Belgian Retail Newsletter: The Legislation On Commercial Establishments Or So-Called “Socio-Economic Permit” Legislation: From Federal To Regional (Part I)
A prudent retailer seeking to open a point of sale in Belgium should check compliance with the legislation on commercial establishments1 which may require a declaration and/or a permit prior to the effective opening date.
During various decades, the competence regarding commercial establishments was a competence of the Belgian federal state. Between 1975 and 2004 the Federal Act of 29 June 1975 on commercial establishments applied (the “1975 Act”). As of 1 March 2005, the 1975 Act was replaced by the Federal Act of 13 August 2004 on commercial establishments (as amended), hereafter referred to as the Federal 2004 Act.
Please see full newsletter below for more information.
BELGIAN RETAIL NEWSLETTER
BELGIUM | The legislation on commercial establishments or so-called
“socio-economic permit” legislation: from federal to regional
18 NOVEMBER 2015
(PART I: FOCUSING ON BRUSSELS & FLANDERS)
A prudent retailer seeking to open a point of sale in Belgium should check compliance with the legislation on commercial
establishments1 which may require a declaration and/or a permit prior to the effective opening date.
During various decades, the competence regarding commercial establishments was a competence of the Belgian federal
state. Between 1975 and 2004 the Federal Act of 29 June 1975 on commercial establishments applied (the “1975 Act”).
As of 1 March 2005, the 1975 Act was replaced by the Federal Act of 13 August 2004 on commercial establishments (as
amended), hereafter referred to as the Federal 2004 Act.
In essence, it followed from the Federal 2004 Act that prior to operating a commercial establishment, a permit allowing a
commercial establishment — a so-called “socio-economic” permit — was in principle needed from the municipality for a
commercial establishment having a net commercial surface exceeding 400 m².
Since 1 July 2014, the competence regarding commercial establishments was transferred from the Belgian federal state to
the three Belgian Regions, viz. the Brussels Capital Region (“Brussels”), the Flemish Region (“Flanders”) and the Walloon
In light of this regionalization, each of the three Regions has the authority to issue its own legislation regarding
In this newsletter, we look at the legislation currently applicable in Brussels and Flanders. In a second newsletter, which
will be sent in the coming weeks, we will address the legislation applicable in Wallonia.
1 “Handelsvestigingen” (Dutch) or “implantations commerciales” (French). With these terms, the legislator focuses on a retailer’s Belgian point(s) of sale.
Belgian Retail Newsletter | 2
2. THE LEGISLATION CURRENTLY IN FORCE IN THE THREE BELGIAN REGIONS
Brussels abolished the Federal 2004 Act with effect per 1 July 2014 and inserted in its Brussels Town and Country Planning
Code2 specific provisions on commercial establishments. Such provisions entered into force on 1 July 2014.
The main highlights regarding retail can be summarized as follows:
i. Urban planning declaration
The following retail projects are subject to a prior written
urban planning declaration3 to be submitted to the
• a new construction providing for a commercial
• a modification or expansion of an existing commercial
establishment in a building which currently is destined
for commerce; and/or
• the establishment of a new commercial establishment in
a building which currently is not destined for commerce.
This obligation applies irrespective of the surface of the
project concerned and irrespective of whether or not an
urban planning permit is to be obtained.
The urban planning declaration aims at giving the Brussels
authorities a clearer view of the commercial mix of the
various districts of Brussels, also allowing the authorities to
proactively attract suitable businesses.
If the project does not require an urban planning permit
and is not executed within six months following the
municipality’s confirmation that the declaration is complete,
a new declaration is to be submitted.
An official circular providing for a template of an urban
planning declaration is not yet available.
ii. Urban planning permit
A prior urban planning permit4 is to be obtained for (i) a
substantial change regarding the range or type of goods or
services offered, provided that the net commercial surface
currently or after the substantial change exceeds 400 m²,
and/or for (ii) a substantial change regarding the surface
currently operated, provided that the net commercial surface
currently or after the substantial change exceeds 400 m².
Up until present, no implementing decree was published
providing a definition of what “substantial change” means.
However, no urban planning permit is required for the
expansion of an authorized store provided that (i) the
expansion does not exceed 300 m²; (ii) the expansion does
not exceed 20% of the current net commercial surface, and
(iii) the current commercial activity remains unmodified.
