During the press conference of Monday 23 March 2020, a package of supplementary measures to address the COVID-19 crisis was announced. Further details and the specifics of those measures were presented on 24 March 2020.
In this blog, we discuss those new measures, their legal basis and the manner in which they have been implemented.
This blog is the eighth in Kennedy Van der Laan's series on issues of public law in relation to the coronavirus crisis. See also: ‘What can municipal government and the security regions do to rein in the coronavirus crisis?’, ‘Should the COVID-19 crisis be considered an emergency?’, ‘Avoiding empty shelves in time of crisis: COVID-19 and the Dutch Hoarding Act’, ‘The legal basis for measures to combat COVID-19 in the hospitality and events industry’, ‘The COVID-19 crisis: how does a lockdown work?’, ‘The requisitioning of surgical masks’ and The nursing homes’ measure: announcement demands more than a press conference!.
The ministerial order
In the imposition of the new measures of 23 March, the same methodology was used as had been in the case of the previous measures. We have described that methodology in a previous blog. Put briefly, it involves the minister ordering the chairs of the 25 Dutch security regions under Section 7 of the Dutch Public Health Act to implement the measures decided upon by the government. They must do so by making use of their public order powers.
The measures announced on 23 March (we refer to these hereinafter as: ‘the Order’) are as follows:
- Events with licensing and reporting obligations are prohibited until 1 June 2020.
- All other gatherings are prohibited, with a few exceptions:
- gatherings required by law (max. 100 persons), such as municipal council meetings and those of the Dutch States General;
- gatherings which are necessary to the continuation of the daily activities of institutions, companies and other organisations (max. 100 persons);
- funerals and marriage solemnisations (max. 30 persons);
- gatherings of a religious or ideological nature (max. 30 persons).
- Any such gatherings may only proceed if all of the hygiene measures designed to combat the coronavirus are complied with and people maintain a distance of 1.5 metres from one other.
- Casinos, amusement arcades and other such institutions are to be closed. Businesses where professions requiring physical contact aimed at the maintenance of outward appearance are practised, such as hairdressers’ salons and nail bars, will also have to close their doors.
- All professions involving physical contact whereby it is not possible to maintain a distance of 1.5m to customers are prohibited. This applies, for example, to masseurs, hairdressers, nail technicians, escort services and driving instructors. An exception will be made for the provision of such services to health and allied health professionals where individual medical grounds exist and the practitioner can comply with all hygiene requirements.
- Shops and markets must be closed and public transport services cancelled if the applicable hygiene measures and 1.5m distance are not duly or sufficiently observed.
- Locations such as holiday parks, camping sites, parks, nature conservation areas and beaches must be closed if the applicable hygiene measures and 1.5m distance are not being duly or sufficiently observed, or if such threatens to be the case.
Gathering in groups (whether impromptu or not) in public areas is prohibited. The government defines a group here as three or more people who do not maintain a distance of 1.5m between themselves. People who collectively comprise a household are not considered a group gathering. Neither are children aged up to 12 years old playing together considered to be gathering in a group while under the supervision of one or more parents or guardians, provided the parents and/or guardians maintain a distance of 1.5m between themselves.
Instructions for implementation
As already mentioned, it is up to the chairs of the security regions to implement these measures. Under Section 39(1) of the Dutch Security Regions Act in combination with Section 176 of the Dutch Municipalities Act, each chair is empowered to enact an emergency bylaw (regional or otherwise) for that purpose.
The minister has provided instructions for this: the aforementioned measures 2 and 3 must be included in any emergency bylaw. According to the instructions, measures 4 to 7 inclusive must “be included in the emergency bylaw in such form that enforcement thereof is possible where required”.
The emergency bylaw
Today (26 March 2020), the scope of the model emergency bylaw became clear. Let us highlight a few of its more interesting aspects. We would assume that the emergency bylaws which are to apply everywhere will have been derived to a considerable extent from the model emergency bylaw, though a difference between the latter and the emergency bylaw of the security region of Zuid-Holland was immediately obvious to us. Article 2.3 of that bylaw imposes a general prohibition on markets (subject to exceptions) not contained in the model bylaw. Please note that where reference is made below to the emergency bylaw, we mean the model bylaw.
