Government and enterprise
Central government is in the process of being decentralised. Due to this, the work load of other government authorities is increasing more than ever. The result is that enterprises are being confronted with rules which can differ from district to district. What happens if they do not (accidentally) adhere to the rules? Then there is a risk of administrative sanctions or of their permits being revoked or subsidies being withdrawn. And that is not all: If the authority decides to make a decision public, the entrepreneur can suffer damage to its reputation. Government authorities are also often the subject of criticism and debate in the media.
At Legaltree you will find the years of tried and tested experience in legal matters and in particular in administrative law and public law to assist you further. Whether this concerns advice or litigation: our method of working is efficient and pragmatic. Not only in purely legal matters, we also keep an eye on public opinion and the risk of damage to reputation.
The attorneys-at-law of the Government and Enterprise department work both for government institutions (municipalities and independent and administrative bodies) and for private enterprises.
What subjects can Legaltree assist you with?
- Government supervision and compliance
- Contracting with government authorities
- Netherlands Government Information Act (Wet openbaarheid van Bestuur: the ‘Wob’)
- State aid
- Government participations
- Expropriation and/or preferential right
- Government liability, compensation for loss resulting from government decisions
- Public Administration (Probity in Decision-making) Act (Wet bevordering integere besluitvorming openbaar bestuur (the ‘BIBOB’)
- Certificate of Good Behaviour (Verklaring Omtrent Gedrag: VOG)
- Public Works (Removal of Impediments in Private Law) Act (Belemmeringenwet Privaatrecht)
Government supervision and compliance
Various government authorities and institutions conduct supervision on the compliance with legislation and regulations. This can result in imposing sanctions or, as is becoming more customary in competition law, by giving instructions, making arrangements with enterprises about future conduct (commitment decisions) or issuing informal points of view. The partners of Legaltree have had broad experience in this.
In the case of permits, administrative law means of recourse in the form of objection and appeal are customary. Legaltree has the specialists in house who are regularly involved in suchlike procedures, particularly in the area of Regulated markets and Environment and Building matters.
Contracts with government
Governments are large commissioning authorities in the area of products and services, especially in the building sector. Many governments also have mutual contracts, for example, to act jointly in the area of social facilities or waste disposal. The concluding of a contract with a government party falls under the Tendering Act (Aanbestedingswet). Legaltree has had much experience in tendering law and in concluding contracts with government bodies. We also assist parties who wish to structure their public-private partnership.
Public access to government information
The starting point of the Government Information Act (Wob) is that government information is accessible to the public. However, be it for persons or enterprises, it is not always desirable that this information is actually disclosed, for example, if it concerns information with confidential personal data or company information.
Is there is a threat that data is to be made public which you would rather not see end up on the streets? Legaltree will act on your behalf. We are also at your service if your wish is to obtain correct information from the government body – or even if you wish to enforce this by means of taking judicial steps. Legaltree also advises administrative bodies on Wob-related matters. The result is that we are very familiar with the different perspectives of the law.
Complex conditions, European, national and/or regional, are applicable when granting subsidies. There are also many hurdles to overcome when implementing subsidised activities. In practice, this could turn out to be more unmanageable than was foreseen before the granting of the subsidy. Changing of political relations can lead back to subsidised tasks being reconsidered.
In addition, a subsidy can be withdrawn as a sanction. This makes the terrain of subsidy grants rather bumpy. Legaltree advises granters of subsidies in the drafting of the subsidy regulation, the subsidy decisions and decrees. Recipients of subsidies may count on our expertise when explaining the subsidy terms and conditions, the transfer of the subsidy or a threatened termination. We do this for a variety of clients, amongst others, those in the health sector, the transport sector, education and research, and the culture sector.
State aid is (financial) assistance from government for an enterprise or branch, for example, in the form of a subsidy or the possibility to buy land more cheaply from the government. This assistance is prohibited in many cases as it can lead to unfair competition. Member States, therefore, are required to report State aid to the European Commission. If the Commission approves of the aid measure, the prohibition will not apply.
There are exceptions to the State aid prohibition. Since 2014, for example, there has been an exemption for regional aid, investment aid and the small and medium-sized companies, aid for the construction of broadband networks, protection of the environment and for employers with a disadvantage on the labour market. Do you need advice? Legaltree is standing ready for you.
Governments also have private law public duties. Many municipalities, provincial executives and other government bodies, for example, participate in foundations, partnerships and associations. Such a participation can give rise to complicated legal issues: can such a joint venture take decisions which are subject to administrative law recourse? And does information which is shared between the private entity and the ultimate public legal person fall under the disclosure obligation on the basis of the Government Information Act?
Another example: a distribution by private legal persons whereby public parties are involved can be considered in some cases as a subsidy. The partners of Legaltree are regularly involved in suchlike issues. Government participations in which we have been involved are, for example, the Municipal Port Authority of Amsterdam and the Port of Rotterdam, the Bank Nederlandse Gemeenten, Schiphol airport, energy companies and operators of paid parking.
A slip made in the past can have far-reaching consequences. Companies run the risk (even after having paid the penalty, having served the sentence or having made an arrangement with the public prosecutor) of having to cease their activities because the permits have been withdrawn. It is therefore of great importance to consider the threat of the BIBOB in pending enforcement trajectories and to discuss this with the authorities. Has this not been done, and does the Act come into play after all? Even then, proactive action is important. Legaltree has gained much experience in the waste sector, the sport sector, the real estate sector and the hospitality industry.
Certificate of Good Behaviour (VOG)
Holding a certificate of good behaviour (VOG) is increasingly being required as a condition in order to be considered for a particular function, not only for private persons but also for entrepreneurs, for example, if the enterprise wishes to be registered on the joint list for Transporter, Collector, Trader, Mediator (Vervoerder, Inzamelaar, Handelaar and Bemiddelaar: the ‘VIHB’ list). In the case of an application for a VOG, Justis, the screening authority of the Ministry of Security and Justice, will investigate the judicial past of the applicant. If an entry has been made in the judicial documentation register, this could lead to a permit being refused. Legaltree has the attorneys-at-law who can give you tailor-made advice as to what the consequences of such an entry in the documentation register could be – and what action you can take if a VOG is not to be issued.