NVWA criminal investigation: when an inspection becomes a criminal case

An NVWA inspection becomes a criminal case when the violation is serious, intentional or repeated, and the NVWA’s own investigation service (NVWA-IOD) starts a criminal investigation for the Public Prosecution Service (Openbaar Ministerie, OM). The main exception is the una via rule: once an administrative fine has been imposed for the same conduct, criminal prosecution for that conduct is barred, and the other way round.

The Netherlands Food and Consumer Product Safety Authority (NVWA) supervises the food, animal feed, agricultural and animal health sectors. Companies know it as a regulator that inspects, warns and fines. This article explains when and how that turns into a criminal case, and what you can do.

Which two enforcement tracks does the NVWA have?

The NVWA can enforce under administrative law or refer a case for criminal investigation. Which track it chooses depends on the seriousness of the violation and the risks to public health, food safety or animal welfare, as set out in its intervention policy.

The NVWA supervises, among other laws, the Commodities Act (Warenwet), the Animals Act (Wet dieren), the Fertilisers Act (Meststoffenwet) and the Fisheries Act (Visserijwet).

What happens in the administrative track?

The NVWA can issue a warning, impose an administrative fine (bestuurlijke boete), impose an order subject to a penalty (last onder dwangsom), or suspend or withdraw a licence or recognition. A fine usually follows an inspection and a fine report.

You can file an objection (bezwaar) against a fine with the NVWA within six weeks, and then appeal to the court.

What happens in the criminal track?

In serious or complex cases, the NVWA-IOD draws up an official report (proces-verbaal) and investigates. The OM then decides: dismissal, a punishment order (strafbeschikking), a settlement (transactie) or a summons before the criminal court.

Intent, fraud, systematic conduct and repeat offending point to the criminal track. An isolated administrative mistake is more likely to stay in the administrative track. Structural labelling fraud, illegal slaughter, serious animal welfare violations and trade in prohibited substances regularly lead to criminal investigation.

Why does the Economic Offences Act matter?

Many violations of NVWA-supervised rules are designated as economic offences in the Economic Offences Act (Wet op de economische delicten, WED). Under Article 2 WED, an intentional violation is generally a crime (misdrijf), while a non-intentional violation is a minor offence (overtreding).

The difference affects the investigative powers, the maximum penalty and whether pre-trial detention is possible. Besides fines, the court can impose a prison sentence, (partial) closure of the business, confiscation of goods, a ban on practising a profession and publication of the judgment. For companies, the combination of a fine, closure and reputational damage weighs heavily.

Who investigates and prosecutes?

The NVWA-IOD is a special investigation service (bijzondere opsporingsdienst). Its officers can question suspects and witnesses, examine records, secure digital data, seize goods and data carriers, search premises and arrest suspects.

In large or cross-border criminal investigations, the NVWA-IOD works with the police, the FIOD and Customs. Prosecution is usually handled by the Functional Prosecutor’s Office (Functioneel Parket), the OM office for environmental, fraud and food law cases.

Can you be fined and prosecuted for the same violation?

No. Under Article 5:44 of the General Administrative Law Act (Awb), no administrative fine may be imposed once criminal proceedings have started for the same conduct. Under Article 243(2) of the Code of Criminal Procedure (Sv), an imposed administrative fine has the same effect as a decision not to prosecute further.

Applying the rule takes care. You need to establish exactly which conduct, period and facts are involved, and whether a fine was actually imposed or only announced. A warning, an inspection report or an intention to fine does not have the same effect as an imposed fine. A fine on the company also does not automatically protect a director from prosecution.

How do you recognise that an inspection has become a criminal investigation?

Signs include the presence of NVWA-IOD officers, being cautioned that you do not have to answer, being questioned as a suspect, a search, or seizure of records, phones or computers. Questions about earlier transactions or internal decisions, rather than the current situation, are another signal.

Many business owners think they are cooperating with an inspection while the authorities are already gathering evidence for prosecution. That is why the nature of each conversation matters from the first moment.

Which rights do you have as a suspect?

As a suspect you have the right to know what you are suspected of, the right to remain silent and the right to consult a lawyer before questioning. In principle, you may also have a lawyer present during the interview.

A company cannot refuse all cooperation: regulators have administrative powers to demand information and inspect records. That duty has limits, because a suspect does not have to actively cooperate in his own conviction. Distinguish from the start between information you must provide under a supervisory power and statements that can be used as evidence against you.

Can directors be prosecuted personally?

Yes. Under Article 51 of the Dutch Criminal Code (Sr), the OM can prosecute not only the company but also the persons who ordered the offence or actually directed it (feitelijk leidinggevers). Read more about directors’ liability.

The title of director alone is not enough. What counts is the person’s actual role, knowledge and involvement, for example whether they knew of the violation and failed to intervene. Formal distance from daily operations does not protect someone who in fact controlled the business.

What should you check as a company?

Prepare before the NVWA is at the door. Check these points:

• Is there an internal protocol for inspections and raids, with a named contact person and the lawyer’s number?
• Do employees know that they may not destroy or alter documents or data?
• During a visit: who is present, from which service, and what is the purpose and legal basis?
• Is every seized item and data carrier listed in a record you receive a copy of?
• Has an administrative fine already been imposed for the same conduct, so that una via applies?

What should you check as a director or employee?

Your personal position can differ from the company’s. Check these points:

• Are you being questioned as a witness or as a suspect? Ask this explicitly.
• Have you been cautioned? Then use your right to remain silent until you have spoken with a lawyer.
• Are you making a statement on behalf of the company or in a personal capacity?
• Does the investigation concern conduct in which you had an actual role or knowledge?

What can we do for you in an NVWA case?

Our criminal lawyers assist companies, directors and employees in both tracks:

• We attend an inspection or search and check its scope and legal basis.
• We prepare directors and employees for an interview and attend it.
• We assess fine reports and official reports and test the una via rule.
• We draft the objection against an administrative fine within the six-week deadline.
• We negotiate with the Functional Prosecutor’s Office about a settlement or punishment order.
• We defend the company and its directors before the criminal court.

Summary

• The NVWA enforces under administrative law, but its NVWA-IOD can conduct criminal investigations for the OM.
• Intent, fraud, repetition and risks to health or animal welfare point to the criminal track.
• Many violations are economic offences under the WED; intentional violations are generally crimes.
• Una via (Article 5:44 Awb, Article 243(2) Sv) prevents both an administrative fine and prosecution for the same conduct.
• Directors can be prosecuted personally under Article 51 Sr if they ordered or actually directed the offence.

Frequently asked questions