The Ministry of Economic Affairs, Agriculture and Innovation adapts the Law on establishment of companies BES. The adaptation of the law concerns the addition of a number of articles based on which the majority of the applications for establishment permits can be handled in a faster and easier way.
The person who wants to receive an establishment permit submits an application thereto. DEZA reviews if the application is complete, and if that is not the case, DEZA offers the applicant the opportunity to complete this application. Subsequently the Chamber of Commerce and Industry will be counseled about the application. If the Executive Council is of the opinion that there is no objection against granting an establishment permit, the Executive Council can grant this permit.
New in the law is that a decision term of eight weeks is applicable. New is also, that when this decision term expires, the permit is granted to the applicant as of right (ex officio). In two weeks after the granting as of right the Executive Council publishes a list of companies that have been granted a permit as of right. Thereafter the Executive Council, if so required, has another eight weeks to stipulate additional conditions (article 6 of the law provides for this). But the entrepreneur may start his business already.
The term starts the moment an application for an establishment permit has been submitted, provided that the application complies with all requirements thereto. This includes the submittal of all required documents. If the application does not comply with all requirements, the Executive Council shall enable the applicant to adapt the application or to complete it. If the application has been adapted or completed, and at that moment does comply with the stipulated requirements, then the decision term will start at that moment.
If according to the Executive Council there are objections against the granting of the establishment permit, and the basis for such objections is that the entrepreneur has seemingly insufficient abilities or seemingly insufficient financial means, the Executive Council, within eight weeks after the submittal, may reject the application with motivation. In this case it is essential that the Executive Council observes the decision term, because otherwise the decree shall be granted as of right.
If according to the Executive Council there are objections against the granting of the establishment permit and those objections are based on the need to protect the general interest, the Executive Council may inform the applicant within the first period of eight weeks that the decision term shall be extended with a second period of eight weeks. Within that 16 weeks period the Executive Council shall get in contact with the Minister of Economic Affairs, Agriculture and Innovation and clarify the grounds on which the request should be declined. If the Minister agrees with the decline of the permit, the Executive Council submits a declining decree within the stipulated term. If the Minister does not agree with the decline, a positive decree shall still be granted and the Executive Council may stipulate additional conditions, in case this is deemed necessary.
The establishment permit has been denied as well in the past in order to protect other general interests. Thos interests are amongst others, but not only, public health, the environment, consumers protection, public order and safety. With the change of October 10, 2010 the possibility to protect those other interests is limited, under the assumption that other regulatory complexes may be able to protect those interests. That does not seem to be, at least sufficiently, the case. Until those other regulations have become operational in order to protect general interests, the
Executive Council also has at its disposal the instrument of denial of an establishment permit, subject to the approval by the Minister of Economic Affairs, Agriculture and Innovation of such denial.
Change for seasonal businesses
In the law it is indicated in which situations an establishment permit that has been granted may – thus not necessarily: shall – be withdrawn. Section 7c indicated that withdrawal was possible when the business was closed for three consecutive months. This means that businesses that are typically seasonal, such as in the tourism industry, each year risk losing their establishment permits. In the new section d a provision is included for those companies. By sending a written notice on the temporary closing to the Executive Council, the entrepreneur can extend the term to six months. This provision is included based on consultation.