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7719 results in Intersentia

Page 301 of 386

  • Chapter 8 - The Need for Optimal Choice: Exploring a Hierarchy between Allocation Procedures for Limited Authorisations under EU Law

  • from Part II - Eu Law Perspectives
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 187-218

  • Summary

    Introduction

    If the number of authorisations available for grant has been limited to a maximum, these ‘limited authorisations’ need to be granted by means of an ‘allocation procedure’ in which applications are being compared with each other. Among the most well-known allocation procedures are the auction, the comparative assessment (‘beauty contest’), the lottery and allocation in order of receipt of the allocations (‘first come, first served’). It should be clear from the outset that the chosen allocation procedure might have important consequences for the final outcome of the allocation.

    The issue of the (optimal) choice of the allocation procedure can be approached from among various disciplines and, within the discipline of law, from among various perspectives. This chapter explores whether EU law contains any preferences for allocation procedures or criteria to be applied and, if so, on which grounds. An example of such a preference might be that an auction is being preferred to a lottery. Th us, there might exist some kind of hierarchy between allocation procedures: some allocation procedures are considered ‘better’ than other allocation procedures from the perspective of EU law.

    In order to unveil this possible hierarchy between allocation procedures from an EU law perspective, this chapter will first provide for some conceptual preliminaries necessary to understand the idea of a hierarchy between allocation procedures (Section 2). Next, this chapter will identify so-called ‘baseline’ requirements, i.e. minimal requirements that all allocation procedures should satisfy (Section 3). This chapter will then examine whether additional requirements can be imposed on allocation procedures. To that end, Section 4 adopts a bottom-up approach, identifying preferences for specific allocation procedures in sector-specific EU legislation. Complementarily, Section 5 will discuss whether EU law also provides for general guidance as to the choice of allocation procedures. In that respect, the areas of internal market law (fundamental freedoms), competition law and state aid law will be distinguished. Finally, the conclusion will discuss to what extent there exists some hierarchy between allocation procedures from the perspective of EU law (Section 6).

    Conceptual Preliminaries

    In order to clarify the line of reasoning to be followed in this chapter, some central terms need to be defined in advance.

  • Chapter 7 - Τhe Allocation of Limited Authorisations under EU Internal Market Rules

  • from Part II - Eu Law Perspectives
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 163-186

  • Summary

    Introduction

    That the requirement of a prior authorisation, as a precondition for the exercise of any economic activity, may restrict the freedom of establishment and the free provision of services is a truism. If an authorisation is required in the Member State where establishment is to take place or the service is to be offered (host Member State), then operators who lack such authorisation are in no right to proceed to the projected activity. Therefore, as soon as it is being accepted that the EU Internal Market rules are not only about discriminatory measures, but also cover mere restrictions, it comes as no surprise that national authorisation systems come to be scrutinised under the Internal Market rules.

    This has been acknowledged by the Court in an explicit manner already in its 1986 Insurance cases and constantly thereafter. The idea that authorisations restrict the provision of services has been enshrined into secondary legislation in many sectorspecific texts starting with the “passport” systems in the field of insurance, banking and financial services. The ‘Internal Market clause’ introduced by the Television without Frontiers (TVWF) Directive and the e-Directives also tries to side-step the need for obtaining a fresh authorisation in the host state. The sector-specific directives for the network-bound industries also describe several conditions for the authorisation of operators in order to curb Member State discretion. More importantly and in a horizontal way, authorisations are solemnly held to be against the free provision of services by Articles 9–13 of the Services Directive. The fact, therefore, that national authorisation systems may fall foul of the Internal Market rules is granted.

    This, however, does not lead to all national authorisation systems being struck down. On the contrary, the recent case law of the Court of Justice of the EU (CJEU) offers extremely interesting indications as to the situations where an authorisation system could be accepted (1), the conditions that such a system should fulfill in order to comply with the Internal Market requirements (2) and the extent to which the host Member State is obliged to take into account authorisations delivered in other Member States (3).

