Order under administrative coercion

What we do

The administrative enforcement regulations contain a written decision (an order) by the Mayor and Aldermen to proceed with administrative enforcement.

The application of administrative coercion (or an order subject to administrative coercion) is one of the means for enforcement by administrative bodies against (illegal) conduct. Through this execution, existing violations can be brought into compliance with the standards of the law. This entails that the municipality can take practical measures to resolve situations and bring them into compliance with the law. Prohibitory provisions can constitute a basis for administrative coercion.

In urgent cases, an order subject to a penalty payment may not be imposed. The interested party must be given the opportunity to submit their views. This stage is also referred to as a preliminary notice of administrative enforcement.

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.

What is an administrative enforcement order?

An order under administrative coercion is a remedial sanction regulated in Article 5:21 of the General Administrative Law Act. The order consists of two parts: an order for the complete or partial rectification of the violation, and the authority of the administrative body to execute that order through actual action if you fail to carry it out yourself or fail to do so in a timely manner. Unlike an administrative fine, administrative coercion is not punitive, but aimed at terminating and undoing a violation. For example, the administrative body may order the removal of a structure, the clearing of a site, or the shutdown of a business operation. The legal basis for the authority to apply administrative coercion follows from Article 5:21 and Article 5:22 of the General Administrative Law Act.

The difference between administrative coercion and an order subject to a penalty payment

Administrative coercion and an order subject to a penalty payment are both remedial sanctions, but they operate differently. With an order subject to a penalty payment (Article 5:31d of the General Administrative Law Act), you are given the opportunity to terminate the violation yourself; if you fail to do so, you forfeit a monetary amount per unit of time or per violation. With administrative coercion, the government itself intervenes and rectifies the situation, after which the costs are recovered from you. The administrative body must observe the principle of proportionality when choosing between the two instruments. In urgent situations, administrative coercion is the obvious choice, because an order subject to a penalty payment is precisely not suitable under Article 5:32 of the General Administrative Law Act when immediate intervention is necessary. Related instruments are the administrative fine and the revocation of permits.

The grace period

Before the administrative body takes action itself, in most cases you are granted a period to remedy the violation yourself: the compliance period (Article 5:24, paragraph 3, of the General Administrative Law Act). According to settled case law, this period may not be set substantially longer than necessary to end the violation, but neither may it be shorter. If the period is too short to realize the remediation factually, technically, or organizationally, the decision is open to challenge on that point. For the baker on the corner who needs to modify an installation or for an international group that needs to remediate a site, a reasonable compliance period can make the difference between a workable process and an unfeasible burden. We assess whether the granted period is realistic and, where necessary, mount a defense.

Urgent and highly urgent administrative coercion

In urgent cases, the administrative body may deviate from the normal procedure. Pursuant to Article 5:31 of the General Administrative Law Act, administrative coercion may be applied in urgent cases without a prior order (paragraph 1). In cases of extreme urgency, immediate intervention is possible even without a prior decision and without a grace period (paragraph 2), whereby the decision is subsequently put in writing as soon as possible. Particularly in cases of urgent administrative coercion, rapid legal assessment is crucial, as actual implementation has often already taken place before you can respond.

Cost recovery in cases of administrative coercion

If the administrative body actually applies administrative coercion, the costs thereof shall in principle be borne by you (Article 5:25 of the General Administrative Law Act). The administrative body must indicate in the decision in advance that the costs will be recovered, and only the necessary, reasonable, and actually incurred costs may be charged. The costs are recorded in a separate cost decision, against which you may lodge a separate objection. We assess whether the invoiced costs are proportionate to the measures taken and whether the administrative body has complied with the procedural requirements.

The principle of enforcement

An administrative body that identifies a violation is, in principle, obliged to take enforcement action: the so-called principle of mandatory enforcement. Enforcement may only be refrained from in exceptional circumstances, for example, when there is a concrete prospect of legalization because a permit application is pending that is expected to be granted, or when enforcement would be disproportionate in relation to the interests to be served thereby. A toleration decision or a successful appeal based on the concrete prospect of legalization may stand in the way of enforcement. Our lawyers and in-house counsel investigate whether there are grounds that require the administrative body to refrain from administrative coercion.

Objection, appeal and preliminary relief

You may lodge an objection against a decision imposing an administrative coercion order with the administrative body within six weeks. An objection does not automatically suspend the effect of the decision: the compliance period continues to run and the government can maintain enforcement. If immediate intervention would cause you irreparable harm, you may additionally request a preliminary injunction from the administrative court to have the decision suspended until a decision has been made on the objection or appeal (Article 8:81 of the General Administrative Law Act). After the decision on the objection, an appeal is open to the District Court and subsequently an appeal to the Administrative Jurisdiction Division of the Council of State. Because the objection period of six weeks is short and is not suspended, it is advisable to seek legal assistance in a timely manner.

Defense against an administrative enforcement order

An administrative enforcement order can be challenged on various grounds. We assess whether a violation has actually occurred, both factually and legally, whether you can be classified as an offender, whether the compliance period is reasonable, whether there is a concrete prospect of legalization, and whether the decision complies with the principles of proportionality and due care. We also critically review the amount and substantiation of the cost recovery. At MKB Juristen, lawyers and in-house counsel work together, enabling us to assist both international enterprises and local entrepreneurs, from the initial statement of views to potential proceedings before the administrative court.

Supervision and Enforcement

Orders subject to administrative coercion are part of our broader area of ​​expertise, Supervision and Enforcement. Within this legal field, we also advise on and litigate regarding orders subject to penalty payments, administrative fines, the revocation of permits , and enforcement warnings. Please contact us to discuss your situation without obligation.