Part of: Scarce licences
Factual scarcity ≠ scarce licence
The crucial distinction: a coffeeshop does not have a licence within the meaning of the Services Directive (Roermond case, ECLI:NL:RVS:2023:3431; Apeldoorn case, ECLI:NL:RVS:2023:3482). A tolerance declaration is not a licence, because no licence can be granted for acts involving a product prohibited by law. A municipally applied cap therefore only leads to factual (policy-driven) scarcity — not to a scarce public right within the meaning of EU law.
This position has been confirmed by the Ministry of Justice and Security (letter of 14 October 2021, ref. 3010883) and by the VNG in the Scarce Licences Handbook (2024, sect. 4.5). The VNG explicitly writes that a tolerance declaration "probably does not fall under the Services Directive or the Treaty on the Functioning of the EU" and that a municipal cap leads only to policy-driven scarcity.
Objection and appeal ≠ equation with a licence
Since the Council of State's ruling of 13 September 2023 (Apeldoorn) objection and appeal are available against the granting, refusal or withdrawal of a tolerance declaration. Some municipalities read this as meaning that a tolerance declaration is "equivalent" to a licence. That is incorrect: the Division merely repairs a gap in legal protection. The legal nature does not change — a tolerance declaration remains a decision not to enforce, not a licence, and certainly not a licence within the meaning of the Services Directive.
Didam: equal opportunities, no Services Directive regime
The Didam ruling obliges authorities to transparency and equal opportunities when issuing a scarce public right: prior announcement, objective criteria, equal access. But Didam does not require periodic openings, says nothing about licence duration and does not activate a Services Directive regime. With factual scarcity, municipalities are free to organise access as they see fit — as Apeldoorn correctly did: limited duration, no periodic distribution, transparency when a place becomes available.
A cap may never be arbitrary
Whether it concerns factual scarcity or a scarce licence: art. 3:4 Awb always applies. The municipality must objectively motivate:
- which specific problem occurs;
- why that problem is caused by more operators;
- why capping is necessary and suitable;
- why less intrusive measures are insufficient;
- and why the chosen number is proportionate.
Settled case-law confirms this (Council of State 2 November 2016, ECLI:NL:RVS:2016:2927; Council of State 19 July 2017, ECLI:NL:RVS:2017:1946 — market stalls). A cap without fact-finding, problem definition, weighing of alternatives or proportionality test is arbitrary and is almost invariably annulled by the courts. In practice municipalities fall short precisely on these points: ceilings are often justified as "historically grown" or "one is enough", while coffeeshops face limited terms, the threat of redistribution and a stricter sanction regime than regular hospitality.
Not the licence duration, but the mayor's discretion has been narrowed
Council-of-State case-law since September 2023 is often read as an obligation to issue temporary tolerance declarations. That is a misreading. What the Division has in fact narrowed is the discretionary power of the mayor to apply a cap: a ceiling can no longer rest merely on an administratively desired number, but must be objectively and verifiably substantiated. The consequences of a cap system — factual scarcity and heavy motivation requirements — flow from that policy choice, not from the Services Directive.
Outside EU law too, a cap must be justified against the proportionality principle: suitability, necessity and balance (cf. opinion of Advocate-General Widdershoven 6 June 2018, ECLI:NL:RVS:2018:1847).
If a municipality does treat coffeeshops as a scarce licence
According to the VNG Handbook (sect. 3.3) this is a closed regime: the municipality must then apply the entire regime of art. 12 of the Services Directive in full — pre-published, objective, verifiable and non-discriminatory criteria, a fully transparent selection procedure, no indefinite duration, and a licence term economically tied to the payback period of investments. A municipality cannot pick and choose which parts to apply.
Steering without scarcity: rules via the environmental plan
If a municipality wants to keep grip on location, distribution and conditions, the environmental plan offers an alternative that does not create factual scarcity. By regulating through spatial-planning norms instead of caps, existing operators keep their position, the need for ever-heavier justification of a ceiling falls away, and establishment and operation are regulated in a transparent and enforceable framework. In short: think before you cap — whoever wants to keep grip can do so without scarcity.