Decision of the SCC on the non-compliance with a decision of the authority

Facts

This decision of the SCC concerns the non-compliance with a decision of the authority (Art. 292 SCC) by the manager of a wholesale fruit and vegetable company. The Cantonal Chemist had ordered the company to submit a written quality assurance concept for foodstuffs, under threat of criminal sanctions in case of non-compliance. The company did not follow this order.

The SCC dismissed the nullity appeal filed by the company manager. It considered that the order of the Cantonal Chemist was neither manifestly contrary to federal law nor tainted by an abuse of discretionary power. The Court also ruled that the legal requirements regarding the formulation of the threat of criminal sanction were met.

Considerations

According to the case law of the SCC, when an administrative appeal is possible but has not yet been exercised, the criminal judge can only examine the administrative decision on the basis of a manifest violation of federal law or an abuse of discretionary power.

In the present case, although the decision of the Cantonal Chemist contained an erroneous instruction on the right of appeal, this does not result in the SCC having to freely examine the legality of the decision. Since the company manager did not attempt to have the appeal period that he considered expired restored,…