Dutch enforcement authorities and COVID-19 update #8

Update #8

Last update: 15 June 2020

These are extremely challenging times, during which practically every participant in the (global) economy will be affected. Companies are taking drastic measures to deal with the COVID-19 crisis, while trying to do what’s best for their employees on the one hand and their business interests on the other. While the main focus is currently on manoeuvring through these troubled times, companies will still need to ensure they comply with relevant laws and regulations. In this rapidly changing situation, not only companies need to adjust swiftly; the same goes for the criminal and regulatory enforcement authorities.

Various Dutch authorities are trying to accommodate the business community by indicating how their working methods will be adjusted in light of the current COVID-19 crisis, what their current primary focus areas are and by answering frequently asked questions.

Below we provide an overview of the recent announcements made by the main Dutch criminal and regulatory enforcement authorities. The overview will be updated when new guidance has been issued by one or more of the agencies.

Before focusing on these announcements, it is well worth mentioning the measures taken by the Dutch Judiciary in light of COVID-19. As of 17 March 2020, all courts in the Netherlands are closed until further notice. Only the most pressing cases are currently being handled; the judiciary has provided an overview of the types of matters that are considered to be ‘urgent’ – these include cases in which a judicial order is absolutely necessary in order to adhere to the rights of suspects or litigants as well as the arrangement of detention of suspects, bankruptcies, hearings concerning public care and certain family matters. On 25 March 2020 the Dutch Judiciary announced that the courts will stay closed after 6 April 2020, until further notice. Next week an additional list will be published with cases that will be prioritised in order to be handled by the court, in addition to urgent cases. On 7 April 2020 new rules and working methods were published – these will apply until 28 April 2020 at least. Per field of law ‘very urgent’ and ‘other urgent’ matters are described. As of May 11, more hearing in the presence of the parties in the proceeding will take place. Matters related to criminal and family law will have priority. The last updates were announced on 25 May 2020.

Dutch Authority for the Financial Markets (AFM)

12 March 2020
The AFM is closely monitoring the situation and consults constantly with the Ministry of Finance, The Dutch Central Bank and other European competent authorities. The AFM refers to a joint statement, issued by the European Securities and Markets Authority (ESMA).

16 March 2020
The European market supervisors, including the AFM, have issued a collective statement, stating that they have decided to lower the threshold for the obligation to notify a short-sell position.

23 March 2020
An updated announcement regarding measures taken by ESMA can be found here.

26 March 2020
AFM has decided to suspend large data requests to financial institutions until 1 June 2020.

27 March 2020

ESMA suggest in its statement that national regulators should apply the regulations regarding financial statements of issuers with regards to 2019 less strictly, insofar as any delay is caused by the consequences of the corona virus. AFM shows leniency in the event of late filing of financial reports.

1 April 2020
ESMA has issued a statement on the time limits for reporting obligations for execution venues and investment firms in the context of best execution under MiFID II rules. This concerns the RTS 27 and 28 reporting obligations where national supervisors may use leniency for the deadlines. ESMA has issued a directive on this subject

The European Banking Authority (EBA) urges financial companies to continue to strictly adhere to anti-money laundering and anti-terrorist financing procedures during the corona crisis.

2 April 2020
The European Insurance and Occupational Pensions Authority (EIOPA) has issued a statement to insurers and intermediaries, urging them to take steps to mitigate the impact of COVID-19 on consumers.

10 April 2020
ESMA allows national regulators time to conduct external audits of interest rate benchmarks. ESMA has issued a statement on this issue in relation to the coronavirus outbreak and its implications for external audits of interest rate benchmarks.

17 April 2020
ESMA has issued a Q&A providing guidance to issuers on the application of the ESMA Guidelines on Alternative Performance Measures (APM Guidelines) in the context of the COVID-19 pandemic.

27 April 2020
Due to the COVID-19 crisis, customers may have difficulty paying their mortgage. It is important that mortgage providers deal well with these payment problems. The AFM therefore publishes 10 starting points for mortgage providers. These points provide the tools they need to come to a solution together with the customer.

29 April 2020
In the pursuit of a stronger European capital market union, the AFM makes concrete recommendations that facilitate cross-border investments within Europe. This will provide businesses and consumers with better access to capital and reduce the reliance on bank lending for their financing needs.

15 May 2020
Since the outbreak of the Corona crisis, financial enterprises and accountancy firms are exposed to more risks as regards information security. These include risk of data breaches due to working from home and increasing dependence on (external) service providers. The AFM urges businesses to pay extra attention and furthermore provides insights to help them do so.

19 May 2020
It is important that the financial markets in Europe operate efficiently and transparently, while providing the best possible investor protection , which is underlined by the current global market conditions. In this context, the European Commission and the ESMA are reviewing the current MiFID II regulations and the AFM will make recommendations in this regard.

