NETHERLANDS Law and Practice Contributed by: Guido Koop, Jan de Heer and Nanne Kusters, Loyens & Loeff
initiate objection proceedings against this decision within six weeks of publication. If the extended pro- cedure applies, formal views can be submitted against a draft version of the permit within a six-week period. Parties having a legitimate interest (generally those experiencing some form of consequences from the relevant permit) can subsequently appeal a permit once issued. Depending on the contents of the per- mit, such appeals can be lodged with a first instance court or a specific higher appellate court (which will generally be the Administrative jurisdiction division of the Council of State). 4.3 Regulators’ Approach to Policy and Enforcement Please see 4.1 Investigative and Access Powers and 5.1 Key Types of Liability . 4.4 Transferring Permits/Approvals The basic premise under the EPA is that permits are linked to a specific property or activity ( zaaksge- bonden ). The EPA holds that the entity performing the activity at that location is the entity to which the permit pertains. A change in permit holder needs to be notified to the competent authority in writing four weeks prior to the change occurring. 4.5 Consequences of Breaching Permits/ Approvals In the event of a breach of an environmental approval/ permit, Dutch law provides for three types of potential administrative enforcement measures: • an administrative fine ( administratieve boete ); • an order subject to a penalty ( last onder dwang - som ); and • direct enforcement by the authorities ( bestuursd- wang ). In the event of a breach of environmental laws, in most cases the authority will impose an order subject to a penalty fine. That way, the offender is given the oppor- tunity to end the breach itself within a certain period of time in order to avoid a fine. Depending on the severity of the matter, a compe- tent authority might (also) take far-reaching actions
such as shutting down an operation and/or revoking or amending permits (or conditions attached thereto). Most violations of environmental requirements also qualify as criminal offences under the Economic Offences Act. Therefore, the Public Prosecution Ser- vice ( Openbaar Ministerie ) is the main competent authority to carry out enforcement tasks from a crimi- nal law perspective. Criminal enforcement is, however, in practice often limited to more severe matters. In general, there are objections to the cumulation of sanctions of a punitive nature. For example, it is not permitted to impose an administrative fine if criminal action is already being pursued for the same conduct. However, restorative and punitive sanctions may, in principle, cumulate and apply to the same conduct, although the severity of the administrative measure must be taken into account when determining the extent of the punitive sanction. Please also see 4.1 Investigative and Access Powers and 5.1 Key Types of Liability . Under Dutch law, environmental issues are primarily administrative matters. Administrative liability can lead to sanctions and measures being imposed by a Dutch regulatory authority. Administrative sanctions can be divided into punitive sanctions (administrative fine) and remedial sanctions (administrative enforcement order and order subject to a penalty fine). Secondly, both the company and its de facto manager(s) ( feitelijk leidinggevende(n) ) might be liable under criminal law as most environmental violations (also) qualify as “economic offences”. If committed with intent or as a result of wilful misconduct, such offences qualify as a crime ( misdrijf ); if committed without intent, they constitute (mere) criminal infringe- ments ( overtredingen ). In short, the offender could face a fine, community service ( taakstraf ) or even imprison- ment, with more severe punishments being applicable to crimes. Administrative and criminal enforcement can coincide under certain circumstances. 5. Environmental Liability 5.1 Key Types of Liability
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