Enforcement decisions

Enforcement decisions

Government agencies and administrative bodies are charged with supervision and the enforcement of legislation. This can range from the violation of a (catering) permit to an inspection by a supervisory authority (for example, the Inspectorate SWZ). Government agencies and administrative bodies have a number of enforcement tools at their disposal, such as:

• Administrative fine
• Order under administrative coercion
• Order subject to a penalty payment
• Collection order
• Revocation of permits
• Enforcement warnings

When organizations encounter enforcement issues, it is advisable to seek expert legal advice. We have extensive experience with enforcement issues and procedures. Do you have questions regarding supervision and enforcement? Please contact us.

Restorative sanctions versus punitive sanctions

Legally, an enforcement decision is divided into two types of sanctions, and this distinction determines your defense. Remedial sanctions are aimed at ending the violation or undoing the consequences: the order subject to a penalty payment (Article 5:31d of the General Administrative Law Act) and the order subject to administrative coercion (Article 5:21 of the General Administrative Law Act). In these cases, you are granted a grace period to put matters in order yourself; if you fail to do so, you forfeit a penalty payment or the administrative body implements the measure at your expense. Punitive sanctions, such as the administrative fine (Article 5:40 of the General Administrative Law Act), are intended to inflict suffering for a violation committed. Stricter safeguards apply to the latter, including the proportionality test of Article 5:46 of the General Administrative Law Act and the right to remain silent. Whether you are an international corporation or the baker on the corner: the correct classification determines which grounds have a chance of success.

The procedure: from notice of intent to appeal

Before an administrative body takes enforcement action, you usually receive a notice of intent on which you may submit your views (Articles 4:8 and 4:11 of the General Administrative Law Act). This is the first, often underestimated, opportunity to influence the decision-making process. If you disagree with the final enforcement decision, you must lodge an objection within six weeks (Article 6:7 of the General Administrative Law Act). If the objection is rejected, an appeal is available to the District Court and subsequently an appeal to the Administrative Jurisdiction Division of the Council of State. Anyone who allows the objection period to expire is faced with a decision that acquires formal legal force and is, in principle, unassailable. Our lawyers and in-house counsel monitor these deadlines and handle the proceedings from start to finish.

Interim injunction: stop enforcement in a timely manner

An objection or appeal does not automatically suspend the enforcement decision. The compliance period continues to run, and penalty payments may become due while your proceedings are still ongoing. To prevent this, you can ask the preliminary relief judge for a preliminary injunction (Article 8:81 of the General Administrative Law Act): an urgent measure that suspends the effect of the decision until a decision has been made on your objection or appeal. In the event of imminent business closure or accumulating penalty payments, speed is of the essence. We assess whether an expedited procedure has a chance of success and, where necessary, submit the request within a few days.

Collection order and cost recovery

If you forfeit a penalty payment or the administrative body exercises administrative coercion, a separate decision follows: the collection order (Article 5:37 of the General Administrative Law Act) or the cost recovery decision. Importantly, an ongoing objection or appeal against the order based on Article 5:31c of the General Administrative Law Act (administrative coercion) and Article 5:39 of the General Administrative Law Act (penalty payment) automatically also relates to that collection, provided you expressly contest it. Statute of limitations also plays a role here: a forfeited penalty payment generally lapses after one year (Article 5:35 of the General Administrative Law Act). We monitor both the collection and the limitation periods to ensure you do not pay unnecessarily.

Commonly used defensive grounds

An enforcement decision by no means always holds up. Common grounds on which we successfully defend ourselves are:

• No violation: factually or legally, there is no violation.
• Concrete prospect of legalization: a permit has been applied for or can be granted, so that enforcement should be dispensed with.
• Exceptional circumstances: having regard to the principle of the duty to enforce, enforcement may be waived under certain circumstances.
• Proportionality: the sanction or the amount of the penalty payment is not proportionate to the violation (Article 3:4 General Administrative Law Act).
• Incorrect addressing: the notice is directed to the wrong party, for example the landlord instead of the offender.

Which grounds have a chance of success depends on your case file. We first conduct a factual and legalization investigation and assess proportionality before constructing your defense.

Administrative law in context

Enforcement decisions rarely stand alone. They are often linked to an environmental permit, an issue within environmental law , or a revoked catering license. An enforcement process therefore requires a broad administrative law perspective. View our Administrative Law for a complete overview of our services, from subsidies to environmental permits.

Frequently asked questions about enforcement decisions

How much time do I have to object to an enforcement decision?
In principle, six weeks after the decision is announced (Article 6:7 of the General Administrative Law Act). Do not wait: the sooner we review the case, the more room there is for a strong statement of views or notice of objection.

Does my objection stop the penalty payment?
No. An objection does not suspend the decision. If you wish to prevent the forfeiture of penalty payments or a business closure, you must apply for a preliminary injunction from the preliminary relief judge (Article 8:81 of the General Administrative Law Act).

What is the difference between a penalty payment and an administrative fine?
An order subject to a penalty payment is a remedial sanction that incentivizes you to end the violation; an administrative fine is a punitive sanction for a violation already committed. With a fine, additional safeguards apply, such as the right to remain silent.

Do you also work for small business owners?
Yes. Our mixed teams of lawyers and in-house counsel assist international corporations as well as independent entrepreneurs and SMEs in enforcement matters.