  • Chapter 9 - The Influence of EU State Aid Law on the Allocation of Limited Rights by National Authorities

  • from Part II - Eu Law Perspectives
    • By Paul Adriaanse, Professor of constitutional and administrative law at Leiden University
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 219-238

  • Summary

    Introduction

    When allocating and granting limited rights, national authorities within the EU Member States should be aware of the possible influence of EU State aid law. The same applies to the national legislatures, when creating the underlying schemes for such limited rights. In fields in which regulation at EU level exists, e.g. in the field of CO2 emissions, the role of EU State aid law may be mentioned explicitly and clarified in the applicable EU legislation or guidelines. However, also by lack of such explicit reference in secondary EU regulation or soft law documents, the EU State aid rules, as laid down in the Treaty on the Functioning of the European Union (hereinafter: TFEU), may be applicable when dealing with limited authorisations or claims within the scope of this book, for example in the field of the allocation of limited gambling licences. According to consistent case law of the European Court of Justice the concept of State aid embraces all measures ‘which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, therefore, without being subsidies in the strict sense of the word, are similar in character and have the same effect (…).’ Although the concept of State aid is interpreted and applied broadly, little literature exists on the application of EU State aid rules to the allocation of limited rights by administrative authorities.

    The aim of this chapter, therefore, is twofold. First, to explore to what extent the EU State aid law requirements could influence the allocation of limited rights by national authorities or the legislature (hereinafter generally referred to as: the allocation of limited rights). The second aim of this chapter is to contribute to the central question of this book. Based on the explorative analysis of the role of EU State aid law with regard to the allocation of limited rights, an answer is sought to the question what could be learned from EU State aid law with a view to the development of a consistent and general legal theory of the allocation of limited rights by national authorities. To do so, Section 2 first deals with the conditions which should be met in order to qualify a specific measure as State aid in the sense of the TFEU.

  • Chapter 12 - ‘Let It Be’? The Regulation and Allocation of Gambling Licences at the EU and Member State Level

  • from Part III - Comparative Law Perspectives
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 299-322

  • Summary

    Introduction: The Trilemma of Gambling Regulation

    For those looking for an on-line poker room right now, gambling opportunities will hardly appear scarce. For those looking for licences to legally offer such games of chance, scarcity is usually very real. Apparent incongruities like these lie at the heart of the legal dilemmas concerning gambling services in the EU and many individual Member States.

    On the one hand, gambling poses serious risks relating to addiction, crime and fraud. Member States are rightly trying to protect their citizens from these risks. One of the main ways Member States try to do so is by limiting and regulating games of chance. Be it via a blanket prohibition, a monopoly or restrictive licensing, many Member States aim to create an artificial scarcity in games of chance. This scarcity can concern the volume of games of chance, such as, in particular, the amount of casino's, gaming machines or lottery draws allowed; it may also concern the nature of the games of chance offered, for example in terms of attractiveness, game dynamics or incentives offered.

    On the other hand, games of chance bring in serious revenue for Member States and all kinds of good causes. A certain temptation to expand gambling may therefore exist. The desire of humankind to gamble seems almost unstoppable anyway. Certainly with the advent of the internet, entirely preventing people from betting seems to behave become ‘virtually’ impossible. So why not regulate what you cannot prevent, and make some money along the way, especially as revenue might otherwise ‘leak’ to illegal suppliers?

    National regulation of games of chance typically tries to navigate this trilemma of protection, revenue and the reality of illegal supply. How to balance protection versus revenue? How to make the legal supply, if any, attractive enough to fend of illegal competition, but not so attractive so as to cause the very same harm that justifies prohibiting the unregulated and illegal supply? And how to find the right balance in the midst of an on-line revolution that may leave national borders meaningless?

    In navigating this trilemma, states have to respect EU law, including the rules on equal treatment, free movement, fair competition and state aid. And these rules add an interesting twist.

