Non-compliance and appeals: what happens after a failed official control

Types of measure after a control

On finding non-compliance, the competent authority does not automatically impose a financial penalty: it takes the action needed to make the non-compliance cease and to prevent its recurrence, under a principle of proportionality and gradation Article 138(1) of Regulation (EU) 2017/625. The typical measures, listed by way of example in Article 138 itself, range from requirements with a deadline to restrictions or prohibitions on placing products on the market, from treatment of the products to their recall, withdrawal or destruction, up to suspension or closure, in whole or in part, of the business and to suspension or withdrawal of the establishment's registration or approval Article 138(2) of Regulation (EU) 2017/625.

These measures differ in nature and purpose from the penalty. The corrective measure restores compliance and protects health; the financial penalty punishes the breach already committed. A single control may generate both: a requirement to bring the premises into line with Annex II and, in parallel, the charge of an administrative offence. Anyone receiving an act must therefore read carefully how it is characterised: an inspection report, a requirement notice, a charge report, or a seizure or suspension order follow distinct procedural tracks. For how these acts are reached, see the official controls guide.

Requirements and notices with a deadline

The most common measure for structural or managerial non-compliance is the requirement (or notice): the authority sets out the shortcomings and grants a reasonable deadline within which the operator must comply Article 138(1) of Regulation (EU) 2017/625. The classic case is an incomplete HACCP-based procedure Article 5(1) of Regulation (EC) No 852/2004, an out-of-date registration Article 6(2) of Regulation (EC) No 852/2004 or hygiene requirements to be restored Annex II of Regulation (EC) No 852/2004.

Meeting the requirement within the deadline is decisive. Timely correction can head off more serious measures and, in some cases, bear on the penalty proceedings themselves; failure to act, by contrast, opens the way to restrictions, suspensions and a worsening of the operator's position. The requirement should be documented: keeping evidence of the correction carried out (invoices, photographs, revised procedures, records) is part of the defence. The length of the deadline and the consequences of non-compliance depend on the measure and on national law; for how the food business operator should handle the control itself, see official controls: what to expect.

Precautionary measures: seizure and suspension

Where the non-compliance entails a risk, the authority may take precautionary measures — immediate and provisional — before and independently of the outcome of the penalty procedure. A precautionary (administrative) seizure removes the availability of food, equipment or premises to prevent their use or marketing pending checks Article 138(2) of Regulation (EU) 2017/625. Suspension of the business, in whole or in part, halts operation where a danger to health persists or essential requirements are missing Article 138(2) of Regulation (EU) 2017/625.

These are burdensome but reversible measures: once the cause is removed and the correction verified, the authority orders release from seizure or the resumption of the business. As acts affecting the operator's sphere, they are subject to the right of appeal provided by the legal order Article 7 of Regulation (EU) 2017/625. Where the facts also amount to a crime, the seizure may become criminal in nature (an evidential or preventive seizure ordered or confirmed by the judicial authority), with rules different from administrative seizure: the distinction between the two planes is dealt with in the next section.

Administrative offence or crime

The same conduct may fall on two distinct penalty planes, and it is crucial not to confuse them.

The administrative offence concerns the breach of the hygiene obligations of Regulation (EC) No 852/2004: failure to register, absence or inadequacy of the HACCP-based procedures, breach of the Annex II requirements, training shortcomings. In Italy these breaches are punished with an administrative financial penalty under Article 6 of Legislative Decree 193/2007 Article 6 of Italian Legislative Decree No 193/2007, which implements the penalty regime required by Regulation (EU) 2017/625 Article 139 of Regulation (EU) 2017/625. The procedure is the administrative one of Law 689/1981.

