The protection of competition interests in administrative law
On Wednesday 13 December at 13.45 hrs Jaap Wieland will defend his doctoral thesis entitled ‘De bescherming van concurrentiebelangen in het bestuursrecht’ (the Protection of Competition Interests in Administrative Law) at the Academy Building of Leiden University. His supervisors are Professor Willemien den Ouden and Professor Jaap Polak.
Competitors increasingly end up facing each other in the administrative courts. Not surprisingly. Decisions taken by government authorities can have serious consequences for the competitive position of businesses. If, for example, chocolate manufacturer A receives a subsidy and chocolate manufacturer B does not, then A has a competitive advantage over B. And if a local council adopts a zoning plan that allows for the establishment of a new DIY store, then a DIY store that is already operating in the same neighbourhood will face more competition. If, besides this, less strict requirements concerning fire safety and the environment, for instance, are placed on the new DIY store, then fair competition becomes distorted. In this book, the central question is how in Dutch administrative law - traditionally aimed at protecting citizens from government authorities - the consequences of decisions concerning competitive relationships are dealt with. The question is answered based on an analysis of administrative court case law.
The research comprised an extensive study of the protection of competition interests in administrative law and is aimed at identifying possible obstacles that can arise in relation to this. Three obstacles in particular are distinguished: access to proceedings under administrative law, the purpose-bound character of administrative competences (speciality) and the relativity requirement. These obstacles are outlined, analysed and placed in the perspective of Union law. The most important conclusion is that access of competitors to proceedings under administrative law is extensive, but that their interests subsequently, as a result of the prohibition against misuse of power and the relativity requirement, play a role in decisions and review by the administrative court only to a limited extent. Dutch administrative law differs in this respect from Union law, where competition interests take a central place.
Equal opportunities for businesses?
In many cases it is not a serious problem that competition interests can play no role when decisions are taken or these are reviewed. The fight between competitors must, after all, be played out primarily in the market and not in the courtroom before the administrative judge. Nevertheless, situations can occur where the government authorities, by taking a decision, disturb the level playing field where businesses compete with each other, for example by providing a licence to one business under more favourable conditions than to another business, or by providing a business with a limited licence or dispensation, without other businesses having the opportunity to be considered for such a licence or dispensation. In these cases, the equal opportunities of businesses come under threat and a situation no longer exists where there is equal competition. In these situations the principle of equal treatment could help when considering the interests of competitors.
Prof. Willemien den Ouden on Jaap Wieland
"Jaap Wieland clearly demonstrates that government authorities should distort the level playing field of businesses as little as possible, and that the administrative courts have a role to play in this regard using the principle of equal treatment.
He performed his research as an external PhD candidate. In daily life he works as a civil servant at the Dutch Council of State. His knowledge of legal practice shines through in his dissertation, in which he outlines the role the administrative courts can play in protecting competitors. His research is an excellent example of productive interaction between science and legal practice!”