Fictional Refusal in the Dutch Caribbean: Deadlines and Strategy by Island

In the Caribbean part of the Kingdom of the Netherlands, matters often move more slowly within government than one would like. The same applies to the issuance of permits and decisions on objections. Even if you have submitted a complete application and timely filed an objection to a decision, it may take months—and in some cases years—before a decision is made. What can you do about this? How can you speed up the process? In this blog, we explain when there is a fictional refusal, which deadlines apply, and which steps you can take per island. At the end, you will find a short checklist.

Fictional refusal
A fictional refusal arises when an administrative authority fails to decide in time. Under the law, failing to decide in time on an application or on an objection is treated as a refusal. An objection or an appeal can then be filed against that refusal. This is subject to deadlines. If an appeal has been filed, the court will generally set a deadline for the government authority to decide. If the government authority does not do so, the court may impose a penalty payment (dwangsom).

BES Islands and Sint Maarten
On the BES Islands and in Sint Maarten, it is possible to initiate proceedings regarding a fictional refusal before the court within six weeks after the decision period has expired. This is strictly regulated on the BES Islands and in Sint Maarten. These six weeks are a hard deadline: if you are late, the court will dismiss the request. This means that, although the government authority is still formally required to decide, it can no longer be compelled by the court. This makes it very important to keep a close watch on decision deadlines.

A few common examples are: applying for a nature permit, applying for a building permit, or obtaining a decision on an objection. When do these time periods start to run? For a building permit, the period starts when the application is complete. On Bonaire, Sint Eustatius, and Saba, it is often assumed that an application is complete only once the fees (the costs of the permit) have also been paid. The official period for deciding on a building permit is sixteen weeks after receipt of the application. If the administrative authority timely notifies that it needs more time, it may extend the decision period by no more than eight weeks.

In practice—particularly on Bonaire—it regularly happens that the government authority does not send a letter stating that the decision has been postponed. That means the decision period has not been extended by eight weeks. In that case, calculate: a 16-week decision period + 6 weeks to file an appeal against the fictional refusal (total 22 weeks). Within 22 weeks after submitting the application, the Court must be asked to order the government authority to decide on the application. Unfortunately, many people miss this deadline. The result is that permit applications remain pending for months, if not years, and there is no longer any way to force the government authority to decide. This is particularly important because various reports on Bonaire show that serious backlogs have developed in permit issuance.

For many applications relating to land to be developed, the government has not decided on the application for years. By filing an appeal against the fictional refusal, this process can be accelerated.

Other important time limits are a request under the Public Access to Government Information Act BES (Wet openbaarheid van bestuur): 3 weeks, and a decision on an objection against a government decision: 4 months. Note: specific statutes may contain different time limits.

Curaçao
In Curaçao, a fictional refusal works slightly differently than on the BES Islands. A decision must be made within a reasonable time, and an appeal must be filed within a reasonable time to compel that decision to be made. If legislation includes a time limit within which the decision has to be made, the end of that time period is the start of the appeal period. In cases where there is no time limit, the question is “what is a reasonable time?”. This depends on the type of administrative decision. A simple permit or a simple request will take a few weeks. If it is more complex and requires a lot of information, it will take a few months. Sometimes a decision period is set out in policy. This requires assessment of the specific application.

An appeal against the failure to make a decision is, in principle, not subject to a specific deadline, in light of Article 16a of the National Ordinance on Administrative Litigation (Landsverordening administratieve rechtspraak), but it may not be filed unreasonably late. This means that, in any event, it may not be filed later than one year after the decision should have been made.

The deadlines that are important to keep an eye on are therefore: 1) what is the statutory deadline? 2) if there’s no statutory deadline, what is a reasonable time given the complexity of the application? 3) until when is it not unreasonably late to file an appeal?

Aruba
In Aruba, the system differs from Curaçao and the BES. Where there is a special statutory arrangement with a legal decision period, a decision must be made within that period. Under Article 9(2) of the National Ordinance on Administrative Litigation of Aruba, where there is no statutory decision period, the period is also deemed to have expired twelve weeks after the application is submitted.

No appeal is available against that fictional refusal; instead, an objection must be filed. The objection period is not six but eight weeks, calculated from the date on which the decision should have been made.

Strategies in cases of urgency
If there is an urgent need to obtain a decision, and you cannot wait until a substantive decision is made, and an objection has already been filed or an appeal has already been lodged against the failure to decide, it is possible to request a preliminary relief (voorlopige voorziening).

The court may grant preliminary relief if the disadvantage resulting from the absence of a decision is so disproportionate, compared to having to wait for a substantive decision, that it cannot reasonably be required of the applicant. This may not be merely a financial disadvantage, but acute financial difficulties and irreversible harm may contribute to urgency. A preliminary injunction is case-specific; therefore, seek legal advice in time. In cases involving an objection or an appeal against a fictional refusal, there are therefore also options to obtain an expedited decision in pressing circumstances.

Checklist Create a checklist for each application:
– What is the deadline before which a decision must be made on the application?
– If no deadline is specified, Aruba applies 12 weeks; on the other islands, a decision must be made within a reasonable time. This depends on the complexity of the application. If it is a simple application, the period will be a matter of weeks. Eight to twelve weeks is a good guideline. If it is more complex, a few months applies.
– On the BES Islands and in Sint Maarten, file an appeal against the failure to decide in time within six weeks and ask the court to set a deadline. In Curaçao: file an appeal as soon as possible (ensure it is not unreasonably late). In Aruba: file an objection against the failure to decide in time.
– If there is urgent need and a substantive decision cannot be awaited, preliminary relief may be requested. The court may then order that a decision be made very quickly or impose another measure (for example, temporarily allowing an activity to be carried out).

Please note that specific regulations apply to many permits and applications, and these may differ from the usual system for failure to decide in time.

Questions, or is a decision deadline about to expire? Contact our administrative law specialist Paul de Lange
E: lange@vaneps.com
T: +599 701 1030.