Is having a permit a reason for an exception to the Didam rules?
The Rijksvastgoedbedrijf (Central Government Real Estate Agency) can use the criterion of ‘having a Wbr permit’ for the allocation of land on service areas along the Dutch motorways. Since only Fastned had a valid permit for the operation of facilities on certain plots, the Rijksvastgoedbedrijf rightly designated Fastned as the only serious candidate for the leases. This decision was already upheld three times in (turbo) expedited appeals by the Courts of Appeal of The Hague and Arnhem-Leeuwarden.[1]
Conflict with the Didam judgment?
These proceedings were prompted by the publication of three separate intentions of the Rijksvastgoedbedrijf to enter into leases with Fastned. Two riders to existing leases for expansions of existing charging stations and one new lease for a waiting facility with shop at a charging station. The operators of the adjacent petrol stations (Shell and Circle K) brought interim injunction proceedings. They stated that they too wished to bid for the leases and argued that the Rijksvastgoedbedrijf acted contrary to the Didam judgment by failing to organise a public selection procedure. The courts rejected the position of Shell and Circle K in interim injunction proceedings. On appeal too, Fastned and the Rijksvastgoedbedrijf won the suit.
The allocation policy of the Rijksvastgoedbedrijf
The Rijksvastgoedbedrijf checks whether the party requesting a lease for a piece of land on a service area along the motorway has a valid public-law permit to use that land. If it does, a public selection procedure for the lease of those lands is not necessary, because there has already been a public procedure when the public-law permits were granted. All market parties that are potential applicants have the chance to apply for the permit required. Without the necessary permit, it is not allowed to use the land to offer facilities to road users. It makes no sense to lease land to a party that is not allowed to use it. The criterion of having a permit is an objective, reasonable and verifiable criterion.
The policy of ‘lease follows permit’ is an existing policy in service areas, and both Shell and Circle K knew this (as did all other petrol station operators along the motorways). If several parties would have a permit for the same plot of land, the Rijksvastgoedbedrijf applies the principle of ‘first come, first served’. This policy of the Rijksvastgoedbedrijf is objective, reasonable and verifiable, and consequently meets the Didam requirements.
Since only Fastned had a permit for the use of the land in the cases in which Shell and Circle K brought proceedings, Fastned was the only serious candidate for the lease. In short: the Rijksvastgoedbedrijf did not have to offer room for competition through a selection procedure. All claims of Shell and Circle K were denied.
Civil court vs. administrative court
It is essential that Shell and Circle K objected mainly to the lawfulness of the expansion of Fastned's charging stations and the arrival of a shop. The decision on the admissibility thereof belongs in the domain of public-law permit-granting. Therefore, the Courts of Appeal held that Shell and Circle K could – and therefore should – have submitted that part to the administrative court for assessment. They were barking up the wrong tree with this in the civil court. The Court of Appeal of The Hague considered the following: “With a view to the statutory division of judicial competence, it is not the task of the civil courts to adjudicate arguments (still) that belong in the domain of the administrative courts (in a process of law containing sufficient safeguards).”
This case law is a valuable addition to the Didam case law, and besides offers insight in the division of competence between the civil courts and the administrative courts. Leon Mensink and Gracia de Vries represented Fastned in these proceedings.
[1] Court of Appeal of Arnhem-Leeuwarden, 27 May 2025, ECLI:NL:GHARL:2025:3242, Court of Appeal of The Hague, 22 July 2025, ECLI:NL:GHDHA:2025:1390 and Court of Appeal of The Hague, 18 November 2025, (unpublished)
