Revoking or refusing a permit often has far-reaching consequences. The Blenheim administrative law lawyer tries to counteract this. A decision made by the municipality, a ministry or other administrative body can be objected to, sometimes even viewed, and appealed to the administrative courts.
Counselling a lawyer when deciding on a licence
It is useful to engage the services of an administrative law lawyer if you are not used to litigating. This is not necessary; you may also litigate in administrative court yourself. Please note that administrative law is based on a code and often on special laws. The General Administrative Law Act is the ‘constitution’ for all acts of administrative bodies. A lawyer specialised in administrative law knows this law well and can use it as a basis for objections and appeals. Administrative law lawyer Mark van Weeren of Blenheim specialises in permits. He wrote the book ‘De strijd om schaarse vergunningen’ (The battle for scarce permits).
Objection and appeal against permit decision
A decision on a permit may be unjustified if there is no or insufficient legal basis. The decision may also be contrary to a principle of good administration if the decision is insufficiently careful and insufficiently motivated or disproportionate. Also, a decision of an administrative body may lie outside the competence of the administrative body. Or a procedural error has been made. A decision may also be in conflict with one of the fundamental rights of the ECHR or an EU directive. In short, the administrative law lawyer looks for the flaws in the decision to protect his client against unjustified government decisions.
Rules for applying for a permit
Some activities require a permit. Fortunately, a lawyer is not often needed for this. Depending on the activity, there are legal rules for applying for and retaining a licence. General rules for permits are in the General Administrative Law Act (Awb). The general rules in the Awb apply, in addition to the specific regulations in the Services Act, to service licences, i.e. all economic activities. Through a licensing system, an administrative body (municipality, ministry, supervisor, etc.) can regulate activities or acts that are not permitted without the licence. There must be an overriding reason of general interest for a licensing system. For example, a licence for gambling activities, for offering payment services in crypto-currency, Euro licence for road transport, etc.
Procedure for applying for a licence: licensing system
A licensing system is used when the performance of activities or acts cannot be regulated by general standards, but requires a case-by-case assessment of permissibility. Often, regulations are attached to a permit in order to further regulate the licensed activities or acts. A permit must be distinguished from an exemption, dispensation, tolerance, etc. The result may be the same; the activity in question is either permitted or not, and rules are set. However, in view of the Services Directive, the government is not completely free in this.
Permit or decision
A permit is granted by means of a decision of an administrative body or a favourable decision (art. 1.3 Awb) describing the activities or acts that an administrative body authorises and that are not permitted without this decision. The terms decision and order are used interchangeably in permit practice. It concerns the written permission of the competent authority for the licensed activity. An application is required to obtain the permit (art. 4:1 Awb). A permit to be granted as a result of the application is a decision upon application (art. 4:2 Awb). When a permit is refused, our administrative law department is often called to ask whether something can be done about this. Blenheim then analyses the case and estimates the chances of an objection and/or appeal against the permit decision.
Application for business licence: Services Directive and Services Act applicable
The European Union (EU) has drawn up a directive specifically for permits for services (catering establishments, events, gambling activities, etc.): the Services Directive. The aim of the Services Directive is to make it easier for service providers to establish themselves or offer services in another EU Member State. To achieve this, regulatory barriers must be removed and administrative burdens and high costs for service providers must be eliminated. Therefore, since 2010, only requirements and authorisation schemes that can be justified on the basis of overriding reasons of general interest and that are necessary and reasonable may be applied to services. In the Netherlands, this directive has been adopted in the Services Act. Since the government often does not apply the rules from this legislation properly, an administrative law lawyer can call the government to account.
Permit and Bibob procedure
After applying for a licence, the licensing authority may carry out a Bibob investigation. The applicant will then be required to complete an extensive Bibob form. Blenheim assists applicants and the permit holder in going through the Bibob procedure. A Bibob questionnaire must be filled in truthfully. The information contained in the Bibob questionnaire is used to check the integrity of the applicant. The information which is requested mainly relates to the involvement of the persons in the company, the financing of the company, the control and so on. For a more in-depth Bibob investigation, the licensing authority may also call in the help of the Landelijk Bureau Bibob. A Bibob recommendation may lead to the refusal or withdrawal of a licence. In that case, the person concerned receives an intention to make that decision, against which a view can be submitted. Blenheim can draw up the view and lodge an objection and appeal against a final decision on the permit
Mark van Weeren