A number of points of attention:
• An impact report (for commercial surfaces between 1.000
m² but not exceeding 4.000 m²) or an impact study (for
commercial surfaces exceeding 4.000 m²) is to be joined
to the urban planning permit request5.
• For commercial surfaces exceeding 400 m² but not
exceeding 1.000 m², the urban planning permit request
is to be submitted with the College of Mayor and
Aldermen of the competent municipality. Requests
regarding commercial surfaces exceeding 1.000 m² are
to be submitted to the Competent Representative of the
• The Brussels Town and Country Planning Code states
that the competent authority should pay “special
attention” to the consequences of a commercial
establishment exceeding 400 m² in terms of consumer
protection, safety, health risks for the premises and for
the surrounding area, traffic circumstances, accessibility
and parking, as well as the integration of the
commercial establishment in its urban environment.
However, the Code does not indicate whether or not on
these grounds a permit can be refused.
• Depending on the specific scope of a retail project,
the Brussels Town and Country Planning Code sets
out various deadlines for the competent authority to
issue its decision. Generally speaking, parties should
allow at least four months to receive such decision. A
permit refusal can be appealed by the applicant while a
permit issued can be appealed by third parties having
an interest. As a matter of principle, the permit lapses
if the execution has not clearly been started within two
years following its issuance.
2 I.e. “Brussels Wetboek van de Ruimtelijke Ordening” (Dutch) or “Code Bruxellois de l’Aménagement du Territoire” (French).
3 “Stedenbouwkundige verklaring” (Dutch) or “déclaration urbanistique” (French).
4 “Stedenbouwkundige vergunning” (Dutch) or “permis d’urbanisme” (French).
5 The difference between the two is that a report can be drawn up by the applicant itself while a study has to be carried out by a recognized consultancy firm. The Brussels Town
and Country Planning Code describes the various elements which are to be described in the report and study (e.g. justification and timing of the project, impact of the project on the
Belgian Retail Newsletter | 3
In February 2014, the Flemish government submitted to parliament a draft “decree regarding the integrated policy on
commercial establishments”. This draft decree aims at replacing the Federal 2004 Act and would introduce various new
procedures and concepts focusing on improving the retail activity in the center of cities and villages rather than in their
However, at present, it is unclear when said decree will be finalized and enter into force (probably not in 2015). Pending
the adoption of such decree, Flanders chooses to continue to apply the Federal 2004 Act for commercial establishments in
Flanders. The Federal 2004 Act’s main highlights regarding retail can be summarized as follows.
i. Events triggering the duty to submit a “declaration”
The following retail projects are subject to a prior written
declaration to be submitted to the municipality where
the commercial establishment is/will be located, provided
that the net commercial surface of the commercial
establishment exceeds 400 m² and is already covered by a
• Projects aiming at expanding an existing commercial
establishment, it being understood that the expansion
should not exceed 20% of the existing net commercial
surface and should not exceed 300 m² additional net
commercial surface; and
• Projects aiming at moving an existing commercial
establishment within a radius of 1 km to another
location in the same commune.
Such declaration should be made by means of a mandatory,
official template. The project can take off after receipt of
the municipality’s acknowledgment of receipt.
ii. Events triggering the need of a commercial
establishment permit (so-called “socio-economic
The following retail projects are in principle subject to
a prior socio-economic permit to be obtained from the
municipality or the Region (depending on the location and
surface of the project):
• A new construction6 aiming at a commercial
establishment with a net commercial surface exceeding
• A complex7 of various retail stores whereby the total
net commercial surface of the complex exceeds 400 m²;
• An extension of an existing commercial establishment
or an existing complex of which the net commercial
surface already exceeds or will exceed 400 m²;
• The intended operation of a commercial establishment
or a complex with a net commercial surface exceeding
400 m² in an existing building with a non-commercial
• A material change in the type of commercial activity to
be operated in an existing building with a commercial
destination of which the net commercial surface
exceeds 400 m². The Federal 2004 Act does not define
what “material change” means so this is to be verified
on a case-by-case basis8.
