and the decision may be appealed within 15 days. In these proceedings, and at any time during the proceedings, the accused may make representations and, in the context of such representations, argue that, for various reasons, it is not appropriate to impose a fine. The Inspectorate is obliged to consider, assess and respond to such objections, otherwise it commits a serious procedural error.

Requirements for the defence and possible lines of argument

In practice, it is advisable that objections be specific, clearly and comprehensibly formulated, structured and supported by concrete evidence. Otherwise, the Inspectorate may not deal with them substantively, thus ruling out any chance of success. In any event, the arguments must be tailored to the specific case. Generally formulated argumentation without a clear link to the circumstances of the specific case has no chance of success and, if used repeatedly, is unreliable and significantly damages the accused's reputation and chances of success.

Different possibilities of argumentation are offered, depending on the nature of the offence, the inspection procedure and other circumstances. In particular, it may be argued, for example, that no law was violated, that the evidence collected does not prove that the accused committed the offence, that the inspectorate did not proceed in accordance with the law, that the fine imposed is not proportionate, that mitigating circumstances were not taken into account, or that liability for the offence has ceased on legal grounds, etc. To illustrate, two examples are given:

• if the fine relates to the unsatisfactory content of the food (e.g. the food contained more salt than declared on the packaging), the conclusions of the inspection can be challenged by analysing the control sample if it was taken and found to be safe after testing,
• if the inspectorate allowed sufficient time to elapse from the date of the alleged offence, liability for the offence could be extinguished by the expiry of the limitation period.

Defending against a fine in an offence proceeding does not entail any staggering costs, the filing of a defence or an appeal is not subject to a fee, and the costs of an offence proceeding are in practice most often set at a lump sum of CZK 1,000. With few exceptions, the Inspectorate cannot impose a higher fine following a defence than that imposed in the first decision or order.

Continuation of the defence before an independent tribunal

If the defendant unsuccessfully exhausts the possibilities of defending against the fine in the offence proceedings and the decision on the fine becomes final, the fine must be paid (with exceptions). The decision on the fine can then be challenged by an administrative action before an administrative court within 2 months. At this stage, it is then essential that the administrative court sees that the accused has actively defended himself in the offence proceedings. At the same time, the way in which the inspectorate has dealt with the accused's defence in the infringement proceedings forms the basis for the decision of the administrative court.

An administrative action is subject to a court fee of CZK 3,000. If the administrative court upholds the action, it annuls the decision on the fine and, as a result, the fine paid must be returned to the accused. The case will return to the stage of the offence proceedings before the inspectorate and the further procedure will depend on the circumstances of the particular case and the reasons why the administrative court annulled the decision on the fine. At the same time, the court shall award the costs of the proceedings in favour of the accused (applicant) against the inspectorate (defendant). If the action is unsuccessful, the administrative court shall not award the costs of the proceedings against the accused (applicant) to the inspectorate (defendant).

In an administrative action, it is essential to formulate the pleas in law precisely, specifically and clearly and to support them with sufficient evidence. In our experience, administrative actions prepared without the assistance of a lawyer are rarely successful.

In any event, careful consideration should be given to whether it makes sense to actually defend against the fine. As a food business, you will encounter inspections repeatedly, so sometimes it may be a better decision in the long run not to defend against a fine and to focus resources on ensuring that the breach does not happen again.