Part of: Scarce licences
Scarcity does not follow from EU law but from a municipality's own choice to cap the number of tolerance declarations.
Scarcity is not a natural phenomenon
Scarcity in the coffeeshop sector does not follow from EU law or from the market, but from a municipality's own choice to set a maximum number of tolerance declarations. Without that ceiling there is no scarce right to distribute, and therefore no distribution issue.
When does scarcity actually arise?
- The municipality sets a numerical cap in policy or by-laws, so that the number of available positions is smaller than the number of interested parties.
- The municipality makes those positions temporary and links them to a moment of (re)distribution.
- The municipality ties a selection moment to the cap — for instance when a position becomes available.
Only in that situation do the national requirements from the Vlaardingen amusement-arcade line (Council of State, 2 November 2016, ECLI:NL:RVS:2016:2927) come into play: an appropriate degree of publicity and equal opportunity at the moment of actual distribution.
What that means for the municipality
Whoever creates scarcity also carries the burden of substantiating it. The cap must be current, necessary and proportionate (arts. 3:2, 3:4(2) and 3:46 General Administrative Law Act), including an assessment of less intrusive alternatives and of the consequences for existing businesses. A ceiling that simply "grew historically" is not a justification.
Our position: the question is not how scarcity should be distributed, but why a cap is applied at all. See norm-setting instead of capping.