All airlines are equal, but some are more equal than others

• 1. Introduction

  Air carrier liability for transporting passengers without proper travel documentation nowadays is part and parcel of various legal systems throughout the world. In the Netherlands, violation of this duty of care can lead to prosecution of the airline involved and the imposition of hefty fines, running into thousands of euros for each passenger carried without proper documentation.¹x See Article 108 of the Dutch Aliens Act 2000 which – for legal persons – provides for a theoretical maximum fine of the fourth category (= EUR 25,750 as of 1 January 2024). In practice fines tend to range between EUR 4,000 (first offender) and EUR 9,500 (frequent recidivism).

  That is, until recently, all airlines except one. Between 2000 and 2022, the flag carrier of the Netherlands, KLM Royal Dutch Airlines (Koninklijke Luchtvaart Maatschappij), had a Memorandum of Understanding (MoU) with the Dutch authorities, which allowed KLM a generous margin of error within which KLM would not be prosecuted for such violations. In this 22-year timeframe, KLM was not fined (or even prosecuted) for Article 4(1) Aliens Act violations by the Dutch authorities, whereas other airlines flying on airports in the Netherlands have been held criminally liable numerous times, jointly incurring millions of euros in fines and legal costs.

  This inequality in prosecution policy and practice ultimately led the Amsterdam Court of Appeal to declare prosecutions of some of the other airlines inadmissible. According to the Court of Appeal, the MoU with KLM had brought with it a duty of care for the Dutch State to apply the same policy to other airlines. There was no evidence, however, that demonstrated an actual, sufficient effort by the Dutch State to conclude an MoU with these other airlines. Under those circumstances, the Dutch Public Prosecution Service (DPPS) could not have reasonably decided to prosecute these airlines for not complying with their duty of care.

  The rulings by the Amsterdam Court of Appeal resulted in the Dutch State altogether abandoning the MoU with KLM in 2022. Although this decision ended almost 22 years of what was – without doubt – unequal treatment, it was long unclear just how vast KLM’s advantage was. However, recently disclosed documents obtained through the Dutch Freedom of Information Act (FOIA)²x The Wet open overheid and its predecessor Wet openbaarheid van bestuur. shed more light on the full scope of the KLM MoU and the half-hearted efforts by the Dutch State to allow other airlines to enter into a similar arrangement.³x Four (partially overlapping) sets of documents have been disclosed by the DPPS and the Ministry of Justice (MoJ):
  DPPS decision dated 1 December 2021, available via: www.om.nl/documenten/wob-woo/map/map/2021/wob-besluit-inzake-informatie-over-en-rondom-mou-tussen-de-klm-en-de-staat---kenmerk-pag-bjz-55822 (hereinafter: “DPPS FOIA-set”);
  MoJ decision dated 23 September 2022, available via www.rijksoverheid.nl/documenten/woo-besluiten/2022/09/23/besluit-op-woo-verzoek-over-het-mou-met-klm (hereinafter: “MoJ FOIA-set I”);
  MoJ decision dated 17 October 2022, available via www.rijksoverheid.nl/documenten/woo-besluiten/2022/10/17/besluit-op-woo-verzoek-over-het-beeindigen-van-het-mou-met-klm (hereinafter: “MoJ FOIA-set II”);
  MoJ decision dated 12 May 2023, available via www.rijksoverheid.nl/documenten/woo-besluiten/2023/05/12/besluit-op-bezwaar-woo-verzoek-over-het-mou-met-klm (hereinafter: “MoJ FOIA-set III”).
  A fourth set of documents was disclosed on 15 January 2024 by the MoJ, but this set has not been published online yet (the authors have a copy of this set on file (hereinafter: “MoJ FOIA-set IV”). This newly disclosed information puts the conclusions of the Amsterdam Court of Appeal on edge even further. It also raises questions on the possibility of reviewing (herziening) previous convictions of other airlines throughout the years (Article 457 Dutch Code of Criminal Procedure (DCCP)), as well as whether the MoU with KLM could be characterized as a form of unlawful state aid (Article 107 Treaty on the Functioning of the European Union (TFEU)).

  This article is structured as follows. First we will ­describe the Dutch legal framework for air carrier liability ­(paragraph 2). We will then provide a brief history and background of the KLM MoU (paragraph 3), followed by a description of the legal challenges to this MoU by other airlines in court (paragraph 4). Paragraph 5 will discuss the information disclosed under the Dutch FOIA, and paragraph 6 elaborates on the possible legal consequences of the MoU from the perspective of possible revision requests and State aid. The article will end with some concluding remarks (paragraph 7).

• 2. Legal framework: the duty of care under Article 4(1) Aliens Act

  Carrier liability was introduced in the Netherlands in the 1980s as part of the creation of the Schengen area.⁴x See for a more detailed description of the introduction of carrier liability in the Netherlands, S. Scholten, Privatisation of Immigration Control? A socio-legal Study on the Role of private Transport Companies in the Netherlands and the United Kingdom (diss.), Brill | Nijhoff 2014, p. 40 et seq. Pursuant to Article 26(1)(b) of the Convention Implementing the Schengen Agreement (CISA),⁵x Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. all carriers (such as airlines) are “obliged to take all the necessary measures to ensure that an alien carried by air or sea is in possession of the travel documents required for entry” into the territories of the Schengen states. As such, airlines are subject to this obligation whenever they carry passengers into the Schengen area. The Schengen Border Code further codifies which travel documenta­tion and visa are required for foreign nationals to enter the Schengen area.⁶x See Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the move­ment of persons across borders (Schengen Borders Code).

  This provision of the CISA was implemented in Article 4(1) of the Dutch Aliens Act which stipulates that carriers shall “take the necessary measures” and “maintain such supervision as may reasonably be required” to prevent foreign nationals from entering the Netherlands without the required travel documentation. Typical violations include cases in which the necessary Schengen visa is found to be missing, is not yet valid or has expired. Other types of violations involve, for example, passengers in possession of false or forged passports or other travel documents.

  A violation of this duty of care is criminalized by Article 108(2) Aliens Act as a misdemeanor (overtreding). The Supreme Court has ruled that a conviction for non-compliance with the duty of care provided for in Article 4(1) requires ‘negligence’ on the part of the carrier.⁷x Dutch Supreme Court, 7 February 2017, ECLI:NL:HR:2017:40, NJ 2017/300. According to the Supreme Court, such negligence may be assumed to be present if, through the intervention of a carrier, a foreign national is brought into the Netherlands without proper documentation, for example without a passport or without the required visa. In the case at hand, the Court of Appeal had ruled that the measures taken by the carrier were insufficient, as no (Schengen) visa had been affixed to the passenger’s trav­el document and this could have been detected by the airline relatively easily. The Supreme Court upheld that judgement.

  Bar special circumstances (which are rather difficult to imagine), cases involving these relatively ‘simple’ violations such as missing (valid) visa will therefore result in an almost automatic conviction. As such, the duty of care underlying Article 4(1) of the Dutch Aliens Act entails a semi-strict criminal liability regime resulting in convictions in the vast majority of cases that are brought to court.

  As the checking of travel documentation is ultimately carried out by ground crew (i.e. human beings), even the most vigilant airlines will sometimes make mistakes or overlook things. Most airlines carry hundreds of thousands of passengers to the Netherlands every year, while passenger numbers of the bigger airlines even run into the millions. These sheer passenger numbers, coupled with the impossibility to avoid human error, mean that even an airline with a compliance percentage of 99% or higher (which is not uncommon in the industry)⁸x For example, in the case that led to the aforementioned judgement (Dutch Supreme Court, 7 February 2017, ECLI:NL:HR:2017:40, NJ 2017/300) the airline in question claimed a compliance percentage of 99,99%. See ECLI:NL:PHR:2016:1470, par. 31. will still be faced with hundreds or even thousands of violations of Article 4(1) of the Dutch Aliens Act throughout the years.

• 3. A brief history and background of the KLM MoU

  In 1998 (before the MoU was concluded) the DPPS indeed opened hundreds of criminal cases against KLM because it had carried a large number of undocumented or incorrectly documented aliens into the Netherlands.⁹x See Kamerstukken II 1999/2000, 19 637, nr. 502, p. 1. Although KLM was initially acquitted on technical grounds in most cases by the first instance court,¹⁰x Ibid. According to the lower court, the description of the offence in the indictment was incorrect. these acquittals were overturned by the District Court after an appeal filed by the DPPS. The Supreme Court subsequently dismissed KLM’s cassation appeal against these convictions.¹¹x Dutch Supreme Court, 11 July 2000, ECLI:NL:HR:2000:AA6456, NJ 2002/373. This Supreme Court ruling de facto re­solved the hundreds of similar criminal cases against KLM in which the appeal proceedings had been adjourned pending the Supreme Court ruling. All these cases were subsequently settled with the DPPS. KLM, albeit “under protest”, paid a lump-sum fine of EUR 4.5 million (10 million guilders).¹²x See e.g. Reformatorisch Dagblad, “KLM betaalt ruim 10 miljoen aan justitie”, 3 February 2001. Available via: www.rd.nl/oud/010203home.html?pg=bin%2F010203bin04.html.

