Foto: Zarah. V. Windh
The NHA, a training institute, applies for a subsidy of the Minister of Social Affairs and Employment. This is a substantial subsidy for offering free training programmes as part of a temporary crisis package from the ministry worth € 50 million.
NHA’s subsidy application was rejected because the subsidy was exhausted with the 15th applicant; NHA’s application was the 21st to be received. Within less than three and a half minutes after opening, the subsidy was exhausted. The difference between NHA’s application and the last successful applicant: 8 seconds.
The subsidy regulation stipulated that applications – which had to be submitted via an electronic application form – would be processed on a first-come, first-served basis and that only complete subsidy applications would be considered.
Through a Freedom of Information Request, NHA obtained access to the information that other applicants had entered in the electronic application form. This revealed that no fewer than seven of the fifteen “successful” applicants had answered the field “description of the initiative” very briefly and not in accordance with the instructions given on the electronic form.
The objection lodged by NHA against the non-processing of its application was rejected. The Court of First Instance decided that the application was correctly rejected. However, a completely different judgment was handed down in appeal.
The Administrative Jurisdiction Division of the Council of State (the Division) ruled that the Minister had incorrectly ranked the seven ‘briefly completed’ applications above the application of NHA.
A distribution by way of first-come, first-served basis is only permitted if the candidates have been given an equal opportunity to compete for the subsidy. This presupposes, among other things, that the Minister carefully checks whether the applications meet the requirements before ranking them in order of receipt.
The documents submitted show that seven applicants did not take the description of the initiative seriously. At the hearing, the Minister explained that the intention is that a field with specific instructions must also be completed in accordance with those instructions. The Minister should therefore have first assessed the applications in accordance with the rules he himself has set before ranking the applications in order of receipt. Since the seven applications do not meet the requirements he himself set, the Minister unlawfully included them in the ranking.
The Minister must now take a new decision, taking into account the considerations of the Division.
NHA was assisted by Kirsten Boele.
Kirsten Boele
A matter of seconds made the difference. It is important that the selection of applications is done fairly and carefully. The ruling underlines this and further elaborates on the requirements that apply to the 'first-come, first-served' distribution method. Applications must first be checked for completeness. This involves checking whether the applications meet the requirements of the subsidy regulation and the electronic application form.
