Bonaire in Business: Regulatory burden for entrepreneurs

Blog

20 February 2015

In the Netherlands, TNS NIPO conducts a study of the bottlenecks entrepreneurs experience once every two years. This study was conducted last in 2013. Number 6 in the top 15 of the greatest bottlenecks: the many rules and administrative charges. According to the study, entrepreneurs feel that the government does not make matters easier for them. What is the situation in Bonaire and what do entrepreneurs in this ’public body’ encounter?

New political structure

Since the introduction of the new political structure on 10 October 2010, Bonaire has been a so-called public body. Bonaire consequently has a special position and that does not make matters easier for the applicable rules.

Dutch laws do not apply in Bonaire, unless it has been explicitly stipulated. Consequently, a major conversion had to be executed on 10 October 2010. For this purpose, new laws were made specifically for the Dutch Caribbean. These laws are often characterized by the addition ‘BES’, such as the Tax Act BES, the Act public bodies BES and the Civil Code BES. In addition, some existing Island Ordinances were placed on a list. These ‘old’ rules have remained applicable with a legal status.

The result is that entrepreneurs are confronted with a relatively unclear system of laws. In addition, these laws sometimes give the Island Council or the Governing Council of the Public Body of Bonaire the opportunity to lay down (implementation) regulations. The new laws and rules are not available in a conveniently combined manner either, for instance on a website. This problem is the smallest for the BES Acts, as they can be found on the internet through the Dutch legislation portal. However, the ‘old’ laws are difficult to find and not in a direct way either. This is even more complicated for implementation regulations, because they are only published by ‘being posted’ on a physical notice-board with the Governing Council and unfortunately not on a conveniently arranged website. For instance, if an entrepreneur wants to verify whether the ‘old’ Nuisance Ordinance (containing environmental rules for certain companies) applies to his business, he has to consult the relevant Island Decree for this purpose. And that decree is very difficult to find.

For entrepreneurs in Bonaire, this has created a maze of laws and regulations in which it is hard to find your way. Beside the problem of traceability and clarity of regulations, the content of the regulations is also a growing point of attention.

Content of regulations

Because of their origin, the converted and at the time newly introduced regulations follow the local circumstances well. But an alarming tendency in the introduction of new rules is visible.

The legislative power in Bonaire lies on a national level. This means that new laws and rules are laid down in the Netherlands via a legislative process that runs through the House of Representatives and the Senate. Recent legislative bills (Electricity and Drinking Water Act BES; Act Housing, Spatial Planning and the Environment BES) show that it is not simple to draw up rules for a special island such as Bonaire. The small population figure, the climate circumstances and the self-reliance of the island create a need for adjustment of rules that are created with application in the Netherlands in mind. Particularly the availability of techniques and the high expenses to get people and resources on the island cause the administrative charges (a nice euphemism for costs used in the business community) to increase exponentially in case of unaltered introduction of new rules. To prevent his, customization and good coordination with the local administration and local entrepreneurs is required. The consultation reactions to the Electricity and Drinking Water Act BES show that the conversion of local circumstances into good and locally applicable rules is not that simple. The legislator needed more time for environmental regulations, when it became clear that imposing Dutch standards on garage businesses and the hospitality industry of Bonaire would lead to impracticability or in any event to (too) high costs. Legal proceedings are even conducted regarding environmental regulations for large establishments, discussing the principle that companies in the Dutch Caribbean cannot be treated the same way as a company in the Rotterdam harbor.

The entrepreneur in Bonaire

The above leads to the conclusion that more issues lie ahead for local entrepreneurs. The number, but also the content of rules may require major changes and entail high costs. Entrepreneurs in Bonaire are not necessarily better off than their fellow entrepreneurs in the Netherlands. The political structure and the content of current and future regulations are a challenge with a legal-social dimension of their own.

Tips

  • Zoning maps containing restrictions on use of parcels can be found at www.bonaire-ro.nl.
  • Environmental rules (still) only apply to a very limited group of companies, searching for “AB 2009 16 Bonaire” provides the desired result.
  • Tenancy law in Bonaire is still old-fashioned: Act Rent Assessment Committee Regulation BES.
  • The Code Corporate Governance is officially called “Eilandverordening van 22 december 2009, no. 2 tot vaststelling van de Code Corporate Governance Bonaire en Profiel Commissaris Bonaire Holding Maatschappij N.V.” We will explain the applicability and legal basis in a future edition.

Tom Peeters is an experienced and specialized real estate lawyer and head of our Bonaire office. He regularly publishes about project development, sustainable energy projects, cooperative structures and (public) procurement. Via this blog he shares his knowledge about these and other legal topics that concern entrepreneurs in Bonaire.