The Netherlands: From enforcement practice – who is an offender?

 

One of the core tasks of public administration is enforcement action against violations of the law. However, a legal error has been made here, especially in cases where urgent action is required by the administrative body. Of primary importance is that the enforcement administrative body always writes to the right (responsible) person. In the case that led to the recent ruling of the Administrative Jurisdiction Division of the Council of State of 19 July 2023 (ECLI:NL:RVS:2023:2779), things went woefully wrong on that point.

What was going on?

The board of B&W of the municipality of Weesp (now: Amsterdam) had verbally imposed a construction stop on company X, because fire compartments in storage rooms had been realized in deviation from an environmental permit granted for those storage spaces. According to B&W, company X had to be regarded as an offender. Subsequently, the construction stop was confirmed in writing to company X. A construction stop is a form of administrative coercion.

After unsuccessfully objecting to the construction stop at B&W, company X appealed to the court. Company X argued that it should not have been subject to a construction ban because it was not the holder of the environmental permit, was not the owner of the land, was not a builder or a client. The court agreed with Company X: it could not be regarded as an offender for that reason.

Company X neither an 'offender' nor a 'rightholder of the use of the case'

B&W appealed to the Administrative Law Division. According to B&W, company X was the offender, because it had complied with the order (under administrative coercion) and it had not denied in objection that it was an offender. Furthermore, B&W argued that even if company X were not an offender, the construction stop was rightly imposed on it, because a construction stop can also be imposed on a person entitled to the use of the property to which the charge relates.

These arguments of B&W did not succeed. In its ruling of 19 July 2023, the Division states that it follows from the law that a burden under administrative coercion is disclosed to the offender, to the rightholders of the use of the case to which the burden relates and to the applicant (Article 5:24 paragraph 3 General Administrative Law Act).

The Division held that the fact that Company X had complied with the order (the construction stop) did not mean that it could be regarded as an offender for that reason alone. Although it would have been obvious that company X had already objected to this, in the context of a complete review in objection, the Board itself should have examined, on the basis of information in the construction registration or extracts from the Chamber of Commerce, whether company X should rightly be regarded as an offender.

Nor could B&W be followed in their argument that even if company X were not an offender, the construction ban was rightly imposed on it, because the imposition of a burden under administrative coercion does not require proof of the offendership. The Division considered that even if company X were entitled to the use of the property as referred to in Article 5:24(3) of the Awb, this does not affect the aforementioned unlawfulness that company X had been wrongly identified as an offender. In addition, the Division noted for completeness that Company X was also not the owner of the use of the case. Company X was not the owner, tenant, operator or other user of the storage facilities during the construction and at the time of making the primary decision.

Rules of thumb

In summary, the following rules of thumb can be derived from this statement:

• The administrative body may not conclude from the mere fact that a person concerned complies with an imposed burden (in this case a construction stop) that that party is also the offender – the administrative body must investigate this itself at the objection stage;
• If a data subject is wrongly identified as an offender (and the decision is therefore unlawful) but is entitled to the use of the property, this does not affect the aforementioned unlawfulness.

 

One wonders, moreover, why B&W had written to the wrong party in this case. Normally, at least, the cadastral owner of a building or plot is simply written to. B&W may have intended to write to the owner of the property in this case, but the wrong company name was simply used. It is clear from the judgment that the name of company X, the wrongly addressed party, differed only slightly from the name of the owner of the property. But it is obviously up to the enforcement governing body to be precise in this.

 

For further information, please contact:

Ramon Ridder, Partner

Labré advocaten, Amsterdam

e: ramon.ridder@labre.nl

t: +31 20 3052030

 

#WLNadvocate #TheNetherlands #Amsterdam #lawfirm #law #legal #corporatelaw #network #enforcement #administrativelaw  #publicadministration #companylaw