  • Chapter 14 - The Allocation of Emission Rights

  • from Part III - Comparative Law Perspectives
    • By Anita Rønne, Associate Professor of energy law at the Faculty of Law of University of Copenhagen, Denmark
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 341-352

  • Summary

    Introduction

    This chapter will focus on the rules and principles to the allocation of CO2 emission allowances in the EU and selected Member States i.e. France, Germany, Greece, Italy, Romania, Spain and the Netherlands. It will seek to address the conceptual distinctions as set out in Chapter 1(3) on what is allocated, how it is allocated and which form the allocated rights are granted in this specific field of law. Emission trading is characterised by an almost complete Europeanisation in the sense that European Union (EU) legislation governs almost completely the allocation of emissions rights and has during its existence been amended to leave very limited room for individual national legislation. Therefore this chapter devotes most attention to EU governance and gives a fairly detailed account of the EU emission trading system as developed under amended directives. It will, however, not consider the Member State reports separately but rather contextualize the EU rules and principles by providing examples of the implementation at the national level and practice based upon national reports.

    First this chapter will highlight briefly the policy developments within the area of climate change and emission trading (Section 2) and then focus on the emission trading concept as such (Section 3). The need for applying for an emission permit is examined under Section 4, whereas the allocation of allowances is discussed under Section 5. Then follows under Section 6, a description of the control and enforcement instruments, and thereafter under Section 7 the linking of the emission trading system to the international flexible mechanisms. Finally, Section 8 completes the chapter with a brief conclusion.

    Policy Developments

    The United Nation Framework Convention on Climate Change (UNFCCC) was ratified by the then European Community in 1994 and the Kyoto Protocol in 2002. The European Union (EU) has been at the forefront of international efforts towards the adoption of the global climate deal at the Paris climate conference (COP21) in December 2015. The Paris agreement will be opened for signature on 22 April 2016 and is due to enter into force in 2020.

  • Chapter 4 - Challenges for the National Legislator: The Allocation of Limited Rights by the Administration

  • from Part I - General Perspectives
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 73-92

  • Summary

    Introduction

    The idea that limited authorisations – and to a lesser extent: limited grants – might be allocated in a different way than in the order of the receipt of the applications, is an idea that in the world of general administrative law still does not get sufficient attention. Many licensing public authorities are unsure or have no idea of what is possible – at least in theory. One of the most important measures to offer more insights and certainties is a smart applicable national regulatory framework. The aim of this piece is to deliver a prime and modest contribution to this, by developing a general regulatory framework that can serve as a template.

    As stated in the introductory Chapter of this book, with limited authorisations and grants I mean that the number of authorisations and grants has been limited to a certain maximum. This limited character raises the fundamental question how the administration should allocate these public rights.

    The allocation of limited authorisations and grants confronts the national legislator with new questions; questions which until now had been overlooked or left unconsidered. In any event, the allocation of limited authorisations and grants will give the legislator much to think about. To prevent misunderstandings, with the national legislator I mean every qualified legislator within a national context. This can be the authorized legislator at a state level, but also a competent regional or local public authority with the power to legally establish general binding rules, delegated rulemaking included. This piece goes neither into the room the EU legislator leaves to the national legislator nor into the national obligation to implement EU directives that regard limited rights. The role of the EU legislator in the discourse on limited authorisations and grants has thus far been rather modest.

    For this contribution I take a general perspective, independent of the legal system of a certain state, although I will give a few examples from the Dutch legislative practise. Writing in general terms about national regulations confronts us with a well-known difficulty: every legal system has its own specific characteristics. To overcome this problem I will use a few insights that are recognizable from general regulatory doctrine. Without those notions it would be almost impossible to paint a picture of a general regulatory framework.

  • Chapter 1 - The Allocation of Limited Rights by the Administration: A Quest for a General Legal Theory

  • from Part I - General Perspectives
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 3-26

  • Summary

    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.

