Passing on Wav fines a thing of the past?

The Foreign Nationals Employment Act (Wav) aims to prevent foreign nationals from working in the Netherlands without a work permit. A chain of parties can be held liable for one and the same violation of the Wav. For example, a client and contractor can be fined if it appears that a subcontractor keeps an employee working on the construction site without a work permit. The idea behind this is that each party has its own responsibility to comply with the obligations arising from the Wav.

Both civil courts and the Court of Arbitration for Construction have ruled that one party's fine cannot be passed on to the other party (who actually employed the illegal immigrants) unless the parties have expressly agreed on this possibility of passing on the fine.

On December 16, 2014, however, the Court of Appeal in Den Bosch issued a judgment that appears to put an end to the possibility of contractual passing off. The court considered - put in very simplified terms - that such contractual passing off could cause a party to no longer have an incentive or feel a deterrent to comply with its own monitoring obligation. Thus, the penalty system could be unacceptably impeded, threatened or undermined. In such a case, the contractual settlement clause may be void for breach of public policy.

Because the Court of Appeal in Den Bosch still gives parties in the proceedings the chance to take a position on the possible nullity of the contractual clause, the outcome is still somewhat uncertain. However, my tip to you is: do not rely too much on contractual deflection and take your own responsibility!