This chapter deals with the pursuit of public interests in the context of privatisation and sales of public property. It identifies the various interests involved and sets out the relevant EU legal framework for this domain. On the basis of this, the chapter addresses the question of whether the sale should be carried out through competitive tendering, given that it might be possible to apply alternative – and still legitimate – systems to achieve the sale. In answering this question, the chapter assumes that State aid rules identify the market economy operator principle as the cornerstone around which the allocation procedure must revolve. Hence, the question from an EU law viewpoint becomes: does competitive tendering only ensure compliance with the market economy vendor principle (MEVP) test or are there other methods to achieve the same result? On the basis of the outcome of the analysis, the chapter assesses which public interests can be pursued and which transaction system better pursues which type of public interest.

This chapter deals with the relationship between EU law and national rules on limited rights. It focusses on services of general interest (SGIs), given that limited rights play an important role in national policies guaranteeing the provision of SGIs. The central question is which discretion the Member States have when granting limited rights in order to ensure access for all to SGIs under EU internal market and competition law. Are the choices they have to make dictated by EU law or may observations of national law play a considerable role? This chapter starts with discussing which SGI fall within the scope of the EU internal market and competition rules. Then, it examines which obligations are imposed by these rules on the Member States. Subsequently, it explores to what extent the Member States may derogate from these obligations. Attention is paid to, for example, the transparency principle.

This introductory chapter explains the need for adopting an overarching perspective to the allocation of limited rights. Although the applicable legal frameworks may suggest otherwise, the awards of public contracts, authorisations, subsidies or government sales share common characteristics in the event that the number of rights available for grant is limited. These similarities are nowhere as manifest as with regard to the question of whether governments should use some form of competitive tendering when allocating these ‘limited rights’. Although the public interests involved in the allocation of these limited rights differ in substance and respective weight, competitive procedures should aim to optimise the pursuit of the different public interests involved. Using Mark Moore’s theory of creating and recognising public value, this chapter provides a general reflection upon the distinct role of the legal framework for allocating governments in solving this optimisation problem.

This chapter departs from the assumption that, notwithstanding that transparency is an essential element of competitive allocation of limited rights, it is also a diffuse concept. There are many different transparency obligations, and not all obligations have the same effect on the realization of public interests. Based on an overview of the different types of transparency obligations, this chapter explores the relation between the various types of transparency obligations and traditional market goals on the one hand, and transparency obligations and other general interests on the other. The purpose of the analysis is to answer the question of how these transparency obligations should be designed to balance the various interests that are pursued with competitive allocation of limited rights, whenever transparency is concerned.

This chapter starts from the observation that, as far as the competitive allocation of some types of limited rights are concerned (licenses, financial grants), both EU and national legislators have not developed the relevant legal principles into more or less detailed rules yet, contrary to other types of limited rights (public contracts, sale of public assets). The central question this chapter seeks to answer is whether and to what extent these differing approaches can be rationalized. Given that a general theory is lacking, the chapter undertakes a bottom-up explanatory problem analysis of the various arguments that seem relevant for the decision of legislators to develop the principles into more or less detailed rules. The purpose of this analysis is to give a better insight into the contextual application of the various aspects that seem relevant whenever legislators consider and decide where to position the legal framework on the sliding scale between a principle-based only system, on the one hand, and a fully detailed rule-based system on the other.

This chapter provides a classification of interests in public procurement, an analysis that also forms the basis of the classification of interests in limited rights that is used for the balance of interests analysis throughout this book. It then deals with the specific question of how these different interests are balanced in procurement procedures, both at the EU level and by the Member States, in the context of competitive tendering. This analysis focusses mainly on three key interests, namely value for money, effective implementation of industrial, social and environmental policies, and efficiency of the procedure, but also touches on others by examining how they are balanced against these three interests. The review shows that this balancing exercise is a complex task influenced by, for example, the complexity of procurement and differences between Member States. It is suggested that while solutions reached in procurement should not be copied uncritically, both because of their flaws and (in some cases) controversial nature and because of the differences in context with other limited rights, the wealth of detail and experience in public procurement rules provides useful lessons and options for other fields.

This chapter addresses the question of whether and how public interests are optimised by competitive tendering when allocating limited licences. Licence requirements apply inter alia to telecommunication frequencies, slots, concessions for public transport (taxi) or emergency rescue services, gambling or using natural resources, CO2 emission rights, places at universities, trade fairs or markets. The number of available licences is often limited owing to scarcity of natural resources, state-imposed quantitative restrictions or limited demand or supply. Despite the variety of sectors, all allocation regimes are subject to comprehensive principle-based regulation since EU and national constitutional law formulate substantive and procedural standards for allocating scarce licences. Standards and concretisations may also be found in legislation at the national and EU levels. Against this background, the chapter explores the choices which the legislature has made, or not made, in terms of competitive tendering, and of defining its modalities. Which balance of interests do these choices reflect? Have competing interests been optimised? Moreover, which legal and notably constitutional standards determine these choices regarding optimising public interests, notably in view of creating scarcity, inviting applications versus direct awards and defining allocation criteria and procedures?