The Controle Orgaan Kwaliteits Zaken (Netherlands Controlling Authority for Dairy and Eggs – COKZ) supervises the quality and food safety of dairy, eggs and poultry meat. This supervision includes checks on product labelling, production methods, records and food safety aspects. The COKZ also plays a role in the field of exports and export certificates. Egg quality and food safety were previously supervised by the Nederlandse Controle Autoriteit Eieren (Netherlands Controlling Authority for Eggs – NCAE). Since 2019, egg quality and food safety inspections have been carried out under the name COKZ.
The COKZ – whether or not in collaboration with the Nederlandse Voedsel- en Warenautoriteit (Netherlands Food and Consumer Product Safety Authority – NVWA) – conducts both announced and unannounced inspections. The latter are also referred to as dawn raids. The COKZ conducts, for instance, unannounced inspections of dairy farms with quality controls. Unannounced inspections are carried out at egg product manufacturers and traders once a year, at Dutch dairy producers one a year or every two years, and at poultry farms once every three years.
The COKZ has broad powers during these raids. On the other hand, companies subject to COKZ investigations have far-reaching rights, depending on the purpose of the investigation. Dawn raids and unannounced raids by the COKZ may have a drastic impact. It is therefore important that companies and employees are aware in advance of their rights and obligations during a dawn raid.
Ten tips are provided in this blog for companies during announced or unannounced visits by the COKZ.
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 COKZ investigation may relate to a (mere) routine inspection to check whether the company complies with the relevant laws and regulations. Or the COKZ 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 COKZ investigation and what powers the COKZ 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 COKZ about the actual purpose (and reason, see Tip 3) of the raid 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 may not exceed his or her statutory powers. The powers of COKZ supervisory officers are set out in the Algemene wet bestuursrecht (General Administrative Law Act) and the special laws enforced by the COKZ. The main powers of a COKZ 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.
Tip 4 – Inquire about what, where and how the supervisory officer 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 articles provides that a supervisory officer may exercise his or her powers only insofar as the performance of his or her duties reasonably requires. 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 COKZ 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 COKZ 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 COKZ’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 supervisory officer to take a second sample. He or she must comply with such a request. The General Administrative Law Act provides that the COKZ 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 COKZ’s investigation (insofar as the supervisory officer does not exceed his or her powers). If a company refuses to cooperate, the Minister of Health, Welfare and Sport (the Minister) may take administrative enforcement action or impose an order subject to a penalty. This is a decision whereby the COKZ obligates the person in question to cooperate within a compliance period, subject to forfeiture of penalties or the imposition of administrative enforcement action. In the event of failure to cooperate, an administrative fine may also be imposed on the de facto manager(s) involved. Such failure to cooperate may furthermore result in applications for CAP subsidies being rejected. It is also not permitted to remove any evidence or seal placed by the COKZ. 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 COKZ that are covered by lawyer-client privilege, such as a lawyer’s legal advice to the company concerned.
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 COKZ 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 COKZ information request, you may request the COKZ 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 COKZ or 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 COKZ should grant a reasonable period within which to comply. If you believe that the compliance period is unreasonably short, you may ask the COKZ for an extension. You may furthermore object to any order subject to a penalty or administrative enforcement by the Minister 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 a COKZ raid is being conducted and to what extent you are obligated to cooperate. To avoid an administrative sanction, you may consult a lawyer. Your lawyer may be present during the COKZ investigation to ensure that the supervisory officer does not exceed his or her powers and that your rights are respected. If the COKZ 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, if food safety defects are established, the supervisory officer will draw up a report of findings or issue a written warning. If a report of findings is drawn up, the COKZ will share it with the NVWA. The NVWA may carry out an intervention on that basis, such as suspending or withdrawing an accreditation, refusing a subsidy, ordering a product recall, or shutting down production. It may also impose an administrative fine. Instead of taking administrative enforcement action, the NVWA may furthermore decide to deal with the violation under criminal law. This may ultimately lead to criminal fines and even imprisonment.
You may object to decisions of the NVWA within six weeks and, after possible rejection, appeal to the Rotterdam District Court. To suspend the effect of a decision, you may also initiate proceedings in which the court is requested to grant provisional relief.
In the event of quality violations relating to cheese, eggs and poultry meat, the COKZ is authorised under the Landbouwkwaliteitswet (Agricultural Quality Act) to bring the violation before the independent disciplinary court of the COKZ. The disciplinary court may then impose a disciplinary measure, such as a fine or a reprimand. A decision of the disciplinary tribunal may be appealed within three months.
Click here for tips in the event of an NVWA raid. Also read our blog on recalls and enforcement by the NVWA.
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