Introduction

This contribution deals with the allocation of limited public rights by authorities in the EU member states – an issue that touches upon the core business of the EU legislator. On the one hand, the allocation of such rights by public authorities in the member states has the potential to do serious damage to the common market. On the other hand, the proper allocation of such rights could contribute to an efficient allocation of scarce resources and thus to the overall welfare of EU citizens as well as to a host of other EU policy goals. Despite these incentives to regulate, general rules on how member state authorities should allocate limited rights are mostly lacking. Only the allocation of specific rights is regulated in any detail. This contribution explores the reasons the EU legislator has to intervene in the allocation of limited rights by the authorities of the member states, or to refrain from intervening, and addresses the question of whether the EU legislator should adopt a more active approach to the issue. The allocation of limited rights by the EU institutions themselves falls outside of the scope of this contribution.

The role of the EU legislator in the discourse on limited rights has so far been modest. A lot of attention has gone to the Court of Justice, which tends to say interesting things on the matter. But one would certainly expect limited rights to pique the interest of the legislator as well: EU law reflects a very outspoken view on how scarcity is best dealt with. Whether it is goods, services, or the labour and capital needed to produce them, the best way to allocate scarce resources is through a properly functioning, competitive market. It is one of the tasks of the legislator to develop this market, to the benefit of all EU citizens. Limited public rights are problematic in this philosophy, since they are not bought and sold on markets, but granted by public authorities who may have all sorts of nefarious, economically irrelevant reasons for their decisions. The manner in which they allocate resources might deviate considerably from how a perfect market would have done it, and no matter how well their intentions were, this will detract from efficiency.