A judicially imposed penalty is the amount that a person must pay if he/she fails to comply in time with an obligation imposed on him/her by the court. An example. If your neighbour starts demolishing a garage that is partly on your land, you can claim in summary proceedings that the neighbour must stop doing so under penalty of forfeiture of a judicially imposed penalty of EUR 25,000. Then, if the culprit disregards an award in your favour, he/she must pay the judicially imposed penalty to you.

If claims for ‘acts or omissions’ are brought against a powerful opponent (government, housing corporation, multinational), it is not uncommon for the judge in charge of preliminary relief proceedings to wonder out loud whether the imposition of a judicially imposed penalty is necessary. After all, ‘decent’ counterparties will comply with a ruling even without such a sanction?

Request under the Government Information (Public Access) Act (Wob-verzoek)

On 31 May 2021, de Volkskrant submitted a request under the Government Information (Public Access) Act. It asked the Minister of Health, Welfare and Sport to make all information about the face mask agreement with Sywert van Lienden public. When the Minister failed to do so, de Volkskrant turned to the Court of Amsterdam. In its ruling of 19 January 2022, the court ordered the Minister to provide the requested information within four weeks. For each day that he exceeded the deadline, the Minister had to pay a judicially imposed penalty of EUR 100 to de Volkskrant. This was subject to a maximum of EUR 15,000.

More time needed

The deadline was exceeded. After playing some administrative ‘tricks’, the Minister then announced that the judicially imposed penalty would be paid to de Volkskrant. This was obviously peanuts, but the requested information would not be provided for the time being. More time was needed.

However, the Court of Amsterdam had already made a decision about that argument in its earlier ruling. “There is no reason why the request cannot be dealt with in the traditional way, given the relative size of the request and the fact that it applies to a short period of time …”.

Add to that the fact that the relevant information is simply available. In fact, the information was earlier handed over to Deloitte, a research firm. Deloitte was commissioned by the government to investigate the face mask affair.

Above the law

The bottom line is that the Minister is deliberately ignoring a court ruling and placing himself above the law. It fuels the debate on the reliability of government and on the value of the ‘new culture of governance’. But above all on the question: what should remain hidden?

Do you have any questions or would you like more information? Please contact us directly if you have any legal questions.

This column was written for Den Haag Centraal. Raymond de Mooij writes a monthly column about what he experiences in his practice.