Order subject to penalty under the Wft, Pw, Wtt, Wwft and Sw

Factsheet

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In tandem with the Dutch Authority for the Financial Markets (AFM), DNB monitors and enforces compliance with the Financial Supervision Act (Wet op het financieel toezicht – Wft), the Pensions Act (Pensioenwet – Pw), the Mandatory Occupational Pension Scheme Act (Wet verplichte beroepspensioenregeling – Wvb), the Anti-Money Laundering and Anti-Terrorist Financing Act (Wet ter voorkoming van witwassen en financieren van terrorisme – Wwft), the Act on the Supervision of Trust Offices (Wet toezicht trustkantoren 2018 – Wtt 2018), the 1977 Sanctions Act (Sanctiewet 1977 – Sw) and all ensuing rules and regulations. DNB has a number of instruments at its disposal to enforce compliance with Dutch supervisory legislation and the related secondary rules and regulations. One of these instruments is an order subject to penalty.

Published: 09 June 2023

Order subject to penalty under the Wft, Pw, Wtt, Wwft and Sw

What is an order subject to penalty?

An order subject to penalty is a remedial sanction ordering a legal entity or a natural person to do or not do something. The order may serve to remedy or end an offence, to prevent repeated offences, or to remove or mitigate the consequences of an offence.

The decision to impose an order subject to penalty specifies the deadline by which the offence or its consequences must be remedied, also referred to as the "compliance period". Failure to carry out the order or to carry it out by the specified deadline creates an obligation to pay a sum of money, also referred to as "forfeiture of a penalty". A penalty may be imposed as a lump sum, as a sum payable for each time unit that the order has not been carried out, or as a sum payable for each instance of non-compliance with the order. The decision also specifies the maximum penalty forfeited.

DNB is authorised to impose an order subject to penalty for non-compliance with the regulations laid down in the supervisory legislation referred to above or with the specific provisions of any of the Acts listed. DNB may also impose an order for non-compliance with any rule or regulation ensuing from the law. Its powers to do so are laid down in:

Section 1:79 of the Wft

Section 175 of the Pw

Section 170 of the Wvb

Section 48 Wtt 2018

Section 26 of the Wwft, and

Section 10c of the Sw

On whom may an order subject to penalty be imposed?

DNB may impose an order subject to penalty on any legal entity or natural person subject to its supervision for non-compliance with any provision of the Acts listed above or the ensuing rules and regulations.

Procedure

Pursuant to the General Administrative Law Act (Algemene wet bestuursrecht – Awb), in the majority of cases we must give the party on which we intend to impose an order subject to penalty the opportunity to state its views. Views may be stated orally, in writing, or both. Taking the party's statement of views, if any, into consideration, we decide whether or not to impose an order subject to penalty.

If the party fails to carry out the order before the compliance deadline specified in the decision, it will forfeit one or more penalties. To collect these penalties, we will issue a collection order.

Decisions to impose an order subject to penalty are open to objection within six weeks of the date of the decision. Objections may be lodged online or by regular mail. If an objection is lodged, we will review our decision.

If we dismiss an objection as unfounded, an appeal may be brought before the Rotterdam District Court. Rulings of the Rotterdam District Court may be appealed before the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven – CBb).

Objections to orders subject to penalty have no suspensory effect, i.e. penalties may still be forfeited or payable, or both, in the course of the objection and appeal proceedings.

Disclosure

Disclosure under the Wft and Wtt 2018

We are required by law to disclose decisions to impose an order subject to penalty in connection with non-compliance with the Wft or the Wtt 2018 once the relevant decision is irrevocable. We also disclose the outcome of any objection or appeal preceding the decision. We also disclose decisions to impose an order subject to penalty as soon as practicable upon forfeiture of a penalty.

We will not disclose a decision imposing an order subject to penalty if disclosure

would be disproportionate in view of the minor gravity of the act of non-compliance,

is not in conformity with the purpose of the administrative sanction imposed, or

would compromise the stability of the financial system.

We may postpone the disclosure of the decision or disclose it in anonymised form if we establish beforehand that full disclosure is likely to have any of the following consequences:

disclosure of the personal details of the natural person on whom the order subject to penalty is imposed would be disproportionate

disclosure would cause disproportionate detriment to the parties involved

disclosure would undermine an ongoing criminal investigation, or an examination conducted by the supervisory authority, or

disclosure would jeopardise the stability of the financial system.

Disclosure under the Pw and Wvb

We are required by law to disclose decisions to impose an order subject to penalty in connection with non-compliance with the Pw or the Wvb once the relevant decision is irrevocable. We also disclose the outcome of any objection or appeal preceding the decision.

We will not disclose a decision imposing an order subject to penalty, postpone disclosure or disclose it in anonymised form if

disclosure would undermine an ongoing criminal investigation, or an examination conducted by the supervisory authority,

disclosure would jeopardise the stability of financial markets, or

disclosure of the identity of the legal person, or of the identity or personal data of a natural person, is considered disproportionate.

Disclosure under the Wwft

We are required by law to disclose decisions to impose an order subject to penalty in connection with non-compliance with the Wwft once the relevant decision is irrevocable. We also disclose the outcome of any objection or appeal preceding the decision.

We will not disclose a decision imposing an order subject to penalty if disclosure

would be disproportionate in view of the minor gravity of the act of non-compliance, or

would compromise the stability of the financial system.

We may postpone the disclosure of the decision or disclose it in anonymised form if we establish beforehand that full disclosure is likely to have any of the following consequences:

disclosure of the personal details of the natural person on whom the order subject to penalty is imposed would be disproportionate,

disclosure would cause disproportionate detriment to the parties involved,

disclosure would undermine an ongoing criminal investigation, or an examination held by the supervisory authority

disclosure would jeopardise the stability of the financial system.

Decisions to impose an order subject to penalty are disclosed at least five business days after the date on which the disclosure decision was notified to the party involved. If, in the course of this waiting period, the court is requested to grant preliminary relief, the disclosure of the decision will be suspended until the court in preliminary relief proceedings has passed judgment. Only in urgent cases may we disclose an order subject to penalty immediately without observing the five-day waiting period.

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