The Allocation of Limited Public Rights: An Analytical and Constitutional Approach

Abstract

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.