Sliedrecht calls it 'equal opportunities', but for the incumbent entrepreneur, it means business loss by lottery

Sliedrecht invokes 'equal opportunities' and presents its approach as if it is legally obliged to re-open an existing coffeeshop position. However, the municipality selectively applies the legal framework.

In Sliedrecht, it once again becomes clear how arbitrarily some municipalities deal with the Services Directive (Dienstenrichtlijn) and the doctrine of scarce permits. The municipality invokes 'equal opportunities' and presents its approach as if it is legally obliged to re-open an existing coffeeshop position. But precisely when a municipality invokes scarcity, stringent obligations apply. Sliedrecht adopts the components that suit it, such as temporary duration, registration, and lottery, but ignores the components designed to protect entrepreneurs.

That is the core of this case. Not just that Sliedrecht opens a procedure, but especially how it does so.

The municipality states on its own website that one coffeeshop is permitted within Sliedrecht. This coffeeshop must have an operating permit (exploitatievergunning) and a tolerance decision (gedoogbeschikking). These are granted for two years. The current permit expires on 22 November 2026. Subsequently, the municipality states that a 'coffeeshop permit' is a scarce permit and that, therefore, everyone must have an equal opportunity to obtain this permit.

After the registration period closes, a lottery will determine which applicant may submit an application for an operating permit and tolerance decision. Only then will that application be assessed on its merits.

In plain language, this means that the current operator must enter a lottery for their own business. Not because they are performing poorly. Not because there is nuisance. Not because public order has been violated. Not because they are failing to meet their obligations. But because the municipality is administratively re-marketing an existing business.

That is not careful coffeeshop policy. That is making business continuity dependent on chance.

Sliedrecht's first mistake is that the municipality acts as if there is one normal 'coffeeshop permit'. This is legally too simplistic. A coffeeshop operates with an operating permit for the legal hospitality activity and a tolerance statement (gedoogverklaring) or tolerance decision (gedoogbeschikking) for the sale of cannabis. This distinction is fundamental. The sale of soft drugs takes place on the basis of tolerance. A tolerance statement is not a permit in the sense of the Services Directive.

This also follows from the case law that municipalities themselves often cite. In Apeldoorn, ABRvS 13 September 2023, ECLI:NL:RVS:2023:3431, a judgment was made regarding legal protection against tolerance statements. That ruling does not suddenly turn a tolerance statement into a permit in the sense of the Services Directive. In Heerlen, ABRvS 30 April 2025, ECLI:NL:RVS:2025:1925, it was ruled that in a system capped by the municipality, consequences may arise for the duration of tolerance statements. But even from that, it does not follow that coffeeshops automatically fall under the regime of scarce permits in the sense of the Services Directive.

This is precisely what Sliedrecht overlooks. The municipality starts with the conclusion that there is one coffeeshop, that there is therefore scarcity, and that a lottery must therefore be held. Legally, it should be the other way around. First, the municipality must determine which legal regime applies. Then, it must substantiate why the maximum of one coffeeshop is still necessary today. Subsequently, it must justify why less intrusive measures are insufficient. After that, it must explain why a duration of only two years is appropriate. Only then does the question arise of which allocation method is suitable and proportionate.

Lottery can be an admissible allocation method in certain scarce permit systems. But that does not mean that lottery is sensible, appropriate, or proportionate here. For coffeeshops, the municipality has an interest in experience, integrity, compliance, local embedding, responsible entrepreneurship, good supervision, and a proven track record. Lottery puts these factors in second place. First, chance decides who may continue; only then does the substantive assessment follow. For a risk-sensitive sector, this is a weak and difficult-to-defend sequence.

The second mistake is that Sliedrecht does not visibly and currently substantiate the maximum of one coffeeshop. The municipality refers to existing policy and to a framework from 2008. But a maximum established almost eighteen years ago cannot simply be used to open an existing business for lottery in 2026. Policy should not fossilise into automatism. Especially not when that policy today could result in an entrepreneur losing their business.

A maximum system is not a technical formality. It is a major policy choice. As soon as a municipality sets a maximum itself, it creates scarcity. Then it must also bear what legally belongs to that. The VNG (Association of Netherlands Municipalities) handbook makes it clear that scarcity arises when the number of available permits is limited and that policy-induced scarcity is a conscious choice of the administration.

