Social distancing and retail in the Netherlands: current regulations and law enforcement

On Monday 23 March the Dutch central government announced to tighten measures to combat the COVID-19 virus. One of the new measures: “Shops and public transport will be obliged to take measures to ensure that people keep distance from others, for example by adopting a door policy.”

What is expected from the retail sector and how does law enforcement respond to the corona outbreak?

Supermarket sector: one customer per 10 square meters

The Dutch supermarket sector organisation CBL states on its website that supermarkets allow for one customer per 10 square meters in their supermarket at the same time. The use of shopping trolleys and shopping baskets is mandatory in order to make sure that people keep as much distance from each other as possible.

It is not sure whether all shops and customers will comply with voluntary regulations from organisations such as CBL in daily practice. Are there any regulations that are legally enforceable as well?

Local emergency ordinances (are being) altered

Until last Monday 23 March, the Dutch government – to a large extent – relied on the common sense and voluntary cooperation of the Dutch people with combatting the coronavirus. Only a few measures were (formally) implemented in local emergency ordinances based on the Municipalities Act (Gemeentewet). These local emergency ordinances were adopted by the chairpersons of the 25 so-called security regions (veiligheidsregio’s). In the Netherlands, each municipality falls under a security region. In times of supra-local disasters such as the coronavirus, the chairperson of the security region takes the lead (as for combatting the supra-local disaster on local level) instead of the local mayors in municipalities. This follows from the Security Regions Act (Wet veiligheidsregio’s).

Given the importance of social distancing in these times of coronavirus, the government also announced to tighten measures in shops. These additional measures are now being implemented in altered local emergency ordinances.

In the evening of 25 March, the security region of Zuid-Holland Zuid was the first security region to publish an altered emergency ordinance. The chairperson of the security region now has the power to declare specific areas and locations as forbidden territory. Following the explanatory notes to the ordinance, “locations” also includes shops. Unfortunately the new ordinance does not stipulate how retailers are exactly expected to ensure that their customers and employees keep enough distance from each other, and to avoid that their shops will be declared forbidden territory. In our view, it would have been better if (for example) the “one customer per 10 square meters”-rule from the CBL would have been included in the local emergency ordinances. This would have been a clear guideline and would have taken away uncertainty. Following the latest news, several supermarkets have already decided to comply with the CBL rule.

Enforcement action

In the meantime, the chairperson of the Amsterdam-Amstelland security region also gave a warning in a letter of 24 March: “If necessary we will take enforcement action, but I have a remark to make: our law-enforcement capability is limited.”

It is worthy of notice that the Security Regions Act does not explicitly grant chairpersons of the safety regions the power to enforce local emergency ordinances with remedial sanctions. The new local emergency ordinance of Zuid-Holland Zuid (as an example) does provide for the power declare a shop forbidden territory (or to threaten to do so), but it appears that it is not possible to enforce such a declaration with administrative remedial sanctions. Such as an order subject to a penalty to operate a shop in compliance with the local emergency ordinance. Or an order subject to a penalty to close a shop until sufficient measures have been taken. Based on the Municipalities Act, individual mayors do have the power to impose such remedial sanction, but it is the chairperson of the safety region that is in charge now when it comes to combatting the coronavirus on a local level (given the supra-local character of the crisis). It is not clear whether chairpersons of security regions can take enforcement action with respect to their local emergency ordinances themselves. The explanatory notes to the COVID-19 emergency ordinances from safety regions state that the chairpersons do have the power to enforce the emergency ordinances, but this remains questionable in our view.

Chairpersons of security regions also have the possibility to invoke article 175 of the Municipalities Act. Read in conjunction with article 5:23 of the General Administrative Law Act, it provides them the opportunity to issue emergency orders to maintain public order with immediate effect and to prevent imminent danger. The chairperson is then entitled to give any order that he or she requires appropriate, however the phrase “maintain public order with immediate effect” must be interpreted strictly following the legislative history. An emergency order could for example be used to send away (and keep away) customers of a building that is declared forbidden territory.

What remains is the Public Health Act, in which the coronavirus is classified as a group A disease. Following article 47 of this act, the chairpersons of safety regions have the power to close a building in case of a contamination that comes with severe risks for public health. So this act provides for another possibility to close a shop in case of (partial) noncompliance with regulations for the prevention of the (further) spread of coronavirus. However, the chairpersons of the security regions have (again) not explicitly been given the possibility to enforce closure of a building with for example an order to subject to a penalty (to keep the building closed).

Enforcement under criminal law

Last but not least: failure to comply with regulations can in any case lead to enforcement under criminal law. Violations of (instructions based on) an emergency ordinance can for example result in a fine of EUR 4,350, and EUR 8,700 for companies. Violations of (instructions based on article 47 of the) Public Health Act can for example result in a fine of EUR 8,700, and EUR 21,750 for companies. 

Enforcement under criminal law is generally seen as a rather heavy remedy and in practice it does not always lead to the desired result on short notice. However, extraordinary times call for extraordinary measures. We will have to wait and see how the security regions, police and the public prosecution service will respond.

General principles of good governance

In their capacity as administrative bodies, chairpersons of safety regions must always act in accordance with the general principles of good governance, including the principle of proportionality as included in the General Administrative Law Act. It is our expectation that measures due to a threat of contamination with the coronavirus will generally be considered reasonable as long as the measures are properly substantiated and will not last longer than (strictly) needed.

Should your company encounter an order to close a shop, please do not hesitate to reach out to our specialists. Our team is experienced in acting as an intermediary in case of (forced) building closures and if necessary the team will guide you through law enforcement processes.