Netherlands


Author: Kevin G. Beukeveld, Attorney at Law, Amsterdam, the Netherlands
Conta
ct: k.beukeveld@lexence.com; Lexence, Amsterdam (Website)

Overview of legal measures as of 15 April 2020, 00:00 CET as response to the Coronavirus. Please note: Due to the extraordinary situation, the legislation is in continuous evolution and may change very fast.


1. INTERVENTIONS AND RESTRICTIONS

1.1 Legal basis

The Netherlands does not have one general COVID-19 emergency law. The legal basis of the emergency laws and emergency ordinances in the Netherlands are split and do not consist of one law. The emergency laws and emergency ordinances are based on both Netherlands and European law.

This link gives a Dutch government measure overview regarding financial and tax measures and credit guarantees during the corona-crisis: https://business.gov.nl/corona-dutch-government-measures-overview/

1.2 Border

The Netherlands has not closed its borders within Europe but has agreed to certain measures to suspend entry for non-essential travel from third countries.

From 19 March 2020, the conditions for entry by persons wishing to travel to the Netherlands have been tightened. The European Union’s (EU) proposal of an entry ban for non-essential travel is extended until 15 May 2020. The Dutch Cabinet has decided to adopt this EU-proposal. It concerns a restriction for all non-essential travel of persons from third countries to Europe (all EU member states, all Schengen members and the United Kingdom) with the aim to prevent the spread of the COVID19 virus.

https://ec.europa.eu/info/live-work-travel-eu/health/coronavirus-response/travel-and-transportation/travel-and-eu-during-pandemic_nl

1.3 Visas

If the travel is non-essential, you can be refused at the border of the Netherlands. The person will be refused entry based on Article 6 of the Schengen Code paragraph 1(e).

The following categories of persons are allowed to enter the Netherlands:

- EU citizens (including UK nationals) and members of their families;

- Nationals of Norway, Iceland, Switzerland, Liechtenstein and their family members;

- Third-country nationals holding a residence card or a residence permit in accordance with Directive 2003/109/EC (LTR Directive);

- Third-country nationals who derive their right of residence from other European Directives or from the national law of a Member State;

- Holders of a long-stay visa, including persons with a temporary residence permit (MVV);

- Other persons with an essential function or need, including:

o Personnel working in Health Care;

o Border workers;

o Persons employed in the transportation of goods, where necessary;

o Diplomats;

o Military personnel;

o Personnel of international and humanitarian organizations;

o Persons who have compelling reasons to visit their families;

o Transit passengers who wish to travel via the Netherlands to another third country;

o Persons in need of international protection; the border procedure applies in full;

o Persons who are admitted for humanitarian reasons.

https://www.netherlandsandyou.nl/travel-and-residence/visas-for-the-netherlands/qas-travel-restrictions-for-the-netherlands


https://ind.nl/en/Pages/Coronavirus.aspx


1.4 Export control

Export licenses are required for the export of personal protective equipment (PPE) outside the European Union. For example, protective masks, clothing and gloves.

The list consisting of all items for which an export authorization is required is set out in Annex I to the Commission Implementing Regulation (EU) 2020/402, as amended by Regulation (EU) 2020/426 published on 20 March 2020.

Link to the regulation and Annex I: https://eur-lex.europa.eu/eli/reg_impl/2020/402/oj

1.5 Prohibition of crowds

Prohibition of events

All events with a permit and notification requirement, including those involving less than 100 people, are prohibited until 1 June 2020. Other meetings are prohibited until Tuesday 28 April 2020. There are some exceptions:

- It is a meeting necessary for the continuation of the daily activities of institutions, companies and other organisations. Provided it is less than 100 people and can be held 1.5 meters apart.

- This is a legal obligation, such as meetings of representatives of the people and some shareholders' meetings. Provided that they are under 100 persons and can be taken from one another 1.5 meters apart.

- Religious and philosophical meetings. Provided that they are under 30 persons and can be separated by a distance of 1.5 meters.

