Sound societies are based on respect for the rule of law. Among other things, this principle means that the powers of government officials must be grounded in law and limited by law. In the case of costs incurred in official control procedures for imported food, for which the Ministry of Health is competent, the regulations provide that the costs are borne by the party for whom the decision rendered in the procedure is unfavourable. The state administration takes the position that the importer always bears the costs, regardless of the fact that laboratory analyses confirm that the imported food complies with the applicable regulations. This position is based on the argument that official control procedures carried out in the public interest are initiated at the request of the party — the importer, a view that is difficult to defend. The saga concerning costs has lasted for years, and all indications suggest that even the new Law on Official Controls will not resolve this issue.
For readers who could not infer from the introduction what this is about:
Before importers bring food into the country, the Ministry of Health conducts an official control procedure at the place of customs clearance. Under the new Law on Official Controls (“Official Gazette of RS”, no. 109/2025) “official controls” are activities carried out by the Ministry of Agriculture, Forestry and Water Management or the Ministry of Health, or by an authorized body, for the purpose of verifying compliance of operators with this law and with requirements prescribed in the areas to which this law applies, as well as verifying whether animals or goods meet those requirements, including requirements for issuing an official certificate or official confirmation.
The new Law on Official Controls prescribes that its provisions apply to official controls carried out to verify compliance with regulations governing the area of food and food safety at any stage of production, processing and placing on the market, including import, export, primary production, treatment, processing, preparation, storage, transport, sale or supply of animals and goods to consumers.
Until the adoption of the Law on Official Controls, the manner in which official controls of imported food subject to sanitary supervision were conducted had not been governed by any regulation.
The saga concerning this procedure and its costs began in 2009 with the adoption of the Food Safety Law (“Official Gazette of RS”, no. 41/2009) - (“First version of the FSL”). Upon its entry into force, the Law on the Health Safety of Foodstuffs and Items of General Use (“Official Gazette of SFRY”, no. 53/91 and " Official Gazette of FRY", nos. 24/94, 28/96 and 37/2002 and "Official Gazette of RS", no. 101/2005 – other law, 79/2005 – other law and 41/2009 – other law) ceased to apply. That former law prescribed:
- how the procedure for determining the health safety of imported foodstuffs was initiated;
- the manner in which the procedure was conducted and the powers of the authority conducting sanitary supervision to take samples; and
- that the importer bears the costs of testing and determining the health safety of foodstuffs.
Pursuant to Article 32, paragraph 2 of this law, the competent federal minister adopted a Regulation on the amount and method of payment of fees for covering the costs of testing and determining the health safety of imported foodstuffs and items of general use ("Official Gazette FRY", nos. 9/97, 24/97 and 20/99, “the Regulation”).
Point 1 of the Regulation provided that, to cover the costs of examination and determination of the health safety of imported foodstuffs and items of general use, the importer paid a fee covering:
- the costs of inspection, sampling, and dispatch of samples for analysis by product group, i.e., from which the samples were taken for the purpose of health safety testing;
- the costs of laboratory testing of samples carried out at the request of the sanitary inspector to determine the shipment's health safety.
Point 6 of the Regulation provided that the importer paid the laboratory testing fee directly to the authorized institution that performed the testing, in accordance with the prices and invoice issued by that institution.
With the entry into force of the First version of the FSL on June 10th, 2009, the procedure governing official controls of imported food conducted by the Ministry of Health remained legally “suspended in mid-air”. No regulation prescribed how the procedure was to be initiated or what powers sanitary inspectors had.
I The First Version of FSL
Article 70, paragraph 1 of the First Version of the FSL provided that inspectors, in official control procedures, were entitled to take samples and that importers had the right to request an additional expert opinion (counter-analysis).
It was further provided by paragraph 2 of the same law that the costs of analyses and counter-analyses were borne by the party from whom the sample was taken if it was established in the final procedure that the product did not meet prescribed requirements; if the sample complied with prescribed requirements, the costs were borne by the budget of the Republic of Serbia.
Paragraph 3 of the same article of the same law stipulated that the amount of compensation from paragraph 1 of this article is determined by the Government.
