The stakeholder question: when is a company a stakeholder? 🤔

One of the most important but also most difficult concepts in administrative law is the stakeholder concept. Interested parties may object and appeal against decisions of administrative bodies that will affect them (negatively). But who or what is an interested party?  Article 1:2 paragraph 1 of the Awb calls an interested party the person whose interest is directly affected by a decision. Interested parties can be both citizens and companies. With citizens, you can think of the owner of the neighboring plot who disagrees with the shed that may be built on your plot, and with companies you can think of entrepreneurs with similar business operations, who do not want their competitor to settle in the same street.

In practice, it is often unclear who is an interested party in a decision, and therefore entitled to object and appeal. In this blog, we focus on the question of when an entrepreneur is an interested party in a decision.  This issue was discussed in the Department's ruling of Oct. 9, 2024. In this case, a large group of entrepreneurs appealed against the decision of the college, which granted an environmental permit to a developer to expand the shopping center with a supermarket and renovate the apartment above that supermarket. A total of 15 business owners stood up against the decision, in part because they feared parking problems.

The project developer argues that 11 of these entrepreneurs are not interested parties because they have no direct interest in the decision to grant the environmental permit. More specifically, the developer believes that some of these 11 entrepreneurs are not interested parties because they will not experience competition from the new supermarket.

The Division rules that these entrepreneurs are indeed interested parties. A company has a competitive interest if it conducts business activities in the same catchment area and market segment as its competitor. Therefore, if the competitive interest is directly affected by the contested decision, the entrepreneur is an interested party. That means, therefore, that if the contested decision is concerned with the competitive interest, for example, because a supermarket is established on the same street as another supermarket or cheese and nut store, that other supermarket and cheese and nut store are interested parties in that contested decision.

The entrepreneurs in this matter operate in the same catchment area and market segment, because most of their assortment is similar to that of the supermarket. It follows from established case law of the Division that if entrepreneurs are located in the same market segment and catchment area as the planned activity, it can be assumed that those entrepreneurs can be affected by the actual consequences, such as loss of turnover.  This is only different if it can be excluded beforehand that actual consequences are present. This is not the case here, according to the Division. 

When an entrepreneur can be designated as an interested party in a decision of an administrative body therefore depends on whether that entrepreneur operates in the same market segment and catchment area as the planned activity. Are you an entrepreneur and do you disagree with the arrival of a competitor in the immediate vicinity of your company, and are you wondering whether you can object and/or appeal against this? If so, please contact Gerard van der Wende or Fleur Huisman.