Illegal and disproportional fines on restaurants by ASAE
- Written by Nelson Ramos, Lawyer
Dear readers, in my practice I have dealt with fines, often large, that are metered out to restaurants and bars, due to alleged contraventions of different rules and regulations.
Unfortunately, I conclude that sometimes the authorities, such as GNR, City Councils (Câmaras), or the economic activities inspection authority (ASAE), start procedures and apply fines in an illegal and exaggerated manner. Luckily courts uphold restaurant owners’ rights, and this article is intended to raise awareness of these matters.
There are many reasons why a restaurant can be fined, and we have seen a lot of them, for alleged violation of municipal publicity regulations, being open beyond the allowed hours, playing music without respecting authorship rights, noise or failing to implement HACCP (hazard analysis and critical control points) hygiene principles.
Some of these fines are applied for violation of municipal regulations, and what might be the case in one city council area, might not be applicable in another, as the rules may be different. I will focus on nationally applied rules, specifically the fines for non implementation of HACCP principles.
The reason to focus on this area is that the fines for non implementation of the HACCP principles are among the highest I have seen, so recourse to the court is even more justified, even more so as I have seen courts reduce fines from € 15.000,00 to €3.000, and even fines of over € 5.000,00 being cancelled by the court. I have never seen a court reduce a fine by less than seventy per cent, which shows that those fines were exaggerated, and even illegal.
The HACCP principles envisage control of the process from production to consumption of food. The stages and procedures resulted from the space programme as contamination by microbes was a serious danger, and later were applied by authorities to large industrial plants and slaughter facilities. To demand the strict application of a procedure created for space craft to small restaurant owners does not seem reasonable or legal, and it isn’t, as I will explain below.
Even considering that a restaurant is obliged to implement these principles, all the fines I have seen applied were unreasonable. Unfortunately you can not but wonder if the reason why they are so high is because the authority which makes the inspection (ASAE), receives ten per cent of the fine, the authority which decides how much the fine is going to be receives thirty per cent, and the Portuguese state receives the remainder. The higher the fine the more these entities receive, so there is a conflict of interests between collecting money and applying the law in a fair and proportional manner.
Regardless of the amount of fines, it is highly debatable whether restaurants are obliged to implement these principles in such a strict manner and even more debatable whether they are forced to have strict written records of their implementation.
In fact European law (Regulation EC No 852/2004) which lays down general hygiene requirements to be respected by food business at all stages of the food chain, refers in many passages of the guidance document for the application of the Regulation published by the EU that the implementation of the HACCP principles should «flexible», «where necessary», «adequate» or «sufficient», and actually Chapter II of Annex II, specifically says that some requirements are not applicable to “dining rooms”.
My advice to restaurant owners is therefore that if an administrative authority such as ASAE, the City Council agents, or even police officers show up at your premises, you should cooperate with them as they do indeed have the power to check your business, but if you are fined, before you pay, consult your lawyer.
If your lawyer advises you to challenge the fine, do not hesitate, it might save you a lot of money, since as explained above unfortunately regularly authorities apply fines which may be illegal and exaggerated.
Nelson Ramos
Lawyer – Portugal
Master in Int’l Law - USA
Email: nelson@nramoslawyers.com