20 May 2020
In the coming months, the AFM urges investment firms to devote extra attention to updating their clients' client profiles. It is obvious that the personal situation of some of the clients will change as a result of the COVID-19 crisis. When providing investment advice and asset management, investment firms should look specifically at a possible tightening of their update policy. For example, there may be grounds for approaching potentially affected clients sooner or more frequently.

22 May 2020
The AFM will resume requesting data from financial enterprises as of 1 June. The AFM will also restart so-called on-site investigations when, all things considered, this is necessary.

Human Environment and Transport Inspectorate (ILT)

16 March 2020
The Human Environment and Transport Inspectorate has announced adapted working methods per sector (inland shipping, aviation, road transport, railway transport, sea shipping, housing association).

The Netherlands Food and Consumer Product Safety Authority (NVWA)

15 March 2020
The Netherlands Food and Consumer Product Safety Authority will not conduct inspections at locations where COVID-19 patients are in isolation or quarantine – inspectors will contact the location by telephone shortly before the inspection to make inquiries on this.

19 & 20 March 2020
On this page the NVWA provides an overview of all measures relevant to companies related to the outbreak of COVID-19 in the NVWA domain.

20 March 2020
Several countries have introduced trade restrictions on animal and animal products following the recent corona pandemic. The NVWA refers to this list of countries and their measures.

26 & 30 March 2020
Due to the limited capacity the NVWA decided to adopt new working methods as regards slaughterhouses and the certification of exports relevant for the food supply.

1 April 2020
NVWA has announced trade restrictions regarding certain animals and animal products related to COVID-19.

29 April 2020
From 26 April mink farmers, veterinarians and laboratories are obliged to report symptoms of COVID-19 in animals to the NVWA. For example, if animals have respiratory problems or if there is increased mortality. The NVWA registers the reports and assesses on a case-by-case basis whether diagnostic investigation is necessary. The aim of this investigation is to find out more about COVID-19.

Dutch Central Bank (DNB)

17 March 2020
The DNB has issued a Q&A as regards the COVID-19 crisis in which reference is made to several measures taken by DNB.

23 March 2020
The DNB temporarily lowers bank buffer requirements to support lending. More information can be found here.

26 March 2020
DNB has announced to extents the deadline for pension funds (until 30 September 2020), for reporting the annual statements (including the auditor's and actuary's reports).

2 April 2020
DNB urges (re)insurers to temporarily suspend all discretionary dividend distributions and share buy backs. More information can be found here.

17 April 2020
The European Insurance and Occupational Pensions Authority (EIOPA) has issued a statement on principles to mitigate the impact of COVID-19 on the occupational pensions sector.

20 April 2020
DNB gives health insurers the opportunity to provide liquidity support to care providers. More information can be found here.

Dutch Customs

19 March 2020
The Dutch Customs (Douane) refers to the Commission Implementing Regulation (EU) 2020/402) through which EU-wide export restrictions on personal protective equipment have been imposed and entered into force immediately (as of 15 March 2020). These restrictions will apply for at least six weeks and may be extended.

26 March 2020
As a result of the corona crisis, many companies are temporarily unable to meet their payment obligations under customs regulations and fail to comply with all deadlines and customs formalities. Customs will support entrepreneurs who run into problems for this reason with a package of measures

22 April 2020
In addition, upon request, the Customs shall grant traders deferment of payment. This postponement is valid until no later than the 15th day of the month following the month in which the corona measures stop

26 May 2020
As of Tuesday 26 May 2020, no export license will be required for certain personal protective equipment (mouth and nose protectors, protective clothing and eyewear).

27 May 2020
The Dutch Customs states that, given the reduced COVID-19 measures, enforcement will be enhanced gradually over the coming time.

Netherlands Authority for Consumers and Markets (ACM)

18 March 2020
The ACM states that it goes without saying that, as always, companies cannot take advantage of uncertainty and scarcity. Companies with dominant market positions continue not to be allowed to raise prices excessively. Companies cannot conclude any price-fixing agreements. Consumers cannot be misled. Sellers cannot make any wrongful claims. Companies must continue to provide correct and realistic information if products will be delivered later or can no longer be delivered at all due to factory closures, for example. The ACM has provided a short overview of its oversight during the crisis.

23 March 2020
The Joint European Competition Authorities have issued a statement on how they deal with far-reaching cooperation between companies to combat the corona crisis. The Consumer & Market Authority (ACM) endorses this statement. European competition authorities understand that this exceptional situation may require companies to work together to ensure the supply and fair distribution of scarce products. In the current circumstances, European competition authorities will not actively intervene against necessary and temporary measures taken to prevent a shortage of products. At the same time, it is of the highest importance to ensure that products considered essential in the current situation for the protection of the health of carers and consumers (such as mouthguards and disinfectant gel) continue to be available at competitive prices. The European competition authorities will therefore not hesitate to take action against companies that abuse the current situation through cartels or abuse of their dominant position.