  After KLM experienced the semi-strict liability character of Article 4 Aliens Act first hand and the Dutch State got an understanding of the magnitude of potential violations by KLM in light of this semi-strict liability, it was apparently agreed that a practical way out had to be found. This way out was found in the MoU.¹³x See for a more detailed description of how the MoU came about also S. Scholten, Privatisation of Immigration Control? A socio-legal Study on the Role of private Transport Companies in the Netherlands and the United Kingdom (diss.), Brill | Nijhoff 2014, p. 127 et seq. According to Scholten, talks about an “alternative solution for the problem of undocumented arrivals” had already started before the Supreme Court ruling, as “[b]oth KLM and the government had considered the imposition of financial sanctions pro­blematic” (ibid., p. 127). With this MoU, the Dutch State and KLM intended to regulate compliance with the Aliens Act primarily through a ­covenant, rather than through criminal enforcement. The Dutch State and KLM signed the MoU on 24 January 2000 and it entered into force on 1 April 2000. The MoU was initially valid for three years,¹⁴x DGM document no. 10.1, MoJ FOIA-set I (hereinafter: “]KLM MoU”). but it was re­newed every three years by means of a formal addendum to the covenant (except in 2021, when it was tacitly re­newed).¹⁵x Amsterdam Court of Appeal 11 March 2021, ECLI:NL:GHAMS:2021:720.

  The MoU obligated KLM to take several extra measures to improve their checks on travel documents and prevent aliens from entering the Schengen area without the required documentation. These measures included, for example, the use of specified technical equipment when checking documents for forgery, training ground personnel on the inspection of travel documents and conducting final gate checks right before passengers board the plane.¹⁶x See KLM MoU. In exchange for these extra efforts, the MoU stipulated that KLM would, in principle, not be prosecut­ed for allegedly culpable violations of the Aliens Act – as long as KLM would stay within the agreed upon quota of violations.¹⁷x Ibid.

• 4. Amsterdam Court of Appeal judgements: due process renders prosecution inadmissible

  Whereas KLM was exempted from criminal enforcement (as long as it remained with its quota), all other airlines in the Netherlands remained subject to criminal prosecution for violations of the Aliens Act.

  According to the ‘Prosecution Guidelines on criminal liability for carrying undocumented or incorrectly documented aliens’ (“DPPS Guidelines”), the DPPS is to initially offer an out-of-court settlement to airline companies for violations of Article 4 Aliens Act.¹⁸x ‘Richtlijn voor strafvordering strafrechtelijke aansprakelijkheid voor de aanvoer van niet of onjuist gedocumenteerde vreemdelingen’. The current version of this directive is published in Staatscourant 2023, 33190. However, when airline companies frequently re-offend, they must be summoned to court, and this soon became the default prosecution modality for (almost) all airlines (except KLM) by 2006.¹⁹x See Amsterdam Court of Appeal, 27 May 2008, ECLI:NL:GHAMS:2008:BD2522.

  In 2008, the Amsterdam Court of Appeal took a stance against this difference in approach by the Dutch author­ities between KLM on the one hand and all other airlines on the other hand. In its judgement, the Court of Appeal noted that the DPPS Guidelines make no men­tion of the circumstance that, in view of the MoU with KLM, the DPPS is prepared to refrain from criminal pros­ecution if the airline reaches an agreement with the State intended to promote better compliance with the Aliens Act, provided that the number of offences remain within a certain margin. Additionally, the Court of Appeal noted that initiatives on the part of various airlines to talk to the DPPS about measures they could take to avoid criminal prosecution, remained unanswered. The Court of Appeal therefore held that the DPPS had violat­ed the principles of due process (beginselen van een behoorlijke procesorde) and a prosecution of the other airlines was therefore not admissible (niet-ontvankelijk).²⁰x Ibid.

  The DPPS did not appeal this judgement to the Supreme Court. Instead, the Dutch authorities formally informed the other airlines at the end of 2008 of the possibility to also conclude an MoU.²¹x IND document nos. 2B, 2C and 2D, MoJ FOIA-set I. Additionally, conferences were organized in 2009 and 2013 for all airlines flying to Schiphol to provide further information on the Dutch law on carrier liability and inform these airlines on the possibility of concluding an MoU.²²x IND document nos. 2C and 3, MoJ FOIA-set I. End of 2013, how­ever, it turned out that these efforts had not led to an MoU with any of the other airlines. The responsible ­State Secretary of Security and Justice stated in reply to questions by a parliamentarian – somewhat cryptically – that although the other airlines “are willing to coop­erate more closely with the Dutch State, an MoU is not the appropriate way to achieve this”.²³x See ‘Vragen van het lid Azmani (VVD) aan de staatssecretaris van Veiligheid en Justitie over de brief “de aantallen opgelegde boetes aan luchtvervoerders die de Vreemdelingenwet overtreden”’ (ingezonden 23 september 2013)’, Kamerstukken II 2013/14 (aanhangsel), 6 November 2013, nr. 408. In the same letter, he also informed parliament that prosecutions of the other airlines had therefore, retrospectively, re­sumed in April 2013.²⁴x Ibid. The authors note that the disclosed FOIA documents include a letter from the DPPS dated 22 December 2008, informing the airlines that starting 1 January 2009, the DPPS will start imposing fines for violations of Article 4 Dutch Aliens Act again, see IND document no. 2D, MoJ FOIA-set I. It is unclear whether this letter was ever sent, as is does not seem consistent with the statement by the State Secretary of Security and Justice.

  As the reasons for not entering into any further MoUs remained rather opaque, some airlines continued to challenge their fines in court. These cases ultimately made their way once more to the Amsterdam Court of Appeal which was, again, unforgiving. Notwithstanding the efforts of the Dutch authorities following its first judgement, the Court of Appeal held that the DPPS could not prosecute the other airlines as it had again violated the principles of due process, including the principle of equality (gelijkheidsbeginsel), the prohibition of arbitrariness (verbod van willekeur) and the principle of justified expectations (vertrouwensbeginsel).

  In a series of judgements in four cases, against four different airlines,²⁵x See Amsterdam Court of Appeal 11 March 2021, ECLI:NL:GHAMS:2021:719 to 722. See also the court’s official press-release, available via: https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Gerechtshoven/Gerechtshof-Amsterdam/Nieuws/Paginas/Openbaar-Ministerie-niet-ontvankelijk-in-vervolging-luchtvaartmaatschappijen.aspx. the Court of Appeal reiterated that the MoU with KLM brought with it a duty of care for the Dutch State to apply the same policy to other airlines. The court made note of the 2013 statement by the State Secretary of Justice, in which it had commented that an MoU would not be the appropriate avenue to achieve closer cooperation. However, the court did not find evidence of an actual effort by the Dutch State to achieve this cooperation and conclude an MoU with other air­lines. The organization of two conferences was deemed insufficient as it was unclear which airlines were invit­ed, what exactly was offered to them and what their response had been. Neither did the Court of Appeal find any indication that the airlines themselves were to ­blame for not reaching an MoU with the State, or that they had been unwilling to cooperate more closely with the State.²⁶x Amsterdam Court of Appeal 11 March 2021 ECLI:NL:GHAMS:2021:722.

  In one of the four judgements, the Court of Appeal further established that entering into an MoU was only (seriously) discussed with one of the airlines in that case (Turkish Airlines). It found, however, that other, stricter conditions were imposed on Turkish Airlines than those applied to KLM because the Dutch authorities required Turkish Airlines to see to it that the Dutch Liaison Officer was granted airside access, even though it would have been up to the Ministry of Foreign Affairs to ar­range this with the Turkish authorities.²⁷x Ibid.

  The DPPS did not appeal these four judgements of the Amsterdam Court of Appeal, having been informed by the experts of its cassation desk that they “did not appear to be unreasonable”.²⁸x Document no. 7, DPPS FOIA-set. As a result these judgements became final. The practical effect thereof was that as long as KLM was the only airline with an MoU, prosecution of the other airlines would be impossible. Quite surprisingly though, rather than engaging into a re­newed effort to conclude MoUs with the other airlines, the Dutch authorities instead decided not to extend the MoU with KLM (which consequently lapsed on 1 Jan­uary 2022).²⁹x Document no. 9, DPPS FOIA-set. Although this reopened the possibility of prosecuting all airlines again (including KLM), the decision to do so can in many ways be considered an example of “throwing the baby out with the bath water”. ­There is no indication that any of the airlines were against MoU’s as such, and neither was the Amsterdam Court of Appeal. The problem was the fact that only KLM had one.

  The reasons for not extending the MoU with KLM were never made public, so we can only speculate as to why this decision was taken.³⁰x In the FOIA documents to be discussed in the next chapter of this article, the relevant paragraphs in the disclosed documents which could have shed led on these reasons were all redacted. Perhaps the MoU was not extended because renewed discussions with other airlines would undoubtedly have led to a detailed analysis of the current MoU with KLM. As the Amsterdam Court of Appeal appears to have had only a summary at its disposal, it is therefore interesting to see what the MoU with KLM entailed precisely and how it compares to the MoU of­fered to Turkish Airlines, now that both documents were disclosed as part of the FOIA documents. We will do so in the next paragraph, but first we will take a closer look at the efforts of the Dutch State to enter into an MoU with other airlines as they can be deduced from the FOIA documents.

