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  • Public law
  • 24-07-2018

On 4 July 2018, the Administrative Jurisdiction Division of the Council of State (the “Council”) gave a ruling on the imposition of urgent administrative coercion [bestuursdwang] in the event of suspicion of an infringement, in this case the incorrect classification of fireworks. The Minister of Infrastructure and the Environment (“the Minister”) implemented enforcement measures on the basis of information relating to a different consignment of fireworks (but with the same name). The Council ruled that even just a suspicion was sufficient to proceed with enforcement. It found that even at the time decision regarding the objection against this decision, there was still no need to revoke the imposition of urgent administrative coercion.

Classification of fireworks
Under the European Agreement Concerning the International Carriage of Dangerous Goods by Road (the “ADR”), fireworks are classified in various categories. Different transport rules apply to each category. The requirements for a so-called “1.1G” classification are more stringent than those for a “1.3G” classification because in the event of fire the entire batch of 1.1G goods would react simultaneously.

Enforcement based on suspicions
Privatex-Pyro, a fireworks manufacturer, imports fireworks from China. An inspection of containers  their fireworks in the port of Rotterdam showed that further inspection was necessary. The forms showed a strikingly low value of explosive material for these kind of explosives. Moreover, a recent inspection of another consignment of fireworks with the same name had revealed infringements.

The ruling
Privatex-Pyro argued that urgent administrative coercion had been imposed without justification because the report by the Netherlands Forensic Institute (NFI) that was used as evidence did not concern the company’s fireworks, but the another consignment. In addition, the company had a test report in its possession which proved that the goods should be classified as “1.3G” fireworks. It also referred to the ADR certificates that had been submitted. According to the company, all this showed that enforcement should not have taken place.

The Minister, on the other hand, stated that the urgent administrative coercion had been imposed correctly and that there was no reason for revoking it at the time of the ruling on the company’s objection. The names and labeling of the goods inspected, corresponded to those of a consignment of fireworks that had been encountered previously. An NFI report had been drawn up regarding that previous consignment which showed that the goods should have been classified as “1.1G” fireworks. Moreover, after the urgent administrative coercion had been imposed, a study by the Netherlands Organisation for Applied Scientific Research (TNO) confirmed that the goods in the present dispute should in fact be classified as “1.1G”. The Minister found that Privatex-Pyro had therefore acted in violation of the International Maritime Dangerous Goods Code (“IMDG”) and Section 5 of the (Dutch) the Transport of Hazardous Substances Act [Wet vervoer gevaarlijke stoffen] because of the incorrect marking of the goods.

Mere suspicion is sufficient for enforcement
The Council ruled that there was no reason to revoke the imposition of urgent administrative coercion.

The fact that, at the time of enforcement, only an NFI report was present that did not specifically relate to the fireworks concerned in this case does not affect the Council’s opinion that urgent administrative coercion could be imposed. It was unnecessary to revoke the administrative coercion order. According to the Council, mere suspicion regarding the fireworks – which were only investigated subsequent to the imposition decision – was sufficient for enforcement, and that suspicion was not dispelled during the objection phase in such a way that the Minister should have revoked that decision.

Legacy of the Enschede fireworks disaster
I cannot help feeling that the outcome in this case was in part prompted by the disasters in Volendam (where 14 people died in a pub fire on New Year’s Morning 2001) and Enschede (where in 2000 a catastrophic explosion at the SE Fireworks factory led to the deaths of 23 people and injured many more). These are perhaps the best-known cases of fire and explosion hazards in the history of the Netherlands.

In the proceedings regarding the Volendam fire, there was no invocation of the alleged positive obligation that the municipality had to check fire safety at the pub, despite the fact that reports subsequently revealed that the municipality had seriously neglected its duty of enforcement. In the various cases regarding SE Fireworks, however, that legal ground was explicitly invoked. The authorities were alleged not only to have failed to fulfill their facilitatory role by not creating (sufficient) legislation or regulations regarding the storage of fireworks but also by not sufficiently monitoring compliance with the permit regulations and enforcing them where necessary. Specifically: the fireworks were stored at the site were far more powerful than authorised by the permit. The authorities were also alleged to have infringed their positive obligation to protect the right to life by failing to take measures to avert clear and present danger. In these cases, the liability of the authorities for failing supervision was averted for various (procedural) reasons, but it was established from the substantive perspective that the authorities had not carried out (sufficient) enforcement, whereas it subsequently turned out that that had actually been necessary. Certainly given that in this case it was later confirmed that the authorities were correct regarding the too low classification, I understand the outcome of the ruling.

ABRvS 4 juli 2018, ECLI:NL:RVS:2018:2203
(only available in Dutch)

*With thanks to Carlijne Chanier, who contributed to this blog post.

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