25 March 2020
ACM sympathises with the initiative of the ANVR, the trade association of the travel industry, to develop 'corona vouchers'. As regulator, the ACM has looked at the conditions attached to this voucher. The starting point was to find a balance between the rights of consumers and the continued existence of the travel providers.

2 April 2020
The ACM has formulated principles for industries that are considering offering vouchers. The principles can be found here.

These principles apply to schemes in which consumers have already paid for the delivery of a product or service but have not yet received it. According to the law, the consumer is then entitled to a refund. If a scheme complies with these principles, the ACM will not take action against companies that comply with this scheme.

21 April 2020
The ACM states that health insurers may jointly support health care providers financially during the COVID-19 crisis.

It concerns a continuity contribution and an advance payment to healthcare providers that are not directly involved in helping COVID-19 patients. In this way, for example, physiotherapists, maternity nurses and district nursing providers who currently have less work or no work due to the COVID-19 crisis may receive financial support.

Dutch Data Protection Authority (AP)

16 March 2020
The Dutch Data Protection Authority has made a Q&A for employers regarding privacy aspects in light of COVID-19 and their employees – for example: whether employers allowed to test their employees for COVID-19.

Furthermore, the AP issued (high level) guidance on how to work from home in a safe manner. The Dutch DPA refers to the website of the National Cyber Security Centre for further information on working from home.

20 March 2020
The AP has announced that governments and companies will be given more leeway to focus on the fight against the virus. For example, organisations will have more time to respond to questions asked by the AP if necessary. Furthermore, initiatives to protect public health will be given sufficient space to carried out. Nevertheless, the AP states that it will continue to intervene when privacy is truly at risk.

2 April 2020
In a letter to the Minister of Medical Care, the AP has stated that access to a medical file of a corona patient is only permitted with the patient's consent. The Minister is working on a regulation for during the corona crisis.

Doctors at the general practitioner's post or emergency department may only access the medical file at their general practitioner's through an electronic exchange system with the consent of Corona-patients. Those who have not yet given permission can do so on the spot. In this case, this may also be done verbally. Only if a patient is unable to give permission is access without permission permitted.

8 April 2020
The AP states that the by the Government announced Corona-Apps can only be used if privacy is fully guaranteed.

15 April 2020
The AP reviewed the most important privacy aspects of 13 frequently used video call apps. Such as what data the app collects, what the app does with it and whether the communication is secure. A useful guide for comparing different video call apps, can be found here.

17 April 2020
The AP is currently carefully assessing the design of seven COVID-19 apps that the Cabinet is currently considering.

The AP's assessment of the design of the apps, that are on the Cabinet's shortlist, is one of its statutory duties. If personal data that poses a high risk to citizens will be processed, the Personal Data Authority must first be consulted before such processing may commence.

When setting up the apps, the AP examines whether they comply with the requirements of the General Data Protection Regulation (AVG, the Privacy Act). In doing so, the AP examines, among other things, whether the apps collect no more data than necessary and whether the data is properly secured.

In addition, the AP assesses the apps for the risks they entail. For example, the risk that the data will be used in a different way than intended and the risk that the personal data will fall into the wrong hands.

20 April 2020
The (AP cannot give an assessment on the design of the 7 'corona-apps' selected by the Ministry of VWS. The AP states the Ministry has not made the frameworks sufficiently clear. As a result, the seven app proposals were insufficiently elaborated to be able to assess whether the protection of sensitive data of Dutch citizens is sufficiently guaranteed.

24 April 2020
The AP states that employers are not allowed to simply measure the temperature of employees. Under the Privacy Act, the GDPR is this a serious violation. If this happens, the AP will take enforcement action.

24 April 2020
The European Data Protection Board (EDPB) has adopted two new guidelines related to the control of the COVID-19. These are guidelines for processing health data for scientific research and guidance and the use of location data and on the use of apps that provide insight into contacts between people, the so-called (contact) tracing apps.
The guidelines are intended for European governments, companies and organisations such as hospitals and can be found here.

29 May 2020
AP assesses temporary telecom data law on privacy safeguards. The government wants to amend the Telecommunications Act to enable the sharing of telecom data in the fight against corona. In mid-May, the AP assessed an initial legislative amendment proposal and issued an advisory report with recommendations to the Cabinet. The AP will study the new bill that has just been published and assess whether privacy is properly safeguarded. The advise of the AP can be found here.

