Scarce Government Rights in Comparative Perspective

This article examines how a coherent legal framework for the allocation of scarce government rights in Belgium can be developed, drawing on inspiration from Dutch law and EU law, in particular the Services Directive. Scarce government rights—whether of a public or private-law nature—are rights for which the number available is limited and there is a real risk that demand will exceed supply. In the Netherlands, three core obligations have been recognised: the obligation to ensure competition, the obligation to ensure publication, and the obligation to limit the duration of such rights. Belgium lacks an explicit overarching doctrine. The analysis addresses differences in the interpretation of the constitutional equality principle by the Dutch-speaking and French-speaking chambers of the Council of State, identifies exceptions to the obligations, and examines sanctions for non-compliance, ranging from nullity to liability. It argues that a general doctrine need not impose uniform procedures, but should instead provide a set of assessment factors to determine, in specific contexts, the appropriate procedural safeguards. Such factors include the origin and nature of the scarcity, the presence or absence of a cross-border element, the economic value of the right, its legal character, and sector-specific societal sensitivities. By linking Belgian developments to the Dutch and European experience, the article offers a basis for a more consistent, transparent, and equitable allocation of scarce government rights, with possible relevance for other Member States.