Fines for Illegal Employment Inspectorate SZW
Employment of a foreign national normally needs to be authorized through a work permit (tewerkstellingsvergunning, TWV). This applies, not only to the direct employer, but also to some clients or parties who are indirectly involved in the work concerned, for example, as in a chain of employers. These parties are all required to establish the identity of the foreign national, to check whether he or she is allowed to work, to take care of the necessary work permits and to save and store this information.
If the work permit required has not been granted or if the employer does not meet the registration requirements, these parties can be fined. The Labour Inspectorate (SZW) can give a warning in some cases, but mostly imposes a financial penalty (fine) up to € 12,000.00 per illegal employee.
However, practice shows that many fines are imposed unjustly. For example, if the fined party is incorrectly classified as an employer or if no work permit is needed for the specific work required. Frequently, the Inspectorate SZW doesn’t take all circumstances in a particular case into account. In all these cases, the fines can be annulled or reduced by the Inspectorate in an objection procedure or by the Court in an appeal procedure or at the Council of State (Raad van State) in a higher appeal. Added value of Scheers Advocacy is not only in the extensive knowledge of this specific penalty procedure, but also the knowledge of immigration law and the right to work.
Scheers Advocacy can represent your company or business in the adjudicating phase by attending and assisting at the hearings of the Inspectorate. Once a fine has been imposed, Scheers Advocacy provides litigation support in both administrative and court proceedings, including the Dutch Council of State as the last (national) resort. Erik Scheers has a proven reputation of being very successful in this.
Below are some decisions of the European Court of Justice, the State Council and various courts, as well as decisions of the Inspectorate SZW, in cases in which Erik Scheers is involved and fines were annulled. These decisions have also had, in some cases, major consequences for other cases in which a penalty may no longer be imposed:
Freedom of labor provision EU: court nullifies ‘WAV’ fines of € 48,000, – annulled: Decision of The Hague District Court
No Wav Fines for Employees with Direct EU Residence besluit Inspectie SZW geen boete EU-verblijfsrecht
No employer, fine of € 72,000, – annulled: Decision Council of State
Landslide Decision European Court of Justice on Freedom to Provide Services: no work permit (TWV) required, fine of € 264 000, – annulled, hereafter the decision of the Council of State. See also the news articles on this subject in the Dutch media het Financieele Dagblad (Fd), de Trouw and de Volkskrant.
No employer, fine € 4000, – annulled by Inspectorate: besluit op bezwaar Inspectie SZW geen werkgever
No employer, fine € 48,000, – annulled: Decision Council of State
Offering assistance is not working, fine € 8000, – annulled: Decision of the Amsterdam District Court
Looking for an experienced Inspectorate SZW fine lawyer?
If you would like to have more information with regard to obtaining advise or representation for your company in a fine-procedure, please contact Scheers Advocacy.