Gatherings
The ban on allowing gatherings to commence or take place, on the organisation of gatherings or having these organised by third parties, as well as on any participation in such gatherings (article 2.1) is particularly striking. The concept “gatherings” is defined in the bylaw such that it also includes “gatherings outside public areas”. The ban therefore also applies to gatherings in people’s homes.
We have devoted a separate blog to this conspicuous and very far-reaching prohibition.
Gathering in groups
The emergency bylaw contains a prohibition on gathering in groups in public areas (point 7of the Order). With the exception of families and children at play, being present in public areas in groups of three or more people without maintaining a distance to the closest person in that group and others of at least 1.5 metres (article 2.2) is prohibited.
Though the instruction in the Order states that this measure must be included in the bylaw such that enforcement becomes possible when required, the prohibition now applies directly, without further instructions, to those failing to comply with it.
Designation of prohibited areas
Under article 2.5 of the emergency bylaw, the chair of the security region may designate specific areas and locations which all and sundry are prohibited from visiting. Under this article, for example, markets, shops, camping sites, beaches and outdoor children's play areas may be designated as prohibited areas. This may be the case when a certain place becomes busy and some of those present fail to comply duly or sufficiently with the 1.5 metre distance and/or hygiene rules. The derogating article 2.3 of the emergency bylaw of the province of Zuid-Holland applying to markets, which contains a directly applicable general prohibition, is therefore more stringent than this provision.
Schools and nursing homes
The emergency bylaw also covers (previously announced) measures for schools and childcare facilities (17 March 2020) and nursing homes/small-scale types of housing in the elderly care sector (20 March 2020). Where nursing homes are concerned, since 20 March it has been the case that these institutions are closed to visitors and any others whose presence is not required in the provision of basic care. In an earlier blog we described how, on the basis of the minister’s order, its enforcement lay primarily with the nursing homes and small-scale types of housing themselves, on private-law grounds. In principle, therefore, an emergency bylaw was unnecessary. On the basis of the letter from (former) Minister Bruins to the security regions – published by VNG (the Association of Netherlands Municipalities) - we determined that the same methodology was used for schools. For these too, it was clear from the letter, it would only be necessary to intervene on an occasional basis should problems arise, for example by means of an emergency order.
Since then, the public-law route has, after all, been taken in respect of the measures for schools and nursing homes. In relation to school/childcare and nursing homes/housing for the elderly, the emergency bylaw contains the previously announced prohibitions, with the exceptions applicable thereto (articles 2.7 to 2.9).
Enforcement
Acting contrary to the provisions of the bylaw is punishable by law under Section 443 of the Dutch Criminal Code. Breach of the bylaw is punishable with a maximum term of imprisonment of three months, or a second-category fine. A second-category fine may be up to a maximum of € 4,350. For legal entities, a maximum fine of € 8,700 applies when the former maximum is not deemed appropriate.
The website of the Dutch central government states that the exact amount of the fine has yet to be fixed. “You can expect a fine of up to € 400. For companies, this fine may be up to € 4000.”
The notes to the bylaw also state that the chair of the security region may impose an administrative enforcement order or order subject to a penalty for non-compliance (Section 125 of the Dutch Municipalities Act in conjunction with Section 39 of the Dutch Security Regions Act). We doubt whether that is correct, because the legislative branch fails to assign the power under Section 125 of the Municipalities Act to impose an administrative enforcement order or order subject to a penalty for non-compliance under the Security Regions Act to the chair of the security region. The explanatory notes do not make clear the source from which the chair might nonetheless derive such powers of enforcement under administrative law.
Conclusion
If you have any further questions in relation to this article, please do not hesitate to contact either Jan van der Grinten, Jutta Wijmans or Anita van den Berg.
