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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. 

The Supreme Court recently issued an interesting ruling on compensation for work time. This case revolved around an employee at a call center who was required to be present 10 minutes prior to his shift. During those 10 minutes, the employee was expected to perform preparatory work, such as logging into the systems, reporting to the supervisor, so that when his shift started, the employee could start work immediately. The question the Supreme Court had to address is whether those 10 minutes of preparation time should be considered paid work time?

The Supreme Court ruled that, under certain conditions, these 10 minutes should also be considered working time and therefore paid. 

Specifically, what does this mean?

When an employee is required to perform preparatory work prior to work, this time can be considered working time and an employee is entitled to pay for that time. However, the employee must prove that this is expected of him and that it is actual work. Thus, this preparatory work may include logging into systems. An important consideration is that an employee is not free to fill in this time himself, so it is considered working time. 

Note that if you as an employer require your employee to be present at work earlier, then under circumstances this can be considered working time. 

If you have any questions about this, please contact Dennis Oud, Tessa Sipkema, Elke Hofman-Bijvank or Tim Riel.

The Amsterdam Court of Appeal has referred questions to the Supreme Court in the case between Uber and FNV about the working relationship of Uber drivers. These questions are part of the wider political and legal debate on the position of self-employed workers and employees that cannot have escaped entrepreneurs. In the Deliveroo judgment, the Supreme Court formulated a dozen points of view on the basis of which an employment relationship should be assessed. 

In an extensive opinion, Advocate General De Bock (AG) further fleshed out the significance of personal entrepreneurship (the ninth point of view) in assessing whether (in this case) the taxi driver is an employee or self-employed. Especially important for the self-employed who think they are there with three different clients and get out from under that employment contract. If so, you will be in for a cold ride if the Supreme Court adopts the AG's opinion. 

Below is a brief overview with its views:

• Personal entrepreneurship should be given only limited significance when assessing whether there is an employment contract. What is personal entrepreneurship?  This could include, for example, having multiple clients, making business investments and actively soliciting clients.
• According to the AG, personal entrepreneurship should only matter if the other points of view are inconclusive. It cannot ‘tip the balance’. According to the AG, it would be strange if more significance is attached to conduct occurring outside the employment relationship than to conduct occurring within the employment relationship.
• For the remaining eight points of view, ‘internal entrepreneurship’ does remain significant. So what is internal entrepreneurship? This could include the commercial risk that the self-employed person runs or not, whether there is an economic (dis)dependence and whether the self-employed person has a sustainable organisation. 

Significantly, the Deliveroo judgment did not rank the ten points of view among them and the AG does so now.

Relationship to the VBAR

The zzp-issue is also in the spotlight in political The Hague. Currently, the Act Verduidelijking Beoordeling Arbeidsrelaties en Rechtsvermonden (VBAR) is before the Council of State for advice. This law should make it easier to determine whether someone is working as a self-employed person or an employee. Granting a limited role to personal entrepreneurship is in line with the VBAR Act, according to the AG. 

Conclusion

Following this conclusion of the AG, the Supreme Court will formulate final answers to the preliminary questions. To what extent these will prejudice the points of view, as set out in Deliveroo, is currently unknown. What remains undisputed is that there is much to be done regarding the position of self-employed workers. As an employer, check on a case-by-case basis to what extent it is appropriate for you to have a self-employed person. 

Do you have questions about hiring freelancers in your business? If so, please contact Dennis Oud, Tessa Sipkema, or Elke Hofman.

Read the AG's conclusion here

By law, a probationary period may only be agreed upon when the employment contract exceeds six months, that is, six months plus one day. An employer fires an employee during the probationary period. Not exciting you might think, but was the probationary period legally valid? The district judge found that it was not, but why not?

The employment contract stated the following: “The employee shall enter into the employer's service (...) with effect from February 08, 2024. The labor contract is entered into for the duration of six months and ends on August 08, 2024.” 

The duration of the employment contract then effectively amounts to six months and one day, thus a valid probationary period according to the employer. However, the employee in question assumed that the employment contract had only been entered into for six months, as this was also literally stated in the employment contract, thus no valid probationary period. 

