Since Sunday last (15 March), extensive government restrictions to limit the effects of the coronavirus (COVID-19) crisis have been in effect across the Netherlands.
In this, the fourth in Kennedy Van der Laan’s series of blogs on issues of public law relating to the COVID-19 crisis, we discuss the basis and enforcement of those government measures in terms of public law. Please also feel free to browse our previous blogs: ‘What can municipal government and the security regions do to rein in the coronavirus crisis?’, ‘Should the COVID-19 crisis be considered an emergency?’ and ‘Avoiding empty shelves in time of crisis: COVID-19 and the Dutch Hoarding Act’.
The measures taken in response to COVID-19 which took effect at 6 p.m. that Sunday concern the closure of hospitality establishments, sports clubs, saunas, etc. Their implementation also covers the previously announced ban on events and gatherings with more than 100 people in attendance. What is the legal basis for these measures, and how can compliance with them be enforced? Find out more in this blog.
Statutory framework
In our legislation, infectious diseases are categorised into groups. As an infectious disease, the coronavirus COVID-19 has been designated by ministerial regulation in group A. Under Section 7 of the Dutch Public Health Act, the management of efforts to combat any infectious disease in this group rests with the Dutch Minister of Health, Welfare and Sport. The Minister may provide the chairperson of the security region with instructions on “how to set about the task at hand”. This is in line with the Minister's role under Section 6(4) of the Public Health Act: the chairperson of the security region takes responsibility for efforts to combat epidemics of the infectious diseases included in group A.
If decisions by the chairperson of the security region are necessary for the implementation of measures prescribed by the central government, such decisions must fall within that chairperson’s competences. Where the measures declared on Sunday are concerned, the competences granted to the chairperson of the security region under the Dutch Public Health Act are inadequate.
Therefore, the Dutch Security Regions Act has also been brought to bear. Section 39 of that Act provides that, in case of disaster (or the threat thereof) or crisis of more than local dimensions, the chairperson of the security region has exclusive jurisdiction to apply Sections 172 to 176 inclusive of the Dutch Municipalities Act for the purpose of disaster relief and crisis management. These are the mayoral public order competences. In this way, the measures announced on Sunday were also imposed: the chairmen of all 25 Dutch security regions have each adopted an emergency order pursuant to Section 176 of the Dutch Municipalities Act, with all of the aforementioned prohibitions.
The emergency order in case of disaster or the threat thereof
An emergency order may be adopted in case of “riots and civil commotion, other serious disorder or disasters, or where a genuine fear exists that such may occur”. In our opinion, the scope of this competence has not widened simply due to the minister having prescribed the taking of measures under Section 7 of the Dutch Public Health Act. Even in the midst of the COVID-19 pandemic, an open restaurant will not in principle give cause to “riots and civil commotion” or “serious disorder”. We must therefore assume that, in this case, the measures were taken because the coronavirus crisis, or at least further infection, is considered a disaster (or the threat thereof).
Enforcement
An emergency order is a municipal order the breach of which amounts to a criminal offence. Compliance with criminal law may thus also be enforced by public servants whose task it is to investigate criminal offences, such as police officers and special investigating officers. In addition, the chairperson of the security region may provide orders pursuant to article 3 of the emergency order. Moreover, in case of breach of the emergency order, he/she may make use of his/her competences under Sections 174(2) and 172(2) of the Dutch Municipalities Act. The competence under Section 125 of the Dutch Municipalities Act to impose an administrative enforcement order, or order subject to a penalty for non-compliance in the Dutch Security Regions Act, has not been assigned to the chairperson of the security region under legislation.
A ban on cash payments?
Other measures to combat the COVID-19 crisis may lead to amendments to the emergency orders of the security regions. In the news today, it was mentioned that supermarkets have asked that cash payments be prohibited. If it is assumed that an emergency order is a suitable means for keeping this crisis under control, and a ban on cash contributes to doing so, then such a measure could also be imposed by means of emergency order.
Feel free to contact Jan van der Grinten or Jutta Wijmans if you have any questions regarding this article.
