Is it or is it not allowed? Despite the increase in communication with the municipality by electronic means, there is still a lot of confusion about this way of communicating between municipalities and businesses and residents. In this article, we explain in what way municipalities are allowed to publish its notices electronically and what consequences this may have for you.
Communication between company/citizen and municipality can take place by electronic means. The basic principle is that messages not addressed to one or more persons may not be published exclusively electronically. Of course, there are exceptions to this.
For example, you can submit an application for an environmental permit online via the digital counter. An important requirement for this electronic traffic is that the parties involved have made it known that they can be sufficiently reached by this means. If a municipality wants to publish notices that are not addressed to one or more persons only electronically, they regulate this through a municipal regulation. As a result, they only need to publish such notices in the electronic municipal gazette.
Suppose you submit an environmental permit: the decision on this is always addressed to you alone. Its publication could therefore be done electronically as long as you have indicated that you agree. However, in a ruling by the highest administrative court in the Netherlands, the Administrative Law Division of the Council of State (hereinafter "Division"), it was made clear that a communication of this decision is not addressed to one or more interested parties. This means that this type of communication may therefore generally not be published exclusively electronically. Indeed, under the law, a notice of the authorisation must also be published in one or more daily, newspaper or door-to-door newspapers.
In the matter before the Division, the municipality of Arnhem had included the following provision in an ordinance:
"2.[Also] the electronic municipal bulletin can be used for:
notification of decisions addressed to one or more interested parties;"
The College of Mayors and Aldermen of Arnhem (hereinafter "College") had published a notice about two environmental permits in the electronic Municipal Gazette. Subsequently, a nearby operator lodged an objection to the granted environmental permits, fearing that its operating possibilities would be restricted. According to the Board, that objection had been filed too late. Before the Division, this operator argued that this was irrelevant because the Board should not have been satisfied with the electronic publication.
The Division ruled that the provision included in the municipality's ordinance only referred to the possibility of publishing such a notice by electronic means, and not to an exclusion of other ways of publication. According to the Division, a provision that only offers the possibility is in itself insufficient to suffice with electronic transmission; only when the statutory provision requires that such notices can only be sent electronically can a choice be made to omit publication by other means. That was not the case here.
It is important for businesses and individuals to be well informed whether a municipality publishes notices and notifications electronically. In the future, consulting an electronic municipal gazette will increasingly be necessary to be informed about such decisions. If a municipality has not established an exclusion of another way of communicating, you will still have to continue to receive this information in another way - i.e. via the door-to-door newspaper, for example.
Do you have questions about what the modernisation of electronic administrative communication means for you? Or have you missed a notification because it was not in the free local paper? We would be happy to talk to you!