Dutch supervisory bodies regularly use inspections to carry out administrative supervision. However, national supervisory bodies, such as the Inspectorate SZW or the Human Environment and Transport Inspectorate, are not the only ones that carry out administrative supervision. Local supervisory bodies, such as the municipality, province or environmental service, also regulate in this way. This blog in our FAQ series serves to provide a number of practical tools for those under administrative supervision.
Please note: the blog below only pertains to administrative inspections. The moment an administrative law supervision shifts to an investigation focusing on punishment (for example by imposing an administrative fine or criminal prosecution), there is no longer any obligation to cooperate with a demand for information. This blog post is based on the supervisory powers of the Dutch General Administrative Law Act (Awb). Special legislation may derogate from this.
In practice, we see that companies are not always fully aware of their rights and obligations and usually adopt an open and transparent attitude during an administrative inspection. A good relationship between the supervisory body and those under supervision is important, and when both parties know their legal rights and obligations, the relationship between them remains sound. Below, we will explain the rights and obligations of companies with regard to supervision, including a number of practical tips.
Powers of the supervisory body
Supervisory bodies have the authority under the General Administrative Law Act (Awb):
- to enter premises (Article 5:15 Awb);
- to demand information (Article 5:16 Awb);
Please note: this power is limited to facts. There is no obligation to express an opinion.
- to demand to inspect proof of identity (Article 5:16a Awb);
- to demand access to business information and documents and to make copies thereof (Article 5:17). This sometimes means that documents may be taken away for some time to make copies;
Please note: In practice, we notice that parties often do not register what has been taken. You should keep a record of this for your own documentation.
- to examine cases and to take samples thereof (Article 5:18 Awb); and
- to examine means of transport (Article 5:19 Awb).
Please note: these powers are limited by the duty to assist (see below) and the principle of proportionality. This means that a supervisory body may only make use of its powers to the extent that this is "reasonably necessary for the performance of its duties" (Article 5:13 Awb).
Obligation to cooperate (duty to assist: Article 5:20 Awb)
In order to ensure that a supervisory body is actually able to exercise the aforementioned powers, a duty to assist has been included in the General Administrative Law Act. The duty to assist means that everyone is obliged to cooperate with a supervisory body (Article 5:20(1) Awb).
- Who has to cooperate? Everyone is obliged to cooperate with a supervisory body (Article 5:20(1) Awb). In principle, therefore, the circle of 'persons obliged to cooperate' is unlimited. Because a supervisory body may only make use of its powers to the extent 'reasonably necessary for the performance of its duties' (Article 5:13 Awb), there is still a limit as to who can be required to cooperate. For example, the duty to assist rests only on persons involved in the activity being monitored. Incidentally, the duty to assist does not apply to persons subject to an obligation of confidentiality (Article 5:20(2) Awb).
- The duty to assist is limited: The duty to assist only applies if what the supervisory body is requesting is necessary for the exercise of its powers. This includes the general powers of the General Administrative Law Act, but also any powers granted to a supervisory body by a special law.
- Cooperation can take any form. The manner or form of required cooperation is not defined, and is therefore essentially unlimited. For example, under this heading falls the provision of information, potentially remaining at a location if asked to do so, or even the transfer of certain cases.
- Truth: The obligation to provide information or the duty to assist also consists of the obligation to provide information truthfully if a supervisory body so requests.
- Sanctions for non-cooperation: The duty to assist can be enforced both under administrative law and criminal law.
The possible enforcement of the duty to assist against non-cooperation under administrative law, e.g. with an order subject to a penalty payment or an administrative fine, must then be regulated by a special law. Examples include Article 28b of the Working Conditions Act, Article 1:80 of the Financial Supervision Act and Article 44 of the Licensing and Catering Act.
Possible enforcement against non-cooperation under criminal law follows directly from the law (Article 184 of the Penal Code), but only if the non-cooperation is intentional.
Above, we have set out a number of rights and obligations for both the supervisory body and parties under supervision. It is important for a sound inspection that both the supervisory body and the party under supervision are aware of their respective rights and obligations.
You can find a Dutch translation of this blog here