April 20, 2024

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Tougher enforcement of food law in Belgium | Hogan Lovells

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Introduction: Enforcement of food law in Belgium

In Belgium, the Federal Agency for the Safety of the Food Chain, or AFSCA, is the competent authority responsible for the oversight of proper enforcement of EU and Belgian food legislation. Its enforcement powers  are laid down in the Royal Decree of 22 February 2001 organising the controls carried out by AFSCA.

Under the previous regime, AFSCA would identify a non-conformity or violation of EU and/or Belgian food legislation, following which the inspector in charge would draw up a report (procès-verbal) and propose an administrative fine to the offender, among possibly other penalties.

Following such a “procès-verbal”, the offending food business operator could either agree to pay the fine or refuse to do so.

Where the offender agreed to pay the fine, the matter would be considered closed without further criminal prosecution. Payment of the fine proposed would be considered an administrative settlement, and the amount generally lower than that of an administrative fine. Payment of the administrative would, however, under no circumstances, be legally enforceable.

Should the offender refuse to pay the fine proposed, the matter would be referred to the public prosecutor for potential criminal prosecution. However, prosecutions were rarely brought and these cases were regularly dropped because of the backlog and workload at the public prosecutor’s office.

Under this regime, it was difficult for food business operators to understand the timeliness and predictability of prosecutions. Furthermore, only a limited number of violations/findings of non-conformity were actually enforced and sanctioned by AFSCA.


Tougher enforcement regime applicable since 1 January 2024

The Law of 7 April 2023 modified the Royal Decree of 22 February 2001 and introduced changes to the abovementioned enforcement regime with the aim of making the previous procedure for administrative fines more effective. These changes reshuffle the procedural steps, severity and enforceability of the penalties that can be imposed on food business operators who are found to be violating food legislation. As further detailed below, infringements may now result, first, in criminal prosecution, and in the absence of criminal charges, by either an administrative settlement or an administrative fine.

The procedure under the new regime that entered into force on 1 January 2024 is as follows:

  1. Where a violation of food legislation is established, AFSCA will, as before, draw up an official report. However, a copy of this report will be shared first with the competent public prosecutor.

  2. Within 30 days of receiving the copy, the public prosecutor may decide to bring criminal proceedings against the offender. If the public prosecutor decides not to press criminal charges or responds beyond the deadline, the case is returned to AFSCA.

  3. Where the case is returned to ASFCA, AFSCA may decide to propose an administrative settlement to the offender, as was the case under the previous regime, following an investigation by the legal service of AFSCA. The Royal Decree of 22 February 2001 provides that the amount of the administrative settlement may not be less than a quarter of the minimum amount stipulated by the applicable legislation for the infringement, nor more than 80% of the maximum amount stipulated.

AFSCA has 60 days from the date of the initial report to propose this administrative settlement, and the offender should pay the proposed amount within 30 days of receipt of the administrative settlement. It is important to note that in the event of serious danger to public health, animal health or plant health, no administrative settlement fine may be proposed.

  1. If the offender refuses to pay the proposed settlement amount, or in case of serious danger, AFSCA would decide, after having given the offender the opportunity to state his or her case, whether or not to set an administrative fine for the infringement by means of an administrative decision. If an administrative fine is imposed, it is accompanied by an invitation to pay the fine within 60 days of the decision being sent.

The Royal Decree specifically provides that the amount of this administrative fine may not be less than half of the minimum criminal fine laid down for the legislation infringed, nor higher than the maximum. As such, an administrative fine, therefore, tends to be of a higher amount than an administrative settlement for a specific offence.

  1. In the event of a refusal to pay an administrative fine, AFSCA will now be able to enforce this decision and pursue recovery of the fine by a bailiff.

  2. Any offender wishing to challenge AFSCA’s decision would need to lodge an appeal with the Court of First Instance within 60 days of the decision being sent. This appeal would have a suspensive effect.


Looking ahead

The Belgian Federal Agency for the Safety of the Food Chain is generally known to be a proactive food inspection authority. With its powers to impose and enforce fines strengthened, food business operators active in Belgium should be vigilant and ensure compliance with applicable EU and Belgian food legislation. Understanding the Belgian legal system and procedures will be essential in this regard.

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