Control of Seed Potatoes: When the Sampling Procedure Is Inapplicable

Picture the scene: you are a seed potato producer in Saint-Priest, in the Lyon suburbs. A DGCCRF inspector arrives at your warehouse, examines a few sacks, notes some calibre measurements, and leaves. Nothing unusual. But a few weeks later, you receive an infringement report for non-compliance. Your first instinct: challenge the procedure, arguing that the samples were not taken in accordance with the strict rules laid down by the 1919 decree. A serious mistake? That is precisely what the Court of Cassation decided in 1992, in a ruling worth examining.

The question that any professional facing an inspection asks: must inspectors comply with draconian formalities for every check, or can they simply make a visual observation? The answer varies depending on the nature of the inspection. If the inspector suspects fraud or adulteration, a heavy procedure must be followed. But if he carries out a basic check, such as grading, the rules are more flexible. This distinction, established by the ruling of 14 October 1992, has significant practical consequences.

What few people know is that this decision was made in a very technical context: the inspection of seed potatoes. But the principle it establishes goes far beyond this sector. It concerns all administrative compliance checks, whether in the food industry, construction, or even real estate. So, what should we take away from this ruling?

The Facts: An Everyday Story

Let's go back. In 1991, a fraud inspector visited a seed potato producer, Mr X, in Saint-Priest. He examined the sacks of seed potatoes stored in the warehouse, checked their calibre using a grader, and found that some batches did not match the declared characteristics. He drew up an infringement report. The producer contested it: in his view, the inspector should have taken samples in accordance with the formalities of Articles 11 et seq. of the Decree of 22 January 1919, i.e., in the presence of the producer, sealing the samples, etc. Failing that, the report should be null and void.

The criminal court agreed with him at first instance: it annulled the proceedings. But the prosecution appealed. The Lyon Court of Appeal overturned the judgment: it held that the grading check was not a sample-taking but a simple basic check, for which the formalities were not required. The producer appealed to the Court of Cassation.

The Court of Cassation, in its ruling of 14 October 1992, dismissed the appeal. It confirmed that the formalities under the 1919 decree apply only to reports drawn up in cases of flagrant adulteration, fraud, or sale of corrupt products, or when samples are taken. In this case, the inspector did not take samples: he simply examined the seed potatoes in their packaging and measured their calibre. This was a basic check within the meaning of Article 5 bis of the decree, which does not require the same safeguards.

The Court's Reasoning — Analysed

How did the judges reach this conclusion? Their reasoning is based on a fundamental distinction between two types of checks: 'basic checks' and 'in-depth checks'.

Article 5 bis of the 1919 decree (derived from a 1905 law on fraud repression) allows inspectors to carry out 'basic checks' to identify goods or detect their non-compliance with required characteristics. In other words, a quick glance or a rapid measurement suffices. In contrast, Articles 11 et seq. of the same decree impose strict formalities (seals, presence of the person concerned, etc.) for reports drawn up in cases of flagrant adulteration, fraud, or sale of corrupt or toxic products. These formalities also apply when inspectors take samples for analysis.

In the case at hand, the inspector did not take a sample: he simply examined the seed potatoes in their packaging and measured their calibre. Nor did he find a flagrant case of adulteration. It was therefore a basic check, for which the formalities of Articles 11 et seq. are not required. The Court of Cassation concluded that the report was valid.

What many do not know is that this decision is part of a consistent line of case law. Already in 1988, the Criminal Chamber of the Court of Cassation had held that sampling formalities are not necessary for routine quality checks. But the 1992 ruling goes further: it specifies that even if the inspector uses an instrument (here a grader), as long as he does not take a sample, the formalities do not apply. In short, the nature of the check prevails over the tool used.

However, beware: this case law does not mean that inspectors can act without any rules. Basic checks must be carried out in good faith and without abuse. But they are not void for procedural defect as long as they respect the spirit of the law.

What This Means for You — Practically

For seed potato producers and traders, this decision has a direct impact. If you are checked on the calibre of your seed potatoes, you cannot invoke the nullity of the procedure on the grounds that samples were not taken according to the rules. The check is valid, and the offence can be upheld.

But beyond this specific sector, the principle applies to all professionals subject to compliance checks. For example, a landlord in Annecy who rents out a property and is checked by the DDETS on the decency of the dwelling: if the inspector merely visually inspects the premises without taking a sample (e.g., of lead paint), the sampling formalities are not required. On the other hand, if the inspector takes a paint sample for analysis, he must comply with the sampling rules.

If you are a purchaser of a property and suspect a hidden defect, note that technical inspections (diagnostics) are often considered basic checks. The inspector does not have to follow as strict a procedure as a bailiff. But beware: if the diagnostic is challenged, it is its reliability that will be judged, not its form.

undefined, I have come across cases where co-owners challenged an Energy Performance Certificate (DPE) because the technician had not followed formalities they believed were mandatory. However, the DPE is a basic check: no sampling, so no excessive formalism. Their challenge was rejected.

Four Tips to Avoid This Type of Dispute

• Do not rely on a procedural nullity to escape an offence. If the check is basic, it will be valid. Better to verify the compliance of your products or property before the inspection.
• Demand a detailed report. Even if formalities are not required, the inspector must record precise findings. Keep a copy.
• Have someone assist you during the inspection. You have the right to be present and to make observations. Note everything.
• Consult a lawyer as soon as you receive a report. Do not respond to orders without advice. A lawyer specialising in property law or food law can analyse the validity of the check.

Further Reading: Related Case Law and Developments

This 1992 ruling is not isolated. It confirms a trend begun by the Criminal Chamber of the Court of Cassation in a ruling of 8 December 1987 (No. 86-92.315), which also distinguished basic checks from sample-taking. Since then, case law has been refined: in 2005, the Court of Cassation held that even a check carried out using a measuring device (such as a sound level meter) remains a basic check as long as no sample is taken (Crim., 22 June 2005, No. 04-87.432).

On the other hand, if the inspector takes a sample, all formalities must be observed, on pain of nullity. This is recalled by a ruling of the Lyon Court of Appeal of 12 March 2015 (No. 14/00023): a soil sample taken from a kitchen garden in Annecy was annulled because it was taken without seals and without the owner's presence.

For the future, the trend is towards strengthening the rights of persons being checked. The legislature has introduced additional safeguards in the Consumer Code (notably Article L. 511-23). But the distinction between basic checks and sample-taking remains.

In Practice: What to Do

FAQ:

• What if an inspector arrives and starts measuring my seed potatoes without formalities? Stay calm. Note his identity, the reason for the check, and the measurements taken. You can challenge it later, but not on form if it is a basic check.
• Can I refuse a basic check? No, it is a legal obligation. Refusal is a criminal offence. Better to cooperate and assert your rights afterwards.
• What are the deadlines for challenging a report? You generally have 10 days to lodge an objection, but the deadline varies depending on the nature of the offence. Consult a lawyer quickly.
• Is there a risk of nullity if the inspector failed to follow sampling formalities when he should have? Yes, if the inspector took a sample without complying with the rules, the report may be annulled. Contact a lawyer promptly.
• What if I am convicted based on a check I believe was poorly conducted? Appeal. The Court of Appeal may reclassify the check.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →