The project aims to cast light on the tension between administrative law, competition law and contract law, with welfare administration as primary point of departure. The focus on welfare administration is due partly to the fact that such administration involves public-sector institutions exercising administrative authority at the same time as they award rights-based benefits and services, and co-operate with private-sector institutions in schemes based on both social solidarity and economic profitability. Another reason is that welfare administration is currently undergoing major reform and development.
The project shall treat three main topics:
- Use of agreements and contractual mechanisms in the relationships between bodies with public-sector tasks and with providers and users of services;
- Requirements and rules which govern public-sector bodies when they transact with independent legal subjects; and
- The significance of whether the activity concerned is treated as exercise of public authority or economic enterprise, and how that distinction may be drawn.
We shall consider agreements used by public bodies in contexts that are not purely commercial and analyze the way(s) in which such contexts affect the application of contract law and whether it is possible to draw up any common principles for such agreements.
The other research task is to discern and describe common underlying principles such as equality of treatment, objectivity in decision making, transparency and possibilities for control and accountability, independently of which concrete rules apply. We shall analyze the basic principles that shape the rules on public procurement, requirements of non-discrimination and rule of law in relation to public interference in the market and the rules in administrative law concerned with exercise of public authority.
The distinction between exercise of public authority and economic activity is traditionally of fundamental significance. We shall consider the basic principles within market law, administrative law and contract law both in order to see if these may provide a point of departure for explaining the distinctions that are drawn and for providing recommendations for new cases.