New policy and requirements for existing Dutch licences
Category: Administrative law, Licenses
There may be situations where a licence is no longer in line with current legislation and regulations. In that case, the competent authority will update the regulations. This is not to say that this always goes well. If an amendment results in extra investments for the license holder, this could lead to a discussion and procedure with the licensee. On this topic you may also wish to read Mark’s new book on Dutch Business Licences.
New policy automatically applying to existing licence?
New policies will be announced by the prescribed means and are usually published on the website of the applicable administrative body. If the intention is to amend the requirements of an existing licence, this will have to be communicated to the licence holder. This notification may result in a decision. However, even if this is not the case, it is understandable that a licensee who does not agree with new licensing requirements should notify the competent authority and indicate the reason why a changen of terms is not desirable. Also check out: Dutch licence procedure.
Enforceability of new policy against existing license holder
If a new policy is not specifically announced to a licensee, there is a question as to whether the licensee has to act in accordance with this new policy. It would be contrary to the principle of legal certainty if new licensing requirements were to be imposed or enforced on a licence holder without proper communication. Incidentally, if new policy rules are to be enforced, a warning and/or intention will have to be issued first. The licensee can then still take note of the new policy and contact the licensing authority about it, or comply with the new rules. The licensee may also lodge an objection and appeal against a decision to enforce (on the basis of the new rules). In such cases, the administrative courts will usually check, whether at the time of the enforcement decision, there was an infringement on the basis of the regulations in force at that time (ex tunc review). In addition, the principle of legal certainty may result in new policy rules not applying to an existing licence (or existing without a transitional arrangement) especially if the licence holder suffers a considerable disadvantage as a result. Moreover, it is possible for enforcement action to be disproportionate to the interest served. In case of refusal of a Dutch license chek out: Refusal Dutch Permit.
Amendment of permit conditions and legal principles
Following from the principle of legality (Article 5:4 of the Awb and Article 7 of the European Convention on Human Rights), the starting point for a punitive sanction (fine) is a requirement that there is a legal basis for the sanction. A regulation that is included in a policy is not automatically a legal basis for imposing a punitive sanction. The lex certa principle also applies: this means that the rule that is enforced with a punitive sanction must be sufficiently clear, known and foreseeable. If the interests of existing licensees are insufficiently taken into account when determining the policy, the inherent power of deviation in Section 4:84 of the Awb should mean that the new policy is not applied against existing licensees.
Notification of new rules for a permit
A single notification that an new policy applies may not constitute a decision, unless it clearly shows that it has (negative) legal consequences. In that case, the licensee may regard it as a decision and lodge an objection within 6 weeks. If the administrative body issues a decision directed against one or more licensees containing an amendment of the conditions, the licensee can begin an objection procedure if he or she does not agree with the amendment. An objection to a decision concerning amended licensing conditions can be lodged if there is reason to do so.
In case of doubt please do not hesitate to contact Blenheim with your question.