Regulatory: What can the government and municipalities do?
This contribution focuses on questions regarding the rights and duties of the Dutch government and government bodies. It provides an overview of the administrative means relevant in the event of a threat to public health due to an (international) outbreak of an epidemic such as the novel Corona Virus.
Public Health Act: Inclusion of COVID-19 as Group A Disease
On 28 February 2020, the Minister of Medical Care Bruins issued a regulation (available here) extending, with immediate effect, the scope of so-called Group A infectious diseases, within the meaning of the Public Health Act (Wet Publieke Gezondheid), to include the disease caused by the new strain of the coronavirus (COVID-19).
As a result, all provisions of the Public Health Act relating to the control of Group A diseases, which include Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS), apply to COVID-19.
This means that the Minister of Medical Care is responsible for managing the containment measures, although the chairpersons of the relevant safety regions and the municipal health services (GGD) remain responsible for implementation of these measures. As a result, it is possible for the Minister to coordinate a coherent nationwide approach.
Potential containment measures of Group A Diseases
- Amongst the applicable containment measures is an obligation for medical practitioners to notify the municipal health service if a coronavirus infection is detected or suspected.
- The municipal health service in turn is obliged to notify the National Institute for Public Health and Environmental Protection (RIVM).
- The chairperson of the relevant safety region is authorised to order containment measures, such as the isolation of (potentially) infected persons, including a prohibition on the conduct of professional or commercial activities and/or quarantine.
- Further powers include the full or partial closure of buildings or sites, a prohibition on the use of certain means of transport and/or the destruction of goods as well as the issuance of instructions to transport, airport and port authorities.
Within eight weeks after publication of this regulation, a legislative proposal to extend the scope of the Public Health Act to COVID-19 must be sent to the Lower House of the Dutch Parliament. If the Lower House rejects the proposal, the ministerial regulation of 28 February 2020 will be revoked.
Nationwide measures - state of emergency (noodtoestand)
In exceptional circumstances, the government can issue a royal decree declaring a (limited or general) state of emergency in order to protect vital interests, including public health and safety, from disruptions such as epidemics (Article 103 of the Constitution in conjunction with the Exceptional Circumstances Coordination Act).
If a state of emergency is declared and the normal statutory powers are deemed insufficient, the government may take measures that derogate from the powers normally available to the local and regional authorities.
In addition, the government may order measures that limit or otherwise derogate from certain fundamental freedoms, including freedom of association, freedom of assembly and demonstration and the prohibition on entering a dwelling without the resident's permission.
Various laws may be relied on in the event a state of emergency is declared. This includes laws which aim to regulate the continuity of food supply, such as the Anti-hoarding Act (Hamsterwet), the Emergency Price Control Act (Prijzennoodwet) and the Emergency Food Supply Act (Noodwet voedselvoorziening). This also includes the Emergency Medical Care Act (Noodwet geneeskundigen) which governs the deployment of medical personnel in emergency situations.
Based on the parliamentary history to the Dutch Constitution, it appears that the legislature wished to allow for unwritten emergency powers that, under special circumstances, may be used in a state of emergency. This means that, in theory, it should be possible to tailor emergency powers to fit a specific state of emergency but, in practice, this is rarely, if ever, done.
At the municipal level, in the event of a disaster or the imminent threat of a disaster and regardless of whether a state of emergency has been declared, the mayor has the authority to issue orders (s)he deems necessary for the maintenance of public order and the limitation of danger.
As is the case in a state of emergency, such authority may only be exercised to the extent vital interests are at stake and the normal statutory powers are deemed insufficient.
In the past, emergency orders have been issued for outbreaks of contagious poultry and livestock diseases, to limit access to certain areas and arrange for removal of the infected animals. Other examples concern the facilitation of temporary accommodation for vulnerable persons.
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