Pursuant to its authorisations in article 71 paragraph 3 of the First Version of FSL, The Government of the Republic of Serbia first adopted the Decision on the Amount of Fees for Laboratory Analyses of Food and Feed Samples of Plant Origin Taken During Official Controls ("Official Gazette of the RS", nos. 57/2009 and 31/2010), and then the Decision on the Amount of Fees for Laboratory Analyses of Food and Animal Feed Samples of Plant Origin Taken During Official Controls ("Official Gazette of the RS", no. 113/13). Both decisions regulated the amount and obligation to pay fees for food and feed for animals of plant origin control (official controls carried out by the Ministry of Agriculture, Forestry and Water Management), but not the amount and obligation to pay fees for food control subject to official controls carried out by the Ministry of Health.
II Amendment and Supplements to FSL
Amendments to the First Version of the FSL ("Official Gazette of the RS" No. 17/2019) - "the Valid Version of the FSL") dated April 1st, 2019. Superseded Article 70 of the First Version of the FSL.
Article 71 of the Valid Version of the FLS prescribes that food operators (importers) pay a fee for performed official controls in accordance with this law and other regulations. However, the costs of laboratory analyses and counter-analyses remained unregulated.
In accordance with Article 71 of the Valid Version of the FSL, decisions regulating the amount and obligation to pay costs for official controls carried out by the Ministry of Agriculture, Forestry and Water Management ceased to be valid by the Law on Amendments to the Law on Republic Taxes (Official Gazette RS. 86/2019).
With the entry into force of the Valid Version of FLS, point 6 of the Regulation, which prescribed that the importer pays the compensation for the costs of laboratory tests in favour of the authorized institution, which, according to the prices and the invoice issued by that institution to the importer, and other provisions of the Regulation, became irrelevant.
In contrast to the authorization from Article 32, paragraph 2 of the Law on the Safety of Foodstuffs and Items of General Use and Article 71, paragraph 3 of the First Version of the FSL, the Valid Version of the FLS does not provide for the Government's authorization to pass a by-law, nor does it regulate the issue of fees. The provisions of the Regulation are not applied for the reason that they are in conflict with the Valid Version of the FSL, i.e., in accordance with Article 88 paragraph 2 of this law. This article prescribes that until the adoption of by-laws based on the authority from this law, the regulations adopted on the basis of the law that ceased to be valid at the beginning of application of the Valid Version of the FLS, if they are not in conflict with this law.
The basis for the termination of validity of the Regulation is contained in Article 16, paragraph 2 of the Law on State Administration, which stipulates that ministries and special organizations can neither by regulation determine their own or others' competences, nor establish rights and obligations for natural and legal persons that are not already established by law.
On the other hand, the legislator never repealed the Regulation. The authors of this article believe that the Regulation cannot remain in force because the basis for its validity ended with the deletion of the provision in the First Version of the ZOB that authorizes the Government to regulate the issue of compensation.
III How do things work in practice?
The Valid Version of the FSL, i.e., the Amendments to the FSL from 2019, does not regulate the way of initiating and conducting the procedure of official controls carried out by the Ministry of Health.
In the absence of regulations, the procedure for implementing official controls is improvised, which has negative consequences for importers.
The official control procedure is initiated to protect the public interest (health of the population) when the authority determines or learns that, given the factual situation, it is necessary to protect the public interest, regardless of the importer's will. The so-called "request" - the form available on the website of the Ministry of Health, called "request for sanitary inspection of imported shipments to determine health conformity and safety" has no basis in applicable regulations. It is about the fact that the border sanitary inspection forces importers to fill out and submit the "request" in question. As the authors of this article assume, the border sanitary inspection does so to refer (ungroundedly) to the provision of Article 85 paragraph 3 of the Law on General Administrative Procedure when issuing a decision on import approval, in the part of the decision on the costs of the administrative procedure, (that the importer is obliged to bear the costs of the procedure because the official control procedure is initiated at his request).
"Request" is not the party's initial procedural action in the sense of the provisions of the Law on General Administrative Procedure, because the border sanitary surveillance procedure must always and without exception be initiated ex officio. Consequently, the mentioned form/"request" can only have the character of information on the basis of which the administrative authority (border sanitary inspector) is obliged to initiate the sanitary control procedure at the border ex officio, and in accordance with the provisions of Article 90 paragraph 2 in connection with Article 91 paragraph 2 of the Law on General Administrative Procedure, such a procedure must be initiated ex officio as soon as the goods arrive at the place of customs clearance, regardless of whether the party (importer) submitted a "request" or not.