• 5. FOIA document findings

  Confirmation of lack of efforts by the Dutch State to reach an MoU with other airlines

  Whereas the Court of Appeal was only able to find an absence of evidence of an actual, sufficient effort by the State to conclude an MoU with other airlines (based on the case files), the FOIA request that was submitted with the Dutch Ministry of Justice, the DPPS and the Immigration- and Naturalization Service (Immigratie- en Naturalisatiedienst, IND) in 2021 required the authorities to conduct a thorough search for (and gave them the opportunity to find) documents providing such evi­dence.

  On the basis of the FOIA documents, a more detailed overview can be construed of the efforts by the Dutch authorities to reach an MoU with other airlines. First, the FOIA documents demonstrate an overall absence of records indicating that the Dutch authorities ever approached other airlines to reach an MoU prior to the first Court of Appeal judgement in 2008. Equally absent are reports on what was discussed and offered to airlines in the context of the 2009 Conference (which was organized following this first judgement).³¹x The FOIA documents do contain several internal e-mail chains between the IND and the DPPS discussing certain questions posed by the Amsterdam Court of Appeal in the context of the second set of appeal proceed­ings in 2019/2020 (see e.g. IND document no. 2, MoJ FOIA-set III). In these e-mails, the IND states that an MoU was discussed with several airlines as a follow-up to the 2009 conference, but that ultimately none of these airlines were interested in an MoU after all. However, we were un­able to find any documents among the documents disclosed containing concrete evidence of such discussions with other airlines in this period. The FOIA documents do provide evidence for discussions about an MoU with Turkish Airlines and Delta Airlines but these discussions did not take place until years after the 2009 conference (see further below). As to the 2013 Conference, it follows from the FOIA documents that the main topics discussed during this conference were: the duty of care, API (Advance Passenger Information) and recovery of costs from carriers (in case of aliens trav­elling without proper documentation).³²x IND document no. 3, 10, nos. 15–16, nos. 18–19, MoJ FOIA-set I. The FOIA documents indicate that the possibility of entering into an MoU was, at best, mentioned only in passing during the 2013 conference.³³x We found just one reference to an MoU in the hand-outs of the various presentations that appear to have been given during the 2013 conference. In one of the presentations, a slide entitled “Collaboration between the Dutch State and airlines” only says (among various other bullets): “Mem­orandum of Understanding > Duty of care” (see IND document no. 18, MoJ FOIA-set I). To what extent the oral explanation of this bullet includ­ed an invitation for other airlines to enter into an MoU is unclear. In any case, it follows from the aforementioned remark of the Dutch State Sec­retary later that year (see above, footnote 24) that an MoU was no ­longer on the table for other airlines end of 2013.

  Nevertheless, the FOIA documents do reveal that in 2011/2012 a “Framework MoU” was drafted to be offered to other airlines.³⁴x See IND document no. 23A, MoJ FOIA-set III (hereinafter: “Framework MoU”). The Framework MoU itself was disclosed as IND document no. 14A, MoJ FOIA-set I. Although some internal correspondence was disclosed in which it is stated that three air­lines were subsequently approached by the Dutch author­ities to discuss this Framework MoU,³⁵x See IND document no. 23, MoJ FOIA-set III. Which three airlines were approached is not mentioned in the e-mail. the FOIA documents provide concrete evidence of this in relation to only one airline (Turkish Airlines).³⁶x Which rejected the Framework MoU because it imposed a requirement on Turkish Airlines that it could not satisfy (only the Turkish authorities could do so), see above, paragraph 4. When, several years later in 2017, another airline (Delta Airlines) approached the Dutch authorities to discuss an MoU, it does not seem to have been provided with the Framework MoU. Instead, it appears from the FOIA documents that the outcome of the ensuing discussions with the Dutch authorities was that an MoU was not a feasible option. See e.g. IND document no. 21, MoJ FOIA-set III. According to this internal IND e-mail, an MoU would be possible for airlines flying from destinations with an increased risk which the United States was not. Additionally, the purpose of an MoU was said to be combatting illegal immigration whereas (likely) violations for this particular airline were of a different nature (mostly expired visa etc.). Similar argumentation can be found in Document no. 1, DPPS.

  That entering into an MoU was in practice not on the table for (almost all) other airlines is confirmed by a disclosed 2011 internal memo which stipulated three requirements for airlines to be considered eligible for an MoU: (1) the number of violations must be substantial, involving at least 10 cases on an annual basis; (2) the nature of violations is related to aliens with false or ­forged documents as these pose the biggest risk to illegal immigration; and (3) the airline must perform flights from outside the Schengen area to Schiphol.³⁷x DGM document no. 15.1, MoJ FOIA-set III. Under these requirements, only three airlines would have quali­fied for an MoU. Irrespective of the fact that it seems somewhat odd that only airlines with enough violations could be considered for (and therefore rewarded with) an MoU, a subsequent 2012 internal memo indicates that this requirement should be dropped anyway due to the principle of equality. The second requirement (nature of the violations) was to be dropped as well for the same reason. As a result, seven airlines would now quali­fy for an MoU.³⁸x IND document no. 23A, MoJ FOIA-set III. Nevertheless, and as indicated above, the FOIA documents indicate that Dutch authorities at most seem to have approached only three airlines after the conference in 2013. It therefore appears that al­though the other requirements were formally dropped due to concerns of inequality, they still applied in practice when reaching out to other airlines.³⁹x See in this regard also the internal e-mail referred to in footnote 36. According to this e-mail the three airlines were approached by the Dutch authorities as they were eligible for an MoU “due to their number of inads” – i.e. inadmissible passengers (which brings to mind the first condi­tion). See further also above footnote 37 about the purpose of an MoU being combatting illegal immigration (which is reminiscent of the second condition).

  All in all, the FOIA documents confirm in our view that the efforts of the Dutch authorities to reach an MoU with other airlines were ambiguous at best, and severely lacking at worst.

  However, even assuming that entering into an MoU was nevertheless a genuine possibility for other airlines, that still leaves the question if the MoU on offer (the Framework MoU) could be considered equal to the KLM MoU. As we will see below, comparing both MoUs shows that the Framework MoU was, in fact, substantially less advantageous.

  Material differences between KLM MoU and Framework MoU for other airlines

  The documents released under the FOIA include the orig­inal MoU with KLM that was signed in 2000,⁴⁰x See KLM MoU. its addenda from 2012,⁴¹x IND document no. 2, MoJ FOIA-set IV (hereinafter: “2012 KLM MoU Addendum”). 2015,⁴²x IND document no. 4, MoJ FOIA-set IV. and 2018⁴³x IND document no. 5, MoJ FOIA-set IV (hereinafter: “2018 KLM MoU Addendum”). (each extending the MoU by three years), and the appendices of the 2012⁴⁴x 2012 Addendum to KLM MoU, p. 4 and further (hereinafter: “2012 KLM MoU Addendum Appendixes”). and 2018⁴⁵x IND document no. 3, MoJ FOIA-set IV (hereinafter: “2018 KLM MoU Addendum Appendixes”). addenda. According to the Dutch authorities, these appendices did not change with every extension of the MoU by means of an addendum.⁴⁶x E-mail of the Ministry of Justice dated 21 June 2024, on file with the authors. This means that in case an addendum did not provide for new appendices, it may be assumed that the former appen­dices continued to apply during the extension. As the appendices to the 2018 addendum have been disclosed, but the authorities were unable to find and disclose the appendices to the 2015 addendum, the appendices to the 2012 addendum therefore most likely remained unchanged until 2018.

  The FOIA documents also include the Framework MoU that was drafted in November 2012 for other airlines.⁴⁷x See above footnote 35. Together, these documents allow for a full substantive comparison between the KLM MoU in the period 2012–2021, to the MoU that was drafted for other airlines in 2012. The comparison below demonstrates that the framework MoU drafted for the other airlines in November 2012, differed substantively from the KLM MoU in the aforementioned periods on several key points.

  Material targets and quotas

  The exemption from criminal prosecution as stipulated in the KLM MoU was based on material targets, divided into four categories of violations.⁴⁸x See Appendix 2 of 2012 KLM MoU Addendum Appendixes; and Appendix 2 of 2018 KLM MoU Addendum Appendixes.

  Category 1 violations: aliens where the necessary visa is found to be missing, including cases where the travel document or visa has expired;

  Category 2 violations: undocumented aliens coming from an airport subject to the transcript requirement, but for whom a copy of the travel document cannot be produced;

  Category 3 violations: aliens in possession of a false/forged travel document or a travel document bearing a false/forged visa, and aliens in respect of whom a negative opinion has been issued individually to the carrier at airport of departure;

  Category 4 violations: other cases concerning undoc­umented or improperly documented aliens with re­spect to whom the carrier failed to perform the duty of care, because it did not observe extra precautions specifically prescribed by the authorities with regard to a specific group of passengers that was identified as a high-risk group.

