Services directive: old canal boats sail on

Not only in the retail sector, the Services Directive now plays an important role in the canal boat sector as well. So too in Amsterdam, where the municipality wants to properly regulate this booming industry. Open-ended permits were revoked and converted to temporary permits in various segments. In particular, permits for larger canal boats were limited in number in order to promote safety on the canals. Long canal boats would impede the flow of traffic because they need more time to maneuver.

Compelling reason of public interest

The provision of canal tours is a service within the meaning of the Services Directive. As the number of permits is limited, the Services Directive comes into play. Only when there is an "overriding reason of general interest" to limit the number of available permits may that number actually be limited. Anticipated nuisance, congestion and insecurity would result from an unrestrained growth in the number of permits for large vessels, and counteracting that nuisance and environmental burden is by all means an overriding reason of general interest, the Council of State also said.

Proportionality

But the remedy applied, limiting the number of permits for large canal boats, must also be proportionate to the goal of reducing nuisance. Ultimately, based on studies conducted, the Council of State finds that it is not merely the length of the canal boats that affects the nuisance caused by congestion. Such congestion is caused by the reduced maneuverability of larger boats, but this can be eliminated by using other means of steering. So length is not the decisive factor. Large canal boats with specific steering equipment can pass through the canals without causing congestion, at least no more than smaller canal boats. Therefore, the conclusion is that limiting the number of large canal boats is not proportional.

Impact

Because the restriction on the number of long canal boats that can obtain a permit is not justified by an overriding reason of public interest, because the restriction is not proportionate, those granted permits (thus) were also unfairly limited in time. They had been granted until January 1, 2020. The 2013 Amsterdam Passenger Shipping Regulations, which contained these restrictions on the granting of permits, are therefore found to be in violation of Article 11.1.b of the Services Directive and Article 33.1.b of the Services Act. The Council of State picks up immediately, annulling the permits and also revoking the revocation of the old permits.

Therefore, the original permit holders can now continue operating their (large) tour boats indefinitely.

This has created a situation that again violates the Services Directive. Because that same Services Directive states that scarce permits - after all, the old permits are limited in number - may not be granted indefinitely. Scarce permits must be distributed fairly.

It can be called extraordinary that the Council of State, by providing its own case, is creating a situation contrary to the Services Directive. But the fact is that the Council of State cannot determine the canal shipping policy of the City of Amsterdam. Amsterdam itself will have to redefine that policy, and only then can new permits be issued. Preventing a new contrary situation by issuing an interlocutory ruling and giving the municipality the opportunity to redefine policy and make remedial decisions was apparently not an option.

No doubt the discussion will not end here, but will continue with a new round of litigation after the municipality redefines the canal policy.