Legal framework
In more regular and local crises and disturbances of public order, a mayor (burgemeester) can issue emergency decrees (noodverordeningen) to maintain public order. In cases of national crises like the current Covid-19 coronavirus outbreak, however, the Dutch government takes a more general approach. The power to issue emergency decrees is then transferred to the chairpersons of the security regions (voorzitters van de veiligheidsregio’s). In addition, the Minister of Health, Welfare and Sport (Minister van Volksgezondheid, Welzijn en Sport) is authorized to issue instructions to these chairpersons under the Dutch Public Health Act (Wet publieke gezondheid) and the Dutch Security Regions Act (Wet veiligheidsregio’s). Consequently, the Dutch central government can coordinate the approach in each security region. Following the instructions of the Minister, the chairpersons have agreed to draft models for emergency orders in order to further ensure a uniform way of implementing the Minister’s instructions.
Current Dutch measures
The Minister of Health, Welfare and Sport has instructed the chairpersons of the security regions multiple times. On 15 March 2020, the Minister prohibited gathering in crowds of over 100 people and closed of a number of facilities, such as schools, museums, restaurants and sport facilities up to 28 April 2020.
More recently on 23 March 2020, the Dutch central government announced more stringent measures in order to control the Covid-19 coronavirus outbreak in the Netherlands. A full overview can be found on the English website of the central government . In short, the following measures now apply in the Netherlands:
- The first sub-set of measures must be implemented in each security region. These include the prohibition of events that would otherwise be subject to a permit or notification requirement up to 1 June 2020. Other gatherings are also prohibited, although a limited number of detailed exceptions apply. One of these exceptions concerns annual general meetings of listed companies; more details are available in this separate blogpost. Finally, casinos, amusement arcades, and hairdressing, nail and beauty salons are closed effective 24 March 2020.
- The second sub-set of measures authorizes the chairpersons of the security regions and the mayor of each municipality to introduce custom-made regulations, should social distancing and hygiene regulations not be complied with. This includes the closure of specific (type of) stores and holiday parks as well as publicly accessible areas, such as nature conservation areas, parks and beaches. Local authorities may also prohibit practising certain close-contact professions (such as hairdressing).
- Finally, the central government announced that local authorities will actively enforce these measures by issuing penalty fines and indicated that these fines will amount up to 400 EUR for natural persons and up to 4,000 EUR for legal entities, although in theory higher fines (or even imprisonment) may also be possible. A violation of an emergency decree constitutes a criminal offence (overtreding) under Dutch law, which could lead to a punishment of up to three months detention or a maximum fine of 4,350 EUR. The fine for legal entities can be increased up to an amount of maximum 8,700 EUR, if the Dutch Public Prosecution Office is of the opinion that this is appropriate under the given circumstances. The chairpersons of the security regions can also issue an 'emergency order' (noodbevel). In contrast to an emergency decree, an emergency order is directed towards one person. A violation of an emergency order is a serious offence (misdrijf). Similar to the violation of an emergency decree, the violation of an emergency order is punishable with up to three months imprisonment or a fine of 4,350 EUR (with the same increase possibility for legal entities).
Except for the prohibition of events up to 1 June 2020, all measures apply up to 28 April 2020 and will be re-evaluated on a continuing basis (and potentially be extended). In addition to the above, the Netherlands have introduced a significant support package for enterprises in distress as a result of the Covid-19 coronavirus outbreak. We discuss these economic measures in a separate blogpost.
Crucial professions and vital sectors
Entitlement to child day-care only exists if a parent pursues a so-called crucial profession or works in a vital sector. To that end, the central government has composed a list (of which an English translation can be found here) that consists of:
- professions that are considered crucial during the Covid-19 coronavirus outbreak (such as healthcare employees and food supply); and
- the services that the central government already considers to be vital for Dutch society.
The services referred to under b) are designated as such under the Network and Information Systems Security Act (Wet beveiliging network- en informatiesystemen). Some 100 companies have been designated as being ‘vital’ in the Netherlands. Although in theory one could try to be designated as such, this designation would be accompanied by compliance obligations under said Act and associated costs (even after the Covid-19 coronavirus outbreak). On a case-by-case basis, it can be determined whether an enterprises falls within the scope of said list. As it is currently only used for entitlement to child day-care purposes, the interpretation of the list may not be that strict.
Unlike other countries (like Belgium) and subject to the measures set out above, non-crucial professions may still be pursued and non-vital enterprises may still be open for business. In this respect the emergency decrees of the security regions determine that the measures are not applicable to activities, which are necessary to carry out the crucial professions. The emergency decrees also determine that non-crucial professions and non-vital enterprises may apply for a (regional) exemption from the measures set out above.
Dutch border and export control
The governments of the Schengen area have decided that citizens of third countries are no longer allowed into the territory of the Schengen area. The Dutch government has also restricted flights from certain countries with a high number of Covid-19 coronavirus cases, only allowing flights for repatriation of Dutch and other EU citizens. The Dutch border over land is still freely crossable.
The European Commission has adopted Regulation 2020/402, introducing a prohibition to (re-)export certain personal protection equipment without an appropriate export permit. The Dutch authorities have indicated that no such permits will be issued in the Netherlands. To that end, the Minister for Medical Care announced that he will identify the means available to seize personal protection masks in the Netherlands. The central government is authorised to do so under more extensive emergency legislation that has not entered into force yet, but a formal decision to do so has not been announced yet.
Please note that this analysis is based on the status of the measures taken by the Dutch government in relation to the Covid-19 coronavirus outbreak to the date of this blogpost. As these measures are subject to rapid, immediate and currently unknown changes, the above may not be fully up-to-date.
