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The standard financial penalty for violation of administrative obligations arising from the Act on Employment of Foreigners must be differentiated according to intent, gross negligence and normal culpability.
In the court case in which this was decided, there was cross-border provision of services within the EU. As a result, there is no obligation for the employer to have a work permit (twv). However, a report (notification) must be made regarding this work prior to the start of the worker. That was left undone by the employer in this court case. This is a violation of Article 2a of the Act on Employment of Foreigners (Wav). In accordance with the policy rules on the imposition of fines according the Act on Employment of Foreigners carries a fine of € 1,500.
Sander Groen has argued in this court case that a fine for these violations should also be imposed to the extent of the employer’s culpability. And that a fine of € 1,500 cannot be imposed as standard for every violation. The District Court of The Hague follows him in this position in its judgment of 8 November 2022.
The following is important here.On 13 July 2022, the High Administrative Council of State ruled in an important judgment that the Wav policy rules on fines wrongly do not distinguish between intent, gross negligence and normal culpability when determining the applicable standard fine. See also Pieter Krop’s annotation to this judgment of the High Administrative Council of State.
In this court case, Sander Groen argued before the District Court of The Hague that this distinction between intent, gross negligence and normal culpability in the event of a violation of the Act on Employment of Foreigners should also be applied to the fine for violating an administrative obligation (Article 2a Wav), such as the reporting obligation that exists in the case of cross-border provision of services within the EU.
In this case, the Ministry of Social Affairs and Employment (SZW) took the position that the fine of € 1,500 should always be imposed. SZW argued that the judgment of the Council of State of 13 July 2022 does not concern the fine amount for violation of administrative obligations.
The court follows Sander Groen’s position and rules (see paragragh 8 of the judgment) that the Ministry of Social Affairs and Employment must also apply a new policy in the case of setting a fine for violation of the administrative obligations of Article 2a Wav. The court rules that SZW must substantiate the degree of culpability of the established violation when determining the standard fine.
The Ministry of Social Affairs and Employment has not lodged an high appeal against this decision. The ministry still has to determine what the amount of a financial penalty will be for violation of an administrative obligation of the Act on Employment of Foreigners. In accordance with this court ruling, the ministry must therefore distinguish between intent, gross negligence and normal culpability.
The Ministry of Social Affairs and Employment has informed our law firm that they are in the process of writing a revision of the policy rules on the imposition of fines for violation of the Act on Employment of Foreigners.