  For each category, an appendix to the MoU set a quarterly annual quota for KLM to stay within.⁴⁹x Ibid. For the first three categories of violations, these quotas were divided into yellow and red zones. If KLM would surpass the ‘yellow zone’ quota and enter the ‘red zone’ of viola­tions, it would have to take additional measures to bring back the number of violations to the yellow zone again in the subsequent annual quarter. If not successful in those efforts, KLM would be prosecuted for (only) those cases in the ‘red zone’ in that subsequent quarter. If KLM would again enter the red zone for a third annual quarter in a row, KLM would be prosecuted for all (both yellow and red zone) violations of the given category in the given quarter. This mechanism worked slightly different for category 4 cases. In this category, only one quota was set (i.e. it was not subdivided into two (yellow and red) zones). If this quota was to be surpassed, the MoU could be suspended or terminated.

  The initial MoU of 2000 set a target of reducing the number of category 1 and 2 cases to zero within three years of concluding the MoU. For categories 3 and 4, a 50% reduction within three years was envisioned.⁵⁰x IND document no. 23, MoJ FOIA-set III. How­ever, the FOIA documents disclose that this objective proved to be unfeasible two years into the MoU. It was therefore decided to adjust that target and reassess them on a yearly basis.⁵¹x Ibid.

  The quarterly quotas for KLM in 2012 and 2018 were as follows:

  KLM quarterly quotas
  	Category 1	Category 2	Category 3	Category 4
  2012 *	Yellow zone: 0–85 Red zone: 86–154	Yellow zone: 0–12 Red zone: 13–23	Yellow zone: 0–50 Red zone: 51–77	56
  2018**	Yellow zone: 0–70 Red zone: 70–112	Yellow zone: 0–9 Red zone: 9–16	Yellow zone: 0–43 Red zone: 43–60	40
  Target reduction between 2012–2018***	(–) 27%	(–) 30%	(–) 22%	(–) 28.5%

  ^* Appendix 2 of 2012 KLM MoU Addendum Appendixes.
  ^** Appendix 2 of 2018 KLM MoU Addendum Appendixes.
  ^*** Calculations by the authors, based on red zone numbers.

  For the sake of clarity, the numbers referred to in the table are quarterly quotas. In other words (and for example): in 2012 KLM was permitted to commit 4 x 56 = 224 category 4 violations without risking prosecution.

  The above is a stark contrast to the 2012 Framework MoU for the other airlines. This draft MoU was also ­based on quotas divided into the same four categories of types of violations where the exact quota were to be determined on an individual (airline) basis, based on the airline’s number of violations in the previous years.⁵²x See Framework MoU, appendix 7. That said, the Framework MoU did stipulate the follow­ing material targets for each category:

  • Category 1 and 2: gradual reduction of cases by 25% in year 1, 66% in year 2 and 100% in year 3.

  • Category 3 and 4: gradual reduction of cases by 12.5% in year 1, 25% in year 2 and 50% in year 3.⁵³x Ibid.

  This would mean that after the third year of the MoU, the airline would be prosecuted for all category 1 and 2 violations. As mentioned above, although the initial MoU with KLM was also based on such a 100% reduction in three years (for categories 1 and 2), it follows from the FOIA documents that this target had already proved impossible for KLM after two years. Therefore, this target reduction was abandoned and KLM was granted a lot more grace by 2012 when the framework MoU was approved for other airlines.

  Moreover, the Framework MoU stipulated that the agreement on material targets could be adjusted annually at the request of one of the MoU parties, albeit under the premise that the targets will not be adjusted in a way that will lead to a reduction in the percentages.⁵⁴x See Article 8.3 Framework MoU. This seems decidedly unfair when comparing it to the KLM MoU. Not only was the percentage quota reduction applied to KLM lower (22-30% vs. 50-100%), the timespan in which KLM had to achieve this reduction was considerably longer (six years vs. three years). This even more so considering that Article 8.9 of the KLM MoU provides for a similar provision allowing for the interim adjustment of the quotas, without the caveat that the percentages are not to be reduced.⁵⁵x See Article 8.9 KLM MOU inserted by Article 1.12 2012 KLM MoU Addendum and 2018 KLM MoU Addendum.

  Finally, the Framework MoU for other airlines did not apply a subdivision of the quotas into yellow and red ­zones. As such, whereas KLM was granted time to improve its compliance with additional measures if entering the red zone before being subjected to criminal enforcement, the Framework MoU would have sent other air­lines straight to criminal prosecution by default if not meeting the quotas.

  Additional material differences between the KLM MoU and Framework MoU

  In addition to the difference in targets and quotas, a comparison of the KLM MoU and the Framework MoU reveals additional differences showcasing how the former imposed more favourable conditions and requirements than the latter.

  For example, the Framework MoU did not provide other airlines with the same elaborate built-in consultation structure that would allow for the flexibility, constant monitoring and adjusting of quotas when necessary, as was provided for explicitly in the KLM MoU. Moreover, the 2018 Information Protocol attached to the 2018 addendum to the KLM MoU provided KLM with the significant advantage of the ability to exert influence on the decisions concerning which cases were to be registered and counted towards the quotas from 2018 onwards.

  These and other additional differences are schematically laid out in the table below.

  KLM MoU	Framework MoU
  Consultation infrastructure
  Elaborate infrastructure for frequent consultations between parties, including a Steering Group (once a year), Working Group (up to every 8 weeks) and ‘inadmissible meeting’ (once a month) to monitor progress, discuss and adjust targets/quotas, or inform each other about difficulties and developments concerning inadmissible passengers.	Limited consultation infrastructure with a Steering Group and Working Group to meet only upon request.
  Liaison officers
  No requirement regarding a liaison officer.	Requirement of allowing a Dutch liaison officer on site for binding negative travel advice (Article 1.7).
  Contact person
  No requirement regarding a contact person.	Requirement of making a contact person available to the authorities at all times (Article 6.2).
  Information Protocol
  2012: Absence of an Information Protocol. 2018: Information Protocol without the requirement of ‘generous cooperation’.	Elaborate Information Protocol with the requirement to grant ‘generous cooperation’ with Dutch immigration officers stationed at the airports of departure.*
  2018: The Information Protocol granted KLM the option to rebut the notifications by the Dutch military police (responsible for border control) of registered violations.	No possibility granted to rebut notifications by Dutch military police of registered violations.
  Protocol culpable cases**
  If KLM did not meet its duty of care in identifying false or forged travel documents, an official police report would be drafted (Article 5.1), but would only be sent to the DPPS when the category 3 quota was surpassed (Article 5.2).	If the airline did not meet its duty of care in identifying false or forged travel documents, an official police report would be drafted (Article 7.1) and sent to the DPPS (Article 7.2).***
  Self-blocked passengers
  A ‘Protocol self-blockings’ applied in cases concerning passengers carried into the Schengen area by KLM who later on intend to travel to a destination outside the Schengen area. If KLM failed to detect (and prevent) the entry because the traveller possessed a false travel document or visa but subsequently detected and prevented the onward transportation outside of the Schengen area (i.e. self-block­ings), the entire matter (i.e. including the inward journey) would be registered as a non-culpable category 3 violation (category 3 cases). As such, no (police) reports would be drafted of these cases and they would not be counted under the category 3 quota.	No Protocol self-blockings. Although appendix 4 of the Framework MoU also stipulated that the category of ‘self-blocked’ passengers would ‘in principle’ be registered as non-culpable category 3 violations, this was only the case if the Identity Fraud and Document Expertise Centre of the Dutch authorities had been called upon in connection with an investigation of the travel document and/or visa.****

  ^* This requirement seemed to have been (one of) the reason(s) for Turkish Airlines to reject the Framework MoU (see above).
  ^** This Protocol elaborated on the duty of care of the airline in checking travel documents to identify false and forged travel documents and visa.
  ^*** Unlike Article 5.1 of the Protocol for the KLM MoU, this implies that the reports are always sent to the DPPS regardless of whether the category 3 quota had been surpassed.
  ^**** This implies that the exception would only apply to forgeries etc. that are not clear-cut and require specific expertise to detect. Due to the absence of a further Protocol elaborating on this exception, it is unclear, however, what the exact rights and duties of the parties to the Framework MoU would be in this situation.

• 6. Legal implications: revision and State aid

  The sum of all these differences between the KLM MoU and the Framework MoU for other airlines, paint a picture in which the former was more favourable than the latter on several key points. As such, it is clear that even assuming this draft MoU was actually offered to (or discussed with) other airlines than Turkish Airlines, it still did not constitute a fair or equal effort as required by the case law of the Amsterdam Court of Appeal. After all, it would have imposed other – and at times stricter – conditions on these airlines than those applied to KLM. More­over, the FOIA documents provide new, more concrete evidence of the half-hearted efforts of the Dutch author­ities in approaching other airlines for an MoU.

