4 Fourth question: the position of the regulator

Both the supervision and the enforcement by the regulator focus primarilyon the outsourcing company. However, the regulator can extend its reachto the service provider. This is particularly important when the outsourceror service provider frustrates the exercise of the supervisory powers.

In principle, the outsourcing company is the party that shouldprovide its regulator with all necessary information. However, the outsourcingcompany must stipulate that its regulator has a right to directlyaddress its requests for information to the service provider and a right toexecute a site survey at the premises of the service provider. This enablesthe regulator to obtain control information faster and to determine forthat the outsourced work is carried out correctly. Nevertheless, the burdenfor the service provider will be limited. The proportionality principlerequires that the regulator exercises its powers in the least burdensomeway. Consequently, he must focus, in principle, on the outsourcer. It alsofollows from the principle of proportionality that if the regulator turns tothe service provider, it can request no more information than is reasonablyneeded for the exercise of its statutory duties. Moreover, it can exercise nopowers towards the service provider which he had been unable to exerciseagainst the outsourcer. This is true even if the service provider has agreedcontractually with further-reaching investigative powers for the regulator.

Furthermore when seeking to enforce the compliance to regulations,the regulator must, in principle, focus on the outsourcer. The regulator hasplenty of powers to force an outsourcing company to comply with theapplicable rules. In practice, it uses mostly the conformity conversation (“normoverdragend gesprek”), the instruction, the penalty and the provisionalpenalty. An instruction or a provisional penalty may also require an outsourcingcompany to intervene in the outsourcing relationship in a prescribedmanner. The outsourcing company may even be required to terminate therelationship. In any case, the required action must be proportionate to the offence.