When the "services" Directive came into force in 2006, some issues have arisen about the Belgian law of 13 August 2003 concerning the permit for setting up commercial activities (hereinafter Ikea Act).
The criteria of the Ikea Act to deliver the permits were not compatible with the Directive.
It is indeed forbidden to consider the impact on the existing trade because it consist in a test for economic needs.
The federal legislator has consequently adopted an amending law of 22 December 2009 which changes 3 of the 4 criteria provided for in the Ikea Act.
Those new criteria match the Directive in that which they are not a test for economic needs anymore but requirements objectively justified by overriding reasons relating to a general interest. The analysis is not about the impact on the existing trade anymore but about the protection of the urban environment.
As part of the 6th reform of the State, the Ikea Act is now a regional competence. Each Region can now determine its own trade policy. At the moment, only the Brussels Region has adapted its legislation.
1. The legislation in the various regions on commercial activities
In Brussels, the BWRO-CoBAT (het Brussels Wetboek voor Ruimtelijke Ordening (Du) - le Code de l'aménagement du Territoire (Fr)) was modified by the decree of 8 May 2014 and the Ikea Act is repealed since 1st July 2014. It is no longer mandatory to obtain a socio-economic permit and a planning permit. From now on only one planning permit application is required.
The new article 4/2 of the CoBAT states that authorities must show "a particular attention to the impact of projects of commercial establishment which net surface area is above 400 square metre, especially as for the protection of consumers, safety; hygiene of places and surroundings; the traffic, access and parking conditions, as well as the integration of such projects into their urban environment". Those criteria are compatible with the "services" Directive. The competent licensing authority is the municipality (surface area below 1000 square metre) or the Region (above 1000 square metre).
In Wallonia, the adoption of the decree has been postponed by the outgoing government. It should normally be adopted in the following weeks. According to the proposal, the competent authority will have to focus on four criteria: protection of the consumers, protection of urban environment, social policy objectives and contribution to more sustainable mobility.
In Flanders, the government has agreed to a draft legislation concerning the integral policy as regards commercial establishments. The decree should however not be in force before the end of 2014. Meanwhile the Ikea Act remains in place. If the single permit is definitly a good news, we can have some doubts about the respect of the services Directive. The municipalities will be able to impose restrictions of range to the shops. Even though we do not really know their actual room for manoeuvre, it could be appropriate not to let the municipalities use some economic criteria when they take a decision that restricts services market access. Indeed, the question arises wether they will have the competence to, for exemple, limit clothes and shoe shops in the center of a city, or to determine that a trader selling beds may no longer sell other furniture.
2. Conclusion
The fact that the Ikea Act is now a regional competence, has the advantage of putting an end to the overlap of the federal and regional competence concerning commercial establishments. Regions have the liberty to adopt the rules they feel appropriate to lead their policy in relation to the retail and distribution trade. As for the respect of the services Directive, the criteria used to deliver the permits seem to be compatible with reservations concerning the Flemish draft legislation. We will have to obtain more details about the role of municipalities.