  The disclosed FOIA documents therefore provide inter­esting new evidence that KLM was treated differently than other airlines – even more so than the Court of Appeal could have fathomed in its 2008 and 2021 judgements. This raises the question of whether, notwithstanding the non-extension of the KLM MoU, the almost 22 years of difference in treatment could still have legal consequences, both for other airlines and KLM. Two such potential consequences spring to mind in this regard and warrant further discussion, namely (i) whether final cases against other airlines in which fines were imposed can be “reopened”, and (ii) whether the advan­tages KLM had on the basis of the MoU could be consid­ered a form of (unlawful) State aid to KLM.

  Revision request?

  The new information from the FOIA documents potentially provides an interesting legal avenue for airlines to have their previous cases reopened and revised by the Dutch Supreme Court under Article 457 DCCP. One of the grounds on which a revision request can be based, is the presence of a novum (Article 457(1)(c) DCCP). A novum is a new fact which the judge was unaware of at the time of the trial, but raises the serious suspicion that if this fact had been known, the examination of the case would have led to an acquittal, the dismissal of all ­charges, the inadmissibility of the prosecution or the application of a lesser penalty.

  In its 2021 judgement, the Amsterdam Court of Appeal ruled that prosecutions of several other airlines were inadmissible due to a violation of the principles of due process, including the principle of equality, the prohibition of arbitrariness and the principle of justified expectations. The disclosed FOIA documents have since provided interesting new, additional evidence that KLM was treated differently than other airlines. Therefore, other airlines could consider submitting a revision request ­based on the novum that demonstrates that the Dutch authorities (including the DPPS), at the time of the trial examination of their case(s), had not made a sufficient or genuine effort to reach an MoU with other airlines and/or that – given the contents of the Framework MoU – the other airlines were not offered an MoU under the same conditions as that in force with KLM.

  This would certainly be a case of legal pioneering. There is case law on revision requests based on a novum that would have led to inadmissibility of the prosecution because the DPPS demonstrated serious violations of the principles of due process.⁵⁶x See A.L. Melai/M.S. Groenhuijsen e.a., Wetboek van Strafvordering, Article 457 Sv, note. 9.2. This case law does not, how­ever, concern cases in which the specific principles mentioned in the 2021 Amsterdam Court of Appeal judge­ment were at play. Further, previous case law generally concerns nova consisting of evidence that the State actively did something (e.g. misinformed the court),⁵⁷x For example, the Supreme Court ruled that the novum that the judge at the time of examination was provided with false information by the customs authority, gave rise to the serious suspicion that the court would have otherwise either declared the public prosecution inadmissible, or acquitted the accused (see Dutch Supreme Court, 26 April 1994, NJ 1994/736). rather than the State neglecting to do something (e.g. the absence of an effort to offer a similar MoU to other airlines). Moreover, considering the significant total amount of fines imposed on other airlines over the years, it goes without saying that a successful revision request could have far-reaching (financial) conse­quences for the Dutch State. The Supreme Court would undoubtedly be aware of this when deciding on a revi­sion request by any airline.

  In other words, there are legal hurdles to overcome if airlines were to submit a revision request. However, in light of the 2021 judgement and the newly disclosed evidence that KLM was treated differently than other air­lines, a revision request is certainly arguable.

  (Unlawful) State aid?

  It is clear from the above that for almost 22 years, KLM was given an unfair advantage which other airlines did not receive. Although this advantage is first and foremost of a non-financial nature (KLM could violate the Aliens Act without risking prosecution), it did have financial consequences as well. After all, not being prosecuted meant KLM would also not incur any fines – while other airlines did.

  Although the total number of violations for which KLM avoided criminal prosecution under the MoU through­out the years is unknown, the FOIA documents include tallies of recorded violations by KLM from January 2019 up until October 2019.⁵⁸x Bijlage 7: 3-1 Kwartaallijst, DGM document no. 5.7; Bijlage 6a: 2e Kwartaallijst 2019, DGM document no. 9.4.1; Bijlage 9a: 3e Kwartaallijst 2019, DGM document no. 9.4.3; Bijlage 10: October 2019, DGM document no. 9.4.4, all as disclosed in MoJ FOIA-set IV. Numbers on recorded violations in November and December 2019 were not disclosed. Assuming these numbers over a period of ten months are more or less representative for the entire period that the MoU was in force, they provide some insight into the possible extent of the (financial) advantage granted to KLM. In the aforementioned period, 72 ‘culpable’ violations by KLM were registered.⁵⁹x These include 31 category I violations, four category II violations, 33 cat­egory III violations and four transit violations. As these numbers remained within the MoU quotas, KLM was not prosecuted for these violations.

  According to the DPPS Guidelines applicable at the time, the DPPS would in case of carrier liability seek to have fines imposed of between €4,200 (first offender) to €9,500 (frequent recidivism) per passenger carried. This means that in the first ten months of 2019 alone, KLM avoided fines totaling between €302,400⁶⁰x 72 x 22 x €4,500 = €302,400. and €684,000.⁶¹x 72 x 22 x €9,500 = €684,000. Extrapolating this to the 22 years⁶²x Strictly speaking, the MoU was in force for 21 years and 9 months and not 22 years. For the sake of simplicity all calculations in this paragraph are based on a full 22 years. It is noted once again in this regard that – as exact amounts are unknown – the amounts calculated are hypothetical amounts, the purpose of which is to gain some insight in the total amounts possibly involved. in which the MoU was in force, the overall amount of fines which KLM could have had to pay – had it not been for the MoU – could be anywhere between €6 million and €15 mil­lion,⁶³x Although these amounts do not take into account the fact that fines gen­erally increase over the years (and could therefore have been lower in the period of 2000-2019), it should be noted that the frequent recidivism fine was already set at €9,500 as early as 2011 and was only slightly low­er (€7,000) from 2005-2010. See Richtlijn voor strafvordering strafrechtelijke aansprakelijkheid voor de aanvoer van niet of onjuist gedocumenteerde vreemdelingen 2011R030. The amounts were briefly €3,400 and €8,000 in the second half of 2010 (see 2010R023) and in 2005-2010 (first half) €3,000 and €7,000 (2005R011 to 2010R005). From 1993 to 2005 the amounts were €1,134 and €1,361 (see Staatscourant 1995, 59, p. 10). with the upper end of the spectrum being more like­ly than the lower end. After all, with these numbers of violations KLM would clearly not qualify as a “first offender”.⁶⁴x Furthermore, the DPPS Guidelines also provide that in case of “persistent and/or highly culpable recidivism”, “a significantly higher fine” should be demanded by prosecutors at the hearing. That an amount of anywhere between €6 million and €15 million for a period of 22 years is certainly not outside the realm of possibilities, is fur­ther illus­trated by the fact that KLM settled its pre-MoU cases – which covered a period of seven years (1993–2000) – for a lump-sum amount of €4.5 million. Extrapolating this amount to a period of 22 years boils down to fine total of a little over €14 million.⁶⁵x €4.5 million / 7 = €642,857 per year x 22 = €14.4 million.

  In theory, KLM was given even more grace as the record­ed violations in the period on which our extrapolation is based were lower than allowed under the MoU. In fact, if the calculation is based on the upper end of the range of allowed violations for each category (see above) multiplied by the fine imposed in case of frequent recidivism, it could be said that – over the total period of 22 years – the Dutch authorities granted KLM an unconditional (theoretical) waiver from fines of almost €100 million.⁶⁶x Under the 2018 addendum, the MoU allowed for a total of 488 violations annually in the ‘yellow zone’ across the first three categories and 160 violations annually in the fourth category. This means that, in theory, in 2018 alone, up to €6,156,000 in potential fines was waived in advance by the Dutch authorities ((488 +160) x €9,500 = €6,156,000). Extrapolating this amount to the period 2011-2021 leads to a total amount for this period of 11 x €6.156.000 = €67.716.000. For 2010 the number is more difficult to calculate, as the maximum fine for frequent recidivism was raised halfway during the year from €7,000 to €8,000 (see above, footnote 71). ­Based on an average fine of €7,500 the theoretical waiver in 2018 was (488+160) x €7,500 = €4,860,000. For the years 2005-2009, the theoretical waiver was (488 +160) x €7,000,- x 5 = €22,680,000. And for the period 2000-2004 the amount of the theoretical waiver was (488+160) x €1,361 x 5 = €4,409,640. So in total €4,409,640 (2000-2004) + €22,680,000 (2005-2009) + €4,860,000 (2010) + €67,716,000 (2011-2021) = €99,665,640. In reality, this already staggering number could be even higher as this calculation does not even include potentially waived violations in the ‘red zone’ of the quotas (which was subject to additional conditions). Furthermore, considering that the margin of error was reduced over the years (as the quotas of permitted violations were somewhat reduced), the number of allowed violations was even higher in the years prior to 2018, meaning the amount of the unconditional waiver was also higher.