- For funerals and weddings: keep the number of persons present limited (maximum 30 persons) and keep a distance of 1.5 meters.

Link: https://www.government.nl/topics/coronavirus-covid-19/tackling-new-coronavirus-in-the-netherlands/faqs-about-approach-to-tackling-coronavirus

Prohibition of group formation and gathering

A group formation stands for a (random) group of people who meet each other in public space. Non-observance of the safe distance of 1.5 meters in the public space, accidentally or otherwise, of more than 2 people is not allowed.

Action can be taken against groups that do not keep the 1.5 meters distance from each other (families/households and young children excepted). The fine for adults is set at € 390, the fine for minors is € 95. For organisers or gatherings or events and for companies, the fine can be as high as € 4350.

These emergency powers are based on Articles 175 and 176 of the Municipalities Act (and Article 39 of the Safety Regions Act) and come into the force in the event of a highly exceptional situation. COVID-19 is a disaster ("an event (...) in which the life and health of many people (...) are seriously harmed or threatened and in which a coordinated deployment of services or organisations from different disciplines is required to remove the threat or limit the harmful consequences") and therefore justifies the deployment of the emergency ordinance and the emergency order.

1.6 Lockdown

There are no complete lockdown measures taken by the government of the Netherlands.

However, the Netherlands has embraced the idea of an ‘intelligent’ lock-down. The intelligent lock down means that people are, without prejudice to other regulations, still allowed to go outside unless they (or the persons they share a house with) have symptoms of Covid-19.

1.7 Open Businesses, Industries and allowed Gatherings

Sunday 15 March it was decided that eating and drinking establishments should close. On Monday 23 March it was decided that hairdressers, make-up artists, beauty salons and nail studios should close. As of 24 March, this also applies to casinos (not hotels) and sports and fitness clubs, sports clubs, saunas, amusement arcades and sex establishments. This also applies to other so-called contact professions in the field of external care. For eating and drinking establishments, delivery and collection remains possible - also for coffee shops.

These measures apply until 28 April 2020.

At the moment, the Dutch government has no intention to proceed with further closures of shops, businesses and areas. At the moment, the measures of 15 and 23 March apply, whereby, among other things, restaurants, sports clubs and hairdressers are closed.

If there is a risk of contamination in the workplace due to contacts between employees, a protocol from the Municipal Health Service (GGD) comes into force. This protocol determines the measures to be taken.

https://www.rijksoverheid.nl/onderwerpen/coronavirus-covid-19/ondernemers-en-bedrijven/werkgevers-en-ondernemers

For information about allowed gatherings, please revert to section 1.5.

1.8 Shareholder's meetings and other meetings of companies

On 16 April 2020, the Lower Chamber of Parliament adopted the Temporary Provisions on the Ministry of Justice and Security in connection with the outbreak of COVID-19 (“Proposed Temporary Act COVID-19 Justice and Security”). On 17 April 2020, the Upper House Committee on Justice and Security will deal with the procedure.

https://www.eerstekamer.nl/wetsvoorstel/35434_tijdelijke_wet_covid_19

The Proposed Temporary Act COVID-19 Justice and Security is intended to prevent doubts about the validity of resolutions passed if a general meeting does not proceed in accordance with the Netherlands law and the articles of association and that postponement of a general meeting may lead to non-compliance with legal deadlines. For this reason, the purpose of the Proposed Temporary Act COVID-19 Justice and Security is to allow temporary derogations from legal and statutory provisions regarding the holding of physical meetings and related deadlines and sanctions.

For example, a derogation is possible from rules on convening meetings. All management board members or, for example, all supervisory board members, in the case of a supervisory board meeting, must agree to this. In addition, provisions of the articles of association that subject certain management board resolutions to the approval of the supervisory board are declared inapplicable under the temporary law.

In addition, the managing board may stipulate that, instead of a physical meeting, a electronic general meeting of shareholders may be convened. The meeting is held exclusively by electronic means of communication. This can be done for example via a live stream (via audio or video). A condition for holding an electronic meeting is that members or shareholders have been given the opportunity to ask questions in writing or electronically about the items on the agenda. This can be done up to 72 hours before the meeting. These questions will be answered no later than during the meeting. The answers are also made accessible to members or shareholders.

