Once the government had launched its first package of national measures against the spread of the coronavirus COVID-19 on Friday 13 March 2020, a run started on products such as vegetables, bread, pasta, long-life milk, toilet paper and paracetamol. Though the government and the supermarkets have emphasised time and again that there is no reason for panic and that there is more than enough stock, people have continued stocking up. This is an undesirable situation: wide-scale hoarding leads to empty shelves and overburdening of distribution networks and supply chains.
In this, the third in Kennedy Van der Laan’s series of blogs on issues of public law relating to the COVID-19 crisis (see also: ‘What can municipal government and the security regions do to rein in the coronavirus crisis?’ and ‘Should the COVID-19 crisis be considered an emergency?’), we take a closer look at the Dutch Hoarding Act (never applied previously). When can this Act be applied? Which body is competent? And which competences are activated by it?
The Dutch Hoarding Act
In 1962, the government decided that it was advisable to address the phenomenon of ‘hoarding’. According to the government “statutory provisions in this area are necessary because account needs to be taken of the tendency to hoard in exceptional circumstances. (…) Due consideration of this is necessary, because the tendency to hoard goods also manifests itself when an irrational fear exists among the public that such goods are likely to become scarce.” (Parliamentary Papers II 1961/62, 6777, no. 3)
How does the Dutch Hoarding Act work? Section 3 gives the Dutch Minister of Economic Affairs and Climate Policy the competence to set rules to counter the hoarding of goods. Those rules may, for example, consist of ‘a ban on supplying or receiving certain quantities of certain goods within certain time periods’. For example, each person may buy no more than one loaf of bread per week.
The competence of Section 3 of this Act can be activated when ‘exceptional circumstances dictate this’ (Hoarding Act, Section 1). This can happen in two ways. The first route is by Royal Decree, declaring a general or limited state of emergency on the recommendation of the Prime Minister, pursuant to the Dutch Exceptional Situations (Coordination) Act (see our blog ‘Should the COVID-19 crisis be considered an emergency?’). A number of emergency competences are consequently activated, including Section 3 of the Hoarding Act. The second route is to put Section 3 of the Dutch Hoarding Act into operation separately, also by Royal Decree on the recommendation of the Prime Minister.
When do ‘exceptional circumstances’ justify the putting into operation of Section 3 of the Dutch Hoarding Act? What the government had in mind was ‘war, the threat of war and exceptional circumstances in relation thereto’. Situations in which, objectively viewed, no danger of war exists, ‘yet the view prevails among the public that the threat of war exists’ may, according to the government, also give reason to activate Section 3 of the Dutch Hoarding Act (Parliamentary Papers II 1961/62, 6777, no 3). Could the COVID-19 crisis provide sufficient reason to activate Section 3 of the Dutch Hoarding Act? There is no war situation, but as the Prime Minister indicated in his televised address of 16 March 2020, the situation demands measures unparalleled in peacetime.
The explanatory introduction to ‘The modernisation of emergency legislation for Transport, Public Works and Water Management and Economic Affairs’ (Parliamentary Papers II 2003–2004, 29 514, no. 3, p. 5) states that, for activation of emergency competences, two conditions must be met. Firstly, a vital interest must be threatened. Secondly, the normal competences must be inadequate for resolving the issue. It seems entirely plausible to us that the COVID-19 crisis meets these criteria.
Enforcement
Section 6a forms the legal basis for potential enforcement of compliance with the Dutch Hoarding Act. The Minister may appoint supervisory officers. They possess the supervisory powers granted under the Dutch General Administrative Law Act and may call in police assistance if necessary in its application. In case of breach of the Dutch Hoarding Act, the Minister is authorised to apply an administrative enforcement order.
Activation of Section 3 of the Dutch Hoarding Act?
Section 3 of the Dutch Hoarding Act is a far-reaching emergency competence which must not be used frivolously (Parliamentary Papers II 2003–2004, 29 514, no. 3, p. 5). It is an administrative consideration as to whether exceptional circumstances exist necessitating activation of the competence. Where necessity is concerned (proportionality and subsidiarity), the extent to which hoarding may be countered through planning in coordination with the sector will also play an important role. According to recent reports, this is now taking place in relation to medicines. Today, the Dutch state broadcaster NOS reported as follows: “Pharmacies, chemists’, wholesalers and the government have made joint arrangements to prevent people from hoarding. The sale of paracetamol is also being limited, so that it remains available to all; chemists’ are advised to allow customers to purchase no more than three packs of the painkiller.”