  In all fairness, it should be noted, however, that these amounts do not take into account the fact that as a result of the two judgements of the Amsterdam Court of Appeal discussed above, there were two periods (namely May 2008 – April 2013 and April 2021 – December 2021) in which no airline seems to have been prosecuted for violations of Article 4 Aliens Act.⁶⁷x Although in relation to the first period (May 2008 – April 2013), the State Secretary indicated that prosecutions would be resumed “retroactively”, see above and footnote 24. Whether this has in fact happened (and if so, to what extent) is not entirely clear to us. In other words: in these two periods all airlines enjoyed de facto “impunity” in relation to these violations (albeit that KLM was the only airline which had any legal certainty in this regard as a result of its MoU). Furthermore, the MoU required KLM to take various additional measures, ­meaning KLM undoubtedly also incurred costs as a result of the MoU.

  Be that as it may, even when taking these caveats into account, it is clear that KLM’s financial advantage as a result of the MoU was considerable. This begs the question whether the MoU could qualify as State aid that was provided to KLM but not to other airlines and, if so, if this State aid was unlawful.

  Article 107 TFEU prohibits State aid under certain conditions. The rationale underlying this prohibition, is to achieve a level playing field in terms of competition for all undertakings operating in the internal market.⁶⁸x See e.g. opinion of Advocate-General Szpunar of 28 November 2017 in Case C‑579/16 P (FIH Holding), para. 58. As far as were able to ascertain, the Court of Justice of the European Union (CJEU) has never ruled on the issue of whether an MoU providing for a preferential prosecution arrangement (such as the KLM MoU) can constitute (unlawful) State aid and it is noted here that KLM itself is of the view that it does not.⁶⁹x See KLM’s reply reproduced directly following this article (see about this reply also above, footnote 1).

  That said – and although a full legal analysis would go beyond the scope of this article – a high-level analysis based on guidance by the European Commission (“Commission”)⁷⁰x It is noted here that as this Commission Guidance provides references to relevant CJEU case law we will, in principle, not reference to CJEU case law but instead only refer to the relevant paragraph in the Commission Guidance. in our view suggests the issue certainly deserves more attention and what follows is intended to set the stage for further discussion.⁷¹x Ultimately, it is the Commission which is primarily responsible for enforc­ing EU State aid rules. If the Commission decides that State aid is incompatible with the internal market it may not be implemented. If it has already been implemented, the aid granted should be recovered (which ­includes interest and is payable from the date on which the unlawful aid was at the disposal of the beneficiary until the date of its recovery) (see fur­ther also https://competition-policy.ec.europa.eu/state-aid/procedures/recovery-unlawful-aid_en). A practical obstacle in this regard in this particular matter (in case the Commission were to find that the KLM MoU constituted unlawful State aid) is that for reasons of legal certainty, EU law provides for a limitation period after which recovery of the aid can no longer be ordered. This period is ten years from the date on which the aid was granted. This means that even assuming the KLM MoU constituted State aid, recovery of any advantages obtained by KLM has – at the time of writing of this article – become time-barred for all aid granted before 2014.

  In short, to qualify as State aid, the Commission Guid­ance indicates that a measure needs to satisfy the fol­low­ing cumulative conditions:

  • there has been an intervention by the State (or through State resources);

  • this intervention gives the recipient an advantage on a selective basis;

  • as a result, competition has been or may be distort­ed; and

  • is likely to affect trade between Member States.⁷²x See https://competition-policy.ec.europa.eu/state-aid/overview_en.

  The first condition will pose few problems, as the MoU with KLM clearly constituted an “intervention” at­tributable to the Dutch State.⁷³x The intervention can take a variety of forms such as grants, interest and tax reliefs, guarantees, government holdings of all or part of a company, or providing goods and services on preferential terms, etc. (see https://competition-policy.ec.europa.eu/state-aid/overview_en). In cases where a public authority grants an advantage to a beneficiary, the measure is by definition imputable to the State, even if the authority in question enjoys legal autonomy from other public authorities. See Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 39.

  It could also be said that this intervention gave KLM an “advantage”. According to the Commission Guidance, an “advantage” is present whenever the financial situation of an undertaking is improved as a result of State intervention on terms differing from normal market condi­tions.⁷⁴x See Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 67. The precise form of the measure is irrelevant in establishing whether it confers an economic advantage on the undertaking. Not only the granting of positive economic advantages is relevant for the notion of State aid, but relief from economic burdens can also consti­tute an advantage. This includes situations in which an operator does not have to bear costs that other comparable operators normally do under a given legal order (regardless of the non- economic nature of the activity to which the costs relate).⁷⁵x Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 68. In light of these factors it seems clear that the MoU gave KLM an advantage, as it relieved the airline not only of prosecutions for its violations of the Aliens Act, but also of the accompanying fines.⁷⁶x Compare in this regard also, for example, CJEU, Case C-200/97 (Ecotrade), 1 December 1998, paras. 41-44; CJEU, Case C-295/97 (Piaggo), 17 June 1999, paras. 40-43; and CJEU, Case C-256/97 (DM Transport), 29 June 1999, para. 19, all indicating that State aid can also result from allowing belated or non-payment of fines or social/tax contributions.

  In light of the rulings of the Amsterdam Court of Appeal the “selectivity” requirement also seems to be satisfied. After all, according to the Commission’s Guidance, there is “selectivity” when the public aid grants an advantage in a selective way to certain undertakings.⁷⁷x Ibid. General measures which are effectively open to all undertakings oper­ating within an EU country on an equal basis are not selective. However, for the measures to be genuinely general in character, they should not be in fact reduced in scope by factors that restrict their practical effect. See also Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), paras. 117 et seq.

  Finally, it can be argued that the last two criteria have also been satisfied. According to Commission guidance, a measure granted by the State is considered to distort or threaten to distort competition when it is liable to improve the competitive position of the recipient compared to other undertakings with which it competes.⁷⁸x Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 187. According to the Commission, a distortion of competi­tion is generally found to exist when the State grants a financial advantage to an undertaking in a liberalized sector where there is, or could be, competition.⁷⁹x Ibid. Where state aid strengthens the position of an undertaking as compared with other undertakings competing in intra-EU trade, the latter is generally also regarded as affected by the aid.⁸⁰x Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 190.

  Although the KLM MoU may thus very well qualify as State aid within the meaning of Article 107 TFEU, this does not automatically mean it also constitutes unlawful State aid. The TFEU contains a general prohibition of State aid, but also recognizes that in some circum­stances, government intervention may be necessary. State aid may be permitted if it is justified by objectives of gen­eral interest, such as aid to promote the development of disadvantaged areas or for services of general eco­nomic interest, small and medium-sized enterprises, re­search and development, environmental protection, train­ing, employment and culture.⁸¹x See Article 107, paras. 2 and 3 TFEU and https://eur-lex.europa.eu/EN/legal-content/glossary/state-aid.html. None of these gen­eral interest exceptions seem to apply, however, in the case of the KLM MoU. Furthermore – and in any case – any State aid measure has to be notified to the Commission for an assessment before it can be implemented. Al­though there are certain exceptions to this notification obligation,⁸²x Namely aid covered by a Block Exemption (giving automatic approval for a range of aid measures defined by the Commission), de minimis aid not exceeding €200,000 per undertaking over any period of three fiscal years (€100,000 in the road transport sector) or aid granted under an aid ­scheme already authorised by the Commission. See https://competition-policy.ec.europa.eu/state-aid/procedures_en. neither of those seems to apply to the KLM MoU as well. We were unable to find any indication that the KLM MoU was notified to the Commission for an assessment of whether it constituted state aid.⁸³x Searches were conducted in the following Commission databases: https://competition-cases.ec.europa.eu/search and https://webgate.ec.europa.eu/competition/transparency/public/search/home?lang=en.

• 7. Concluding remarks

  Whereas the law requires that all are to be treated equally, there is now concrete evidence that for over 20 years the Dutch State treated KLM more equal than others. Although one may consider this a case of “what is done is done”, this article has outlined at least two legal av­enues that could be explored further to right past wrongs.

  As for KLM, it is now subject to prosecution again for violations of the Aliens Act since its MoU with the Dutch State lapsed. Considering the tallies of recorded viola­tions as uncovered by the FOIA documents, this will likely lead to KLM incurring high amounts of fines. After all, as is the case for other airlines, the reality is that it is ­impossible to create a 100% watertight system that prevents the carrying of all incorrectly documented passengers into the Schengen area. No matter how thor­ough the policy implemented by the airline, how robust the automatic systems that airlines have in place to flag potential violations, or how comprehensive the training of their staff – final checks of travel documents as of today remains a job done by people – and people make mistakes. From this perspective, the semi-strict liability regime of Article 4 Aliens Act still simply does not do justice to the situation.

  Rather than discontinuing the MoU altogether, the Dutch authorities might therefore want to reconsider an MoU-like solution for all airlines flying on Schiphol. Perhaps it is not feasible for the Dutch State to put an MoU in place for all airlines as comprehensive as the one it had with KLM, but even a scaled-down version would ultimately result in a more equitable (and potentially more effective) regime than the blanket prosecution of all Article 4 Aliens Act violations in the current situa­tion – for both KLM and other airlines equally.

