A competitor also has an interest in an environmental permit
October 2021 – A Dutch company wants to set up in Belgium. Its Belgian competitors, who do not approve of its arrival, file a complaint against the environmental permit. According to the Permit Dispute Board (PAB), a competitive disadvantage does not constitute a sufficient interest for such a complaint. The Constitutional Court disagrees.
Arrival of a competitor
A Dutch catering wholesaler wants to set up in an SME zone on the Straatsburgdok in Antwerp. In 2016, the company applied for a permit for 'the conversion of existing warehouses into a distribution centre; the demolition of the north-western warehouse support and the unloading docks on the northern facade; the construction of new unloading docks on the northern and western facades; new facades on the northern, north-western and north-eastern sides with two classically shaped towers on the northern side; and the construction of 149 parking spaces on the northern and eastern facades'.
A number of complaints were lodged, among others by local residents who feared traffic nuisance, but also by competitors, including a Bruges catering business.
The latter argued, among other things, that the label 'distribution centre' was misleading: in his view, it was in fact a large food shop.
In order to lodge a complaint, an interest must be shown. The local residents (a private individual and a direct competitor of the Dutch company) claim that the arrival of the company could lead to traffic nuisance. This in itself constitutes a sufficient interest and their arguments are therefore heard, even if their claim is ultimately rejected at a later stage of the decision.
But direct competitors only have a commercial interest, which according to the PAB is not sufficient to lodge a claim.
The nuisance must (not) be of an urban nature
The PAB therefore rejects the claim of the Bruges catering wholesaler. In this respect, the Council referred to a previous case in which it concluded that a commercial loss can only be accepted as a sufficient interest if it is directly or indirectly caused by nuisances or inconveniences of a town planning nature as a result of the contested permit decision.
It was precisely against this argument that the trader appealed to the Council of State, which in turn submitted a preliminary question to the Constitutional Court.
The Constitutional Court found, first and foremost, that the Flemish Codex Ruimtelijke Ordening (Flemish Spatial Planning Code), which is the legal framework for Flemish environmental permits, makes no distinction according to the nature of the nuisance or inconvenience required. There is therefore no legal basis per se for excluding persons who suffer only commercial damage as a result of the contested permit decision. Only the 'actio popularis' - the interest that everyone has in the law being respected - cannot be put forward as an interest.
The Constitutional Court concludes that there is no reasonable justification for a general denial of access to a court of law to a certain category of litigants who may also suffer the adverse consequences of a planning permission decision - even if these consequences are of a purely commercial nature.
The Court points out that there is a difference between the interests pursued by a claimant in relation to his or her personal situation and the interests protected by the regulations at stake (in this case: spatial planning).
The infringement of spatial planning and urban development regulations can therefore be invoked by a claimant who pursues interests that in themselves have nothing to do with spatial planning or a healthy living environment.
Previous
In this particular case, the Dutch company has already been established in the SME zone in question for some time. The Bruges horeca trader has only won one battle, not the war. The only thing the party has achieved is that the PAB must actually assess the arguments put forward and cannot simply find that the trader has no interest.
But the decision of the Constitutional Court is interesting as a precedent. Entrepreneurs who apply for an environmental permit for an establishment may indeed be confronted with claims from competitors who only want to keep them out for reasons of competitiveness.
