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  • Public law
  • 18-05-2018

On 2 May, the Administrative Jurisdiction Division of the Council of State (the “Division”) confirmed that a warning [waarschuwing] may sometimes count as a decision [besluit] within the meaning of Section 1:3 of the General Administrative Law Act [Algemene wet bestuursrecht, “Awb”].This question was raised in a case in which the Minister of Social Affairs and Employment (the “Minister”) considered an objection to the refusal to withdraw a warning to be inadmissible.According to the Minister, the refusal to withdraw the warning was not a decision; after all, the warning itself was not a decision.The court agreed with the Minister.However – following the Opinion of State Councillor Advocate General Widdershoven (the “AG”) – the Division arrived at a different decision.

The nature of the warning
The Division distinguished between warnings based on a statutory provision and warnings based on the policy rules of the enforcement authority, whereby only the former type of warning can be a decision against which an objection and an appeal can be lodged. The Division thus followed the opinion rendered by the AG: a warning is only a decision when the warning is “an essential component of a system of sanctions [sanctieregime]”. In that case, there is legal effect [rechtsgevolg], for example because a certain power to enforce (suspension, higher penalty, etc.) cannot be exercised without a prior warning. The legal position of the “warned party” is then also different – as in the case concerned.

Ruling not (entirely) new
Although it is perhaps tempting to think that this ruling is a ground-breaking one, the judgment that a warning based on the law is a decision is not new, or at least not entirely new.

The general rule as regards warnings was and is, in principle, that a warning is only a factual act (and not a legal act pursuant to public law). This ruling – together with previous rulings by both the Division and the Trade and Industry Appeals Tribunal and the Central Appeal Tribunal – constitutes an exception to this general rule.

On the basis of previous case law, it was already the case that a statutory “enforcement ladder” could produce legal effect and thus lead to a decision appealable before the administrative court. As regards such an enforcement ladder in policy rules, the case law was less clear: a sensible lawyer was well advised to submit an objection just to be sure – because there was also a chance of a more strategic application of the decision concept by the administrative court.

So what next?
Here are two examples from actual practice. One concerns a situation in which the warning is to be regarded as a decision (against which you therefore need to have recourse to legal remedies in good time) and the other a situation in which that is not the case: 

  1. Section 17b of the Aliens Employment Act [Wet arbeid vreemdelingen, “Wav”] requires the Minister of Social Affairs and Employment to issue a warning before being able to suspend the work activity of the offender for a maximum period of three months or to block the start of the work. Given that in this case the issuing of the warning is a prerequisite for the power of enforcement to be applied, the warning counts as a decision.

  2. The Dutch Food and Consumer Product Safety Authority [NVWA] has issued general and specific policy rules that provide an insight into the way in which it exercises its powers. The policy rules for amusement and playground equipment (only available in Dutch), for example, state that for a certain type of offence – a “class C” offence – a warning is first to be issued before enforcement action is taken. The Commodities Act [Warenwet] and Section 3a of the Commodities Act Decree [Warenwetbesluit] say nothing about the issuing of warnings, as a result of which there is no required legal basis. A warning based on these policy rules cannot therefore be regarded as a decision within the meaning of Section 1:3 Awb.

Ruling not unexpected
It is advisable to remember that the general rule (and also practice) remains that a warning is only a factual (regulatory) action: it is only a note stating that the regulator believes that a violation is taking place and warns that enforcement can follow if that violation is not remedied within a certain period of time.

A different outcome would be difficult to imagine, because one could then have to deal with artificial constructions of alleged powers, or other awkward situations because the regulator – which in fact usually issues the warning – is not an administrative body or does not have the power to impose decisions.

The distinction between the – hard – legal basis and the – softer – basis of the policy rules also seems a sensible one. After all, a warning which is classified as a decision has legal effect. It would be undesirable to leave it to the discretionary power of the authority concerned to decide whether or not certain warnings are to be regarded as decisions within the meaning of the Awb, and thus whether or not administrative protection is available against them. Such choices should be left to the legislature.

Ruling (only available in Dutch)

Opinion (only available in Dutch)

Previous rulings
ABRvS 8 September 2004 , ECLI:N:RVS:2004:AQ9962
CBb 8 May 2014, ECLI:NL:CBB:2014:187
CRvB 5 January 2009, ECLI:NL:CRVB:2009:BG9682

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