Paying the Price: Are Chamber of Commerce Fees Crossing Legal Lines?

Introduction

Public institutions are the bedrock of a functioning society. They act as watchdogs for upholding laws, provide certain essential services, and often come up to protect citizens’ rights. However, if and when these institutions deviate from legal frameworks, it undermines public trust and jeopardizes the rule of law. A recent issue with the Chamber of Commerce (KvK) concerning online access fees for the Trade Registry and some lingering collection of fees for certain services potentially exemplifies this problem. This week’s column explores the legal intricacies surrounding these problems, scrutinizes the statutory requirements for an adequate legal basis, underlines the importance of adherence to statutory requirements, and provides some suggestions for necessary steps for resolution. While I have addressed my concerns and my legal analysis with the Chamber, I believe this discussion should not only be held behind closed doors; that is why I am sharing this with you.

The Scrutiny

The scrutiny of the Chamber’s action began when the Chamber announced that it would be restricting the public’s access to the online trade registry managed by the Chamber and introducing a “pay-to-play” or subscribers-based model. The Chamber introduced a fee structure requiring AFL 1,200 per year or AFL 300 per quarter to regain online access to the trade registry. This leads to the question: can the Chamber restrict the public’s free access to the online registry? Perhaps this leads to a follow-up question regarding other fees charged by the Chamber: Does the Chamber have the legal basis to levy the yearly fee of AFL 1,200 per year or Afl. 300 per quarter. If the answer to the second question is no, then the answer to the first question becomes irrelevant until a legal basis is created. Until then, the Chamber should, in my opinion, re-open access online.

 Legal Basis 

The Chamber of Commerce is a public entity, established by the National Ordinance Chamber of Commerce (NOCoC). While one of the objectives of the Chamber is to protect the interests of private businesses, it itself is not a private company and can’t act in the same agile manner that perhaps a private business in an open market can. The Chamber is bound to follow the rules and regulations established in and by the NOCoC and other applicable legislation. 

One of the aspects that the Chamber is bound by is its ability to levy fees and collect monies, which requires a clear legal basis. The Chamber of Commerce can collect fees from the public with a specific legal basis. I believe that the Chamber lacks the legal authority to charge the yearly fee of AFL 1,200 per year or AFL 300 per quarter for online access

Another issue is that the Chamber also charges higher fees for extracts in English. While we can appreciate the extra service, the Chamber is bound by law and can’t charge these higher fees i.e., the Chamber can not charge an amount greater than Afl. 15 for an English extract from the Trade Registry. 

Why?

The legal challenge here involves interpreting various articles of the Handelsregisterbesluit (Trade Register Decree) and the LV KvK (Commercial Register Ordinance) to determine the legality of these fees.  Article 17 of the Handelsregisterbesluit stipulates that any fees charged must be regulated by a specific governmental decree (lbham). Without such a decree, the KvK lacks the authority to collect any fees. According to Article 19 of the Handelsregisterbesluit, there is a statutory basis for providing an extract from the Trade Register. This article states that such extract is provided against payment of Afl. 15. This article does not distinguish by language nor mandate that extracts be issued only in Dutch. Since article 19 does not provide an amount different than Afl. 15 will be charged for an extract, the Chamber lacks the legal authority to charge Afl. 30 for an extract in English.  Since Article 19 doesn’t provide for the ability to charge for online access, it can, or at least it can no longer, in good conscience, charge these fees to the public.

Challenging the scrutiny

In my discussions with the Chamber, and I am glad that we are able to have these discussions, the Chamber has referred to Article 13, paragraph e. of the LV KvK to justify providing an additional service and thus charging higher fees. However, this rationale is problematic for several reasons. Firstly, it is unclear why a higher fee can be charged under Article 13, paragraph e., when Article 19 of the Handelsregisterbesluit limits the fee to Afl. 15. Retributions, as mentioned in Article 13, paragraph e., can only be collected based on the LV Retributies (Retribution Ordinance) and a specific lbham. There is no lbham for the KvK, providing no legal basis for these collections. 

