ZWINKELS v. THE NETHERLANDS
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Martinus Gerardus Maria Zwinkels, is a Netherlands national, who was born in 1960 and lives in Oterleek. 3. On 8 September 2006 two inspectors of the Labour Inspectorate (Arbeidsinspectie) inspected the premises of the applicant under the Foreign Nationals (Employment) Act (Wet arbeid vreemdelingen). The inspectors found that the applicant’s house was being painted by two persons who did not have either Netherlands nationality or a nationality that allowed them to be equated with Netherlands nationals for employment purposes and that they did not hold a work permit (tewerkstellingsvergunning). During the inspection, the two inspectors entered the applicant’s garage, which was not connected to his house, in the applicant’s absence and without his permission, where they questioned the two foreign persons. The applicant alleges that no interpreter was present. 4. On 13 October 2006 the applicant and his wife were questioned by two inspectors of the Labour Inspectorate regarding the alleged infringement of the Foreign Nationals (Employment) Act. During the interview, one of the inspectors stated “whenever there was a foreign smell, I would always ask for [a work permit]”. The applicant expressed his discontent with this behaviour of the inspector but no note was taken of the incident in the report of the interview. 5. On 4 December 2006 the Deputy Minister (staatssecretaris) of Social Affairs and Employment (Sociale Zaken en Werkgelegenheid) sent copies of the inspectors’ reports to the applicant. 6. In a letter dated 5 February 2007, the Deputy Minister informed the applicant of the intention to fine him 8,000 euros (EUR) in accordance with section 19a in conjunction with section 2 of the Foreign Nationals (Employment) Act. 7. In his written comments (zienswijze) the applicant disputed the amount of the fine and he complained that the inspectors had entered his garage without his permission. By decision of 23 March 2007 the Minister of Social Affairs and Employment rejected the applicant’s arguments and imposed the fine of 8,000 EUR. 8. The applicant lodged an objection (bezwaar) against this decision, explaining in more detail the arguments stated in his written comments, pleading mitigating circumstances and arguing further that he disagreed with the different interpretations of the word “employer” in the Netherlands legal system. Furthermore, he complained about the behaviour of one of the inspectors of the Labour Inspectorate during the interview of 13 October 2006. 9. During a hearing by telephone (telefonische hoorzitting) on 5 December 2007 the applicant was given the chance further to elaborate on these statements. 10. On 11 January 2008 the Minister dismissed the applicant’s objection, stating the legal grounds for the decision and pointing out to the applicant that, in relation to the behaviour of the inspectors during the interview, he could file a formal complaint against these persons with the Labour Inspectorate. The applicant’s complaints regarding the entering of the garage were also rejected as it had appeared that the garage was not in direct connection with his house, which obviated the need for permission to enter it. 11. The applicant appealed against the decision to the Alkmaar Regional Court (rechtbank) on 28 January 2008 restating the arguments set out in his objection, including the complaint that the inspectors of the Labour Inspectorate had entered his garage without his permission. 12. On 27 July 2009 the Regional Court held that because the applicant’s garage was not directly connected to his house, the inspectors had not needed permission to enter it. The Regional Court rejected the applicant’s other complaints but decided to reduce the fine to the amount of EUR 7,600 because the proceedings before the court had exceeded a reasonable time. 13. On 17 February 2010 the Administrative Jurisdiction Division of the Council of State (Afdeling bestuursrechtspraak van de Raad van State, “the Administrative Jurisdiction Division”) dismissed the applicant’s appeal holding, inter alia, that it had not been properly argued as regards the entering of his garage by the inspectors. 14. The relevant sections of the Foreign Nationals (Employment) Act provide as follows: 1. In this Act and delegated legislation based on it, [the following definitions shall apply]: a. The Minister: the Minister of Social Affairs and Employment; b. employer: 1º the person who, in the exercise of an office, profession or business, has someone else perform work (degene die in de uitoefening van een ambt, beroep of bedrijf een ander arbeid laat verrichten); ... 1. It is forbidden for an employer to employ a foreign national in the Netherlands without a work permit. 1. Any failures to comply with sections 2(1) ... shall be deemed administrative offences (overtredingen). ... 1. A civil servant appointed by the Minister [i.e. the Minister of Social Affairs and Employment] for that purpose and coming under the Minister’s authority shall, in the Minister’s name, impose an administrative fine on any person to whom the obligations deriving from this Act apply, in so far as the failure to comply with such obligations is deemed an administrative offence. 2. The administrative offences defined for the purpose of this Act ([d]e terzake van deze wet gestelde overtredingen) shall apply with regard to every person with whom or in relation to whom an administrative offence has been committed (ten opzichte van elk persoon, met of ten aanzien van wie een overtreding is begaan).” 15. The Foreign Nationals (Employment) Act Fining Policy Rules, first published in the Official Gazette (Staatscourant) 2004, no. 249 and renewed every year since then (as relevant to the case before the Court, Official Gazette 2006, no. 250), set out a tariff to be applied in imposing administrative fines. A legal body which employs a foreign national without a work permit will be fined EUR 8,000. If the employer is a natural person not a legal entity, the fines are reduced by half.