Definition and area of application (Art. 12 of the law of 28 December 1988)
The application for receiving this specific authorisation must accompany the application for a business establishment authorisation.
In fact, the authorisation for a business establishment gives access to the activity under consideration. The specific license allows the exercise of this activity in the form and/or in the context of a large commercial surface.
Thus all individuals subject to an authorisation of establishment and who exercise an activity in retail trade, except those operating an establishment for accommodation, a restaurant or a bar, must request a specific authorisation in the following cases :
the creation, expansion, take-over, transfer and change of the main commercial sector(s) of a large commercial surface if the sales area exceeds 400 m2. In case of an expansion, this limit is to be understood as the global surface after expansion
re-use of a retail trade surface of a commercial surface if the sales area is larger than 400m2 and is freed following an authorisation of transfer.
It has to be noted that the sales surface represents the constructed area measured inside the exterior walls. Not included in the sales area are the areas which are reserved to sanitary installations, offices, production workshops and reserve depots which are clearly separated by a permanent partition wall. Besides, the public may have no access to production workshops and reserve depots.
It has to be noted that persons active in retail trade, i.e. the purchase of goods and merchandises for direct resale to the end consumer (cf. def. art. 12(1)) are not affected hereby. This applies in particular to travel agencies, estate agencies and craftsmen in general.
Administrative licensing procedure
The special authorisation is issued upon a decision of the Minister of the Middle Classes after an administrative investigation (art. 2 of the Grand Ducal regulation of 9 June 1998) and after a reasoned opinion of a commercial facilities commission.
The reasoned opinion of this commission must be given within a period of 60 days as from the date on which the Ministry of the Middle Classes and Tourism, which is charged with the examination of the application, has informed the applicant that the file is complete and ready. This deadline can be increased to 90 days for examining specific authorisation requests which must be accompanied by a market research (art. 2 of the law of 9 January 1998. Cf. also infra).
A reasoned opinion by the commercial facilities commission is however not required in case of a take-over which does not entail changes in the principal business line or lines of duly authorised sales surfaces if the sales area purchased is lower than or equal to 400 m2.
For all projects with a sales surface over 2000m2 – this limit is to be understood, in case of expansion, as the global surface after the expansion – the relevant application for authorisation must be accompanied by a market research, except in case of a take-over which does not entail changes in the principal and duly authorised main business line or lines.
The procedure (Grand Ducal regulation of 9 January 1998) as regards specific authorisation applications moreover entrusts the Department of the Middle Classes with the investigation of the files which may only be forwarded to the commercial facilities commission if complete.
The commercial facilities commission may also entrust investigating duties to one or more of its members. It may further require any useful information, expert opinion and hear the applicant or his representative as well as the representatives of the municipal body under whose competence the location for the relevant business operation is falling.
The Grand Ducal Regulation of 24 November 1997 determines the elements to be included in the specific authorisation application, as well as in the market research, if required. To this end, the Ministry must inform the applicant within 15 days after reception of the file containing the authorisation request that the file is complete and ready.
If the file is incomplete, the Ministry must invite the applicant within 30 days following the reception of the authorisation application file to add the missing documents. This written request is addressed to the applicant and will mention specifically all the documents missing. The missing documents shall be sent by the applicant by registered mail with acknowledgement of receipt to the Ministry which, in turn, must inform the applicant within 15 days after acknowledgement of receipt that the file is now complete.
If after the end of 15 days the Ministry estimates that the file is still incomplete, the applicant’s explanations must be heard within the 7 days following the deadline concerned. The Ministry shall draw up a report following such hearing ; this report must immediately be notified to the applicant by registered letter with acknowledgement of receipt.
The commercial facilities commission, to whom the report on the specific authorisation application is referred, shall give a reasoned opinion to the Minister.
A ministerial decision concerning the granting, rejection or revocation of the specific authorisation can be the subject of a petition for annulment before the administrative court within a period of three months as from the day of notification of the decision (art. 2 of the law on business establishment of 1988).
Conditions and modalities of the authorisation
a) Condition aiming at keeping a balance in business
The special authorisation cannot be refused to the applicant unless there is a question about his project risking to compromise the balance in the principal business lines on a national, regional or communal level (art. 12 (4) on the law on business establishment of 1988).
b) Licensing modalities
Until 7 November 2005, no special authorisation can be given for any creation or expansion (art. 2 of the law of 4 November 1997) of :
a total sales area of over 10000m2
a shopping mall or a non-specialised shop whose sales area of over 4000m2 is reserved for the principal business line consisting of foodstuffs and household articles.
a shopping mall or a non-specialised shop whose sales area of over 3000m2 is reserved for the principal business line consisting of clothing.
a shopping mall or a non-specialised shop with a sales area reserved for its main business line consisting of equipment to the building sector/household goods of over 4000m2.
The above-mentioned surface limits refer to the global surface after expansion.
The special authorisation becomes invalid if the construction site is not set up within a period of two years as from the date of the relevant authorisation.
The expression ‘set-up of the construction site’ includes the putting into place of cranes, shacks and railing as well as the temporary connection to water and electricity provision insofar as these are necessary for the realisation of the construction project.
However, upon request of the holder of a special authorisation, the Minister may grant a one-time special extension of one year maximum.