The Policy Rules on fines imposed in connection with the Foreign Nationals Employment Act 2016 entered into force on 15 July 2016, thereby superseding the Policy Rules on fines imposed in connection with the Foreign Nationals Employment Act 2015.
The new Policy Rules change the way in which the Minister may exercise his enforcement authority (issuing warnings, imposing penalties, determining penalty amounts or publishing violations).
The policy rules were recently under fire. In the previous Policy Rules on fines imposed in connection with the Foreign Nationals Employment Act 2013, the fixed penalty amounts for violating the various provisions of the Foreign Nationals Employment Act were increased considerably: up to EUR 12,000 per violation. In a decision of October 2015 the Administrative Jurisdiction Division of the Dutch Council of State held that this policy rule violated a number of legal principles. The result was that this policy rule could no longer be applied and that the Dutch Ministry of Social Affairs and Employment quickly adopted the Policy Rules on fines imposed in connection with the Foreign Nationals Employment Act 2015, which reduced the maximum penalty amounts to EUR 8,000.
As such, effective 1 July 2016, a more differentiated policy has been in place regarding the penalty amounts to be imposed. For example, a lower standard penalty amount applies to foreign students who have worked several hours more than allowed according to their study and work visas. Lower maximum penalties will also be imposed on foundations and public benefit organisations in future. And whereas issuing warnings used to be an idle threat, the possibility to issue warnings and the conditions underlying such warnings are now explicitly mentioned in the Policy Rules on fines imposed in connection with the Foreign Nationals Employment Act 2016.
Important: the situation has not only got 'better'; a penalty-increasing circumstance (+ 50%) has also been introduced. This penalty increase applies in the event of, for example, intentional evasion of laws and regulations or if foreign nationals have no lawful residence in the Netherlands.
Our view is that the new Policy Rules on fines imposed in connection with the Foreign Nationals Employment Act 2016 are not only useful for new penalty decisions; we believe that they can also serve as an argument in pending objection and appeal proceedings for lower penalties on account of reduced culpability. That could prove to be a major advantage.