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  • Public law
  • 17-06-2020

The Advisory Division of the Netherlands Council of State (“the Council of State”) has published its advice on the parliamentary bill (proposal) submitted by Erik Ziengs MP to amend the Licensing and Catering Act [Drank- en Horecawet, “DHW”] and a number of other pieces of legislation, regarding extending the scope for mixing business formulas (Act Regulating Mixing of Formulas). 

We already wrote about the parliamentary bill submitted by the Minister of the Interior and Kingdom Relations and the State Secretary for Public Health, Welfare and Sport regarding “Amendment of the Licensing and Catering Act in connection with the National Prevention Agreement and Evaluation of the Act” (see Alcohol Decree and Alcohol Regulations: which three aspects may require you to submit a Statement of Views?). This bill, too, proposes relaxation of the principle applying under the DHW to the effect that an off-licence is not permitted to serve and a hospitality establishment is not permitted to sell. The bill makes it possible under the new Alcohol Act [Alcoholwet], for example, for off-licences (with a permit) to hold tastings, subject to certain conditions. 

However, the bill’s initiator Erik Ziengs (an MP for the People’s Party for Freedom and Democracy (VVD)) wishes to go a step further – or rather several steps further – with the proposed Act Regulating Mixing of Formulas [Wet regulering mengformules, “WRMf”]. To summarise briefly (as far as relevant): the proposed WRMf would – among other things – allow shops (retailers), subject to certain conditions, to provide low-alcohol beverages, either for payment or free of charge (see the Explanatory Memorandum). The aim, according to Mr Zings, is to breathe new life into shopping streets so as to maintain the vitality of Dutch towns and villages. In this context, the parliamentary bill introduces the concept of a “mixed retail business” [gemengd kleinhandelsbedrijf] into the DHW. In addition, it is proposed that off-licences and hospitality establishments be permitted to carry out ancillary activities, such as, according to the Explanatory Memorandum, selling unopened bottles in a hospitality establishment and light snacks in an off-licence. It is also proposed that the current ban be lifted on the sale of alcoholic beverages at filling stations.

The Council of State begins its advice by endorsing the idea that entrepreneurs should be enabled to respond to the changing needs of consumers, and that a critical view of legislation and regulations is desirable in this regard. For the rest, the Council of State is critical, indeed very critical. First of all, it notes that the bill is at odds with (statutory) policy on alcohol up to the present, in which the rationale of alcohol legislation is to reduce and prevent alcohol abuse by, inter alia, limiting sales outlets and tightening up the responsibilities of the entrepreneurs concerned (the bill for “Amendment of the Licensing and Catering Act in connection with the National Prevention Agreement and Evaluation of the Act” (the “Alcohol Act”) would seem to be more in line with that rationale). 

The Council of State goes on to say that the Explanatory Memorandum accompanying the bill fails “moreover” to weigh up the economic interest that the bill intends to serve against the potential adverse consequences for public health (and as regards the sale of alcohol at filling stations: road safety). In the view of the Council of State, the Explanatory Memorandum and the underlying documents do not demonstrate convincingly that the proposed amendment of the DHW can achieve its intended purpose. The Council of State notes that the proposed easing of the DHW is not in line with the DHW’s objective and recommends that this be dealt with in the Explanatory Memorandum. According to the Council of State, the need and support for the proposed mixing of business formulas has not been explained sufficiently and their effectiveness is open to question. The Council of State also recommends clarifying the definition of “mixed retail enterprise “ [gemengd kleinhandelsbedrijf], given that that definition refers to the retail sector [kleinbedrijf] and it is not inconceivable that hairdressers are not included within it. 

Mr Ziengs has now commented on the Council of State’s advice and has amended the bill (although not drastically). In the light of the advice, however, the proposal to lift the ban on filling stations selling alcohol has been deleted. It is also noteworthy that an additional term, “mixed artisanal enterprise” [gemengd ambachtsbedrijf] has been introduced so as to include, inter alia, hairdressers and service providers in a broad sense. For the time being, the definition of that term is as follows:
 
“… the activity consisting principally of the manufacture or processing of goods and the sale thereof, the repair and maintenance of goods, or the provision of services in an enclosed area accessible to the public, accompanied by the provision, commercially or otherwise than free of charge, of low-alcohol beverages.”

Whether cutting hair is intended to be included under “the repair and maintenance of goods” or “the provision of services in an enclosed area accessible to the public” is unclear. Be that as it may, the scope of the bill has thus been further increased (intentionally? or unintentionally?). It is hard to imagine which enterprises are now not covered by this term. In any case, given the Council of State’s criticism, the private member’s bill is not yet home and dry. 

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