An order subject to a penalty, in Dutch a last onder dwangsom, is a remedial sanction by which an administrative body directs an offender to end a breach or prevent its repetition, on pain of a sum forfeited as soon as the order is not carried out in time.
Legal basis
The regime is contained in title 5.3.2 of the General Administrative Law Act. Article 5:31d defines the order for administrative enforcement, and Article 5:32 gives the body the choice of imposing a penalty instead. Article 5:32a requires the order to describe the remedial measures and, where the breach can be brought to an end, to contain a compliance period within which that can be done without incurring the penalty. Article 5:32b requires the amounts to bear a reasonable relationship to the seriousness of the interest infringed and to the intended effect, and requires a maximum to be set. Under Article 5:35 forfeited penalties become time-barred one year after forfeiture.
How it works in practice
The body usually sends a notice of intention first, with an opportunity to submit a view. That is the moment to raise factual inaccuracies and the feasibility of the period. The compliance period must be long enough for the order actually to be carried out; if the required measure needs a permit, the period must allow for that. If the order is not complied with, the penalty is forfeited by operation of law and the body need only recover it.
Where it goes wrong
The greatest risks lie in how the order is worded. An order that merely refers to "ceasing the breach" without specifying what must be done is insufficiently precise. Compliance periods are frequently set too short. On the offender’s side, the classic error is letting the objection period against the order lapse, after which the lawfulness of the order can no longer be disputed in the recovery proceedings.
Related terms
The order sits alongside the administrative fine, which is punitive rather than remedial, and should not be confused with the penalty for late decision.
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