In situations where the administrative procedure is initiated at the request of the party, the request of the party is a mandatory procedural action in to initiate the procedure at all. In that situation, the submission of a request is a necessary condition for the authority to initiate the procedure (e.g. in the case of a request for the issuance of a construction permit, the party's request is a conditio sine qua non for taking action by the administrative authority (Article 90 paragraph 1 in conjunction with Article 91 paragraph 1 of the Law on General Administrative Procedure)). On the other hand, the initiation of the sanitary inspection procedure occurs based on the knowledge of the authorities that it is a shipment of food entering the country, and a request is not required to initiate this procedure - it must be carried out regardless of the will of the party.
It is about procedures that are initiated based on information provided to the authority by the party, that it is a shipment from an import subject to the official control procedure. The moment the authority receives information from the party that such goods have been delivered to the border or to the place of customs clearance, the authority is obliged to initiate proceedings (Article 90 paragraph 2 in connection with Article 91 paragraph 2 of the Law on General Administrative Procedure). The procedure is initiated by the first action of the authority upon receiving information from the importer that it is a shipment of food intended to be imported into the country.
Regarding the importer's request for counter- analysis:
Counter-analysis is an objection to an administrative action, and Article 85 paragraph 6 of the Law on General Administrative Procedure applies, which stipulates that if the appeal (in the specific case, the objection) is dismissed or rejected or the appellant withdraws from the appeal, the costs of the second-instance proceedings shall be borne by the appellant. On the other hand, if the appeal is upheld, the costs of the second-instance procedure are borne by the authority that decided in the first instance - in this particular case, the inspectors of the Ministry of Health.
In practice, the border sanitary inspection conditions the initiation of the official control procedure upon the submission of a request by the importer and insists that the importers indicate in column 7 of "the request" that they themselves bear the costs of the procedure.
Importers should be aware that the sanitary inspection's insistence on filling out "requests" and said indicating in section 7 of " the request" has no legal significance. Importers neither submit a request nor can they incur any costs related to the sampling of the goods, to be obliged to specify them by the end of the procedure. Possible costs that importers could have are the costs of counter-analysis from Article 70 paragraph 2 of the Valid Version of the FSL, but importers cannot even estimate those costs in the so-called "on request" because they do not know and cannot know in advance whether they will arise in the process at all.
In practice, sanitary authorities render decisions by which they do not decide on the costs of the procedure, and authorized laboratories, without a legal basis, claim from the importer fees for the performed laboratory tests from the importer.
All of the above indicates that a social consensus regarding this topic is needed.
IV New Law on Official Controls
The new law governs:
- control of food shipments at border control points
Apart from the importer's obligation to announce the arrival of shipments, the new law prescribes the importer's obligation to submit a request for the implementation of official food control at the border control point. It remains unclear why the obligation to submit a request is prescribed when the obligation to announce the arrival of the shipment is already prescribed. The authors of this article believe that the very announcement of the shipment obliges the inspectors to initiate the official control procedure, in accordance with Article 90, paragraph 2 of the Law on General Administrative Procedure (when the authority determines or learns that, given the factual situation, it is necessary to protect the public interest). The submission of a request has the character of information on the basis of which the inspectors are obliged to initiate the procedure ex officio.
- Control of food shipments at customs clearance points
The new Law on Official Controls stipulates that this type of official control is carried out by checking documentation, identity, and physical inspection of food. The law stipulates the authorization of the authority conducting the procedure to take samples of imported food.
The law prescribes the authority of the competent minister to prescribe:
- method of document verification, identity verification, and physical inspection of certain food shipments at the place of customs clearance;
- in which cases the arrival of shipments of certain goods, except for those that are necessarily subject to official controls at border control points, that are imported is reported, as well as requests for the arrival of shipments of those goods;
- the way of dealing with a food shipment that is held until the results of testing or diagnostics are obtained, as well as the documentation that accompanies the food shipment, except for those that are necessarily subject to official controls at border control points.
The law neither prescribes the procedure for official control of food shipments at the place of customs clearance initiation, nor does it authorize the minister to define the matter of costs and the amounts of fees for laboratory tests in official control procedures.
The law prescribes an identical solution as the Valid Version of the FSL - that importers pay a fee for implemented official controls and other official activities in accordance with this law and special laws regulating the respective area to which this law applies, and that the amount of the fee is determined by the law regulating republican administrative fees.
All of the above indicates that the saga of costs in official control procedures continues and that this issue will not be resolved in the near future.
By Ivan Milosevic, Partner, and Janez Voncina, Senior Associate, JPM & Partners
