17 May 2018

Administrative warnings as part of legal sanctions regimes can now be challenged

The Dutch Council of State has ruled that an administrative warning qualifies as a formal decision if certain conditions are met. This means that objections can be launched against a qualifying administrative warning, followed by an appeal. Previously, it was assumed that these options did not exist.

According to the new ruling, a warning is regarded as a formal decision if it is based on a statutory regulation, and a prerequisite for imposing an administrative sanction for a successive infringement. Under these conditions, the administrative warning is an essential and inseparable part of a sanctions regime and therefore a formal decision.

This means that objections and appeals against the warning are possible, but these objections or appeals should also be filed if the company wants to prevent the warning from becoming irrevocable. There are still options available to raise issues regarding the warning in the context of the successive administrative sanction, but a company should consider challenging the warning immediately to avoid its defence against a successive administrative sanction being hampered.