Order subject to penalty – what can you do about it?
Category: Administrative law
The municipality or other administrative body is authorised to impose an order subject to penalty to end a violation (last onder dwangsom). A lawyer specialising in administrative law can provide legal assistance in this regard. An order subject to penalty is a sanction to end the violation. In the process an obligation to pay a sum of money is imposed, in case the violation is not ended in good time. An administrative body such as a municipality, AFM (Dutch Authority for the Financial Markets), Competition Authority, Water Board, etc. can impose an order subject to penalty.
Penalty or other government sanction?
The order subject to penalty can be imposed as an alternative to the application of administrative coercion by an administrative body. The municipality is free to choose which method is used to end the violation: either an order subject to penalty or an administrative enforcement order. In addition, there is the possibility of an administrative fine. The violator upon whom an order subject to penalty is imposed can submit an opinion and lodge an objection. Read also: 5 things you need to know about an administrative fine. This written notice of the sanction offers the violator the opportunity to submit an opinion. Since the consequences of a sanction can be far-reaching, it is advisable to consult a lawyer specialising in administrative law in good time and to ask for advice on how to deal with the penalty decision.
Violation and notice of an order subject to penalty
When the violation is established, the administrative body will first report this to the violator by means of a notice. In the case of an order subject to penalty, a compliance period is always set within which the violation must be ended. Whoever has received the notice of the penalty thereby has the opportunity to end the violation him-, her- or itself within that period. In that context, a period of, for example, four weeks is usually set. At the end of this period, the municipality will check again. If there is still a violation, the penalty will be incurred. A report of that will be prepared by an official.
Submitting an opinion against a notice of an order subject to penalty
After submission of the opinion, the municipality will decide whether the order subject to penalty will be imposed. If that is the case, the violator will receive the decision containing the compliance period within which the violation must still be ended. The penalty can be a lump sum or an amount per unit of time, for example per day, with an associated maximum amount of penalty payments that can be incurred. If the violation is not ended within the compliance period, the municipality itself can proceed to enforcement to end the violation. The costs of the administrative coercion can then be charged to the violator. Read more about submitting an opinion against an intention to enforce here.
Lodging an objection to an order subject to penalty
The person or company addressed can lodge an objection to the decision and request interim relief from the administrative court. A lawyer specialised in administrative law can take action at short notice against the penalty decision. A notice of objection against an order subject to penalty has no suspensive effect. This means that penalty payments can even be incurred during the objection proceedings; after all, objection proceedings can take months and the period after which penalty payments are incurred (the compliance period) is usually only a few weeks. That is why it is important for the company or person addressed to have the decision suspended and a request needs to be made for interim relief from the administrative court. This interim relief by suspending the ruling containing an order subject to penalty must be submitted at the same time as the notice of objection. It is important that when making the objection against an order subject to penalty, an objection is also made against the amount of the penalty imposed.
Recovery of penalty payments incurred
A penalty incurred must be paid within six weeks after it has been incurred. If the penalty is not paid within a period of six weeks, a recovery decision can be imposed on the basis of Article 5:37 of the General Administrative Law Act (Awb). The violator may request that the order subject to penalty be lifted, suspended or some other arrangement be made with the administrative body. The penalty payments incurred do not have to be collected by the municipality or administrative body. This is an entitlement, but not an obligation on the part of the municipality. If the municipality makes a collection order, then the violator should be wary. In that case, the Collection of State Taxes Act applies and a bailiff can immediately proceed with enforcement measures.
Feel free to consult a lawyer from the Blenheim administrative law team without obligation if a penalty or collection of penalty(ies) is imminent.