  Het artikel van mr. Dieben en mr. De Bel behandelt het vervolgingsbeleid van het Openbaar ­Ministerie naar aanleiding van arresten van het Gerechtshof Amsterdam uit 2021. KLM is in deze zaken geen procespartij geweest. KLM kan het hierop betrekking hebbende beleid van het OM dan ook niet inhoudelijk beoordelen. Wel staat vast dat het door de schrijvers genoemde Memorandum of Understanding met ingang van 2022 beëindigd is. KLM weerspreekt dat het door de schrijvers genoemde Memorandum of Understanding ongeoorloofde staatssteun zou hebben ingehouden.

Noten

• * A draft version of this article was sent to the DPPS and KLM for comment (wederhoor). KLM’s comment is published in full directly following this article. No reply was received from the DPPS.

• 1 See Article 108 of the Dutch Aliens Act 2000 which – for legal persons – provides for a theoretical maximum fine of the fourth category (= EUR 25,750 as of 1 January 2024). In practice fines tend to range between EUR 4,000 (first offender) and EUR 9,500 (frequent recidivism).

• 2 The Wet open overheid and its predecessor Wet openbaarheid van bestuur.

• 3 Four (partially overlapping) sets of documents have been disclosed by the DPPS and the Ministry of Justice (MoJ):
  DPPS decision dated 1 December 2021, available via: www.om.nl/documenten/wob-woo/map/map/2021/wob-besluit-inzake-informatie-over-en-rondom-mou-tussen-de-klm-en-de-staat---kenmerk-pag-bjz-55822 (hereinafter: “DPPS FOIA-set”);
  MoJ decision dated 23 September 2022, available via www.rijksoverheid.nl/documenten/woo-besluiten/2022/09/23/besluit-op-woo-verzoek-over-het-mou-met-klm (hereinafter: “MoJ FOIA-set I”);
  MoJ decision dated 17 October 2022, available via www.rijksoverheid.nl/documenten/woo-besluiten/2022/10/17/besluit-op-woo-verzoek-over-het-beeindigen-van-het-mou-met-klm (hereinafter: “MoJ FOIA-set II”);
  MoJ decision dated 12 May 2023, available via www.rijksoverheid.nl/documenten/woo-besluiten/2023/05/12/besluit-op-bezwaar-woo-verzoek-over-het-mou-met-klm (hereinafter: “MoJ FOIA-set III”).
  A fourth set of documents was disclosed on 15 January 2024 by the MoJ, but this set has not been published online yet (the authors have a copy of this set on file (hereinafter: “MoJ FOIA-set IV”).

• 4 See for a more detailed description of the introduction of carrier liability in the Netherlands, S. Scholten, Privatisation of Immigration Control? A socio-legal Study on the Role of private Transport Companies in the Netherlands and the United Kingdom (diss.), Brill | Nijhoff 2014, p. 40 et seq.

• 5 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders.

• 6 See Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the move­ment of persons across borders (Schengen Borders Code).

• 7 Dutch Supreme Court, 7 February 2017, ECLI:NL:HR:2017:40, NJ 2017/300.

• 8 For example, in the case that led to the aforementioned judgement (Dutch Supreme Court, 7 February 2017, ECLI:NL:HR:2017:40, NJ 2017/300) the airline in question claimed a compliance percentage of 99,99%. See ECLI:NL:PHR:2016:1470, par. 31.

• 9 See Kamerstukken II 1999/2000, 19 637, nr. 502, p. 1.

• 10 Ibid. According to the lower court, the description of the offence in the indictment was incorrect.

• 11 Dutch Supreme Court, 11 July 2000, ECLI:NL:HR:2000:AA6456, NJ 2002/373.

• 12 See e.g. Reformatorisch Dagblad, “KLM betaalt ruim 10 miljoen aan justitie”, 3 February 2001. Available via: www.rd.nl/oud/010203home.html?pg=bin%2F010203bin04.html.

• 13 See for a more detailed description of how the MoU came about also S. Scholten, Privatisation of Immigration Control? A socio-legal Study on the Role of private Transport Companies in the Netherlands and the United Kingdom (diss.), Brill | Nijhoff 2014, p. 127 et seq. According to Scholten, talks about an “alternative solution for the problem of undocumented arrivals” had already started before the Supreme Court ruling, as “[b]oth KLM and the government had considered the imposition of financial sanctions pro­blematic” (ibid., p. 127).

• 14 DGM document no. 10.1, MoJ FOIA-set I (hereinafter: “]KLM MoU”).

• 15 Amsterdam Court of Appeal 11 March 2021, ECLI:NL:GHAMS:2021:720.

• 16 See KLM MoU.

• 17 Ibid.

• 18 ‘Richtlijn voor strafvordering strafrechtelijke aansprakelijkheid voor de aanvoer van niet of onjuist gedocumenteerde vreemdelingen’. The current version of this directive is published in Staatscourant 2023, 33190.

• 19 See Amsterdam Court of Appeal, 27 May 2008, ECLI:NL:GHAMS:2008:BD2522.

• 20 Ibid.

• 21 IND document nos. 2B, 2C and 2D, MoJ FOIA-set I.

• 22 IND document nos. 2C and 3, MoJ FOIA-set I.

• 23 See ‘Vragen van het lid Azmani (VVD) aan de staatssecretaris van Veiligheid en Justitie over de brief “de aantallen opgelegde boetes aan luchtvervoerders die de Vreemdelingenwet overtreden”’ (ingezonden 23 september 2013)’, Kamerstukken II 2013/14 (aanhangsel), 6 November 2013, nr. 408.

• 24 Ibid. The authors note that the disclosed FOIA documents include a letter from the DPPS dated 22 December 2008, informing the airlines that starting 1 January 2009, the DPPS will start imposing fines for violations of Article 4 Dutch Aliens Act again, see IND document no. 2D, MoJ FOIA-set I. It is unclear whether this letter was ever sent, as is does not seem consistent with the statement by the State Secretary of Security and Justice.

• 25 See Amsterdam Court of Appeal 11 March 2021, ECLI:NL:GHAMS:2021:719 to 722. See also the court’s official press-release, available via: https://www.rechtspraak.nl/Organisatie-en-contact/Organisatie/Gerechtshoven/Gerechtshof-Amsterdam/Nieuws/Paginas/Openbaar-Ministerie-niet-ontvankelijk-in-vervolging-luchtvaartmaatschappijen.aspx.

• 26 Amsterdam Court of Appeal 11 March 2021 ECLI:NL:GHAMS:2021:722.

• 27 Ibid.

• 28 Document no. 7, DPPS FOIA-set.

• 29 Document no. 9, DPPS FOIA-set.

• 30 In the FOIA documents to be discussed in the next chapter of this article, the relevant paragraphs in the disclosed documents which could have shed led on these reasons were all redacted.

• 31 The FOIA documents do contain several internal e-mail chains between the IND and the DPPS discussing certain questions posed by the Amsterdam Court of Appeal in the context of the second set of appeal proceed­ings in 2019/2020 (see e.g. IND document no. 2, MoJ FOIA-set III). In these e-mails, the IND states that an MoU was discussed with several airlines as a follow-up to the 2009 conference, but that ultimately none of these airlines were interested in an MoU after all. However, we were un­able to find any documents among the documents disclosed containing concrete evidence of such discussions with other airlines in this period. The FOIA documents do provide evidence for discussions about an MoU with Turkish Airlines and Delta Airlines but these discussions did not take place until years after the 2009 conference (see further below).

• 32 IND document no. 3, 10, nos. 15–16, nos. 18–19, MoJ FOIA-set I.

• 33 We found just one reference to an MoU in the hand-outs of the various presentations that appear to have been given during the 2013 conference. In one of the presentations, a slide entitled “Collaboration between the Dutch State and airlines” only says (among various other bullets): “Mem­orandum of Understanding > Duty of care” (see IND document no. 18, MoJ FOIA-set I). To what extent the oral explanation of this bullet includ­ed an invitation for other airlines to enter into an MoU is unclear. In any case, it follows from the aforementioned remark of the Dutch State Sec­retary later that year (see above, footnote 24) that an MoU was no ­longer on the table for other airlines end of 2013.

• 34 See IND document no. 23A, MoJ FOIA-set III (hereinafter: “Framework MoU”). The Framework MoU itself was disclosed as IND document no. 14A, MoJ FOIA-set I.

• 35 See IND document no. 23, MoJ FOIA-set III. Which three airlines were approached is not mentioned in the e-mail.

• 36 Which rejected the Framework MoU because it imposed a requirement on Turkish Airlines that it could not satisfy (only the Turkish authorities could do so), see above, paragraph 4. When, several years later in 2017, another airline (Delta Airlines) approached the Dutch authorities to discuss an MoU, it does not seem to have been provided with the Framework MoU. Instead, it appears from the FOIA documents that the outcome of the ensuing discussions with the Dutch authorities was that an MoU was not a feasible option. See e.g. IND document no. 21, MoJ FOIA-set III. According to this internal IND e-mail, an MoU would be possible for airlines flying from destinations with an increased risk which the United States was not. Additionally, the purpose of an MoU was said to be combatting illegal immigration whereas (likely) violations for this particular airline were of a different nature (mostly expired visa etc.). Similar argumentation can be found in Document no. 1, DPPS.

• 37 DGM document no. 15.1, MoJ FOIA-set III.