Because of the ambiguity in the provision, the court looked at the so-called Haviltex standard. The what? The Haviltex standard means that you look not only at the words on the paper itself, but also at the parties' intentions and expectations of each other. A few factors also come into play. For example, whether they are professional business parties and whether they received legal help in drafting and/or reviewing the employment contract. 

The employee was not aware that you cannot agree a probationary period in an employment contract for only six months. Also, in her job interview, she had been verbally promised that the employment contract would be for six months. The only clue to the “extra day” lies in the end date. The subdistrict court ruled that it was not employee's intention to enter into the employment contract for six months and one day. In short, the probationary period clause is invalid. 

What was the consequence for employer? Employer had irregularly terminated the employment contract, requiring it to pay compensation. The employer got off pretty well, because the employee had only claimed salary for the notice period up to April 1 and not until the end of the contract (August 1). 

Employer be alert! A probationary clause in an employment contract for six months and one day is allowed, but explicitly state in the employment contract that the duration is for six months and one day, so that the intention of the parties is clear. To avoid confusion, we recommend offering an employment contract for seven months. However, if a collective bargaining agreement applies to the employment contract, check that collective bargaining agreement as well. Sometimes it contains different provisions that may make things different.

Are you in doubt or do you have a question about this? Please contact Dennis Oud, Tessa Sipkema or Elke Hofman. 

Read the ruling here

Translated with DeepL.com (free version)

Last Friday at the Molenviergang at Zevenhuizen, the new team and shirts of the volleyball team ZVH Volleyball Men's 1 were presented! 🏐

Under the brilliant blue sky, the men of ZVH gathered for an evening full of highlights. A fun moment of the evening was when Johan Ottevanger, the miller, put the players to work and asked them to turn the mill and put it right into the wind. 😅 It was a unique experience that not only got the mill moving, but also filled the atmosphere in a special way. The event was also made by the presence of the Men From from Zevenhuizen, who provided a deliciously catered barbecue.

But the highlight of the evening was of course the handing over of the new shirt to Gerard van der Wende from our office.

We as shirt sponsor are looking forward to a great season full of sporting successes! The first league game is scheduled for Sunday, September 22 and the first home game is scheduled for Saturday, September 28 at 20:00 in Swanla. 

If you, as a citizen or company, want more information about, for example, an environmental permit from your neighbor, you can submit what is known as a Woo request to the municipality. This can be done through a request under the Open Government Act. You request the information from the administrative body from which you want the information (for example, the Municipal Executive, the City Council or the Mayor, depending on which administrative body made the decision). In doing so, you do not have to justify why you want to receive this information. The administrative body must then decide on your request within a certain period of time. Generally, a decision must be made within 4 weeks, but the deadline can be extended by 2 weeks. There may be exceptions to this deadline. If the administrative body does not respond to the Woo request in time, you can declare the administrative body in default. If no decision is made by then, you can appeal to the administrative judge for not deciding on your Woo request in time. The administrative judge must then decide within what period of time the administrative body must still decide on your request. But what is a reasonable period of time? 

The District Court of North Holland ruled on this issue on July 25, 2024. It ruled that it is up to the administrative court to determine what is a reasonable time for the administrative body to still decide on the Woo request. Indeed, it appears from Article 8:55d Awb that a standard time limit of 2 weeks applies for this. However, Article 8.4 Woo provides that, if the request is of a large size, this standard period must be deviated from. The larger the request, the more likely it is that the organization will be given longer than 2 weeks to respond to the request. Thus, the administrative law judge must make an assessment of how long the organization reasonably needs to review the request and decide quickly but carefully. This must include balancing the size of the request against what can reasonably be expected of the college. 

So keep in mind that an appeal to the administrative law judge does not automatically mean that the college will decide on your request on short notice. If the request is very extensive, the administrative judge may set a long(er) deadline. After all, in addition to speed, due diligence must also be considered. 

If you have filed a Woo request that the administrative body has failed to decide on in a timely manner, or if you need assistance in filing a Woo request, we will be happy to help you. If you have any questions, please contact Gerard van der Wende or with Fleur Huisman 

Link ruling: https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBNHO:2024:7939 

Translated with DeepL.com (free version)