The crime, by contrast, concerns the criminal offences, first of all those of Law No 283 of 30 April 1962: among the best known, holding for sale or serving food in a poor state of preservation, adulterated or harmful. Here it is not an administrative financial penalty but a criminal offence, with the involvement of the judicial authority and the safeguards of criminal procedure. The Carabinieri NAS units and the bodies with judicial-police functions operate on this plane; the picture of the competent authorities in Italy helps to get one's bearings. In our view the correct characterisation of the facts — administrative or criminal — is the first step of any defence, because it determines the procedure, the deadlines and the competent court.

The administrative penalty procedure

The procedure for the administrative offence follows the scheme of Law No 689 of 24 November 1981, the general law on administrative penalties. The essential stages are three.

• Notification of the charge. The breach is charged to the offender on the spot where possible, or notified within the statutory deadlines. The report describes the facts, the rule breached and the applicable penalty.
• Written defences. Within the statutory deadline the person concerned may submit written defences and documents to the competent authority, and ask to be heard. This is the natural place to plead the correction already carried out or the absence of the breach.
• Order-injunction. If reduced payment does not intervene and the authority considers the finding well founded, it issues the order-injunction, which sets the sum due and is an enforceable title; otherwise it issues a reasoned dismissal order.

Many breaches allow reduced payment within a deadline from the charge or notification: it closes the procedure and avoids the order-injunction, but it is not an admission and does not cure any criminal aspect of the facts. Since the amounts and deadlines are set by national law and vary by offence, we do not reproduce them here: see the Legislative Decree 193/2007 penalties page and the text of Law 689/1981.

The remedies against the measure

Against the authority's acts the operator has several remedies, not strictly alternative to one another.

Self-redress is the request to the authority itself to annul or review a defective act: it has no mandatory deadline and does not automatically suspend effects, but it is useful where the error is obvious (wrong person, facts that do not exist, breach already cured). The administrative appeal, where the legal order provides it for the specific measure, allows the operator to turn to the higher authority. Against the order-injunction, however, the typical remedy is opposition before the ordinary court, dealt with in the next section.

The European basis of these remedies is the right of appeal: decisions of the competent authorities are subject to the operator's right of challenge under national law Article 7 of Regulation (EU) 2017/625. Take care not to confuse the planes: challenging the corrective measure (requirement, seizure, suspension) follows rules different from opposing the financial penalty. None of these remedies, it should be said, is an "automatic annulment": they are procedures with precise conditions and deadlines, best activated with qualified assistance.

Appeal before the court

The order-injunction may be challenged by opposition before the competent ordinary court (justice of the peace or tribunal depending on the matter and value), within the deadline set by law from notification of the act. The court does not confine itself to a formal check: it re-examines the merits of the penalty claim and may annul, confirm or vary the order, including by re-determining the sum. Lodging the opposition does not, as a rule, suspend enforcement by itself: suspension must be requested and granted by the court where the conditions are met.

We do not state here the exact number of days to oppose, nor the precise allocation of jurisdiction among the courts, because these are procedural elements that depend on the national law in force and on the individual case: checking them against the statutory text or with a professional is essential, since missing the deadline bars the remedy. What remains firm, on the European plane, is the right of appeal Article 7 of Regulation (EU) 2017/625 and the national character of the penalty regime Article 139 of Regulation (EU) 2017/625.

Where to check penalty amounts

Amounts are not to be improvised. Breaches of the obligations of Regulation (EC) No 852/2004 are punished in Italy under Article 6 of Legislative Decree 193/2007 with administrative penalties set within a statutory range (a minimum and a maximum), the concrete figure depending on the offence and any circumstances Article 6 of Italian Legislative Decree No 193/2007. For the up-to-date amounts per breach we always refer to the Legislative Decree 193/2007 penalties page and, for an indicative estimate combining several breaches, to the penalty calculator.

One last clarification against a widespread misconception: there is no European "title" or "certificate" that shields you from penalties, nor an automatic amnesty for those who comply late. What counts is meeting the obligations — registration, HACCP, training — and, after a negative outcome, handling measures and remedies properly. On this point see why there is no certificate under Regulation 852/2004 and the obligations section.