If the management board makes use of its authority to issue an exclusively electronic questionnaire, it shall do so by electronic means. In order for members or shareholders to be able to take this into account, this should be stated in the notice convening the meeting. If the notice convening the meeting has already been issued and the management board is compelled by corona to hold the meeting electronically, the management board may change the way in which the meeting is held or the venue of the meeting no later than 48 hours before the time of the meeting. The members or shareholders may then ask questions instead of 72 hours to 36 hours before the meeting.

It is also possible to deviate from the applicable time limits. The Board may extend the period for holding a meeting by a maximum of four months. The Board may also extend the drawing up of the annual accounts by a maximum of four months (in the case of associations and cooperatives) or five months (in the case of N.V.'s and B.V.'s). In this case, the general meeting has no possibility of extension.

The intention is to give the provisions of the Proposed Temporary Act COVID-19 Justice and Security just discussed retroactive effect to 23 March 2020 and to make these provisions lapse on 1 September 2020. However, a possibility has been included to extend this period, if necessary, by two months each time.

https://www.rijksoverheid.nl/documenten/kamerstukken/2020/04/08/tijdelijke-wet-covid-19-justitie-en-veiligheid

1.9 Supply of essential medical goods

The European Commission has decided to keep essential transport moving, for example to transport medical supplies and other essential goods.

The Netherlands has notified a temporary and limited relaxation of the enforcement of driving and rest times for the drivers of vehicles transporting essential goods. It will apply to those drivers involved in the delivery of goods domestically. This relaxation is granted pursuant to Article 14(2) of Regulation (EC) No 561/2006. https://ec.europa.eu/transport/sites/transport/files/temporary-relaxation-drivers-covid.pdf

1.10 Health care

The LCI guidelines COVID-19 provide guidelines and roadmaps on COVID-19. The guidelines contain information for care workers within the hospital and outside the hospital, such as care providers in GP care, home care, care for the disabled, nursing home care, ambulance care, residential care centers, small-scale housing and mental health care (GGZ mental health care).

According to the LCI guidelines COVID-19, COVID-19 is a notifiable disease. Laboratory and attending physician must immediately report (already on suspicion) to the infectious disease physician of the Municipal Health Service (GGD), including in the evening, at weekends or on national holidays. In accordance with the Public Health Act, the Municipal Health Service (GGD) immediately reports infectious diseases to the CIb anonymously (already in case of suspicion).

Because in about 80% of persons with COVID-19 the infection is (very) mild and there is limited testing capacity, a restrictive testing policy applies. As a result, most patients with complaints suitable for COVID-19 are no longer tested at home. As a result, reporting a suspicion of this disease has lost its function.

For the current epidemic, therefore, from 12 March 2020 until further notice, only confirmed patients should be reported to the GGD. Persons with complaints and symptoms that fit a SARS-CoV-2 infection are only tested on indication (see section Indications for diagnostics).

https://lci.rivm.nl/richtlijnen/covid-19

If there are several patients in an institution with complaints and symptoms that fit COVID-19, there may be an obligation to report on the basis of Article 26 of the Public Health Act.

1.11 Persons with a higher risk

According to the LCI guidelines COVID-19, the following patient groups have an increased risk of a serious COVID-19 infection and/or have an increased risk of infecting others. An additional testing policy applies to these groups. This policy is intended for persons ≥ 18 years of age with an underlying disorder and for all persons over 70 years of age (risk groups for serious course of events). This policy is also intended for persons ≥ 18 years of age with serious behavioral problems, disturbed judgment or multiple impairments that result in an increased risk of infecting others.

Risk group with increased risk of infection:

- Persons who have been in a designated transmission area less than 14 days ago, (household) contacts of a proven patient.

- Persons ≥ 18 years of age with a mental handicap living in an institution and persons living in a nursing home have an increased risk of infecting others and there are additional preventive measures (see Preventive measures) and an additional testing policy (see Indications diagnostics).

