Enforcement warnings

What we do

The government, special enforcement officers, the police, or employers have the authority to warn the offender. They may choose to warn the offender instead of imposing a sanction. A warning does not entail immediate consequences. If the offender ignores the warning, a sanction follows. In that case, there is indeed a consequence.

An official warning is sent by letter or email. This warning must describe what actually occurred and when the incident took place. It must also state the consequences for a repetition of the behavior, for example. There is no statutory time limit set for how long an official warning remains valid.

It is possible to lodge an objection if you disagree with the warning. However, it is important to respond to the warning in writing. Important information that must be included:

• Disagree with the warning
• Why you disagree with the warning
• The question whether the warning can be withdrawn
• To include the response in the (personnel) file.

When organizations encounter enforcement issues, it is advisable to seek expert legal advice. We have extensive experience with enforcement issues and procedures. Contact us to discuss the possibilities.

The enforcement warning within supervision and enforcement

The enforcement warning is often the first step on the enforcement ladder. Within the broader framework of Supervision and Enforcement, an administrative body concludes, following a check or inspection, that a regulation has been violated. Instead of imposing a sanction immediately, the body often chooses to issue a warning first and give the offender the opportunity to rectify the violation. This is related to the so-called principle of mandatory enforcement: an administrative body that identifies a violation ought, in principle, to take enforcement action, unless special circumstances militate against it or there is a concrete prospect of legalization. A warning is therefore a proportionate first measure, but it does initiate a process that can escalate to more severe measures. Our lawyers and in-house counsel know this playing field inside out and assist both international corporations and the baker on the corner.

Is an enforcement warning a decision against which an objection is possible?

This is legally the most decisive question, and the answer is: it depends. The general rule is that a warning is not a decision within the meaning of Article 1:3 of the General Administrative Law Act (Awb), so that no objection or appeal is available against it. The Administrative Jurisdiction Division of the Council of State refined this in its ruling of 2 May 2018 (ECLI:NL:RVS:2018:1449), following the conclusion of Advocate General Widdershoven of 24 January 2018. In it, three types of warnings are distinguished:

• The statutory warning – based on a statutory provision. This is an appealable decision when the warning is a necessary condition for imposing a sanction or measure in the event of a subsequent violation. The warning is then an 'essential and inseparable' part of the sanctions regime.
• A warning based on a policy rule – in principle not a decision, unless the warning is so burdensome that effective legal protection would otherwise become illusory.
• The informal warning – the residual category, usually not a decision.

For warnings based on a policy rule or informal warnings, the Division applies a rule of thumb of a maximum validity period of two years. Confirmed in subsequent case law: with a warning with a term of up to two years, it may in principle be assumed that the possibility of an effective defense is not undermined. If the effect lasts longer, the warning may still qualify as a decision. Whether or not your warning is appealable therefore requires a careful legal analysis of the basis and the consequences.

How do you respond to an enforcement warning?

Whether the warning constitutes a formal decision or not, remaining inactive is rarely wise. We advise always responding in writing and with reasons, so that your account of the facts is documented for any potential future proceedings. Depending on the situation, there are several routes:

• Statement of views – if there is an intention to issue an enforcement decision, you may submit a statement of views pursuant to Article 4:8 of the General Administrative Law Act (Awb) before the decision is taken.
• Objection – if the warning qualifies as a decision, an objection period of six weeks applies after notification. After that, an appeal to the administrative court is possible.
• Request for withdrawal – you can ask the administrative body to withdraw the warning; the refusal to withdraw may also constitute a decision under certain circumstances.
• Remediation – by ending the violation in a timely manner, you prevent the process from escalating to a sanction.

Our legal experts and lawyers assess which route yields the best results in your case and conduct the consultations or proceedings where necessary.

What happens if you ignore the warning?

If the violation is not rectified after a warning, the administrative body may proceed to an enforcement decision. The usual instruments are:

• the order subject to a penalty payment (Articles 5:31d and 5:32 of the General Administrative Law Act), whereby you forfeit a sum of money if you fail to comply with the order or do not comply in a timely manner;
• the order under administrative coercion (Article 5:21 of the General Administrative Law Act), whereby the government itself terminates the violation (at your expense);
• the administrative fine (Article 5:40 of the General Administrative Law Act), a punitive sanction that imposes an unconditional payment obligation on you.

If you forfeit a penalty payment, a collection order usually follows . Precisely because a warning can be the prelude to these measures, it pays to seek legal advice early.

Frequently asked questions about enforcement warnings

How long is an enforcement warning valid?
By law, there is no fixed validity period. However, for warnings based on a policy rule, the administrative court applies a rule of thumb of a maximum of two years; if the effect lasts longer, the warning may still be classified as a decision.

Can I object to an enforcement warning?
Only if the warning is a decision within the meaning of Article 1:3 of the General Administrative Law Act (Awb). This is generally the case with a statutory warning that serves as a condition for a sanction in the event of a subsequent violation. In other cases, it is better to respond via a statement of views or a request for withdrawal.

What is the difference between a warning and a sanction?
A warning in itself has no direct financial or factual consequence; a sanction, such as an order subject to a penalty payment or an administrative fine, does. The warning gives you the opportunity to rectify the violation before the administrative body proceeds to enforcement.

Does this also apply to small business owners?
Yes. From an international corporation to the baker on the corner: any entrepreneur can face an enforcement warning. Our mixed teams of lawyers and in-house counsel assist clients of all sizes.