6 September 2018

Transfer of a Dutch business license

Transfer of a Dutch business license

The question is when transferring a licence whether this is permitted under the relevant Dutch administrative law. This is only the case if the law or other relevant regulation stipulates that the licence is transferable (Section 3:83 (3) of the Dutch Civil Code). However, this is often not regulated. In that case, the following rule applies:

Pursuant to Section 3:83(1) of Book 3 of the Dutch Civil Code, ownership, limited rights and rights of action are transferable, unless the law or the nature of the right dictates otherwise. It follows from Section 3:83(1) and (3) of the Civil Code that Dutch business licences are only transferable where the law so provides. Pursuant to the third paragraph, all other rights are only transferable if the law so provides. So you’ll have to ask a Dutch lawyer to check if a specific license is transferable.

Request for change of name of Dutch license holder

If nothing is stipulated in the transferability act for a particular licence, or if it is stipulated that the licence is non-transferable, then transfer can only be effected by requesting the licensing authority to change the name of the licence. The name attached to a licence is also an issue if the licence holder dies. Changing the name of a licence is not necessarily a decision within the ambit of Article 1:3 Awb, but it is possible for it to be considered as such. In that case, an interested party may lodge an objection to initiate an objection procedure.

Personal Dutch business licence

A personal licence includes, for example, a catering licence for the operation of a hotel and catering business. When an establishment is sold, this licence is not transferred to the buyer. The buyer has to apply for a new catering licence him or herself. A local APV usually includes the following provision in accordance with the VNG model for the APV: the licence or dispensation is personal, unless stipulated otherwise by or pursuant to these bye-laws. Incidentally, if a request is made to change the name of a person-related licence, this will not be permissible. The party seeking the licence will simply have to apply for a new licence. Refusal of a request for an amendment is therefore not a decision within the meaning of Section 1:3 Awb (Raad van State, 2 January 2019, ECLI:NL:RVS:2019:13).

Object-specific licence in the Netherlands

A licence can also be case- or object specific. An environmental licence, for example, is case-specific and is therefore linked to the object for which the licence is issued.Article 2.25, second paragraph, of the Environmental Law (General Provisions) Act (Wet algemene bepalingen omgevingsrecht, Wabo) contains a regulation for changing the name of permits. The single permit is transferable. This is an administrative act, in which case no new review takes place.

When the object is sold, the licence existing in relation to it remains. There is, however, an obligation to make a notification in relation to the transfer. Please note that the distinction between business-related and personal is not always clear; sometimes a licence can also be of a mixed character. This includes, for example, a permanent licence for the mooring of a houseboat that is person-related due to an extinction policy. In this case, the change is not a decision, but a factual act, since the attribution of the licence is changed by a simple notification within the meaning of Section 2.25 of the Wabo.

License for event or festival

The licence for an event is issued personally to the organiser and is not transferable. The event organizer for a big event has usually been through integrity screening. As an example, Article 1.9 of the General Municipal Bye-Law of Amsterdam states that a licence or dispensation is not transferable. Anyone taking over such a license will have to go through the probity test as well. Also check out: refusal Dutch business permit.

Dutch Cannabis license and weed

Cannabis and weed can be sold in a coffeeshop, which often has an operating licence in combination with a declaration of tolerance from the mayor. These are scarce business licenses. When the coffeeshop is sold, this licence is not transferred and the declaration of tolerance no longer remains valid. The buyer has to re-apply for the licence and will also have to pass the Bibob test. It follows from this that the operator cannot be of “bad living behaviour” in order for the licence to be granted.

Dutch Gambling License

Additionally, in the case of games of chance, such as lotteries, and soon possibly online games of chance, the licence cannot be transferred. The capacity of the operator is important. A new operator of a game of chance will have to meet the criteria of a provider and will also have to pass the Bibob test. The same applies to the licence for a casino, 16 of which will soon be possible. The organisation that takes over a casino will have to apply for a new casino licence and will first be screened by the KSA, the Dutch Gambling Authority.

Real estate licenses in the Netherlands

Real estate itself is transferable. An environmental licence for building is also transferable. However, the Bibob Act, dealing with Dutch probity screening, also applies to the granting of licences in the case of large real estate projects and when they are issued on a long lease. If, therefore, the licence to which the Bibob test applies still has to be used, it cannot be ruled out that the new party will also have to “go through the Bibob”. Tenants of a building built on a long lease may also be subject to the Bibob test.

License for Banks/financial institutions and financial services

Pursuant to Section 3:83 (3) of the Dutch Civil Code, other rights (licences) are only transferable if the law allows for this. With regard to financial licences, in principle, Section 2:1 of the Wft applies. It follows from this that licences and exemptions on the basis of the Wft are personal and non-transferable. If there is one sector in which the government is now very strict with executives and top management, relating to functions that are integrity-sensitive, it is the financial sector. This is reflected in the Regulation on Integrity Sensitive Functions for Credit Institutions and Insurers. In addition, there is behavioural supervision for financial enterprises and markets. Also read: refusal and revocation of Dutch business license.

Since it very much depend on the nature of your license if you can change a name of the license holder or ownership of the license please contact attorney Mark van Weeren to help you out.