The Lex Silencio Positivo, Environment Act and the Services Directive

It is widely reported that the Dutch legislator has abolished the so-called Lex Silencio Positivo (LSP) in the Environment Act. The Services Directive means that that message may still be somewhat premature.

Difference Lex Silencio Positivo under the Awb and the Services Directive

In our national law, the Lex Silencio Positivo is regulated in general terms in section .4.1.3.3 of the Awb (General administrative law act). Section 4:20b Awb provides that a requested decision is granted automatically if the application for a decision is not decided on in time. This is deemed to be a decision that takes effect three days after the decision period has expired. Section 4:20a of the Awb contains an important restriction: the Lex Silencio Positivo only applies if this has been determined by statutory provision. The applicability of the Lex Silencio Positivo therefore requires an explicit decision by the legislative body.

In the European Services Directive, this is just the opposite. Indeed, it follows from Article 13(4) that the Lex Silencio Positivo applies unless justified by overriding reasons of public interest, including a legitimate interest of a third party. Thus, to authorisation schemes that fall under the Services Directive, the Lex Silencio Positivo applies unless otherwise provided by statutory provision. There must be a good reason for this.

Lex Silencio Positivo abolished in the Environment Act?

In the Explanatory Memorandum(Parliamentary Papers II 2013/14, 33 962, no. 3), the Minister of Infrastructure and the Environment describes that the Lex Silencio Positivo brings complications in light of a number of innovations envisaged by the Environment Act. According to the minister, these include the more far-reaching integration of consents in the single permit in combination with bringing more single permits under the regular preparation procedure. In addition, the Lex Silencio Positivo does not fit well with the greater discretion that will be given to administrative bodies for assessing applications for environmental permits. When assessing permit applications, tailor-made solutions will therefore be necessary, and environmental permits will hardly have any standard regulations attached to them. Moreover, application of the Lex Silencio Positivo creates problems when it comes to the allocation of functions to locations by the national and provincial governments.

Abolition of Lex Silencio Positivo in the Environment Act justified?

In the Explanatory Memorandum, the minister acknowledges that environmental permits integrate consents that in part qualify as a permit covered by the Services Directive.

For some of these environmental permits, the Water Framework Directive already provides that the Lex Silencio Positivo does not apply. For another part of these environmental permits, the Mer Directive or the Industrial Emissions Directive requires a prior substantive assessment of the permit application or permit requirements.

On other environmental permits, the Minister stated that exclusion of the Lex Silencio Positivo is justified due to compelling reasons of public interest. These are:

the environmental permit for the fire-safe use activity;
the environmental permit to deviate from all rules in the environmental plan;
the environmental permit for the environmentally harmful activity for which although no substantive assessment is required under European law;
the environmental permit for mining activities;
The environmental permit for the Natura 2000 activity;
the environmental permit for the flora and fauna activity;
the environmental permit for activities for which the water board ordinance prohibits carrying out an activity without an environmental permit;
the provincial environmental regulation;

Case law on the Environment Act will have to show whether case law considers the minister’s justification sufficient.

The Lex Silencio Positivo and (deviating from) the environmental plan

In particular, the environmental permit to deviate from all rules in the environmental plan is an interesting one. The minister considers that the generic possibility offered to apply for a permit to deviate from all rules in an environmental plan requires a prior assessment of the application on the risks of this for the physical living environment. Among other things, the minister points to the risks to spatial planning, the environment or safety, whereby the competent authority must weigh up different interests and where customisation is required. According to the Minister, application of the lex silencio positivo entails the risk of granting an environmental permit that leads to irreparable damage to the physical living environment.

The justification for excluding the Lex Silencio Positivo is thus a particularly general one. All the more so given the ongoing debate on what kind of permit systems can be included in an environmental plan. Municipalities are given until 2032 to incorporate rules in municipal regulations that deal with the physical living environment into the environment plan. However, it is not always clear whether a municipal permit system is about the physical living environment. Consider, for example, the permit systems for events and catering establishments in APV. It is not said that the justification given by the Minister in the Explanatory Memorandum is sufficiently valid for all conceivable permit systems in environmental plans.

In short: despite the news that the Lex Silencio Positivo has been abolished in the Environment Act, it is still important to be critical. Especially in the case of permit systems for services in environmental plans, it may pay to question the exclusion of the Lex Silencio Positivo. Who knows, it might result in a permit granted by operation of law.