No Counter-Sample Left at Inspection: Administrative Penalty Quashed

The Administrative Court for the Austrian region of Burgenland (Landesverwaltungsgericht Burgenland) quashed an administrative penalty and discontinued the proceedings (E 156/13/2025.001/002, 21.04.2026). The court did not rule on the merits of the underlying allegation. Instead, it found a procedural defect in the sampling process: the inspecting authority had failed to leave a counter-sample. As a result, the official expert opinion of the AGES (Austrian Agency for Health and Food Safety) was inadmissible, and the alleged offence could not be established.

Background

Under Austrian food safety law — the Lebensmittelsicherheits- und Verbraucherschutzgesetz (LMSVG) — food business operators are subject to official inspections, which may include the taking of product samples for laboratory analysis. The operator of an agricultural business was accused of having stored vacuum-packed smoked and cured ham (Schinkenspeck) that was so mouldy as to be unfit for human consumption. The allegation was based on an official AGES laboratory report.

The Counter-Sample Requirement

Section 36(4) LMSVG provides that where a sample is taken at the producer's premises, it must be divided into an official sample and a counter-sample. The counter-sample is left with the business operator and serves as the basis for any independent expert examination the operator may wish to commission.

In this case, no counter-sample was left. Neither as a portion of the sample taken nor as an equivalent unit of the product. The court found that division of the sample would have been readily possible: the product was vacuum-packed, not frozen, and weighed 1,493 g, while the laboratory used only 25 g for its microbiological analysis.

Legal Consequences

The court applied established case law of the Austrian Supreme Administrative Court (Verwaltungsgerichtshof, VwGH 5.11.2020, Ra 2019/10/0001) and the Court of Justice of the European Union (CJEU 10.4.2003, Steffensen, C-276/01): the unlawful failure to leave a counter-sample infringes the operator's right to obtain an independent expert opinion. The consequence is far-reaching: the official AGES report was inadmissible, and without it the alleged offence could not be proven.

Practical Relevance

This decision is a reminder that procedural rules on sampling are not a mere formality. In Austria, the counter-sample is a key defence instrument for food business operators: it enables independent verification of the official laboratory findings. Where it is unlawfully withheld, the entire official expert opinion may be rendered inadmissible, even if the underlying allegation would otherwise have been well-founded.

Food business operators present during an official inspection should actively request that a counter-sample be left on their premises and ensure this is recorded in the accompanying inspection document.

Decision

LVwG Burgenland, E 156/13/2025.001/002, 21.04.2026

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About Sabadello Legal

Sabadello Legal advises food businesses, direct producers, and manufacturers on food law matters, from regulatory compliance and official inspections to representation in administrative penalty proceedings before district authorities and administrative courts.

Contact

RA Mag. Andreas Sabadello
Sabadello Legal
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Disclaimer

This article is for general information purposes only and does not constitute legal advice.