  • Chapter 2 - The Allocation of Limited Public Rights: An Analytical and Constitutional Approach

  • from Part I - General Perspectives
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 27-54

  • Summary

    Introduction

    The protection and neat allocation of certain categories of scarce resources has traditionally been a defining task for public authorities. Both in the EU and in its Member States, administrative law regulates the creation and the allocation of different types of limited public rights in rather diverse policy areas. To illustrate the extent to which this is a widespread and heterogeneous reality, several examples can be brought up: allocation of greenhouse gas emission permits; award of public contracts; concession of subsidies and other State aids; the granting of public employment places; procedures for alienation of certain public assets; and, finally, the allocation of scarce entitlement administrative decisions (authorizations, licences, quotas, permits, concessions and so on), the object of which can also be quite diverse: provision of a (public) service, utilization of public goods, production of a certain amount of goods or, more generally, the development of a given activity under certain conditions.

    These manifestations of the administrative activity of allocation of limited public rights are subject to their own specific legal regime. The pluralism in the regulation of the corresponding administrative procedures and decisions stems from the existing differences among the rights to be allocated in each case (contracts, authorizations, property rights, subsidies, public benefits…). Even within each of these manifestations, the regulation of this kind of administrative activity must conform, both to the specific features of the sector in which it develops, as well as to the relevant demands it imposes on administrative law understood as an instrument of social direction (Steuerungsinstrument). The differential treatment of this administrative activity can also find its basis on EU law (for instance, with regards to public procurement: Directives 23, 24 and 25/2014/EU), or in the relevant domestic constitution of each Member State [for example, Articles 103(3) and 45 of the Spanish Constitution define specific requirements in relation to access to public sector posts and the rational use of natural resources].

    In spite of the fact that these regulations have been produced from a sector-based perspective, it can be noticed that the various kinds of limited public rights to which they refer raise some common regulatory problems. In addition, the solutions provided in response thereto by special administrative law tend to converge, at least to a certain extent.

Scarcity and the State
  • The Allocation of Limited Rights by the Administration
  • Volume 148
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016
  • Managing scarcity to serve the public interest is a classic government task. An important way to execute this task is by allocating individual rights that are only available in limited quantities, such as CO2 emission allowances, gambling licences, subsidies, radio frequencies, public contracts and parking permits. Whereas economic and political theory has 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 missing. This is striking given the fact that limited rights have to be allocated within many sectors and are often of great social significance and financial importance. Decisions on allocation often lead to disputes. This book provides a unique exploration of building blocks for a consistent and general legal theory on the allocation of limited rights by administrative authorities. This book is useful to legislators, administrative authorities, applicants, interested third parties and the courts. The EU-law perspective is an important element in this book, but comparative law and doctrinal approaches are also taken into account. The contributions in this book have been enriched by information from national reports on the allocation of gambling licences, radio frequencies and CO2 emission permits in seven EU Member States: France, Germany, Greece, Italy, the Netherlands, Romania and Spain. (See P. Adriaanse, F. van Ommeren, W. den Ouden and J. Wolswinkel (eds.), Scarcity and the State II. Member State Reports on Gambling Licences, Radio Frequencies and CO2 Emission Permits, Intersentia, Antwerp 2016).The Member State Reports on the Allocation of Gambling Licences, Radio Frequencies and CO2 Emission Permits can be downloaded here.

  • Chapter 5 - The Allocation of Limited Rights by the Administration: Challenges of Legal Protection

  • from Part I - General Perspectives
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 93-124

  • Summary

    Allocation Decisions and Legal Protection: The Challenge of Multipolarity

    Allocation procedures, i.e. administrative procedures aiming at granting limited public rights, are not characterised by the classic bipolar citizen-state paradigm which may be found for instance in police law. Rather, a multipolar conflict has to be resolved: The competing interests of a multitude of applicants to win the competition and the interest of the allocating authority in realising effective distribution must be accommodated. From the perspective of legal protection this implies that challenging an allocation decision not only means challenging an administrative decision concerning the relationship between the acting public authority and the addressee, but also challenging a decision in favour of the initially successful applicant (who might even have received the good in line with legal requirements so that the action is unfounded).

