Verdelingsrecht en democratische rechtsstaat: Democratische en rechtsstatelijke overwegingen bij het met mededinging verdelen van schaarse vergunningen, subsidies, overheidsopdrachten en overheidseigendom

This thesis addresses the following research question: how does the obligation for governments to provide for the opportunity to compete for limited rights relate to democratic and legal values in a democratic rule of law? To answer this research question, three sub-questions have been formulated and addressed:
– How does the legal framework for the obligation to provide for the opportunity to compete for limited rights relate to the political decision- making space that, as a democratic instrument, shapes democratic values (Chapter Four)?
– How does the jurisprudence shaping the obligation to provide for the opportunity to compete for limited rights as a legal instrument relate to democratic values (Chapter Five)?
– How can any limitation of democratic values be justified by legal values shaped by the obligation to provide for the opportunity to compete for limited rights (Chapter Six)?The theoretical framework and the methodology used to address the sub-questions and ultimately the research question is outlined in Chapter 2 and Chapter 3, respectively.

Ultimately, by answering the three subquestions, the research question can be answered. The answer is that the obligation to provide for the opportunity to compete for limited rights limits the democratic values of sovereignty and participation, as pursued by a democratic rule of law, and legal values only partly justify this limitation.

In the case of legislation, the limitation is justified by the legal value of legal certainty, as also pursued by the democratic rule of law. A sovereign people that binds itself through legislation enacted by a democratically elected legislature to the obligation to provide for competitive opportunities when allocating limited rights must comply with this obligation, even if it limits the political decision- making space (and hence democratic values).

In the case of judicial law-making, however, this limitation is not justified. Not by the legal value of legal certainty, nor by the other two legal values pursued by a democratic rule of law: liberty and equality. Judicial law-making must fit into the legal system and/or align with societal consensus to legitimize the limitation of the political decision-making space and hence democratic values. The judicial law-making studied in this thesis does not meet this standard. Therefore, if the obligation stems from this judicial law-making, it currently has an issue with legitimacy.

However, despite the (partial) issues with legitimacy, the obligation to provide for competitive opportunities is not invalid. The obligation is not extremely unjust in a way that violates classical or social rights. In fact, the obligation seems to facilitate these rights. This does not mean that the application of the obligation cannot lead to extreme injustices where governments may be unable to adequately intervene, paradoxically, due to that obligation.