In a very short space of time, the COVID-19 crisis has put the healthcare system under enormous pressure, and this looks set to increase significantly. Surgical masks are essential for healthcare professionals providing treatment to coronavirus patients. As a consequence, hospitals have seen their supplies diminishing rapidly. Despite the voluntary donation of surgical and other masks to healthcare institutions from a variety of sectors (including the construction, poultry and education sectors), shortages are growing. The Dutch National Acute Care Network (Landelijk Netwerk Acute Zorg) has referred to this scarcity as ‘alarming’ (source: RTL Nieuws).
During the Parliamentary Debate of 18 March 2020, former minister Bruins initially stated that he wished to obtain surgical and other masks from other sectors acting on a voluntary basis. Following harsh criticism from the Dutch Lower House of Parliament (Tweede Kamer), he made the decision to requisition surgical masks instead.
In this blog, we discuss the legal basis for the ministerial requisitioning of surgical masks. This is the sixth blog in Kennedy Van der Laan’s series 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?’, ‘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’ and ‘The COVID-19 crisis: how does a lockdown work?’).
The Dutch Requisition Act
The Requisition Act gives all ministers the competence to assume rights of ownership or use of property. This is provided for under Section 3a of the Requisition Act. This provision is one of the emergency competences which may be brought to bear if ‘exceptional circumstances necessitate this’ (Section 3, Requisition Act). The explanatory memorandum to the Act explicitly refers to ‘extensive epidemics’ in relation to this (Parliamentary Papers II, 1958/59, 5348, no. 3). However, some of this legislation’s original meaning has been lost due to the ‘The modernisation of emergency legislation for Transport, Public Works and Water Management and Economic Affairs’. The explanatory memorandum pertaining thereto (Parliamentary Papers II 2003–2004, 29 514, no. 3, p. 5) states that two conditions must be met in order for emergency competences to be activated. Firstly, a vital interest must be threatened. Secondly, the normal competences must be inadequate for resolving the issue. This appears to be the case, given the acute distress caused due to lack of surgical masks in the healthcare industry and the importance of surgical masks in the protection of healthcare professionals and patients.
The competence under Section 3a can be activated 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 may be activated in this way, including Section 3a of the Requisition Act. The second route would be to put Section 3a of the Requisition Act into operation separately, also by Royal Decree on the recommendation of the Prime Minister.
When, though, may the activated Section 3a of the Requisition Act be used? According to this provision, “this [must be] necessary with a view to the representation of the interests of matters of concern to them”. Here, “of concern to them” means “of concern to the ministers”. The requisitioning of the surgical masks will be done in the interests of public health. The necessity of having enough surgical masks available to healthcare professionals must be weighed against the interests of the companies and institutions in possession of such surgical and other masks being forced to hand them over. The expected results of attempts to have sectors voluntarily hand over surgical and other masks must be given due consideration in any such an assessment. If we base ourselves on current reports, the amount supplied in this way would appear to be insufficient.
There is clearly a role for the Minister of Economic Affairs and Climate Policy in the coordination of this matter. He would need to approve any requisitioning a minister might order, and consult with the ministers responsible for interests likely to be affected by the requisitioning, except where this is not possible due to reasons of urgency (Section 5).
The requisition would be done by way of ministerial order. That order concerns the goods being requisitioned - the surgical and other masks - and would have the effect that the State or an appointed third party (in this case, the healthcare institutions) would obtain the right of ownership of the goods.
The announcement must take place by individual post or hand delivery or by general announcement (Section 9). The latter is the most likely in case of the requisitioning of surgical masks, given that a large number of surgical masks would be involved, located with various people, companies and institutions. A restriction may also be introduced to prevent everyone who has a few surgical masks at home from having to hand them over. The order must then be published in the Dutch Government Gazette (Staatscourant) (Section 9).
For the purpose of enforcing the requisition, the Minister is competent to impose an administrative enforcement order.
If the Requisition Act is used to requisition surgical masks, this may come accompanied with the application of the Dutch Rationing Act. On the basis of the latter Act, a prohibition may be imposed on the purchase, sale, offering for sale, supply or stocking of goods subject to rationing. This matter will be addressed later in our series on issues of public law around the COVID-19 crisis.
Do you have any questions about the article? Please do not hesitate to contact Anita van den Berg and/or Thomas van Zon.