    This background entails certain consequences and poses specific challenges. For instance, to secure an efficient allocation, administrative decisions granting limited public rights often take on particular stability, i.e. the possibility to challenge such decisions may be restricted or even ruled out and substituted by a claim to damages. The question therefore arises as to whether, and if so to what extent, such limitations are in line with the guarantees of effective legal protection that are enshrined in national constitutional law, in EU law and in the European Convention on Human Rights (ECHR). Moreover, when challenging allocation decisions, we are dealing – at least according to the traditional understanding – with third party actions. Hence, the issue of standing arises: Under what conditions may an interested party challenge the allocation in favour of another person? The design of the allocation procedure also has repercussions on legal protection. We can distinguish between a multipolar and a bipolar structure, depending on whether the scarce good is allocated by a single administrative decision addressed to all applicants, or by a multitude of positive/negative decisions addressed to the individual applicants. In the latter case, to take the German example, applicants usually have to combine an action for the annulment of the allocation of the good to the successful competitor with an action to receive the good themselves.

  • Chapter 13 - The Allocation of Radio Frequencies; Overview of Spectrum Policy and Regulation in Europe

  • from Part III - Comparative Law Perspectives
    • By Gerry Oberst, Senior Vice President, global regulatory and governmental strategy at SES, Luxemburg
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 323-340

  • Summary

    Introduction

    Legal theory and practice concerning radio frequencies are among the topics chosen by the editors of this book in the search for a general legal theory on allocation of limited authorisations and grants in the EU Member States. The topic is timely, as there have been substantial developments within the European Union (EU) over the last decade, even in the last few years. This period has seen a strong shift in emphasis in Europe from non-binding decisions reached by spectrum technical experts acting within the European Conference of Post and Telecommunication Administrations (CEPT), to EU law defined by directives and decisions of the European institutions in Brussels. This shift has occurred for many reasons, among them (a) an emphasis on EU policy guidelines supplanting purely technical decisions on radio spectrum and (b) the immense increase in the value and use of radio spectrum in general.

    This overview first discusses certain critical terminology unique to the spectrum field. It then examines the following series of questions:

  • 1. How is the limitation of… radio frequencies constructed legally? How is a maximum – a ceiling – to this public right created within a given period?

  • 2. What kind of allocation procedure is being used? Are authorisations being allocated by a competitive method?

  • 3. How are favoritism and nepotism being prevented? How is the equal/fair treatment of newcomers being approached?

  • 4. Which general legal principles (e.g. of proper or good administration/transparency) play an important role in the national debate or jurisprudence concerning the allocation of… radio frequencies?

  • 5. Are there any national cases in which competition law (e.g. abuse of a dominant position or State aid) played an important role?

  • 6. Which specific problems of legal protection might be considered to be the most important or interesting issues …?

    • As shall be seen, this overview discusses most closely the first question, as it permits direct identification of EU legal standards that apply specifically to radio frequency use, which must be implemented by the EU Member States.

    Telecoms Terminology and Main Actors

    At the outset, it is necessary to get past the jargon, as the radio spectrum field, similar to many other fields, defines itself with a barrage of technical terms that can confound outsiders.

  • Chapter 3 - The Allocation of Limited Public Rights from the Perspective of the EU Legislator

  • from Part I - General Perspectives
  • Edited by Paul C. Adriaanse, Frank van Ommeren, Willemien den Ouden, Johan Wolswinkel
  • Book:
    Scarcity and the State
    Published by:
    Intersentia
    Published online:
    22 September 2018
    Print publication:
    24 March 2016, pp 55-72

  • Summary

    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.

Page 301 of 386