Right at the very beginning, just as soon as the concept for your small business is identified and you’re certain you’re on to a winner, you’ll need to consider the application for a licence to trade before you, quite literally, set out your stall.
Trade licensing applications can be straightforward matters where no objections are made against the application. A standard application form is completed and filed with the Department of Trade & Industry (‘the Authority’) along with a copy of adverts of the application which are required to be placed both in the Gibraltar Gazette and in one further Gibraltar publication. The advert, which is required to appear in a standard form dictated by the Trade Licensing Act and its regulations, should state that any person objecting to the trade licence being granted should object, in writing, within 14 days of the date of the publication. This is where the otherwise simple process of obtaining a trade licence can get slightly more complicated than normal.
Advertising the fact and nature of an application for a trade licence ensures that other members of the community, who may be affected by the creation or establishment of another business either in a field similar to that of existing businesses or, indeed, in close physical proximity to another established operation, have an opportunity to voice their objection to the granting of the licence in an open discussion forum provided by the Authority.
Once an objection is filed and served by the objector on both the applicant and the Authority, a hearing is scheduled where the merits of both the application and the objection itself are heard. The panel before which these hearings are held is made up of a number of individuals, appointed annually by the government, representing a wide spectrum of our local community. This includes members of local business organisations, e.g., the Chamber of Commerce and Trade Unions. Other various/relevant government departments (e.g., Customs) are usually in attendance at the hearings and offer their views on the suitability of the application/objection as well as whether or not the criteria for the granting of a licence are observed in each particular case.
The Authority is tasked, during the hearing, with determining whether or not it is happy to grant the licence and will refuse to issue the licence where, amongst other matters, it is satisfied of one or more of the following:
1. That the issue of such a licence is likely to cause a nuisance to persons occupying premises in the vicinity of the premises in respect of which the licence is sought;
2. That the issue of such a licence would conflict with any town planning scheme approved by the Development and Planning Commission;
3. That the issue of such a licence would operate against the public interest; and
4. That the needs of the community either generally in Gibraltar or in the area thereof where the trade is to be carried on are adequately provided for.
There are further matters which the Authority will consider during the hearing including the whether the applicant is of 18 or more years of age and whether the premises in respect of which the licence is sought are in compliance with any other relevant laws. The most important considerations however are the public interest argument and whether or not the needs of the community are adequately catered for. It is usually on these two grounds that the Authority will focus in determining an application in a personal hearing. Simply put, the law allows the Authority to intervene by refusing to issue a licence where it may consider the activity proposed is undesirable (public interest) or, frankly, surplus to the needs of the local community.
Although it’s impossible to guarantee the outcome of a hearing for any particular application, it would be foolhardy to believe that an application for, say, a general confectioners & retail tobacco merchant’s licence from premises at 1 ‘Busy’ Street would be successful where there are already four or five businesses catering for the needs of the community on the same street where business is known to be slowing!
Whether you’re applying or objecting, it’s certainly a good idea to have someone on your side who can guide you through the process, explain the ins and outs and help you with practical guidance about getting over the hurdle of the personal hearing or, if you’re on the other side, helping you to protect your business from emerging threats.
For further advice please contact Christian Hernandez at christian.hernandez@isolas.gi.