Administrative Division of the Council of State on 2 March 2022, ECLI:NL:RVS:2022:619
An employer is prohibited from having a third country national perform work in the Netherlands without a work permit or without a third country national in possession of a combined permit for work with that employer. This is the main rule of the Dutch Foreigners (Employment) Act, the most relevant law when employing non-EU, EEA or Swiss foreign nationals. If the conditions for a residence permit are not met – usually as a highly skilled migrant – then this main rule will be reverted to.
In the event of a breach of this provision – observed by Netherlands Labour Inspectorate (formerly: the Inspectorate SZW) – the Minister for Social Affairs and Employment can decide to impose a sanction, including an administrative fine of 8,000 per foreign national per entity. On 2 March 2022 our highest administrative court, the Administrative Division of the Council of State (hereinafter: ‘the Division’), has ruled that a fine can also be imposed on a natural person whose sole proprietorship is no longer registered in the Trade Register. The date of the violation is relevant for the imposition of a fine. In that context, the Division indicates the following under 5.1:
‘5.1. The Division assumes that in view of its decision of 7 April 2010, ECLI:NL:RVS:2010:BM0220, under 2.4, the date of the violation determines the answer to the question on whom the fine can be imposed and not the date of the decision...
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