Go ride your bike with your Services Directive anyway

In a decision of October 24, 2018(ECLI:NL:RVS:2018:3471), the Administrative Law Division of the Council of State makes it clear that the Services Directive can also be invoked in the context of (the refusal of) an environmental permit for the establishment of retail trade. Those who invoke the Services Directive and thereby invoke the non-binding nature of an irrevocable zoning plan will then have to cite and substantiate themselves.

What was going on?

International Bike Group wants to establish a bicycle shop at Bosscheweg 255-01 in Tilburg. The zoning plan does allow peripheral retail at that location, and mail order and Internet businesses are also allowed. Regular retail is not allowed. The branch of International Bike Group includes a showroom, a workshop and a place where orders can be picked up. The total area is 640 square meters. About 50 different bicycles can be tried out in the store, after which a complete bicycle can be assembled and ordered over the Internet under the guidance of a sales representative.

No peripheral retail

Following the court, the Council of State ruled that the branch did not qualify as peripheral retail because the minimum gross sales floor area of 1,000 square meters was not met. Nor is it a mail order or Internet business, because the branch is open 6 days a week for visitors. Finally, given its spatial appearance, it qualifies as a form of retail trade. Bicycles ordered on site are not kept in stock on site or delivered from the branch.

Services Directive requirements

That is the time to appeal to the ineffectiveness of zoning plan provisions that only allow peripheral retail by labeling them as a branching scheme that is not permitted under (Article 15(3)) of the Services Directive. Since the Division's ruling of June 20 last(ECLI:NL:RVS:2018:2062, Appingedam), this is a position with a chance of success, because there the Division ruled that an ordinance on branching in a zoning plan must meet the three requirements of Article 15(3) of the Services Directive:

1. The branching regulation should not discriminate;
2. The branching regulation must be necessary, meaning that the branching regulation must be justified for an overriding reason of public interest;
3. The branching regulation must be proportionate: the restrictions entailed by the branching regulation must be appropriate to achieve the objective pursued, and they must not go beyond what is necessary to achieve that objective. The objective cannot be achieved by other, less restrictive measures.

An important point in the Appingedam ruling was that the Division placed the burden of proof on the authority applying the branching regulation: to substantiate the proportionality of the branching rules with concrete and objective data.

This ruling shows that the burden of proof is different if the zoning plan in which the zoning regulation is included is already irrevocable and that zoning plan is used as an assessment framework for an environmental permit. The party who relies on the non-binding nature of the branching regulation in the irrevocable zoning plan is the one who must substantiate that the branching regulation does not meet the requirements of Article 15 (3) of the Services Directive.

Conclusion

If a municipality includes a branching regulation in the zoning plan, it is the municipality that must substantiate - with concrete and objective data - that the branching regulation meets the requirements of Article 15 (3) of the Services Directive. If there is an irrevocable zoning plan and the non-binding nature of a sectoring regulation is invoked within the framework of its review, it is up to the party invoking the non-binding nature to do so. That party must then at least make the disproportionality plausible.

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