- Based on current literature, pregnant women do not appear to have an increased risk of becoming infected with SARS-CoV-2, i.e. they are not more susceptible than other persons.

- Increased risk of serious course

- The same indication is used as for the annual influenza vaccination, with the exception of the age limit adjusted to ≥70 years. In addition to elderly people ≥70 years, risk factors for a severe course of events are ≥18 years* with:

o chronic abnormalities and dysfunctions of the respiratory tract and lungs;

o chronic heart disease;

o diabetes mellitus;

o severe kidney disease leading to dialysis or kidney transplant;

o reduced resistance to infections caused by medication for autoimmune diseases, after organ transplantation, haematological disorders, (functional) asplenia, congenital or delayed immune disorders requiring treatment, or chemotherapy and/or radiation in cancer patients;

o an untreated HIV infection or an HIV infection with a CD4 number < 200/mm3.

https://lci.rivm.nl/testbeleid-risicogroepen-covid-19

1.12 Sanctions

For sanctions, please revert to section 1.5 .

2. FINANCIAL SUPPORT OF BUSINESSES

2.1 Legal basis

The European Commission announces a temporary easement of the applicable State aid rules. The Framework drawn up in this context is based on Article 107(3)(b) TFEU: aid to remedy a 'serious disturbance in the economy of a Member State'. (https://ec.europa.eu/competition/state_aid/what_is_new/sa_covid19_temporary-framework.pdf; https://ec.europa.eu/commission/presscorner/detail/en/ip_20_459)

The Framework shall apply until 31 December 2020. Member States must submit aid measures in respect of which this scheme is invoked to the Commission for prior approval.

The Dutch authorities have promulgated a whole series of measures which will provide aid amounting to billions of euros per month for 'as long as necessary' for companies affected by COVID-19.

https://www.government.nl/topics/coronavirus-covid-19/information-for-business-owners

2.2 Purpose and scope of support measures

The Ministers and State Secretaries of Economic Affairs and Climate (EZK), Finance and the Minister of Social Affairs and Employment (SZW) announced the package to the House of Representatives, in addition to economic measures already taken by the Cabinet on Thursday 12 March.

The Dutch government is monitoring the situation in the Netherlands and is in constant contact with business organisations, social partners and banks. Healthy public finances and budgetary agreements will ensure that the government does not have to make immediate cutbacks as a result of this package. It has been decided to increase the national debt, which is possible because in good times the debt has been brought down, according to the Dutch government.

https://www.rijksoverheid.nl/onderwerpen/coronavirus-financiele-regelingen/nieuws/2020/03/17/coronavirus-kabinet-neemt-pakket-nieuwe-maatregelen-voor-banen-en-economie

The measures taken by the Dutch Government:

1. Establishment of a temporary scheme to subsidize wage costs (Ministry of Social Affairs and Employment)

2. Extra support for independent entrepreneurs (Ministry of Social Affairs and Employment and municipalities)

3. Relaxation of tax deferrals and reduction of fines (Tax Authority (Belastingdienst))

4. Extension of the Guarantee Scheme for Entrepreneur Financing (Ministry of Economic Affairs, Agriculture and Innovation)

5. Interest rebate for small entrepreneurs on microcredits Qredits (Ministry of Economic Affairs)

6. Temporary guarantee for agricultural and horticultural businesses (Ministry of Agriculture, Nature and Food Quality)

7. Consultation on tourist tax (central government / municipalities) and culture sector

8. Compensation scheme for sectors affected (Ministry of Economic Affairs).

https://www.government.nl/topics/coronavirus-covid-19/information-for-business-owners

2.3 COVID-19 Financial aid

The Dutch government has made available numerous financial aid packages to help entrepreneurs survive the significant loss of turnover due to Covid-19. The list below (source: https://www.government.nl/topics/coronavirus-covid-19/information-for-business-owners) gives an good overview:

· NOW: The new temporary measure Temporary Emergency Bridging Measure for Sustained Employment (NOW, Noodfonds Overbrugging Werkgelegenheid) will provide financial help for employers to help pay their employees' wages. The unemployment benefit during short-time working scheme has been cancelled. You can apply for the NOW scheme until and including 31 May 2020.

