3 December 2019

Dutch business licences and litigation

Category: Licenses

If the application for a Dutch business licence has been rejected, the applicant may lodge an objection and appeal. Proceedings on licensing decisions may also be instituted by a victim (competitor) or another interested party. So it’s important to be sure your Dutch license is secure.

How to retain your Dutch permit?

You may try to have that decision annulled by way of an administrative procedure. The procedure usually starts with a notice of objection to the administrative body that made the decision; after that, an appeal can be lodged with the court and finally an appeal can be lodged with the Council of State or the Trade and Industry Appeals Tribunal. In many cases, the Trade and Industry Appeals Tribunal is the first and highest administrative court. In a number of proceedings the Board of Appeal acts on appeal. I will discuss the administrative law procedures below.

Objection procedure for Dutch license

Decisions taken by public authorities can be appealed to the licensing authority. However, the objector must be an interested party, i.e. the person whose interest is directly affected by the decision granting or refusing the licence. A notice of objection starts the objection procedure, in which the decision made (for example, the decision granting or refusing the licence) is reconsidered. The statutory regulations are included in Chapter 8 of the General Administrative Law Act (Awb). Other candidates for a licence, who had also submitted an application, could also complain about the way in which the licence was allocated.

Objection requirements for Dutch complaints procedure

The notice of objection must be submitted within the objection period of 6 weeks from the date of the decision. Objections to the decision must be outlined in the notice of objection. The decision itself should be clearly explained and should be enclosed with the notice of objection. All the personal details of the interested parties must also be stated. The interested party should also indicate why he or she is an interested party. It can sometimes be sufficient to submit a pro forma objection. This means that the objection is lodged within a period of 6 weeks, but that the grounds for the objection are submitted later. This is useful if the objection period has almost expired and there is too little time to elaborate on the objection in the notice of objection. With the pro forma objection, the objection period is then safeguarded. However, this is not possible in all procedures. Usually the administrative body will set a further term within which the objections must still be submitted.

Direct appeal to Dutch adminitrative Court

The objection procedure can be by-passed with the application of Article 7:1a of the General Administrative Law Act (Awb). You can submit a request to the administrative body that has made the decision to appeal directly to the court’s administrative law department. This may be useful if you do not expect the notice of objection to have any chance at the administrative body itself. In that case, it may be efficient to submit the objections on appeal directly to a professional judge.

Filing an appeal with the administrative court

If the objection is rejected or the objector disagrees with the decision on the objection, an appeal can be lodged with the administrative law department of a competent court. It is advisable to engage the services of a Dutch administrative lawyer for this purpose. In principle, the case will be heard by one judge, but if the case is unsuitable to be heard by one judge, the case will be heard by three judges (multiple chamber). Appeals are regulated by Chapter 8 of the General Administrative Law Act (Awb).

On appeal, the judge will review whether the decision was lawful. It will be examined whether the decision was made in accordance with the Act and whether it has violated one or more of the principles of good administration. This includes the principle of equality, the principle of the protection of legitimate expectations, and the principle of due care. It can also be considered whether a decision is proportionate and whether the principle of proportionality or subsidiarity has been breached. Appeals must be lodged within six weeks of the date of the decision on the objection and the decision of the court respectively.