Since the sixth State reform, the regions have been competent to determine establishment conditions, including the policy regarding commercial establishments. In the Flemish Region, this competence has recently been exercised. Through the Decree of 15 July 2016 concerning the integral commercial establishment policy, the federal Act of 13 August 2004 concerning the granting of permits for commercial establishments was abolished and a new regulation was enacted in its stead.
The decree replaces the socio-economic permit with the "environmental permit for retail activities". The former socio-economic permit is thus integrated into the environmental permit. As a result, only one permit procedure will apply for the granting of permits for urban planning actions, the exploitation of classified installations or activities and retail activities.
Four categories
Retail activities are subject to a permit if they are carried out in a retail enterprise or commercial unit with a net commercial area of more than 400 m².
In the decree, retail activities are divided into four categories: (i) the sale of food; (ii) the sale of goods for personal equipment; (iii) the sale of plants, flowers and goods for agriculture and gardening; and (iv) the sale of other products.
The socio-economic permits that are still valid, containing more detailed categories of retail activities, are automatically converted into one or more of the aforementioned categories.
All significant modifications of the categories of retail activities are also subject to a permit.
Temporary activities not subject to authorisation
The Integral Commercial Establishment Policy Decree also takes into account pop-up concepts (see also the decree of 17 June 2016 concerning short-term renting for trade and craft, and analysis of the draft in Eubelius Spotlights September 2015).
A permit is not required for the temporary conducting of retail activities in a building for which a planning permit is no longer required. "Temporary" means that the activity can be carried out for a maximum of 180 days per year if the retail activities are compatible with the applicable planning regulations, or for a maximum of 90 days per year in all other cases.
However, the terms of 180 and 90 days can be reduced by municipal land-use plans or by municipal planning ordinances.
Expansion subject to authorisation
Expanding a retail activity or a commercial unit is subject to a permit if the total net commercial area exceeds 300 m² or 20% in addition to the authorised net commercial area. The former notification obligation ("prior declaration") imposed by federal law for smaller expansion has not been adopted by the Flemish legislator.
Assessment
An environmental permit for retail activities will not be granted if the application is irreconcilable with the planning and allotment regulations, to the extent that they have not been validly deviated from. An environmental permit can also be refused if the application is irreconcilable with the goals of the integral commercial establishment policy.
The commercial establishment policy aims at four goals: (i) creating durable establishment possibilities for retail, including avoiding unwanted retail ribbon building; (ii) guaranteeing an accessible supply for consumers; (iii) guaranteeing and reinforcing viability in the urban environment, including the reinforcement of core shopping areas; and (iv) durable mobility.
In pursuing these goals, the Flemish government can adopt a Flemish policy framework regarding integral commercial establishment policy.
Council for Permit Disputes
Because of the integration into the environmental permit, the Council for Permit Disputes will now have jurisdiction with regard to the legal protection relating to the granting of permits for retail activities.
Administrative enforcement
This decree can be enforced by administrative action. In addition to suggestions and reminders, both administrative fines and deprivation of benefits can also be imposed, including an order to remove (or the ex officio removal of) products falling within one or more categories of retail activities, an order to cease the retail activities, or a prohibition on operating the retail business. The administrative fines and deprivation of benefits can be appealed against before the Enforcement Tribunal (this is the former Environmental Enforcement Tribunal, the reform of which has been approved but has not so far entered into force). Administrative measures can be appealed against to the Flemish government.
Entry into force
The provisions of the decree regarding the environmental permit for retail activities, and its enforcement, enter into force on 1 January 2018.
All permits for commercial establishments that are still valid, granted in application of the Act of 29 June 1975 concerning commercial establishments and the Act of 13 August 2004 concerning the granting of permits for commercial establishments, are considered to be environmental permits for retail activities pursuant to this decree and the decree of 25 April 2014 concerning the environmental permit, as from the date of entry into force of the new provisions.