· Tozo: Self-employed professionals will be able to apply for an extra, temporary benefit for self-employed professionals (Tozo), to bridge the loss of income from 1 March onwards, in the municipality where they live.

· TOGS: The €4,000 Reimbursement for entrepreneurs in affected sectors scheme (TOGS) is open for entrepreneurs in a number of specific sectors who have been affected by the coronavirus measures. You can apply to the Netherlands Enterprise Agency (in Dutch). To find out if your business is eligible for the reimbursement, check the SBI code list(in Dutch). At the bottom of the page, there is a search tool (Zoektool SBI-codes) where you can enter your KVK number to find out your SBI code.

· Indirect Emission Costs Subsidy Scheme (ETS): If your company is eligible for the Indirect Emission Costs Subsidy Scheme (ETS), you will receive the money sooner.

2.4 COVID-19 Credit and guarantees

The Dutch government has made available numerous financial aid packages to help entrepreneurs survive the significant loss of turnover due to Covid-19. The list below (source: https://www.government.nl/topics/coronavirus-covid-19/information-for-business-owners) gives an good overview:

· BMKB-C: From 16 March 2020 to 1 April 2021, the SME credit guarantee (BMKB) scheme is extended to help SMEs that are affected by the coronavirus secure bank guarantees and bridge financing.

· BL-C: For agricultural entrepreneurs, the equivalent of the BMKB-C is the Credit Guarantee scheme for Agriculture (BL-C).

· GO: The Business loan guarantee scheme (GO) has been extended.

· Microcredit: Entrepreneurs who have a loan from microcredit provider Qredits do not have to repay their loan for a period of 6 months. During this period, the interest will be reduced to 2%. The government supports Qredits with 6 million euros.

· Growth Facility Scheme: The intended phasing out of the Growth Facility Scheme will be extended by one year, to 1 July 2021.

· Proof-of-concept funding: Businesses that make use of the Proof-of-concept funding scheme (VFF) or the Innovation credit scheme (IK) can apply for a repayment extension. Also, no interest will be levied on the VFF.

· Temporary support for local media: Local media that see their advertising income decrease can apply for government credit from 11 through 19 April, under the new Temporary Support for Local Media scheme with retroactive effect from 15 March.

2.5 Capital loss and over indebtedness

The government is monitoring the situation and is in constant contact with business organisations, social partners and banks. Healthy public finances and budgetary agreements will ensure that the government does not have to make immediate cutbacks as a result of this package. It has been decided to increase the national debt, which is possible because in good times the debt has been brought down.

https://www.government.nl/topics/coronavirus-covid-19/information-for-business-owners

https://business.gov.nl/the-coronavirus-and-your-company/

3. FINANCIAL SUPPORT OF WORKERS

Measures

The Dutch government wants to safeguard the jobs and incomes of as many people as possible and support the vitality of our economy. To this end, various emergency financial schemes have been set up for employers (refer to section 2.3 under NOW) and the self-employed.

As referred to in section 2.3, workers can apply for temporary benefit for self-employed professionals (Tozo). The support consists of:

1. Income support, depending on the income and your household situation this can amount to a maximum of €1,500 (net). You do not have to repay, and there is no capital or partner test; and/or

2. A loan for business capital to a maximum amount of €10,157. You do have to repay this loan, but it is possible to request a delay of your payment obligation.

You apply for the extra support (Tozo) to the municipality where you live, if you have been experiencing financial difficulties from 1 March 2020 due to the corona crisis.

