Gelderland Court reduces parcel delivery driver’s fine by more than 80%

The facts

In October 2019, a supervisor from the Social Affairs and Employment Inspectorate carried out an inspection of compliance with the Working Hours Act (Atw) at a self-employed person in the professional goods transport sector, a parcel delivery person.

The fine report that was drawn up shows that both the transport company itself and its employee did not keep a proper record of driving and rest times, as prescribed in Article 4.3 paragraph 1 of the Working Hours Act.

During the investigation period, the company itself was in violation 20 times. His employee was in violation 19 times during the same inspection period. Although the court ruling did not explain in what respect a proper administration of driving and rest times was not kept, I suspect that the tachograph was not used.

Principle of proportionality for imposing fines

Based on article 5:46 paragraph 2 of the General Administrative Law Act (Awb), for every fine imposed on the basis of article 4.3 paragraph 1 Atw, the amount of the fine must be based on the extent to which the offender can be blamed and the seriousness of the violation. This must take into account the circumstances under which the violation was committed. The judge will assess without restraint whether the fine is a proportionate sanction.

Grounds for mitigating fines

After naming this standard consideration, the Gelderland District Court came to the conclusion that a fine of € 3,000 is proportionate. In this respect, weight was attached to the following facts, which were interpreted as special circumstances:

• the offender was dependent on social assistance before he became an entrepreneur;
• the offender had come to the Netherlands as an asylum seeker. Due to his limited knowledge of the Dutch language and society, it was much more difficult for him to find his way in Dutch society;
• it is plausible that the failure to comply with article 4.3 paragraph 1 Atw occurred solely out of ignorance;
• the offender did not benefit in any way from the violation of article 4:3 paragraph 1 Atw;
• it has been established that there have been no further violations of article 4.3 paragraph 1 Atw for 3.5 years. 4:3 section 1 Atw;
• the offender is doing badly financially, he considered becoming an employee;
• the offender paid off €150 per month on the fine;
• in fact, there is one continuous violation, and not 39 separate violations.

The court’s final consideration that there was in fact one continuous violation and not 39 separate violations is remarkable. Article 10:5 section 3 of the Working Hours Decree stipulates that violations apply to each day during which the violation was committed. The Administrative Jurisdiction Division of the Council of State has repeatedly confirmed, with reference to this article and the legislative history, that the violation applies to each day during which the violation was committed.**

The fact that much weight was attached to the fact that the offender, as an asylum seeker, had little knowledge of the Dutch language and society and that the action was taken out of ignorance for the significant reduction of the fine, is also remarkable and not in line with a standard consideration of the Council of State that an employer must be deemed to be aware of his obligations under the Working Hours Act.***

Conclusion:

The Gelderland court attached much weight to the goodwill of the offender in question and the fact that, as a result of a migration background, he had no knowledge of Dutch legislation and regulations regarding driving and rest times. A perfectly reasonable ruling in which, in my opinion, space was rightly taken for the human dimension.

If you, as an entrepreneur, have received a fine or an intention to impose a fine from the Minister of Infrastructure and Water Management, I can provide you with advice and help you file an objection or a statement of opinion. Of course, as a lawyer, I am also authorized to represent your company if it comes to legal proceedings.

If you would like more information, you can call contact. I can be reached at 06-47892281. You can reach me by email at info@transportrechtadvocaat.nl.

Mr. Otto Lenselink

May 2023

* Gelderland District Court dated 24 March 2023, location ECLI:RBGEL:2023:1606 

** Council of State dated 1 March 2017, location ECLI:NL:RVS:2017:530 

*** Council of State dated 8 November 2017, location ECLI:NL:RVS:2017:3047

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