The legislation on commercial activities has been adapted to comply with the "Services" Directive in all Regions of Belgium
When the “Services” Directive came into force in 2006, some issues have arisen about the Belgian law of 13 August 2004 concerning the permit for setting up commercial activities (hereinafter Ikea Act). We already mentioned this in a previous article on our website.
The criteria of the Ikea Act to deliver the permits were not compatible with the Directive.
New commercial establishments, whose net surface area exceeds 400 square metres, needed a socio-economic permit. Therefore, they had to undergo an economic test to consider their impact on the existing trade.
Following the Directive, it is forbidden to consider the impact on the existing trade because it consist in a test for economic needs.
The federal legislator has consequently adopted an amending law of 22 December 2009 which changes 3 of the 4 criteria provided for in the Ikea Act.
Those new criteria match the Directive in that which they are not a test for economic needs anymore but requirements objectively justified by overriding reasons relating to a general interest. The analysis is not about the impact on the existing trade anymore but about the protection of the urban environment.
As part of the 6th reform of the State, the Ikea Act is now a regional competence.
Each Region can now determine its own trade policy.
The Brussels Region was the first one to adapt its legislation in 2014, followed by the Walloon Region with its Decree of 5 february 2015, and finally the Flemish Region has provided a solution in 2016.
1. The legislation in the various regions on commercial activities
In Brussels, the BWRO-CoBAT (het Brussels Wetboek voor Ruimtelijke Ordening (Du) - le Code de l’aménagement du Territoire (Fr)) was modified by the decree of 8 May 2014.
The Ikea Act is repealed since 1st July 2014.
Only one planning permit application is required instead of a socio-economic permit and a planning permit.
The new article 4/2 of the CoBAT states that authorities must show “a particular attention to the impact of projects of commercial establishment whose net surface area is above 400 square metre, especially as for the protection of consumers, safety; hygiene of places and surroundings; the traffic, access and parking conditions, as well as the integration of such projects into their urban environment”.
Those criteria are compatible with the “Services” Directive.
The competent licensing authority is the municipality (surface area below 1000 square metre) or the Region (above 1000 square metre).
In Wallonia, the legislation has been adapted thanks to the Decree of 5 February 2015 concerning commercial establishments.
According to article 44 of the Decree, the competent authority will have to focus on four criteria: protection of the consumers, protection of the urban environment, social policy objectives and contribution to more sustainable mobility.
One of the innovations is the creation of an “integrated permit”, permit that, as the single permit, allows the issuing of only one authorisation for the three administrative policies (commercial establishment, town planning and environment).
The competent licensing authority is the Municipality (in case of a surface area between 400 and 2.500 square metre) or the Region (in case of a surface area above 2.500 square metre).
In Flanders, the socio-economic permit will be replaced by the environmental permit as of 1 January 2018.
The Flemish Decree concerning the integral policy on commercial establishments has been finally approved by the Flemish Parliament and published in the Belgian Official Gazette of 29 July 2016.
The main novelty of this new Decree lies in the replacement of the socio-economic permit by an environmental permit for retail activities whose net sales area exceeds 400 m2.
However, the entry into force of the provisions of the decree applicable to this matter has been postponed until 1 January 2018.
Meanwhile, the Ikea Act remains applicable for the retail businesses in the Flemish Region whose net surface area exceeds 400 m2.
The fact that the Ikea Act is now a regional competence, has the advantage of putting an end to the overlap of the federal and regional competence concerning commercial establishments.
Regions have the liberty to adopt the rules they feel appropriate to lead their policy in relation to the retail and distribution trade.
As for the respect of the "Services" Directive, the criteria used to deliver the permits seem to be compatible with reservations concerning the Flemish draft legislation. We will have to obtain more details about the role of municipalities.
If the single permit is definitly a good news, we can have some doubts about the respect of the "Services" Directive.
The municipalities will be able to impose restrictions of range to the shops. Even though we do not really know their actual room for manoeuvre, it could be appropriate not to let the municipalities use some economic criteria when they take a decision that restricts services market access. Indeed, the question arises wether they will have the competence to, for exemple, limit clothes and shoe shops in the center of a city, or to determine that a trader selling beds may no longer sell other furniture.