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The Transition to the Environmental and Planning Law Act: Transitional Law

As of 1 January, the Environmental and Planning Law Act will come into force. The introduction of this act is described as the largest regulatory transition since the Second World War. In this blog, we will provide an overview of the transitional law that will also take effect on 1 January. This overview is brief, as a blog is not suitable for discussing the entire transitional law. It is also essential to examine which parts of the transitional law apply to specific situations.

The transitional law is arranged in various parts of the new regulations. For instance, the transitional law can be found in:

• The Environmental and Planning Law Act Implementation Act (IwOw), the Environmental and Planning Law Act Implementation Decree (IbOw), and the Environmental and Planning Law Act Implementation Regulation (IrOw)
• Supplementary laws (and underlying regulations) to the Environmental and Planning Law Act
• Other regulations

The importance of transitional law is significant. When the Environmental and Planning Law Act comes into force, businesses and organisations must not be left in uncertainty about what is permitted and what is not. The transitional law aims to ensure there are no ambiguities regarding what exactly applies to existing activities or ongoing procedures.

Ongoing (Decision-Making) Procedures

The principle is that if preparatory procedures for decisions started before 1 January 2024, the old law remains applicable. Decision-making will proceed based on the old legal rules. This also applies to any objection and appeal procedures. Consequently, authorities (competent bodies) and judges in (higher) appeal cases must apply the old law.

However, there is an important exception. Under the spatial planning law in effect until 1 January 2024, there are two types of procedures: a regular procedure, with a decision period of generally 8 weeks, and an extended procedure. The law prescribes which procedure applies to the type of application. For applications following the regular procedure until 1 January 2024, the 'lex silencio positivo' rule applies. This means that if the decision period lapses without an active decision from the administrative body, the permit is deemed granted and automatically comes into effect. This system changes as of 1 January 2024: silent approval of a permit is abolished. Although the old law remains applicable to applications submitted before 1 January, permits can no longer be granted silently. The administrative body must actively make a decision.

Existing Permits and Exemptions

Under the new law, a number of activities requiring an environmental permit are listed, for which a prohibition applies unless you have an environmental permit (Section 5.1.1 Ow). This includes various construction activities, environmental plan activities, environmentally harmful activities, etc. Many such activities are subject to a prohibition provision.

If you currently have an environmental permit for an activity that is regulated under the Environmental and Planning Law Act by a prohibition provision as of 1 January 2024, and this permit is irrevocable, the principle is that your permit will be considered an environmental permit under the new law for that activity (Art. 4.13(1) IwOw). This also applies to any conditions attached to that permit. Other conditions set in the current permit, such as further requirements, obligations, or other restrictions, will be considered conditions of the environmental permit from 1 January 2024.

Activities Not Subject to a Prohibition Provision as of 1 January 2024

Under the Environmental and Planning Law Act, authorities (competent bodies) can set specific conditions, known as tailor-made conditions, if the law allows. These are conditions specifically tailored for individual cases, deviating from general rules for activities. Authorities can only do this if the law provides this flexibility.

What happens to activities that will no longer be subject to a prohibition provision from 1 January 2024 but for which an authority still wants to set conditions? To avoid authorities having to set numerous tailor-made conditions before the Environmental and Planning Law Act is introduced, the following regulation is included for those activities:

• A condition attached to a (current) environmental permit for an activity that will no longer be subject to a prohibition provision from 1 January 2024 will generally apply as a tailor-made condition by operation of law (Art. 4.5(1) Ow).
• If the Living Environment Activities Decree (Bal) does not apply to the activities, the tailor-made condition by operation of law will apply as a condition under the environmental plan (municipality), the water board by-law (water board), or the environmental regulation (province).
• If the Living Environment Activities Decree (Bal) does apply to the activities, the tailor-made conditions by operation of law will apply as tailor-made conditions under the Environmental and Planning Law Act (Art. 4.3 jo. 4.5 Ow), even if they are formulated differently than in the Living Environment Activities Decree.

Suppose your activity will no longer be subject to a prohibition provision as of 1 January 2024, and the current permit conditions will apply as tailor-made conditions by operation of law, but these conditions are much stricter than what would result from applying the Living Environment Activities Decree. In that case, you can request the competent authority to withdraw those tailor-made conditions by operation of law. You will need to take action yourself. We can advise and assist you with this.

Questions?

If you have any questions, please contact us.

Op donderdag 16 november jl. organiseerde ons kantoor in samenwerking met Van Steensel Assurantiën BV een symposium over Pensioen en Arbeidsrecht!

Zo’n 70 ondernemers en medewerkers HR verzamelde zich in het gastvrije Kennis- en ontmoetingscentrum VNAB aan de Boompjes te Rotterdam voor een informatieve middag vol nieuwe Arbeidsrecht wetsontwikkelingen en Wet toekomst Pensioenen.