This means that Sliedrecht cannot simply state that one coffeeshop is permitted. The municipality must explain why that number is objectively justified. Why exactly one? Why not two? Why not regulate via location requirements, distance criteria, supervision, Bibob (public administration integrity screening), operational conditions, and enforcement? Why would a ceiling be necessary if the same interests can also be protected with less intrusive means?

The third mistake is that Sliedrecht acts as if temporariness and lottery automatically follow from the law. This is incorrect. Municipalities are only obliged to limit the duration of a coffeeshop position if they operate a lawful maximum system. The lawfulness of that system depends precisely on its substantiation. On behalf of the Bond van Cannabis Detaillisten (BCD) (Association of Cannabis Retailers), we have previously written to municipal councils that the mayor's authority in this regard has not become broader, but rather more limited. A maximum can no longer simply be established or maintained; it must be objectively and verifiably substantiated.

This clearly exposes the error in Sliedrecht. The municipality uses the existence of a maximum as a starting point, while precisely that maximum is open to debate. The municipality does not visibly state why one coffeeshop is necessary. It does not visibly state why the chosen maximum is suitable. It does not visibly state why less intrusive alternatives are insufficient. And it does not visibly state how the interests of the incumbent operator have been weighed.

The fourth mistake is the transition. If a municipality opens up an existing position and suddenly makes an operator compete for their own spot, it cannot do so without a transitional period. Especially not when the entrepreneur has operated for years based on existing policy, made investments, hired staff, and entered into obligations. For many entrepreneurs, their pension provision is tied up in the business. If a municipality makes that position dependent on a lottery from one day to the next, that pension provision can effectively disappear without any poor performance or violations having occurred.

Even if a municipality believes it must apply Article 12 of the Services Directive, it cannot abruptly switch to a short temporary authorisation and lottery. Article 12 requires an appropriately limited duration for scarce permits. This appropriate duration is not separate from investments, depreciation, and a reasonable opportunity to recoup capital. The VNG handbook aligns with this. When determining the appropriate limited period of validity, account must be taken of the time needed to recoup and depreciate necessary investments. Moreover, a municipality must prevent permit holders from postponing necessary investments in the final years because it is uncertain whether they can continue.

This means that Sliedrecht cannot suffice with a two-year duration and a lottery. The municipality must investigate which investments are necessary for this operation, what the associated payback period is, what a reasonable depreciation period is, and what transitional period is required so as not to disproportionately harm the existing entrepreneur. Without such substantiation, Sliedrecht selectively applies Article 12: making it temporary and distributing it, but not offering the protection that belongs to that regime.

The fifth mistake is that Sliedrecht selectively uses Article 12 of the Services Directive. If the municipality truly invokes the Services Directive regime, it must apply that regime in full. Not just the components 'equal opportunities', 'temporariness', and 'allocation', but also the obligations that come with it. This includes an objectively justified maximum, clear and pre-knowable criteria, a transparent procedure, an appropriate duration, attention to necessary investments, a transitional period, and protection against arbitrariness. It is precisely these things that Sliedrecht neglects.

The VNG handbook states that under the Services Directive, non-discrimination, transparency, and proportionality apply. Procedures must be clear and publicly known in advance. Applications must be treated objectively and impartially. In cases of scarcity, a selection procedure with safeguards for impartiality and transparency is necessary. The handbook also calls the Services Directive the most stringent framework for scarce permits.

But Sliedrecht seems to primarily use one sentence: everyone must have an equal opportunity. That is insufficient. Equal opportunities are not a carte blanche for arbitrariness. Equal opportunities do not mean that an existing entrepreneur can be pushed into a lottery without a transitional period, without an investment analysis, without a current substantiation of the maximum, and without a proper balancing of interests.

The sixth mistake is that Sliedrecht fails to recognise that business loss does not only affect the entrepreneur. If the incumbent operator loses their position, it also affects staff, business succession, accumulated pension provisions, and social security. In our letter to municipal councils, we explicitly mentioned this. If continuation or takeover is hindered, business succession can become practically impossible. When the position is lost, the business often ceases to exist in practice, leading to employees losing their jobs and initiating labour law processes.

