Chapter 11 - The Allocation of Limited Licences by the Administration – Requirements under the European Fundamental Right to Property

Summary

Introduction

This book deals with limited public rights, such as authorisations and subsidies. Limited public rights often represent a specific value for the holder of such rights, who commonly regards them as property. Authorisations are sometimes limited as a consequence of scare natural resources, but they also often concern intentionally created scarcity as a result of specific government policy objectives, for instance gambling licences, parking licences or licences to operate a pharmacy. These policy objectives tend to change over time. If, for example, the government wants to pursue a stricter policy in the area of betting and gaming in order to reduce gambling addiction, this can have consequences for the holder of a gambling licence. What if this limited right, his ‘property’, is taken away and re-allocated or amended (for example in scope or conditions) to the detriment of the holder? What if the government takes other measures which result in the value of the licence decreasing? Can holders of limited public rights claim property rights in such cases in order to prevent changes to their rights?

In this book the authors seek to demonstrate the need for a consistent approach to the allocation of limited public rights from a legal perspective. The issues highlighted above show that when addressing the question of which rules and principles are relevant in a general legal theory on the allocation of limited public rights in the EU and its Member States, the right to property must be included. In this chapter we will focus on how the concept of the protection of property can be incorporated into a consistent legal framework.

To answer this question, we will take a closer look at the implications and influence of the European Convention on Human Rights (ECHR). The right to property as governed by Article 1 of the First Protocol to the ECHR is much more developed in the case law on the revocation of authorisations than its mirror image laid down in Article 17 of the EU Charter of Fundamental Rights (CFR). In ECtHR case law, licences (and even subsidies) are acknowledged to be property in certain circumstances.