The processing of a (complete) socio-economic permit
application is subject to the following time frame (these are
maximum periods expressed in calendar days):
• The (positive or negative) decision of the College of
Mayor and Aldermen is to be notified to the applicant
within 50 days (net commercial surface not exceeding
1.000 m²) or 70 days (net commercial surface exceeding
1.000 m²) as from the filing date of the permit
application. If no decision is notified within the above
time periods, the permit is deemed to be granted;
• The appeal against the issuance or against the refusal of
the permit must be lodged within 20 days as from the
above notification date9;
• The Interministerial Committee for Distribution must
dismiss or uphold the appeal within 40 days as from
the appeal filing date. If no appeal decision is notified
within such period, the appealed decision is deemed to
be confirmed; and
• Third parties having sufficient interest (e.g. competitors
of the retailer-permit holder) can lodge an annulment
and/or suspension procedure against the decision
granting the permit with the Council of State. Such
procedure is to be started within 60 days following the
moment such third party had knowledge or could have
knowledge of the decision concerned.
6 E.g. on an unbuilt plot of land or replacing an existing construction.
7 Viz. a group of points of sale (whether or not located in separate buildings and whether or not one and the same person is the promotor, owner or operator of the complex) which are
located on one site and which are connected from a legal or a factual point of view, in particular from a financial, commercial or physical perspective, or which ar subject to one urban
planning permit. The scope of this legal description raises various questions, but it seems that the legislator has in mind amongst others shopping centers which could consist of various
small shops which each in themselves do not exceed 400m².
8 A bowling alley which is turned into a shoe store could be an example of a “material change” in the type of commercial activity, while this would be less clear in case a store for
women’s clothing is turned into a store for women’s and children’s clothing.
9 An appeal against the permit issuance can be lodged by the National Socio-Economic Committee for Distribution and/or by at least seven members of said Committee.
An appeal against the permit refusal can be lodged by the permit applicant.
Belgian Retail Newsletter | 4
Operating a commercial establishment without prior declaration (if applicable) or permit (if applicable), and/or operating
a commercial establishment which deviates from the establishment described in the declaration (if applicable) or the
permit (if applicable), qualifies as an infringement which could amongst others, depending on the circumstances and on
the applicable (regional) legislation, lead to fines, an order to cease the renovation or fit-out works and/or the (temporary)
closure of the store.
In addition, non-compliance with the socio-economic permit legislation could be the basis for a civil tort claim from a
third party (e.g. a competitor).
The College of Mayor and Aldermen must motivate
its decision on the basis of the following cumulative
assessment criteria: consumer protection (e.g. is the new
project a logic addition to the existing stores?), urban
planning protection (e.g. traffic safety), compliance with
social and labor legislation, and spatial integration of the
commercial establishment (e.g. parking options).
A message confirming that the permit is granted is to be
posted by the applicant on the commercial establishment
within 8 days following the notification of the decision of
the College of Mayor and Alderman, up to the moment
of opening of the commercial establishment. As a matter
of principle, the socio-economic permit has an unlimited
duration. However, the permit lapses automatically if the
execution of the project did not start within four years
(extendable with one year) following the issuance of the
Per 1 July 2014, the competence regarding commercial establishments was transferred from the Belgian federal state to the
three Belgian Regions.
Currently, Brussels and Wallonia each have their own specific legislation which provides for various scenarios including
those where a retailer should submit an official declaration to the authorities or obtain a permit prior to opening its store.
Pending the adoption of new legislation, Flanders continues to apply the old Federal 2004 Act.
Preparing and securing compliance with the legislation on commercial establishments is time consuming. This may impact
both the contractual process as well as operational planning.
The legislation currently applicable in Wallonia will be discussed in a separate newsletter which will be sent out in the
Attorney, member of the Brussels Bar
+32 2 629 42 28
Rue des Colonies 56 – box 3
Attorney, member of the Brussels Bar
+32 2 629 42 16
Rue des Colonies 56 – box 3
Disclaimer: This newsletter is intended to provide information of general interest to the public and is not intended to offer legal advice about specific
situations or problems. This newsletter is based on legislation as publicly available per 16 October 2015. McGuireWoods does not intend to create an attorney-
client relationship by offering this information, and anyone’s review of the information shall not be deemed to create such a relationship. You should consult a
lawyer if you have a legal matter requiring attention.
© 2015 McGuireWoods LLP
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