The new Prime Minister Dick Schoof and his officials must leave 'the Little Tower' within four weeks for fire safety reasons and the renovation of the Binnenhof. Failure to do so will lead to a penalty of EUR 100,000 a week, with a maximum of EUR 1 million.
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#1. This enforcement instrument consists of two decisions: the order with conditional penalty payments and the recovery order
An order with conditional penalty payments consists of two decisions and is preceded by an intention to take a decision. The first decision is the order with conditional penalty payments itself, and the second is the recovery order. The order with conditional penalty payments provides details of (i) the violation, (ii) the remedial measures that must (or may) be taken, (iii) the deadline for taking those measures, and (iv) the penalty payable if the violation is not remedied. The (alleged) offender may file an objection to the order and, if necessary, lodge an appeal. However, an objection or appeal will not suspend the effect of the order. If the order with conditional penalty payments is to be suspended, preliminary relief will need to be sought.
Once the deadline has expired, the administrative body that issued the order will usually come and check that the order has been complied with. If the violation has not been remedied in full, the administrative body will impose a recovery order. Again, there is a right to object to and, if necessary, appeal the order. At this stage, however, it is no longer possible to dispute that a violation did in fact occur. This should be done when objecting to or filing an appeal against the first decision.
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#2. The grace period provides a ‘reasonable’ opportunity to comply with the order
An administrative body that imposes an order with conditional penalty payments must specify a period in which the offender can remedy the violation without forfeiting any penalties for non-compliance. This is known as a grace period. The grace period commences at the point when the decision is taken, i.e. not when the intention to take a decision was sent. The grace period must be reasonable: long enough to remedy the violation, but no longer or shorter.
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#3. Before recovering any penalties, the administrative body will check whether the order has been complied with
As explained above, the administrative body will take two decisions before any penalties will actually have to be paid: (i) the decision to impose an order with conditional penalty payments, and (ii) the recovery order. All of this needs to be based on a proper and verifiable assessment of the relevant facts and circumstances. As a rule, before the administrative body collects a penalty, a check will be performed to see whether the order has meanwhile been complied with. The offender will not always receive prior notice of this inspection.
As for Prime Minister Dick Schoof, it is as yet unclear what steps the Prime Minister will be taking. He may either contest the order by filing an objection and an appeal and then also seek preliminary relief, or comply with the order and vacate the Little Tower.
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What does this mean for you as an interested party?
- The announcement of an order with conditional penalty payments allows the recipient an opportunity to submit their view within two weeks, i.e. to substantiate why the order should not be imposed.
- If you receive an order with conditional penalty payments and wish to contest the (alleged) violation, you will have six weeks in which to file an objection. You can also lodge an objection and an appeal against a recovery order. At that point, however, you can no longer contest the violation.
- It is important to ensure that the violation is terminated before expiry of the grace period, because prior notice of the inspection is not always given.
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Contact
If an order with conditional penalty payments is imposed, it is important to take speedy action. If you have any queries, please do not hesitate to contact our team of administrative law experts. We will be happy to help you.