Michiels, 2009

F.C.M.A. Michiels, Twee wapens in de strijd. Over de last onder dwangsom en de bestuurlijke transactie als instrumenten ter handhaving van het milieurecht in Nederland [Two weapons in the battle. Remedial orders under penalty payment and administrative transactions as tools for environmental law enforcement in The Netherlands], Tijdschrift voor Milieurecht 2009/6, 666-683

Situational sanctions combined with a penalty payment in case of non-execution seem to have become the dominant administrative sanctions for environmental offences in The Netherlands. Research shows that all authorities competent to use this sanction (municipalities, provinces, ‘waterschappen’ and ministries) frequently apply it to enforce environmental law. The sanction appears to produce the desired effect: the researchers estimate that in at least 70 % of the cases the violation was brought to an end by imposing a situational sanction under the threat of a penalty payment in case of non-execution. However, the requirement to apply the penalty payment in case of non-execution of the situational sanction appears to be insufficiently met by some instances. Furthermore, the lack of a coherent policy regarding the application of the penalty payment seems to result in the use by one and the same instance of different penalty payment amounts for the same or similar violations. The use of the administrative transaction to enforce environmental law seems to produce equally positive results in The Netherlands: the application of the administrative transaction by the competent authorities appears to be on the increase and is generally conceived as a useful add to the enforcement tool kit because of its effectiveness (high percentage of immediate payments: an average of 79 %). The administrative transaction in environmental law, however, has quite a limited scope – the execution order concerned, an order from 2000, only puts into place a pilot project. Despite the positive results an extension of the scope of the administrative transaction does not seem to be at stake because of the expected arrival of another enforcement tool, i.e. an administrative penalty that is reviewed by a criminal judge when it is challenged within a given time span, but becomes definitive when it is not challenged.

Full publication (Dutch) here.