Amsterdam Berth Permits: Council of State Quashes Municipal Conversion Decisions
In February 2026, the Administrative Jurisdiction Division of the Council of State issued important rulings on berth permits for Amsterdam’s passenger shipping sector (ECLI:NL:RVS:2026:823 & ECLI:NL:RVS:2026:1058). The Municipal Executive of Amsterdam may not simply convert indefinite berth permits into fixed-term permits. The Executive must provide better justification for its authority to do so and must take the European Services Directive into account. Wieringa Advocaten was involved in this case on behalf of Rederij Lovers.
Conversion decisions
In 2022, the Executive decided to convert berth permits for tour boats, originally granted for an indefinite period, into permits with an end date. The rationale behind this was that berth permits are “scarce” and that fair distribution would benefit from fixed-term permits.
The Executive based the conversion on Article 2.2.6(1)(b) of the Inland Waterways Regulation (Verordening op het binnenwater, Vob). Under this article, the Executive may modify a permit when there is “a change in circumstances or insights.” The Executive advanced two main arguments: first, that operating permits (for transporting passengers) had been converted to fixed-term permits, and second, that berths are scarce.
Change in circumstances or insights
The first argument was the link with the operating permit: because operating permits had been converted to fixed-term permits under a volume policy, berth permits should follow suit. This argument effectively became moot following the Council’s ruling of 25 September 2024, which held that the modification of operating permits was unlawful. The shipping companies pointed out that, as a result of that ruling, the volume policy no longer applies and operating permits are no longer scarce. The link advocated by the Executive would then actually mean that berth permits should also be granted for an indefinite period. The Council followed this reasoning.
Détournement de pouvoir
The second argument – scarcity of berths – replaced the first. On behalf of the shipping companies, it was argued that all appearances suggested that the Executive actually wanted to regulate the market, which in itself is not an overriding reason of general interest. The Council essentially follows this reasoning. It finds that the shortage of berths had been structural for a long time: in 2017 there were 247 berths, rising to 377 in 2023, but demand consistently exceeded supply. This is therefore not a new circumstance.
Crucial is the Council’s judgment that reliance on scarcity under Article 2.2.6(1)(b) Vob may not be used to indirectly implement the European law obligation under the Services Directive. After all, a separate, explicit legal basis exists for that purpose in Article 2.2.6(1)(e) Vob. The implication is that the Executive used a power for a purpose for which another, specific power exists – a classic misuse of power that touches on the prohibition of détournement de pouvoir.
Services Directive applies
A notable aspect of these rulings concerns the European Services Directive. In earlier proceedings – such as the Amsterdam District Court’s 2018 ruling on the commercial vessel Koningin Juliana (ECLI:NL:RBAMS:2018:4456) – it was assumed that the Services Directive did not apply to berth permits.
That line has been expressly abandoned. In its ruling of 16 April 2025 on the berth permit for the passenger vessel Athene (ECLI:NL:RVS:2025:1709), the Council held that the prohibition on occupying a berth with a commercial vessel without a permit by its nature applies only to service providers and not to private individuals. A decision on a berth permit for a commercial vessel is therefore a decision on access to a service within the meaning of the Services Directive.
In the present rulings, the Council builds on this change of course: when modifying berth permits, the Executive must apply the Services Directive and justify why the modification complies with it.
Scarcity: physical, policy-based, or a combination?
The most fundamental discussion concerns the question of whether berth permits are scarce and, if so, why. In the proceedings, Rederij Lovers advanced a principled argument about the distinction between physical and policy-based scarcity.
The Executive stated that 377 berths are available in Amsterdam’s inland waters. The shipping companies presented a different picture: a report by Waternet showed that 399 potential overnight berths for passenger vessels could be created on the inland waters.
According to Rederij Lovers, the limited number of berths does not stem from physical limitations, but solely from the environmental plan. And according to settled case law, the environmental plan does not create scarce rights (ECLI:NL:RVS:2018:4198).
Furthermore, Rederij Lovers pointed to the danger of what it calls “contamination” of physical and policy-based scarcity: natural resources that are considered physically scarce due to non-physical but purely policy-based reasons. To prevent this contamination, physical scarcity must actually result from the limited availability of the natural resource. Under national law, the Council apparently considers this contamination acceptable (ECLI:NL:RVS:2020:1013). Rederij Lovers requested the Division to refer preliminary questions to the Court of Justice on whether it is compatible with Article 12 of the Services Directive for the national court to include policy considerations when assessing scarcity.
Rederij Lovers also argued that any permit ceiling must be tested against the Services Directive. The ceiling must be justified by an overriding reason of general interest, be suitable for achieving the objective, and not go further than necessary. According to Rederij Lovers, making berth permits scarce serves no purpose: the municipal council already has the environmental plan as an instrument to make policy choices about locations, without creating scarcity.
According to the Council, answering these questions is not necessary for resolving this case: after all, the Executive must first justify why the modification of the berth permits complies with the Services Directive.
Significance for practice
These rulings underscore that authorities must handle existing indefinite permits with care. Converting them to fixed-term permits is not a simple administrative action. Administrative bodies must choose the correct legal basis, properly justify their decisions, and – since the Council’s change of course in April 2025 – for berth permits for commercial vessels, comply with the requirements of the European Services Directive.
For Amsterdam’s shipping companies, this means that their existing indefinite berth permits remain in place for now. The ball is in the Executive’s court to provide better justification – if such justification can even be given.