Aimed at correction or prevention of reoffending. Companies will first be given the opportunity to remedy an offence and restore the legal situation within an agreed time path.
The ILT does this by applying one of the following means:
- Opinion/objection against Wabo permit
- Administrative discussion
- Tightened-up supervision
- Appeal Wabo permit
- An order subject to a penalty for noncompliance
- Administrative enforcement order
- Discontinuing the work or object.
The inspector can warn a company through a warning letter. This will give the company an incentive and a chance to reverse the offence. The warning is an informal intervention; a company cannot object or appeal against this.
The warning letter contains:
- a clear description of the offence
- measures to rectify the offence
- the period within which the measures must be taken
Opinion/Objection against a Wabo Permit (a permit based on the Environmental Permitting General Provisions Act)
The intervention Opinion/Objection against a Wabo permit is applied reactively in order to stimulate the competent authorities to reconsider their decision. When integrated environmental permits are prepared with the extensive procedure, everyone can submit views against the draft decision.
(Wabo art. 3.12). This also applies to the ILT.
Should the offence not be remedied after repeated warnings by the inspector, an administrative discussion may take place between the management of the ILT and the offending company.
The administrative discussion is often an effective way to find solutions and hence avoid any subsequent administrative sanctions. It can be planned at each moment after the warning. The administrative discussion is an informal intervention; a company cannot object to or appeal against this.
The inspector may decide to monitor an offending company more or more intensively. He can do this through the intervention ‘Tightened-up supervision’. The reason for this may be, for example, a serious incident, a series of complaints, or when the company does not proceed with complying with the rules fast enough.
The specifications of this intervention have not been worked out in laws or rules. This means that there is a considerable scope for the inspector to take a decision as well as possible in each situation.
In many cases the introduction of tightened-up supervision is preceded by an administrative discussion.
When the inspectorate places a company under tightened-up supervision, the following conditions apply:
- The tightened-up supervision must be announced beforrehand.
- The inspectorate must make it clear to the company under which conditions the tightened-up supervision will be stopped.
Appeal regarding the Wabo permit
When the administrative body issues an order against which the ILT previously submitted an opinion, the ILT can appeal against this. Because it involves an extensive procedure, the opinion has replaced the objection and a direct appeal is possible at the court and an appeal can be lodged to the Jurisdiction Department at the Council of State.
Imposing an order subject to a penalty for noncompliance
Imposing an order subject to a penalty for noncompliance (LOD) is a remedial sanction. The inspector may decide to impose an order subject to a penalty for noncompliance to terminate an offence (partly) or to prevent reoffending. Imposing an order subject to a penalty for noncompliance may also be done preventively.
An order (an order to remedy the offence) is imposed on the offender to do something or refrain from something within a certain period, subject to a judicially imposed penalty. This is a sum of money which the offender has to pay when he does not execute the order (on time).
The order subject to a penalty for noncompliance is accompanied by a compliance period, within which the offence must be remedied. In some cases the inspector can also impose an order subject to a penalty for noncompliance without a compliance period.
The inspector can only impose an order subject to a penalty for noncompliance when he has the legal power to do so and when there is an (imminent) offence.
In general, the inspectorate will first send the offender a warning letter regarding administrative reinforcement (“intention to impose an order subject to a penalty for noncompliance”). The offender will then have two weeks to make his opinion known. When the opinion does not give any reason to depart from the intention or when the offence has not been remedied in the meanwhile, the actual order will follow thereafter.
After an order subject to a penalty for noncompliance has been imposed and after the compliance period has passed, the inspector can check whether the order has been complied with.
When during this inspection the inspector finds that the offence (partly) is continuing or that the offence is repeating, this will be followed by the forfeiture of the judicially imposed penalty, as stated before.
When during the inspetion the inspector does no longer establish an offence, which means that the order has been complied with, the offender will receive the letter 'Inspection after Imposing an Order Subject to a Penalty for Noncompliance'. In this letter it is stated that an LOD has been imposed and that after a subsequent inspection there were no longer offences apparent . The addressed person therefore did not forfeit a judicially imposed penalty. With this letter the LOD is not withdrawn or terminated. Should the offender commit an offence in the future as referred to in the order subject to a penalty for noncompliance, he will as yet forfeit (the remaining part of) the judicially imposed penalty.
Level judicially imposed penalty
The judicially imposed penalty to be imposed must be sufficiently high to enforce compliance. The maximum levels and ranges of judicially imposed penalties have been worked out in policy rules. These are published nationally.
Administrative enforcement order
The administrative enforcement order (LOB) is a remedial sanction. With an administrative enforcement order the inspector can remedy the consequences of a committed offence, at the cost of the party against whom the order has been directed, in so far as is possible in practice. For example, the inspectorate can carry out the required actions itself or arrange for a third party to do this, when a company did not comply with the obligation to do or to refrains from something.
Administrative enforcement can also be applied to prevent reoffending of a committed offence or to prevent its continuation.
In practice, administrative enforcement means that the inspectorate, by intervening or arranging for a third party to intervene, will terminate a situation in with a serious /acute risk. Its costs are to be incurred by the offender. This is a suitable sanction to end, for example, an illegal situation as quickly as possible.
The administrative enforcement order consists of two elements:
- An order to remedy the offence entirely or partly.
- The power of the inspectorate to carry out the order itself when the offender does not do this in time; and the power to recover the costs from the offender through a cost recovery decree.
Administrative enforcement can only be imposed when the law itself (not the General Administrative Law Act) provides this power. Normally speaking the administrative enforcement order must be announced beforehand, just like an order subject to a penalty for noncompliance. In this the offender will have the opportunity to present his view.
In very urgent cases administrative enforcement can even be applied without a prior order (and therefore without a compliance period), or only after an oral statement. However, the inspector must record such a decision afterwards in a well-founded and formal way.
To stop activities temporarily
With some offences it may be necessary to stop activities or vehicles temporarily until the required situation has been restored. It is also possible, for example, to temporarily withdraw a vessel from use or close down a runway.
An administrative penalty is, unlike an order subject to a penalty for noncompliance, an unconditional obligation to pay. With an order subject to a penalty for noncompliance an offender can still avoid the penalty by taking prescribed measures. With an administrative penalty this is not possible.
When will an administrative penalty be imposed
An inspector will impose an administrative penalty with the aim to punish the offender, and obviously also with the aim to ensure that the offender will remedy the situation.
To inform offender beforehand
When the inspector has the intention to impose an administrative penalty, the offender must be informed beforehand. The offender will then have the opportunity to present his view, before receiving a definitive order.
An administrative penalty can also be imposed together with an administrative enforcement order or an order subject to a penalty for noncompliance.
Level of penalties
The maximum level and the variations in the penalties are mainly laid down in the law. The way in which the inspectorate deals with administrative penalties is often worked out in the penalty policy. Levels for each type of offence are stated in this policy. The ILT penalty policy is published nationally.