State Supervision of Mines (SodM)

20 March 2020
The State Supervision of Mines states it will continue to carry out inspections, but that regular inspections will be subject to certain specific measures.

The SodM has made a Q&A about the effects of the corona measures on the supervision of the SodM.

The Inspectorate Social Affairs and Employment (Inspectorate SZW)

6 May 2020
The Inspectorate SZW states that it will act accordingly in case working conditions in a company or institution give cause to do so. Enforcement actions may be appropriate if there is a risk of infection, if measures are not taken or are inadequate or if the occupational hygiene strategy is not applied. Regardless of the specific situation and risks in a company or institution, the Inspectorate considers that the social consequences of contamination with COVID-19 and the unprecedented measures that have been taken, amplify the importance of being compliant the Working Conditions Act.

Please click on this link for an overview of Employers obligations in the Netherlands by Simmons & Simmons.

The Inspectorate SZW supervises a number of decrees in the Commodities Act. These are decisions that set requirements for products used in work situations, such as machines, pressure equipment and personal protective equipment. There is a modified authorisation for personal protective equipment because of the Coronavirus.

The placing on the market of non-CE marked personal respiratory protective equipment (and other personal protective equipment) is temporarily allowed if a number of criteria are met. This applies only to protective equipment intended to protect healthcare professionals against the corona virus. This has been decided by the European Commission (Recommendation 2020/403) in order to prevent a shortage of these protective equipment.

More information as regards the personal respiratory protective equipment because of Corina virus can be found here.

Fiscal Information and Investigation Service (FIOD)

If one would like report a fraud matter related to COVID-19, this may be done by email while in the subject “Corona” should be mentioned.

The FIOD has not yet issued any other guidance or announcements regarding COVID-19.

Dutch Tax Authority

Last update 8 May 2020
The announcements made by the Dutch Tax Authority (Belastingdienst) as regards companies (including independent workers without employees) can be found here.

Dutch Public Prosecution Service (DPPS)

17 March 2020
The DPPS, together with the Dutch Police, has announced that it will continue making arrests where suspects are caught in the act. Previously scheduled arrests (where the suspect is not caught in the act) will only be carried out if deemed urgent and if related to serious offences. In each case, a consideration will be made, taking into account circumstances such as fear of repetition and the public safety.

The DPPS continues to prioritise cases involving violence, vulnerable victims and offenses against morality (for example sexual offenses). (Last update 8 April 2020)

With reference to the announcements by the Dutch Judiciary, the DPPS states that it will seek to bring as many matters to court as possible with due consideration of the various COVID-19 measures.

The Dutch Healthcare Authority (NZa)

20 March 2020 (last updated 11 June 2020)
The NZa has provided a Q&A regarding ‘general and health care related’ issues (last updated 19 May 2020).

31 March 2020
NZa has made an announcement with regard to purchasing policy of Dutch health care insurers. Insures state that they are currently unable to properly assess whether - and if so to what extent - the corona outbreak will have consequences for their healthcare procurement; future changes cannot be ruled out. NZa finds this understandable and announced that if adjustments are necessary, insurers are expected to make these adjustments appropriately, timely and with proper motivation.

The Radiocommunications Agency

20 March 2020
The Radiocommunications Agency (Agentschap Telecom) has announced that regular inspections at license holders and regarding the Metrology and Guarantee Act have been temporarily suspended. Urgent cases will be dealt with and the agency will intervene where necessary.

Inspections and investigations in the context of the continuity of telecommunications networks, cyber resilience of vital infrastructures and electronic authentication / identification continue. However, the agency will avoid company visits. To remain in contact with these organisations, alternative communication forms have been agreed.

20 March 2020
Furthermore, the agency has provided general information regarding working from home safely.

26 March 2020
Due to the corona crisis, telecommunications networks are being used much more intensively than usual. It is very important that those connections are interrupted as little as possible. That is why the Ministry of Economic Affairs and Climate and the Telecom Agency request all relevant parties (inter alia network operators and diggers) to dig extra carefully.

20 April 2020
The agency published announcements regarding it’s accessibility and inspections.

The Netherlands Gambling Authority (Ksa)

17 March 2020
The Gaming Authority has observed an increase of activities by illegal online gambling providers and their advertisers since the COVID-19 outbreak. These parties are apparently attempting to take advantage of the fact that arcades and gaming casinos have had to close their doors due to the corona virus, the Ksa says. The Ksa deems this unacceptable and will take strict action against it.

20 March 2020
Further to its announcement of 17 March 2020 the Ksa has said it sees illegal providers (both online and physical) luring consumers with terms such as "Corona-free gambling" and variants.

The Ksa has announced that advertisements by gambling providers and gambling advertisers, such as "Corona-free gambling", are regarded as an aggravating circumstance which will lead to higher sentences.