Namens ons kantoor spraken Dennis Oud en Tessa Sipkema onze klanten en de klanten van Van Steensel bij over actualiteiten in het Arbeidsrecht, zoals nieuwe arbeidsrecht wetsontwikkelingen die belangrijk zijn voor werkgevers en gaven de laatste stand van de rechtspraak op het gebied van grensoverschrijdend gedrag en Zelfstandigen Zonder Personeel.

Flip Ackema (Pensioen Advies Groep Legal Services) praatte de ondernemers bij over de Wet toekomst pensioenen en wat dit allemaal met zich meebrengt.

Tevens werden er een aantal casussen voorgelegd en werden er de nodige vragen over en weer gesteld. Na de presentatie werd er nog uitgebreid nagepraat over deze onderwerpen onder het genot van een lekker hapje en drankje.

Kortom; een zeer geslaagde interactief symposium en voor herhaling vatbaar!

Graag bedanken wij alle aanwezigen en in het bijzonder Peter Schoneveld van Van Steensel Assurantiën voor de prettige samenwerking en VNAB voor het gastvrije ontvangst en de goedverzorgde middag.

On Wednesday, 15 November at 10:00 AM, the final application period for the STAP budget will begin. The government has decided that from September onwards, only OCW-recognised courses will be eligible for the STAP budget, aiming to make the STAP budget more job market-oriented. As a result, the number of courses eligible for subsidy has significantly decreased. Therefore, first check the UWV website to see if you qualify for the subsidy.

You will need a STAP registration certificate and student number for your application. If you still need to arrange anything, do so as soon as possible.

Tip: Submit your application before 10:00 AM to increase your chances of getting through the queue. For more information, visit the UWV website: www.stapuwv.nl and follow the step-by-step guide.

Consumer or Entrepreneur, Everyone Encounters the "Small Print" Daily

Using terms and conditions is common practice and can be encountered when entering into any agreement. However, the use and content of terms and conditions are subject to regulations.

For instance, a clause in the terms and conditions can be voidable if, considering the nature and other contents of the agreement, the manner in which the conditions were established, the mutually apparent interests of the parties, and other circumstances of the case, it is unreasonably onerous for the other party. Relevant circumstances include the parties' status, their social positions, their relationship, and their expertise. If a clause in the terms and conditions is voidable, the user of those terms cannot rely on that clause.

For agreements with a consumer, the law includes a list of provisions that are deemed unreasonably onerous (the 'black list') and a list of provisions that are presumed to be unreasonably onerous (the 'grey list').

While the black and grey lists apply to agreements with consumers, it can also be relevant, even if the other party is not a consumer, to consider whether a clause in the terms and conditions appears on one of these lists when determining if it is unreasonably onerous for that party. When establishing the black and grey lists, the legislator noted that a small legal entity that is materially indistinguishable from a consumer may also invoke the black or grey list. In practice, we refer to this as 'reflex effect.'

Reflex effect is also possible in other cases, for example, if the other party has entered into an agreement in the course of its profession or business, but the agreement does not relate to its core professional or business activities. There can be cases where the other party is not a consumer, but their position closely resembles that of a consumer. In such cases, the fact that the clause appears on the black or grey list can be considered when assessing whether the clause is unreasonably onerous for that party.

This was addressed in a Supreme Court ruling on 8 September 2023. A couple runs a cheese and dairy business, initially as a partnership and later as a private limited company. They entered into an agreement with a party involved in financial advice and mediation. The agreement concerned a subsidy program from the Dutch Ministry of Economic Affairs that promotes innovative investment projects in developing countries. The advisor's terms and conditions included:

“1. Complaints about the work performed must be reported to the user in writing by the client within 8 days of discovery, but no later than 14 days after the completion of the work in question. The notice of default must contain a detailed description of the shortcoming, allowing the user to respond adequately. (…)”

Such a clause is in conflict with the grey and black lists and is presumed unreasonably onerous because it shortens a statutory limitation or expiration period within which a right must be exercised.

The advisor argued that the couple could not invoke the black and/or grey list because they were acting as a legal entity (B.V.). However, the Supreme Court ruled that the clause is unreasonably onerous. In its judgment, the Supreme Court considered the nature of the couple's business (cheese and dairy), their lack of knowledge and experience with the complex financial matters related to the agreement with the advisor, the fact that they had engaged the advisor for this reason, and the fact that the clause appears on the black and/or grey list.

The Court concluded that the couple's position, or at least that of the company, resembles that of a consumer and thus deserves protection. The agreement did not relate to the core activities of the business.

The Supreme Court's ruling demonstrates that the applicability of the black and/or grey list is not only relevant for consumers and/or small entrepreneurs. Reflex effect can indeed be relevant between larger parties.

