Many government sanction decisions are preceded by warnings. For some time, legal practice has been grappling with the question of whether such warnings are also decisions within the meaning of the General Administrative Law Act. If so, they are also subject to legal protection. The various administrative law courts in the Netherlands did not take an entirely unambiguous line on this issue. In today ' s ruling, after extensive deliberation, the Administrative Law Division made a decision.
The warning as a decision
An administrative warning is a decision in any case, according to the Division, if the warning is a condition for applying a sanctioning power in certain situations. In those cases, a warning is an essential part of a sanction regime. It is irrelevant whether a further balancing of interests has to take place when imposing the sanction, because the existence of the warning is in any case a condition of application for the exercise of the sanctioning power. The Division then considers that a warning has legal effect within the sanctions regime, because it opens up a power that would not otherwise exist, namely the power to impose an administrative sanction in the event of a subsequent violation (which would therefore not be possible without the warning).
In today's ruling, a warning under the Working Conditions Act was the subject of the dispute. On this the Division noted that this was a warning based on the law (Article 28a, paragraph 1 of the Working Conditions Act). The said warning is a condition for the application of the power to issue a shutdown order for a second or repeated violation. This means that the warning is part of the penalty regime and therefore a decision.
A clear judgment that has been well thought out
The foregoing is a clear judgment and provides a workable framework for practice. Although the opinion seems to shine with simplicity, the Division did not make an overnight decision. With respect to this legal question, the Division has previously requested a conclusion from the State Counsel Advocate General and in reaching that conclusion the State Counsel Advocate General has taken into account 25 written responses from so-called "co-thinkers" from the (legal) practice. Today's final judgment was rendered by a so-called Grand Chamber chaired by the Administrative Law Division, in which, in the interest of legal unity, the president of the Board of Appeal for Trade and Industry also participated, as well as a justice of the Central Appeals Tribunal and a justice of the Supreme Court.
It remains complicated
The last word has probably not yet been said on this matter. By way of an "encore", the Division gives another consideration in the judgment to clarify the (legal) consequences in the event that no objection or appeal is lodged against a warning, but subsequent litigation takes place about the follow-up decision (the fines or orders to shut down). In this regard, it is considered that if the existence of a warning is a legal condition of application for the exercise of other authority, the existence of a legally binding warning can no longer be raised in objection and appeal against the follow-up decision. However, the systematics of the regulations may be such, the Division considers, that the facts and circumstances underlying the warning are of importance in the assessment of the follow-up decision. In that situation, the mere fact that the warning has become legally unassailable does not mean that the facts and circumstances on which the warning was based must by definition be assumed to be established.
I expect that this "area of tension" will continue to be the subject of litigation, especially if in the future warned business owners and/or individuals have let slip the legal protection open against that warning and - once confronted with a sanction - they still disagree with that earlier warning.
