In connection with three decisions, on 28 December 2016 the Administrative Jurisdiction Division of the Council of State for the first time actually applied a modification to what is known as the principle of relativity (section 8:69a of the Dutch General Administrative Law Act (Algemene wet bestuursrecht), also referred to as 'Langemeijer’s modification').

The principle of relativity entails that the administrative court will not set aside a decision on the grounds that it is contrary to a written or unwritten rule of law or universal principle of law if that rule or principle apparently does not serve to protect the interests of the party relying on it. Following an opinion issued by State councillor advocate-general Widdershoven on this matter on 2 December 2015 (ECLI:NL:RVS:2015:3680), the Division had previously ruled in a decision dated 16 March 2016 (ECLI:NL:RVS:2016:732) that such a modification was possible.

The principal question in the above-referenced decisions was whether or not, pursuant to the Dutch Licensing and Catering Act (Drank- en Horecawet), a supervisor had to be present at all times in an off-licence that is part of a supermarket. In this connection, interest group SlijtersUnie had requested the competent authorities for Sint-Oedenrode, Someren and Schijndel to take enforcement action because SlijtersUnie was of the opinion that supervisors were not present at all times in the off-licences in question whereas this was mandatory for 'independent' off-licences. The Division ruled that a supermarket and an ancillary off-licence jointly do not form an 'establishment' as meant in the Licensing and Catering Act. Based on this ground, the Division was of the opinion that it did not suffice that (for example) a supervisor was present (or also was present) in the supermarket and not at all times in the off-licence itself. Therefore, the practical consequences of these decisions in and of themselves is that a supervisor must in fact be present in an off-licence at all times, even is that off-licence is part of a supermarket.

Based on the principle of relativity, SlijtersUnie could not in this case rely on the rule set forth in the Licensing and Catering Act, since the purpose of the rule is to protect public health and public order rather than SlijtersUnie’s competitive interests. However, the Division applied a modification in connection with the principle of equal treatment, as a consequence of which the substance of SlijtersUnie’s grounds was as yet addressed. The reason for this was that otherwise no supervisors would have to be present in off-licences in supermarkets in future, whereas they must be present in independent off-licences. In doing so, the Division prevented a situation from arising where the decisions would create an undesirable precedent by causing unequal treatment.

This decision is of vital importance for the litigation practice for both interested parties to decisions and competent authorities. In line with Widdershoven’s opinion, it must be assessed on a case-by-case basis not only whether the legal norm serves to protect the interest of the party relying on it, but also whether application of the principle of relativity could conflict with the principle of legitimate expectations or the principle of equal treatment. This has a major impact on the scope of the proceedings.

Link to decisions: case numbers 201507699/1 (Sint-Oedenrode), 201507606/1 (Someren) and 201508017/1 (Schijndel).