Introduction

Managing scarcity to serve the public interest is a classic task of government. Whereas economic and political theory have paid much attention to the allocation of scarce goods and rights, until now a consistent and general legal theory of ‘the allocating government’ has been more or less absent. In fact, the law of public administration seems to assume that every party shall be granted a good or right once it satisfies all the necessary conditions. This assumption neglects the fact that in several areas of government regulation, individual rights such as authorisations and (financial) claims are available only in a limited quantity. As a result of this limited availability, certain applications for those rights must be denied even though the applicants satisfy all the necessary conditions. In other words, there may not be enough rights available to satisfy all qualified parties.

This idiosyncratic feature of limited rights can be illustrated using a number of examples. First, it is worth mentioning the auctions of the 4G spectrum in several Member States as an example of rights which are scarce for natural reasons. With revenues running up to billions of euros, the financial importance of these frequencies for both the allocating authorities and the bidding undertakings is clear from the outset. In the area of gambling law, an area entirely different from telecommunications law at first sight, scarcity exists as well: in order to ensure the protection of consumers and to combat crime and gambling addiction, many Member States artificially restrict the number of authorisations that are available to be granted. The same holds true for financial grants, although the background is different: in order to restrict expenditure, most kinds of financial grants and subsidies are available in limited budget only, both at the European level and at the level of the Member States. Last but not least, we mention the many procurement procedures being performed in order to conclude supply contracts with market parties.

This book seeks to demonstrate the need for a consistent and general theory on the allocation of limited rights by administrative authorities from a legal perspective.