Retributions

Retributions under Aruba are governed by specific legislation that outlines the authority of public entities to collect these fees. They are meant to be directly proportional to the cost of the service provided. This is based on the principle that the fee charged should not exceed the cost of providing the service or benefit to the entity paying the retribution. For retribution to be valid, it usually needs to be established through a governmental decree or ordinance specifying the service for which the fee is being charged, the amount of the fee, and the basis for calculating it. This ensures transparency and legality in the imposition of the retribution. The law often restricts the ability of public entities to profit from these fees. Retributions are generally designed only to recover the costs incurred by the entity in providing the specific service, not to generate surplus revenue. In short, In summary, retributions in Aruba are legally defined charges linked to the cost of providing specific services by public authorities. They require a clear legal basis and must comply with cost recovery principles and proportionality. This legal framework ensures that retributions are fair, transparent, and justifiable, preventing arbitrary charges and fostering trust in public institutions.

The Handelsregisterverordening (Trade Register Ordinance)

The Handelsregisterverordening only allows collecting fees for the initial registration and the annual contribution (Article 15). The Handelsregisterbesluit, only allows for Afl. 15 to be charged for an(y) extract. Any changes to these amounts must occur through an lbham. The collection of fees for online access should be mentioned in the Handelsregisterverordening, the Handelsregisterbesluit, or the LV KvK. This absence indicates a lack of legal foundation for these charges.

The Principle: The End Doesn’t Justify the Means

In legal and ethical terms, the principle “the end justifies the means” does not apply, especially when public institutions are involved. Private entities can generally charge any fees they want for products and services. While modern necessities like online access and additional services may incur costs, these must be handled within the appropriate legal framework. The absence of a clear legal basis for the KvK’s actions suggests that these practices are not lawful, regardless of their practical benefits.

Financial and Legal Implications

The financial implications of these unjust fees are significant. Payments made by legal entities and individuals without a legal basis are considered unduly paid and, therefore, subject to refund. Many affected parties may have the right to reclaim these payments, highlighting a potential financial liability for the KvK, including potential refund claims and the need for the KvK to adhere strictly to legal statutes.

Restoring Compliance and Public Trust

To rectify this situation, the KvK must take several immediate steps:

1. Seek External Legal Advice: Engage an external legal expert to review current practices and ensure compliance with existing laws.
2. Initiate the Legislative Process: The KvK should promptly start the process to establish the necessary lbham, ensuring all fee collections are legally sanctioned. I am willing to assist in drafting the required texts. Note that retributions cannot be implemented retroactively.
3. Restore Public Online Access: Immediate restoration of free online access to the Trade Registry is crucial to comply with the legal framework and regain public trust.
4. Refund Unjust Fees: The KvK should refund those who have unjustly paid Afl. 1200 or Afl. 300. This action will demonstrate a commitment to legal compliance and ethical practices.
5. Public Announcement: The KvK must publicly announce that only Afl. 15 will be charged for extracts and establish a mechanism for refunding unjustly paid amounts. This transparency will help restore public confidence.

Long-Term Measures

Beyond immediate actions, the KvK should consider long-term measures to prevent similar issues in the future:

• Regular Legal Audits: Conducting regular audits to ensure compliance with all relevant laws and regulations will help maintain legal standards.
• Training and Education: Training staff on legal requirements and ethical practices will reduce the likelihood of future deviations.
• Stakeholder Engagement: Engaging with stakeholders, including the government, businesses, and the public, to gather feedback and ensure that practices align with public expectations and legal standards.

Conclusion

The case of the Chamber of Commerce regarding the online access fees and higher fees for extracts underscores the importance of legal compliance in public services. Upholding the law is not just a matter of principle but a necessity for the proper functioning of society. Public institutions must operate within legal frameworks to maintain trust and ensure fair practices. The KvK’s proactive steps to rectify the current situation and prevent future issues will reinforce the integrity of our legal system and demonstrate a commitment to good governance. Ensuring that public institutions comply with legal requirements is a shared responsibility. By taking the necessary actions, the KvK can set a positive example and uphold the rule of law, benefiting all stakeholders involved.

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