Fines for Illegal Employment Netherlands Labour Authority

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, when working with an employment agency or another third party. 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 permit required has not been granted or if the employer does not meet the registration requirements, these parties can be fined. The Netherlands Labour Authority can give a warning in some cases, but mostly imposes a financial penalty (fine) up to € 8,000.00 and in case of recidivism up to € 24,000.00 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 Netherlands Labour Authority doesn’t take all circumstances in a particular case into account. In all these cases, the fines can be annulled or reduced by the Authority in an objection procedure, 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 Netherlands Labour Authority. 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 Netherlands Labour Authority, 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: fines illegal work of  € 48,000, – annulled by the court: Decision of The Hague District Court
  • No Wav Fines for Employees with Direct EU right of residence  Decision Labour Authority
  • 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 Labour Authority:  Decision on objection Labour Authority
  • No employer, fine € 48,000, – annulled: Decision Council of State
  • Offering assistance is not working, fine € 8000, – annulled: Decision of the Amsterdam District Court
  • Cross-border service provision, freedom to provide services, doubt whether relocation of foreign nationals was the purpose in itself of providing services, Inspectorate failed to meet the burden of proof, fine of € 472,000 annulled: Decision Council of State
  • Exceptional situation, transfer of employership, old work permits no longer valid but not revoked, no possibility of new work permits, the employer has offered a solution for stopping work by 200 foreign nationals, avoiding dismissal and staff shortages, fines of initially € 144,000 and € 72,000, in objection and appeal further moderated and completely quashed on appeal: Decision Council of State
  • Cross-border service provision, freedom to provide services also when employees do not stay in the member state of the service provider, no work permit required, two fines of each € 40,000 annulled: Decision Council of State
  • Transition from required minimum annual wage for highly skilled migrants to minimum monthly wages, consequences for residence permits already granted to highly skilled migrants insufficiently clear, fine of € 24,000 imposed in the first instance, reduced to € 20,000 in the objection procedure, completely annulled on appeal: Decision of the Rotterdam District Court

 

Looking for an experienced Netherlands Labour Authority 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.