II.1. Innovative organizational structures for social services (of general interest)

Research project: Choosing legal instruments to organise social care services

Gerrieke Bouwman conducts PhD-research at UUCePP on the organisation of social care services in the Netherlands in the context of the European social market economy (supervisors: prof. dr. Elisabetta Manunza and prof. dr. Rob Widdershoven). Primary aim of this research is to clarify the demarking lines between the different legal instruments public contracting authorities can use for adequate organisation of social care services. 

The system of social care services in the Netherlands drastically changed in 2015. In that year, the task to organise services, such as Youth Care or day care services and domestic help for the elderly and disabled, was decentralised from the central to the local governments (municipalities). A year before, competition had been introduced in the social sector by the adoption of the EU Public Procurement Directives. Since Directives 2014/24/EU and 2014/23/EU have been implemented, Public Procurement regulation is fully applicable to public contracts and concession contracts for social care services, although they fall within a specific regime. However, governments – municipalities in The Netherlands - can still choose to organise social care services through the more classic instruments of subsidies and authorisation schemes.

In that context, unclarity arises about the demarking lines between legal instruments. Nowadays public authorities struggle how to distinguish between public contracts and subsidies; between public contracts and an ‘openhousemodel’ or a license/authorisation scheme. Public contracts are consequently tendered even though there is no legal obligation, meanwhile subsidies are directly awarded to a supplier even though they should have been tendered because they fall under the definition of public contracts as laid down in the EU-Public Procurement Directive. In addition, a rise in new and informal commissioning models has become more and more apparent, raising questions about their legality and whether they fall within the public procurement regime.

Choosing the best solution for the aim that the public authority pursues is more complex when the dividing lines between the many legal instruments (public contracts, subsidies, permits, open house systems and concessions) are not clearly demarked. To overcome this complexity, the research aims to provide clarity on these dividing lines between the many legal instruments public authorities use to organise social care services. The research will thereby contribute to a consistent and coherent legal framework that increases legal certainty.

The research also takes into account aspects of good and responsible (“social”) commissioning. In that regard, this research connects to the research of UUCePP-researchers Tom Huisjes LLM and dr. Ir. Niels Uenk