In our blog ‘The additional coronavirus measures of 23 March 2020: what and how?’, we examine the legal architecture of the measures announced by the government during its press conference of 23 March 2020. Put briefly, the ministers in question ordered the chairs of the 25 Dutch security regions to implement those measures through the enactment of emergency orders in the form of bylaws. The chairs of the security regions are empowered to do so under Section 39(1) of the Dutch Security Regions Act in combination with Section 176 of the Dutch Municipalities Act.
Since then, the national model bylaw has been presented and a number of regional emergency bylaws published. The model bylaw's regulations concerning gatherings are of particular interest. Not only are gatherings in public areas prohibited, but also those outside public areas. We believe that these regulations run contrary to the principle of legal certainty.
Ban on gatherings
What are the model bylaw's provisions in respect of gatherings? Article 2.1 prohibits ‘the allowing of gatherings to commence or take place, the organisation of gatherings or having these organised by third parties, as well as any participation in such gatherings’. ‘Gatherings’ are defined as: ‘public gatherings and amusements as referred to in Section 174 of the Municipalities Act, gatherings in buildings open to the public and their appurtenant grounds, as well as on watercraft, and gatherings outside public areas’ (article 1.2, our emphasis).
According to the explanatory notes to the model bylaw, gatherings outside public areas come under the prohibition on gatherings in order that action may be taken against e.g. ‘corona parties’ in student residences, garages, warehouses etc.
Criticism
The ban on gatherings outside public areas is first and foremost striking given that during the press conference, Minister Grapperhaus only provided recommendations in relation to gatherings involving other people at home. He ‘urgently advised’ against arranging meeting of more than three people at home in the short-term. The government is also recommending that parties due to be held be postponed for the time being (see also ‘Veelgestelde vragen over de aanpak in Nederland’ [‘FAQs regarding the Dutch approach’], published (in Dutch) on www.rijksoverheid.nl). Should we not conclude from this that the government does not desire to impose any binding measures on that which happens behind people’s front doors?
Considering that the chairs of the security regions are empowered to establish such far-reaching bans, we find the present prohibitory provision problematic because it does not make clear when a group of people getting together should be considered a gathering that is potentially punishable by law. What meets the definition of a gathering outside public areas? Does this include birthday parties? And would that then also include small-scale birthday parties? How does the broader definition of the concept relate to the government's recommendation not to receive more than three visitors? At what point does the definition of a gathering no longer apply? The model bylaw does not provide any clear answers to these questions. The concept ‘gathering’ is not quantified. Strictly speaking, all get-togethers involving a number of people are included.
The concept ‘gathering’ is therefore not clearly defined and, moreover, no exceptions are included in the model emergency bylaw such as those concerning the prohibition on keeping a distance of 1.5 metres from others in public areas (article 2.2). Those who constitute a household are excepted from this. By failing to include such exceptions in the prohibition on gatherings, a family could potentially also be viewed as a prohibited gathering outside public areas. It is also unclear whether children of up to twelve years of age must be included in determining whether the criteria for a gathering at home have been met. From the government's Order, it may be concluded that they are still allowed to play with each other.
Lex certa (the principle of maximum legal certainty)
It will not be clear to citizens when a meeting outside public areas is a gathering banned under an emergency order. This is inconvenient, because acting contrary to an emergency order is punishable by law (Section 443 of the Dutch Criminal Code). Citizens may be punished with imprisonment of up to three months or a maximum fine of € 4,350. The unclear standards are in our view contrary to the lex certa principle (the principle of maximum legal certainty aimed at the prohibition of indeterminate legal provisions). This principle requires legislators - here, the chairs of the security regions - to define any prohibited behaviours as clearly as possible with a view to legal certainty. A citizen must be able to know the behaviours for which he/she may be punished.
Conclusion
If you have any further questions in relation to this article, please do not hesitate to contact either Anita van den Berg, Jan van der Grinten or Jutta Wijmans.
