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  • Public law
  • 20-11-2019

European Commission’s Implementing Decision 2019/1615
On 26 September the European Commission published an Implementing Decision stating that tomato brown rugose fruit virus (ToBRFV) is a harmful organism not yet listed in the annexes to Directive 2000/29/EC (Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into the Community of organisms harmful to plants or plant products and against their spread within the Community), but which will be designated as a control organism from 1 November. This means that measures must be taken to prevent further spread of the virus. ToBRFV is a virus first identified in Israel in late 2014. Official reports of outbreaks have already been made in neighbouring countries such as Germany (an outbreak on 7 tomato farms in 2018 on 25 hectares of land) and the UK. ToBFRV is not dangerous to public health, but it can have a negative effect on quality and the volume of production. Because it can be transmitted through mechanical contact (for example via packaging, crop work, and clothing), the virus is highly contagious. Infected tomatoes can have yellow and brown spots.

Memorandum to Parliament 21 October 2019
In a Memorandum dated 21 October 2019, the Dutch Minister of Agriculture, Nature and Food Quality, Carola Schouten, informed the House of Representatives of the discovery of a case of contamination and a serious suspicion – still being investigated – of ToBRFV being present in the Westland region (Province of South Holland). In her Memorandum, the Minister states that the National Plant Protection Organisation already classified the virus as “quarantinable” on 4 October in order to impose the measures required by the EC’s Implementing Decision (this was necessary because otherwise the measures would need to be delayed until 1 November and the virus could spread in the meantime). Some media have even referred to five new reports since the possible contamination in Westland (it is unclear whether these concern (Westland) tomato growers or whether these are also contaminations at bell pepper producers). Because the Netherlands is no longer a ToBRFV-free area, all Dutch plant growers are now subject to additional requirements for selling their tomato and pepper plants. The Dutch Food and Consumer Product Safety Authority (NVWA) aims to clarify spread of the virus as quickly as possible and has therefore already introduced a notification obligation for anyone who suspects its presence.

Reporting obligation
The status of ToBRFV as a “quarantinable organism” means that an obligation to report it applies automatically. Anyone who suspects a case of contamination must report it to the NVWA; that includes growers, breeders, and laboratories. The obligation is based on the (Dutch) Plant Diseases Act (Plantenziektenwet) and the accompanying decrees (verified with an employee of the NVWA).

Section 3 of the Plant Diseases Act reads:

“In order to prevent the occurrence and spread of harmful organisms and to control them, rules may be laid down by or pursuant to a general administrative order regarding:
f) the reporting of signs of contamination of plants or plant products by harmful organisms”.

Section 16 of the Decree on the Control of Harmful Organisms (Besluit bestrijding schadelijke organismen) consequently reads:

“Anyone who observes signs of contamination of plants or plant products by harmful organisms, as designated by Our Minister, shall be obliged to immediately report such signs to a civil servant designated by Our Minister, or an institution designated by Our Minister, pursuant to Section 9 of the Plant Diseases Act.”

The reporting obligation applies to all EU Member States as of 1 November 2019; that is when the formal quarantine status in the EU was introduced and each Member State became subject to the obligation. In the Netherlands, the above provisions already took effect earlier because the NVWA already declared the organism to be quarantinable as of 4 October.

Fines?
In addition, the NVWA has announced that from Monday 28 October contravening the obligation to report will be penalised under criminal law. In the event of failure to report, an official notice will be issued. Contravention of Section 3 of the Plant Diseases Act constitutes an offence within the meaning of the (Dutch) Economic Offences Act (Wet op de economische delicten, “WED”). In principle, this can be punished by a maximum fine of category 4 (EUR 20,750). Under the circumstances specified in Section 6(1)(5) WED, however, the fine may be increased to category 5 (maximum EUR 83,000). In the case of legal entities, fines – depending on the circumstances – may increase to up to EUR 830,000 (a category 6 fine, see Section 23(7) of the Dutch Penal Code (WvSr)).

Section 23(7) of the Penal Code also provides that a fine of up to 10% of the annual turnover of the legal entity may be imposed if a category 6 fine is regarded as an inappropriate sanction. In theory – even if the risk is very small – a category 5 or category 6 fine might not be regarded as an appropriate sanction in the case of contravention of the Plant Diseases Act by a legal entity. In such a case, a fine of up to 10% of the annual turnover of that legal entity can be imposed. Moreover, a contravention may also entail deprivation of profits or confiscation of goods. Finally, we wish to note some additional penalties or measures provided for in the WED, including the full or partial shutdown of the convicted party’s business for a maximum of one year (Section 7(c) WED), the publication of the judicial ruling (Section 7(g) WED), and the imposition of a regime of administration [onderbewindstelling] on the business (Section 8(b) WED).

Exemption
It is useful to know that since 26 October 2019 a temporary exemption (for a period of 120 days) for the protection of tomato production has applied to the quarantinable ToBRFV. This means that – pursuant to Section 38 of the Act on Plant Protection Products and Biocides (Emergency Situations) (Wet gewasbeschermingsmiddelen en biociden (noodsituaties)) and Article 53 of EC Regulation No. 1107/2009 – an exemption can be granted for using the disinfectant “Virkon S” (already exempted for use in greenhouses) in or on transport vehicles and containers in which material is transported and equipment is used for loading and unloading the vehicles and containers to control the quarantinable ToBRFV in tomato cultivation (provided that the instructions for use in Annex I are followed). This makes it possible to also control the virus in the context of transport and logistics.

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