The coronavirus outbreak has hit public life in many countries hard. States of emergency have now been declared in the United States and also in Spain. Far-reaching measures have also been taken in the Netherlands. So far, the state of emergency has not been declared in our country, but it is perfectly possible that this will still be done. Even if that is not the case, emergency powers enshrined in various laws may be activated due to the coronavirus crisis.
In the coming period, we will regularly publish blog posts covering the public-law consequences of the coronavirus crisis (see our blog of 12 March 2020 ‘What can the municipalities and the Security Regions do to curb the coronavirus crisis?’). In this blog post we focus on the power to declare a state of emergency. Who is authorised to do this? When can this power be invoked? What are the legal consequences of doing so?
The Dutch Emergency Situations Coordination Act
The possibility for declaring a state of emergency is laid down in the Emergency Situations Coordination Act. This is, itself, based on Section 103(1) of the Dutch constitution. According to this provision, the legislator establishes rules regarding instances in which an exceptional situation can be declared 'in order to maintain external or internal security' and the consequences thereof. This is a far-reaching legislative power. The legislator is allowed to depart from the standard distribution of powers of the executive bodies of the provinces and municipalities, public bodies referred to in Section 132a and the water boards. The legislator can also apply a different interpretation to a number of classic constitutional rights, such as the freedom of religion (insofar as this is exercised outside of buildings and enclosed locations), the freedom of expression, the freedom of association and the freedom of assembly and demonstration (Section 103(2) of the Dutch Constitution).
A state of emergency is declared by a government decision (royal decree), as put forward by the Prime Minister. That can occur if 'extraordinary circumstances cause it to be necessary'. When is this the case? As is evident from the legislative history, the situation must be one in which a vital interest is under threat and in which the normal powers are insufficient to resolve the problem. The term 'vital interests' covers, for example, physical safety, enforcement of public order and economic security (TK 2003–2004, 29 514, no. 3, p. 5). In view of the potential scope and seriousness of the coronavirus outbreak in the Netherlands, we can certainly imagine a situation like this occurring.
The general and limited state of emergency
The law provides for two forms of state of emergency: the ‘general’ and ‘limited’ states of emergency. These two types of states of emergency are mutually exclusive. If the general state of emergency is declared, while the limited state of emergency is in force, the limited state of emergency will automatically end (by operation of law) and vice versa.
Various laws include provisions which are inoperative and when a general or limited state of emergency is declared, those provisions are 'activated'. This makes it possible to exercise powers which are not available in normal situations.
The difference between the limited and general states of emergency has to do with the scale of powers that come into effect. In the case of the general state of emergency that applies to more provisions than in the case of the limited state of emergency (even though there is a lot of overlap). The provisions which come into effect in the event that a limited state of emergency is declared are summarised in list A, which is part of the Emergency Situations Coordination Act. List B details the provisions which are activated in the event of the general state of emergency.
We would like to point out that these provisions can also be activated without a general or limited state of emergency being declared. This is because, in the event of extraordinary circumstances, the laws in question offer the possibility of their powers being activated in emergency situations by a separate royal decree. However, the general or limited state of emergency offers the advantage that the powers in list A or list B can all be activated at the same time, by a single royal decree. It goes without saying that the activated powers do not then (all) have to be used. The possibility for doing so is then, in any event, available and the powers can be exercised as soon as the situation gives cause to do so.
Examples
By way of an illustration the following are some of the powers which can be activated when a state of emergency is declared. The Dutch Minister of Justice and Security and the King's Commissioner are authorised to limit outdoor activities (Dutch Civil Authority Special Powers Act [Wet buitengewone bevoegdheden burgerlijk gezag]). The Dutch Minister of Economic Affairs and Climate Policy is authorised to set rules relating to hoarding goods (Dutch Hoarding Act [Hamsterwet]). The Dutch Minister of Infrastructure and Water Management can order the closure of ports (Dutch Harbour Emergency Act [Havennoodwet]). In a specific case, the King's Commissioner can give the necessary instructions in relation to disaster management and the Dutch Minister of Justice and Security can, in turn, instruct the King's Commissioner to issue said instructions (Dutch Security Regions Act [Wet Veiligheidsregio's]).
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