These are the requirements:

· Due to the corona crisis your income has fallen below the social minimum and/or you have liquidity issues and you need a business loan

· you are an established self-employed professional, ages between 18 and (state) pension age

· you live and reside in the Netherlands legitimately

· your nationality is Dutch

· you practice your business or profession in the Netherlands

· you meet the legal requirements for being a business owner, for instance you are registered in the Commercial Register (Handelsregister)

· you have all permits required for your profession or business

· your business is still active unless activity has been ceased due to the corona crisis

· you started your company before 17 March 2020, 18:45 hours and you meet the hours criterion: a minimum of 1,225 hours per year are put into your company or professional activities. If you started your business less than a year ago a minimum of on average 23.5 hours per week applies

· owners of a private limited company (dga's) must hold at least 50% of shares

· there are no grounds for exclusion from the Participation Act

· you live in the municipality where you apply.

https://www.government.nl/topics/coronavirus-covid-19/information-for-business-owners

https://business.gov.nl/subsidy/temporary-bridging-measure-self-employed-professionals-tozo/

4. LEGAL PROCEEDINGS

Measures

This Proposed Temporary Act COVID-19 Justice and Security (section 1.8) contains various provisions and legal adaptations to allow the legislative process, the judiciary and public administration to function as well as possible as long as the restrictions as a result of the coronavirus outbreak apply.

When the Proposed Temporary Act COVID-19 Justice and Security enters into force, the following measures will be effective:

- The judiciary is allowed to use electronic means of communication in more cases. As a result of this emergency legislation, a lawyer or a litigant does not have to appear physically. Video or audio calls are sufficient.

- For people who cannot appear in person at the civil-law notary's office, such a deed can still be drawn up using audiovisual means of communication.

- It is possible to test suspects on COVID-19.

The General Rules for the Treatment of Cases by the Judiciary (https://www.rechtspraak.nl/Paginas/COVID-19-Algemene-regeling-zaaksbehandeling-Rechtspraak.aspx) include general rules relating to attendance in court, the Safe Mailing facility and closed hearings. The jurisdictions are governed by specific rules. These specific rules are the temporary regulations from the National Consultation on Subject Content (LOVs).

Several LOVs have published temporary arrangements in relation to the coronavirus outbreak. These regulations are in addition to the regular process regulations because of the special circumstances.

For the total overview of the LOVs, please see the following link. https://www.rechtspraak.nl/paginas/coronavirus.aspx

5. FINANCIAL SUPPORT OF THE CULTURAL SECTOR

5.1 Legal basis

Emergency measures have been put in place to protect jobs and the economy. These include temporary financial arrangements for businesses and self-employed people to help cover incomes and salaries, defer tax payments and make it easier to obtain credit. These measures also go some way to supporting the cultural and creative sectors.

5.2 Scope of support measures

Please see the link in section 5.1.

5.3 Emergency aid for cultural enterprises

Since 15 April 2020, EUR 300 million has been added to the previous measures. This additional EUR 300 million is made up of four components.

1. In the first place, money is used to increase subsidies for institutions in the basic cultural infrastructure and for institutions and festivals that are supported on a multiannual basis by the six national culture funds.

2. The government is also raising money to increase existing loan facilities from the National Restoration Fund for National Monuments.

3. Thirdly, the six national cultural funds will receive a budget to support crucial institutions in the chain that carry the cultural infrastructure, particularly in regions and cities, such as important municipal and provincial museums, (pop) venues and film theatres.

4. The fourth component will increase the borrowing facilities at Cultuur+Ondernemen. Critical private parties in the chain, such as free theatre producers, commercial festivals and art galleries, can turn to Cultuur+Ondernemen. Eligibility is conditional on maximum use being made of the generic measures.

Independently of the additional support, the cultural sector communicates in the general package of measures adopted by the Dutch Cabinet in mid-March.

The measures include shorter working hours for employees, extra support for self-employed persons and tax measures. In addition, a coulance package for the cultural sector was realised at the end of March. This package includes the suspension of the rent of government-funded museums, the continuation of subsidies and prepayments. The sector also introduced a voucher scheme so that money for admission tickets remains in the sector as much as possible.

5.4 Emergency aid for cultural workers

Please see section 5.3.

5.5 Loss compensation

Please see section 5.1.

5.6 Support for organisations compensation

Please see section 5.2.