Those who think that the Public Administration (Probity Screening) Act [Wet ter bevordering integriteitsbeoordelingen door het openbaar bestuur] (‘Bibob Act’) applies only to cannabis coffee shops and sex establishments should think again.
If we examine case law and the policies pursued by the Provinces, it would seem to be the case that, for example, applicants for environmental permits are being subjected to probity screening with increasing frequency, and that this screening is likely to become even more common in the future. The scope of the Bibob Act is expanding.
Under the Bibob Act, administrative bodies may, inter alia, refuse or revoke a decision if there is a serious risk that a decision will be misused. In short, probity screening is an examination of an applicant’s criminal record, which is carried out by Bibob Agency [Bureau Bibob], a probity screening agency. This Act has enjoyed a great deal of attention since it came into force.
Critics often argue that administrative bodies can use this screening at random and that the Act lacks legal certainty since a decision may be refused or revoked based on potential future misuse. In practice, it is by no means always the case that administrative bodies use this instrument to protect their integrity and to prevent a permit or licence from being used by mala fide organisations as a cover for criminal activities. Where decisions are rejected or revoked based on the Bibob Act, interested parties often feel left out in the cold and they do not know how to defend themselves against such decisions. This feeling is being borne out because, as stated previously, it seems like the Bibob Act is being applied in an increasing number of sectors and industries.
A ‘bad’ Bibob report may not be used as the sole ground for refusal, however. The entire policy pursued by an administrative body must be scrutinised, in which respect a comprehensive weighing of interests is appropriate, both in terms of the question of whether a Bibob screening should be conducted and the question of how the results of a Bibob report relate to – for example – the implications that the revocation or refusal of a decision will have for the permit or licence holder and/or other interested parties.
Administrative bodies may not simply and randomly submit a request to the Bibob Agency to draft a Bibob report. A request must be proportionate, given the drastic nature that underlies the use of this instrument. Based on the foregoing, competent authorities must as a general rule adopt policy rules regarding the sectors and industries to which, and the parameters within which, they apply the Bibob Act. The premise is that competent authorities must do everything in their power to assess an applicant’s integrity. The contents of the Bibob report must subsequently be ‘consistent and conclusive’.
However, this seems to be a reasonably ‘low’ threshold. A final judgment alone can lead the Bibob Agency to conclude that the decision will be misused in the future, for example to commit criminal offences. In addition, the Bibob Agency may, for example, also include preliminary investigation proceedings (thus where a court is not yet involved in the case) or a transaction agreed on years ago with the Public Prosecution Service in the report. As such, it is evident from case law that fighting the contents of a report as such poses quite a challenge.
The Act does, however, state that administrative bodies must ultimately decide – after a request for a probity screening has been submitted to the Bibob Agency, and after receiving the report from the Bibob Agency – whether a decision must be revoked or refused. Taking all circumstances into account, administrative bodies must decide whether refusing or revoking a decision is proportionate. Such circumstances could include the economic impact of a revocation or the loss of jobs. In making their decisions, administrative bodies must also examine whether other measures would suffice (such as issuing a conditional permit or licence). Administrative bodies must also substantiate their decisions.
Although a ‘negative’ Bibob report has a major impact and it often leads to an administrative body refusing or revoking a decision in practice, we must not forget that the preliminary process (was the administrative body entitled to submit a request to the Bibob Agency?) and the interests that the administrative body must ultimately weigh in order to reach a final decision may be reviewed at law. The expansion of the sectors and industries in which a Bibob request may be filed (such as environmental permits) requires extra vigilance.