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

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.