• 38 IND document no. 23A, MoJ FOIA-set III.

• 39 See in this regard also the internal e-mail referred to in footnote 36. According to this e-mail the three airlines were approached by the Dutch authorities as they were eligible for an MoU “due to their number of inads” – i.e. inadmissible passengers (which brings to mind the first condi­tion). See further also above footnote 37 about the purpose of an MoU being combatting illegal immigration (which is reminiscent of the second condition).

• 40 See KLM MoU.

• 41 IND document no. 2, MoJ FOIA-set IV (hereinafter: “2012 KLM MoU Addendum”).

• 42 IND document no. 4, MoJ FOIA-set IV.

• 43 IND document no. 5, MoJ FOIA-set IV (hereinafter: “2018 KLM MoU Addendum”).

• 44 2012 Addendum to KLM MoU, p. 4 and further (hereinafter: “2012 KLM MoU Addendum Appendixes”).

• 45 IND document no. 3, MoJ FOIA-set IV (hereinafter: “2018 KLM MoU Addendum Appendixes”).

• 46 E-mail of the Ministry of Justice dated 21 June 2024, on file with the authors.

• 47 See above footnote 35.

• 48 See Appendix 2 of 2012 KLM MoU Addendum Appendixes; and Appendix 2 of 2018 KLM MoU Addendum Appendixes.

• 49 Ibid.

• 50 IND document no. 23, MoJ FOIA-set III.

• 51 Ibid.

• 52 See Framework MoU, appendix 7.

• 53 Ibid.

• 54 See Article 8.3 Framework MoU.

• 55 See Article 8.9 KLM MOU inserted by Article 1.12 2012 KLM MoU Addendum and 2018 KLM MoU Addendum.

• 56 See A.L. Melai/M.S. Groenhuijsen e.a., Wetboek van Strafvordering, Article 457 Sv, note. 9.2.

• 57 For example, the Supreme Court ruled that the novum that the judge at the time of examination was provided with false information by the customs authority, gave rise to the serious suspicion that the court would have otherwise either declared the public prosecution inadmissible, or acquitted the accused (see Dutch Supreme Court, 26 April 1994, NJ 1994/736).

• 58 Bijlage 7: 3-1 Kwartaallijst, DGM document no. 5.7; Bijlage 6a: 2e Kwartaallijst 2019, DGM document no. 9.4.1; Bijlage 9a: 3e Kwartaallijst 2019, DGM document no. 9.4.3; Bijlage 10: October 2019, DGM document no. 9.4.4, all as disclosed in MoJ FOIA-set IV. Numbers on recorded violations in November and December 2019 were not disclosed.

• 59 These include 31 category I violations, four category II violations, 33 cat­egory III violations and four transit violations.

• 60 72 x 22 x €4,500 = €302,400.

• 61 72 x 22 x €9,500 = €684,000.

• 62 Strictly speaking, the MoU was in force for 21 years and 9 months and not 22 years. For the sake of simplicity all calculations in this paragraph are based on a full 22 years. It is noted once again in this regard that – as exact amounts are unknown – the amounts calculated are hypothetical amounts, the purpose of which is to gain some insight in the total amounts possibly involved.

• 63 Although these amounts do not take into account the fact that fines gen­erally increase over the years (and could therefore have been lower in the period of 2000-2019), it should be noted that the frequent recidivism fine was already set at €9,500 as early as 2011 and was only slightly low­er (€7,000) from 2005-2010. See Richtlijn voor strafvordering strafrechtelijke aansprakelijkheid voor de aanvoer van niet of onjuist gedocumenteerde vreemdelingen 2011R030. The amounts were briefly €3,400 and €8,000 in the second half of 2010 (see 2010R023) and in 2005-2010 (first half) €3,000 and €7,000 (2005R011 to 2010R005). From 1993 to 2005 the amounts were €1,134 and €1,361 (see Staatscourant 1995, 59, p. 10).

• 64 Furthermore, the DPPS Guidelines also provide that in case of “persistent and/or highly culpable recidivism”, “a significantly higher fine” should be demanded by prosecutors at the hearing.

• 65 €4.5 million / 7 = €642,857 per year x 22 = €14.4 million.

• 66 Under the 2018 addendum, the MoU allowed for a total of 488 violations annually in the ‘yellow zone’ across the first three categories and 160 violations annually in the fourth category. This means that, in theory, in 2018 alone, up to €6,156,000 in potential fines was waived in advance by the Dutch authorities ((488 +160) x €9,500 = €6,156,000). Extrapolating this amount to the period 2011-2021 leads to a total amount for this period of 11 x €6.156.000 = €67.716.000. For 2010 the number is more difficult to calculate, as the maximum fine for frequent recidivism was raised halfway during the year from €7,000 to €8,000 (see above, footnote 71). ­Based on an average fine of €7,500 the theoretical waiver in 2018 was (488+160) x €7,500 = €4,860,000. For the years 2005-2009, the theoretical waiver was (488 +160) x €7,000,- x 5 = €22,680,000. And for the period 2000-2004 the amount of the theoretical waiver was (488+160) x €1,361 x 5 = €4,409,640. So in total €4,409,640 (2000-2004) + €22,680,000 (2005-2009) + €4,860,000 (2010) + €67,716,000 (2011-2021) = €99,665,640. In reality, this already staggering number could be even higher as this calculation does not even include potentially waived violations in the ‘red zone’ of the quotas (which was subject to additional conditions). Furthermore, considering that the margin of error was reduced over the years (as the quotas of permitted violations were somewhat reduced), the number of allowed violations was even higher in the years prior to 2018, meaning the amount of the unconditional waiver was also higher.

• 67 Although in relation to the first period (May 2008 – April 2013), the State Secretary indicated that prosecutions would be resumed “retroactively”, see above and footnote 24. Whether this has in fact happened (and if so, to what extent) is not entirely clear to us.

• 68 See e.g. opinion of Advocate-General Szpunar of 28 November 2017 in Case C‑579/16 P (FIH Holding), para. 58.

• 69 See KLM’s reply reproduced directly following this article (see about this reply also above, footnote 1).

• 70 It is noted here that as this Commission Guidance provides references to relevant CJEU case law we will, in principle, not reference to CJEU case law but instead only refer to the relevant paragraph in the Commission Guidance.

• 71 Ultimately, it is the Commission which is primarily responsible for enforc­ing EU State aid rules. If the Commission decides that State aid is incompatible with the internal market it may not be implemented. If it has already been implemented, the aid granted should be recovered (which ­includes interest and is payable from the date on which the unlawful aid was at the disposal of the beneficiary until the date of its recovery) (see fur­ther also https://competition-policy.ec.europa.eu/state-aid/procedures/recovery-unlawful-aid_en). A practical obstacle in this regard in this particular matter (in case the Commission were to find that the KLM MoU constituted unlawful State aid) is that for reasons of legal certainty, EU law provides for a limitation period after which recovery of the aid can no longer be ordered. This period is ten years from the date on which the aid was granted. This means that even assuming the KLM MoU constituted State aid, recovery of any advantages obtained by KLM has – at the time of writing of this article – become time-barred for all aid granted before 2014.

• 72 See https://competition-policy.ec.europa.eu/state-aid/overview_en.

• 73 The intervention can take a variety of forms such as grants, interest and tax reliefs, guarantees, government holdings of all or part of a company, or providing goods and services on preferential terms, etc. (see https://competition-policy.ec.europa.eu/state-aid/overview_en). In cases where a public authority grants an advantage to a beneficiary, the measure is by definition imputable to the State, even if the authority in question enjoys legal autonomy from other public authorities. See Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 39.

• 74 See Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 67.

• 75 Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 68.

• 76 Compare in this regard also, for example, CJEU, Case C-200/97 (Ecotrade), 1 December 1998, paras. 41-44; CJEU, Case C-295/97 (Piaggo), 17 June 1999, paras. 40-43; and CJEU, Case C-256/97 (DM Transport), 29 June 1999, para. 19, all indicating that State aid can also result from allowing belated or non-payment of fines or social/tax contributions.

• 77 Ibid. General measures which are effectively open to all undertakings oper­ating within an EU country on an equal basis are not selective. However, for the measures to be genuinely general in character, they should not be in fact reduced in scope by factors that restrict their practical effect. See also Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), paras. 117 et seq.

• 78 Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 187.

• 79 Ibid.

• 80 Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union (2016/C 262/01), para. 190.

• 81 See Article 107, paras. 2 and 3 TFEU and https://eur-lex.europa.eu/EN/legal-content/glossary/state-aid.html.

• 82 Namely aid covered by a Block Exemption (giving automatic approval for a range of aid measures defined by the Commission), de minimis aid not exceeding €200,000 per undertaking over any period of three fiscal years (€100,000 in the road transport sector) or aid granted under an aid ­scheme already authorised by the Commission. See https://competition-policy.ec.europa.eu/state-aid/procedures_en.

• 83 Searches were conducted in the following Commission databases: https://competition-cases.ec.europa.eu/search and https://webgate.ec.europa.eu/competition/transparency/public/search/home?lang=en.