This is at odds with the principles of the coalition agreement. It aims for stable policy, reduction of regulatory burden, predictability for entrepreneurs, protection of business succession, and a social security system that works for employees and employers. The importance of family businesses and business succession is also emphasised. A procedure in which an existing entrepreneur must re-lottery for their own position does precisely the opposite. It increases uncertainty, raises the regulatory burden, jeopardises business succession, and makes employees' positions dependent on chance.

Sliedrecht is thereby not only doing something legally vulnerable. The municipality is also acting administratively carelessly. It chooses an instrument that can have the most serious possible consequences, without visibly demonstrating that such a consequence is necessary.

Moreover, the municipality is not without instruments at all. Sliedrecht can manage public order, liveability, location, distance to schools, supervision, Bibob, operational conditions, and enforcement. For this, the municipality does not have to let an existing business lose its position through a lottery. We have previously pointed out a less intrusive alternative to municipalities: standardising instead of maximising. Through the environmental plan (omgevingsplan), a municipality can stipulate where coffeeshops are permitted and under what conditions they may operate, without employing an artificial ceiling that directly impacts the position of existing operators.

In other words, Sliedrecht has choices. The municipality is not forced to make an entrepreneur lottery for their own business.

Precisely why this procedure is so problematic. Sliedrecht presents its approach as legally necessary, while in reality, it is making a policy choice. And if it is a policy choice, that choice must be substantiated. Not with a single sentence about scarcity. Not with a reference to equal opportunities. Not with a policy framework from 2008. But with a complete, current, and verifiable balancing of interests. This is visibly lacking here.

What Sliedrecht should have done is clear. First, the municipality should have determined whether the Services Directive applies at all to the components of the coffeeshop position. Subsequently, it should have made the distinction between the operating permit and the tolerance statement. Then, it should have re-substantiated the maximum of one coffeeshop based on current facts. Following that, it should have investigated whether less intrusive alternatives are possible. After that, it should have weighed the interests of the incumbent operator, their investments, staff, business succession, pension provisions, and business continuity. Only then could it have considered an allocation procedure. And even then, a transitional period should have been central. None of this visibly occurred.

The consequence is harsh. An entrepreneur who has operated locally for years can lose their business because their name does not come out of the lottery. That is the reality behind the administrative language. 'Equal opportunities' sounds nice, but for the incumbent operator, it means that their business, staff, investments, business succession, and pension provisions are put at risk from one day to the next.

Moreover, this case does not stand alone. In other sectors, we see the same reflex. Existing entrepreneurs lose certainty because municipalities use the word 'scarcity' as a power word. In the canal cruise sector, the Raad van State (Council of State) called Amsterdam to order because the policy regarding temporary permits was insufficiently motivated and turned out to be disproportionately burdensome, especially for small shipping companies. The Amsterdam passenger shipping file refers, among other things, to ABRvS 25 February 2026, ECLI:NL:RVS:2026:823, and to the earlier ruling of 25 September 2024 on the annulment of the permit policy.

This line is relevant for Sliedrecht. Here too, it concerns an existing business that may lose its continuity due to a new allocation policy. Here too, the municipality uses scarcity as an argument. Here too, the rigorous substantiation that such an intervention requires is visibly lacking.

It remains a policy choice how Sliedrecht deals with the existing coffeeshop position. If the municipality nevertheless believes that the Services Directive applies, it must apply that directive in full. Not just the components that suit it, such as temporariness, registration, and lottery, but also the protection that comes with it.

This means that Sliedrecht must concretely motivate why a two-year duration would be sufficient, how investments and payback period have been weighed, how business continuity and staff are protected, and what reasonable transitional period the incumbent operator receives. If the municipality finds a lottery suitable, it must explain why chance should outweigh quality, experience, local embedding, and compliance.

Because this is the core. Sliedrecht itself creates scarcity, then calls it a legal obligation, and makes the incumbent operator lottery for their own business. The municipality selectively applies the legal framework and precisely neglects the obligations that are meant to prevent entrepreneurs from arbitrarily losing their business.

Therefore, give the entrepreneur and their employees what they are entitled to.

That is legal certainty. That is proportionate administration. Anything else is taking away a business with a neat procedure wrapped around it.