Read the ruling here.

We have previously informed you about the "Work Where You Want" bill. This will be our last post on this bill for now, as it did not pass in the Senate. Last week, the Senate voted on the Work Where You Want Act, which aimed to make it easier for employees to work in a hybrid manner. The bill would have given employees more freedom to work from home or another location. According to the bill, employers could only refuse a request to change the workplace if they had compelling business interests. This rule also applies to requests from employees to adjust their working hours and schedules. After advice from the Social and Economic Council (SER), this was relaxed to stipulate that an employee's request to work from home should be assessed "according to standards of reasonableness and fairness." The Senate has now rejected the bill. Given the existing regulatory burden on employers, the Senate deemed it unnecessary to amend the current legislation. Employers and employees will need to discuss any request to change the workplace and adhere to the current rules.

What Are the Current Rules?

The current rules are outlined in the Flexible Working Act. If an employee requests to work from home, this request must be submitted at least two months before the intended start date. The employer is required to consider the request and discuss it with the employee. Unlike a request to adjust working hours or schedules, an employer does not need a compelling business interest to refuse a work-from-home request. Such a request can be fairly easily declined, but the employer must provide a written explanation to the employee. Note that if a decision is not made one month before the intended start date, the request must be granted.

In Summary

You are not obligated to agree to a request to work from home. If you do agree, ensure you have a good hybrid working protocol in place.

If you have any questions or are interested in a hybrid working protocol, please contact our employment law specialists.

Future of Pensions Act

On 1 July 2023, the Future of Pensions Act came into force. The reasons for revising the pension system include changing social preferences and financial circumstances. This includes the growing number of flexible employment relationships and self-employed workers, and the decrease in the number of people with permanent employment. The new law changes the types of pension agreements and includes new schemes for self-employed workers.

Types of Pension Agreements

In the old pension system, there were three types of pension agreements: the benefit agreement, the capital agreement, and the premium agreement. In the new system, only the premium agreement remains. In a premium agreement, a fixed pension premium is determined for the employee's pension accrual. This is typically a fixed percentage of the annual salary or the pensionable salary. The final pension amount depends on factors such as the paid pension premiums, investment returns, interest rates, and life expectancy developments. In short, there are three types of premium agreements:

• Solidarity Premium Agreement: In this premium scheme, there are no individual pots for investments by pension providers. The available premium is invested collectively. Investment returns are distributed according to age, with younger participants receiving more returns and taking on more risk than older participants.
• Flexible Premium Agreement: This premium scheme offers more flexibility for the participant to align the pension contract with personal preferences. The participant has an individual pot and can choose to take more or less risk.
• Premium Benefit Agreement: This premium scheme is a pure premium scheme up to 15 years before the statutory retirement age. From 15 years before the statutory retirement age, the participant can purchase a fixed lifelong pension from the retirement date. This form will only be accessible to insurers, as they can guarantee a nominal pension.

What Changes for the Employer?

It is important to know whether the employer is affiliated with an industry pension fund. If the employer is affiliated with an industry pension fund, the pension scheme will be amended at the fund level. This employer is obliged to comply with the amended pension agreement, and employee consent is not required.

An employer who has agreed on a pension scheme with the employee on an individual level can amend this in two ways. The first way to amend the pension agreement is with the employee’s consent, making the employee bound to the amended pension agreement. The second way is unilateral amendment, which is only possible if the employer has agreed on a unilateral amendment clause with the employee. To invoke the unilateral amendment clause, the employer must have a sufficiently important interest. A change in pension legislation is considered such an interest, giving the employer a reason to invoke the unilateral amendment clause.

Additionally, the employer must also obtain the approval of the works council when amending an individual pension scheme, or seek advice from the employee representative body or the employee meeting. If agreements are made at the collective level, such as in a collective labour agreement, employee input is arranged through collective consultation between employer and employee organisations.

Self-Employed Workers

Only a limited number of self-employed individuals take advantage of saving for their retirement. To prevent a significant drop in income, the Pension Agreement includes arrangements aimed at the self-employed.

The new law gives self-employed individuals more opportunities to arrange their pensions in a tax-efficient manner. Additionally, an experiment in the second pillar has been set up. A self-employed individual can join the industry pension fund relevant to the sector in which they work. They also have the option to join a pension scheme offered by a general pension fund, insurer, or premium pension institution, which is open for voluntary participation by the self-employed. Self-employed individuals can specify a flexible pension choice salary, within a certain minimum and maximum, based on which the pension premium is calculated.

Conclusion

Employers should check whether they need to take action to apply the new legislation to their employees. The transition period runs until 1 January 2028. If you have questions about your (potential) affiliation with an industry pension fund, please contact Dennis Oud, Hans de Haij, Tessa Sipkema, or Elke Hofman.