It sometimes seems to be increasingly difficult for competitors to successfully challenge a permit granted to a competitor. For several years now, administrative judges must always ask themselves in such proceedings whether a standard, which a competitor claims has been violated, was also written to protect a competitor's interests. This concerns the so-called relativity requirement that has been in place in administrative law for several years.
In a recent ruling of May 24, 2017, the Administrative Law Division of the Council of State confirmed that an (interested) competitor can at least challenge the legal basis on which a license is granted. After all, those rules were also made in the interest of a competitor.
Declared unfounded
The May 24, 2017 ruling concerned an environmental permit granted for the construction of a new gas station near the A4 motorway. A competing gas station argued before the Division - in short - that the wrong permit procedure to deviate from the zoning plan had been followed.
Earlier in the appeal proceedings, the court ruled that the interest of good zoning does not include competitive interests. Therefore, according to the court, the competitor could not successfully invoke on appeal, among other things, the rules on the power to deviate from the zoning plan. For this reason, the competitor's appeal was declared unfounded.
Competitors are also entitled to a good business environment
In the appeal proceedings, the Division put a line through that reasoning of the court, referring to an earlier ruling. According to the Division, the rules regarding the possibility to deviate from a zoning plan have been drawn up to protect the interest of good spatial planning. Maintaining and restoring a spatially good business climate is part of this.
Establishment of the new gas station at the competing gas station may lead to a reduction in the number of customers and therefore a decrease in its sales and revenues. Therefore, it cannot be ruled out in advance that the competitor's business climate will be affected, the Division said.
In these situations, the administrative law judge rules that the relativity requirement cannot be invoked against the competitor. Thus, an (interested) competitor can always challenge the basis on which a permit is granted.
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