5 March 2017

Enforcement order administered by Dutch Authority

Category: Company law

A Dutch municipality may impose an enforcement order in an attempt to stop a violation. A violation such as illegal renting via Airbnb.
An enforcement order is first announced with an intention to issue a penalty. An opinion (zienswijze) can be submitted by the offender against this.
It may be sensible for a lawyer to submit an opinion against the proposed penalty payment.
Our administrative lawyers (advocaat bestuursrecht) assists clients in enforcement procedurer against government.

Enforcement by the Dutch Authority to terminate a violation

An enforcement order is imposed by the municipality in the Netherlands as soon as the threat of a violation becomes apparent. The municipality is not required to wait until the violation takes place in order to impose an enforcement order. Thus, preventive penalty payments do take place. A preventive penalty payment may only be imposed if there is a risk that the violation will occur with a probability bordering certainty. The possible violation must also be described with a sufficient degree of clarity in the enforcement order. Through an enforcement order in the Netherlands, the Dutch municipality (or any other Dutch authority) may try to put an end to a violation. This can be done in combination with an administrative fine (bestuurlijke boete). Sometimes it may be uncertain as to whether there is a violation in the first place, or who the perpetrator upon which the penalty is to be imposed by the municipality is. Moreover, it must first be established whether the municipality is authorized to impose a penalty. Sometimes the power to impose a penalty is reserved to another administrative body or a supervisor body. If you are confronted with (the intention to) issue an enforcement order and/or fine, ask a lawyer for advice on how to act.

Term of payment of enforcement order administered by municipality

An enforcement order or fine administered by the municipality will always have a compliance period. The “burden” of the enforcement order rests in the instruction/order that the offender must carry out or repair in order to terminate the offence in the eyes of the municipality. Within this period, the offender can end the violation himself without paying a penalty. If the compliance period is too short to end the violation, the offender may request a longer compliance period. If the municipality refuses to extend the compliance period, a lawyer, as a provisional measure, may request the administrative court to set a longer compliance period.

Opinion against the enforcement order administered by municipality

If, in spite of a submitted opinion against the intention of the municipality to impose an enforcement order, an enforcement order is administered, a notice of objection can be filed with the municipality within six weeks. Our administrative lawyers can file the objection. By doing so the complaints procedure (bezwaarprocedure) starts. A notice of objection has no suspensory effect. This means that the offender must request the suspension of the enforcement order as soon as possible. A lawyer may, if the municipality does not voluntarily suspend the enforcement order request to suspend the enforcement order at a provisional judge. Our lawyers can assist to do that.

Always check Formulation of enforcement order

The precise wording of the enforcement order administered by the municipality is important. If the content of the enforcement order is not clear or too broad, it may be problematic for the offender to comply with it. An enforcement order from the municipality that is insufficiently defined can be annulled in objection or appeal. The enforcement order will usually contain an order to do or repair something in an attempt to terminate a violation. If the order is not abided, payment for the penalty must be made. Always check with a lawyer whether the order is justified and the municipality is not acting outside its jurisdiction.

Impossibility to terminate violation

Sometimes it is not possible for the offender to terminate the offense. The offender must have it in his power to do so. If that is not the case, then the penalty payment is wrongly imposed by the municipality and the penalty payment can be annulled by the court. Appropriate end timely response is necessary however. A summary proceeding may be necessary to get the Dutch judge to suspend the order. Sometimes a landlord of a business premise is charged with a penalty for a violation caused by the tenant. The landlord is expected to take action and the landlord has the burden of proving that it is absolutely impossible for him to terminate a tenant’s violation.

Building without a permit may trigger a penalty

In the event of building without a permit, the person who has given the order for the construction can be regarded as an offender. However, if a property is sold and the buyer is not aware of the absence of an environmental permit, the municipality can still impose an enforcement order on the new owner. The owner can recover the payed penalty from the seller. Ask a lawyer for advice on how to recover this damage from the seller. If the seller received an enforcement order prior to the sale, he will continue to be responsible for paying the penalty to the municipality even if he sells the property.

Cancellation of enforcement order or reduction of penalty

If the municipality has imposed an enforcement order, the offender can ask for the suspension of the enforcement order. The suspension or reduction of the enforcement order is possible for demonstrable reasons which make it impossible to comply (completely) with the termination of the violation. If a penalty is payed, the municipality must take a decision on whether to collect the payment. An objection can be lodged against this as well. If a procedure against the enforcement order is already ongoing, an objection against collection of the payment can also be lodged within the ongoing procedure. In addition, the cancellation of a payed for penalty can always be requested, however, a special reason must be demonstrated. The municipality is not obliged to abide the request for cancellation of the payment of the penalty.

Burden of proof municipality

If in the eyes of the municipality the violation for which the enforcement order is imposed has not been terminated, then the burden of proof rests on the municipality to show that there has been a violation (and for that reason payment of the penalty has been made). The statement and proof of this violation must be apparent from sound justification and determination of verifiable facts and circumstances. The finding must be apparent from a document wherein the place, time and date of the observation of the violation is stated and furthermore which official, in which capacity established the violation that leads to the payment of the penalty. The offender himself can provide evidence to the contrary that there is no violation and that it has been terminated.

Please do request timely advice from a Dutch lawyer with Blenheim when the Municipality, or any Dutch Authority, intends to start enforcement.