Abstract
This thesis aims to answer whether Dutch law contains an obligation for the Dutch government to – in principle – provide equal opportunities in land allocation agreements. On the basis of the principle of equality – including formal and substantive equal treatment by the government and equality between competitors on
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the market – the starting point in this thesis is that the government should provide such equal opportunities to all potential contractors. Currently, an explicit general obligation to provide equal opportunities in the context of land transfers does not exist. However, if a land allocation agreement is a public works contract or a public works concession within the meaning of the procurement legislation and its value exceeds the threshold of currently € 5 million (excluding VAT), Dutch law explicitly requires the government to provide equal opportunities. In addition, the ECJ has ruled that the government must provide equal opportunities for public contracts with a value below the threshold that have a certain cross-border interest. Both obligations force the government to treat potential contractors from other member states and national potential contractors substantially equally. They also envisage the development of competition within the Union. The elements that must be present in such a contract for it to be regarded as a public works contract or a public works concession are described and analysed in detail. Land allocation agreements that are national public contracts/concessions or are not public contracts/concessions at all (i.e. a pure land transfer), are not covered by these explicit obligations to provide equal opportunities. However, for these contracts such an obligation was found to be implicitly present in Dutch law. For European pure land transfer, this obligation is based in essence on Articles 49 and 56 TFEU that prohibit the government to treat potential contractors from other member states substantially unequally. For national land allocation agreements, the obligation to provide equal opportunities arguably stems from the Dutch general principles of proper administration that must be given substance using the principle of equality described above. Although exceptions are possible, they should be applied restrictively. Finally, recommendations are made for the European and Dutch legislator, the courts and the administration. These include that the European legislator should clarify and simplify the definition of public works contracts and concessions, as well as codify the obligation to provide equal opportunities in the context of European pure land transfer. As long as these recommendations are not implemented by the European legislator, this should be done by the Dutch legislator. The ECJ and Dutch courts should, when the occasion arises, acknowledge the obligation to provide equal opportunities in the context of European pure land transfer and national land allocation agreements. The administration is advised to accept and comply with the obligation to provide equal opportunities when entering into a land allocation agreement. The discussion should therefore be shifted from the question whether there is such an obligation to the question of how to flesh out that obligation in a meaningful manner
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