Swine fever has caused heavy economic losses in the pork sector this year. According to recent data by the Veterinary and Food Board (VFB), 350 precepts relating to the fever have been issued so far. Around 66,147 pigs were kept in affected farms. In some cases, pork sector operators have questioned the justification for precepts and looked for ways to appeal them.
Infectious animal disease control is governed by the Infectious Animal Disease Control Act (ADCA), which prescribes relevant measures, regulates the application of those measures and payment of compensation for damage caused by infectious animal diseases. According to the ADCA, the VFB may issue precepts with regard to slaughtering or killing diseased or suspect animals or handling products of animal origin originating from those animals (§ 171 (6)) and handling animal by-products and derived products (§ 181 (6)).
The ADCA does not set an appeal procedure for these precepts, where the main option is to claim compensation for damage relating to infectious animal disease control. However, the Veterinary Activities Organisation Act (VAOA) does allow an appeal against precepts. Under § 36 (1) of the VAOA, a person to whom a precept or other measure is addressed and who does not agree with it may file a written challenge with the director general of the VFB within 30 calendar days from becoming aware of the precept. The law does not provide for exceptions regarding an appeal against infectious animal disease control precepts. Under § 36 (3), the director general of the VFB must decide whether or not to satisfy a challenge within 10 working days after receiving it. Besides challenging a precept in the administrative agency, § 36 (3) of the VAOA alternatively allows an appeal to the court. Given the specifics of these precepts, it would be reasonable to mount a court challenge to the VFB’s decision in the first place and seek provisional legal protection to postpone implementation of the precept until an appropriate judgment has entered into force. Preliminary legal protection may also be sought for the duration of challenge proceedings before the administrative agency (Code of Administrative Court Procedure – CACP § 249 (5)).
A court appeal is also important for a subsequent claim for damages. Under the State Liability Act (SLA), compensation should place the injured party in a financial situation where they would be if their rights had not been violated. As a result, a loss of income claim could be added to direct damages. However, it is unclear whether compensation could exceed the support paid under the ADCA for damage relating to disease control. In the latter case, compensation would cover the accounting value of the animal or, in the case of feed and equipment, the actual value. In order to claim damages under the SLA, a court must first establish that the administrative agency has acted unlawfully. Without this, damages cannot be claimed. If a person does not wish to have the administrative act repealed, in which case an appeal should be submitted within 30 days, the unlawfulness of an administrative act can be established within three years. Any claim for damages against the state must be exercised during this period (CACP § 46 (4) and (5)).