A recent ruling of the Dutch Council of State can make life easier for competitors when they oppose an administrative decision that is favourable to another competitor. The Council of State accepted a correction of article 8:69a of the General Administrative Law Act. This article does not allow administrative courts to annul a decision if a party argues that rules have been violated which are clearly not intended to protect that party’s interest. The case before the Council of State concerned two competing sellers of construction materials. Praxis (the applicant) argued that the establishment by its competitor Hornbach of a new branch would come into conflict with environmental and safety rules. These regulations are not intended to protect the interests of competitors and article 8:69a would therefore preclude annulment if a competitor invokes violation of the rules. However, the Council of State has now decided on appeal that the applicability of Article 8:69a should be corrected: violation of rules that do not protect the interests of a party concerned, and which cannot therefore cannot lead to annulment, may contribute to the view that the principles of legitimate expectations or equality have been violated. This correction will only be applied if all of the other requirements for applying these principles have been met. In practice, this correction can make a difference if, for example, the competent administrative authority enforces environmental rules against one company, but not against that company’s competitor, without there being any justification for this. In those cases, the company may be successful in getting a decision annulled. Below there are links to the Council of State ruling and the accompanying press release.

Click on the links below to download (in Dutch only):

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