A vueltas con la acción concertada: un régimen fallido para la prestación no contractual de servicios de cuidados

Abstract

The article critically analyzes the legal configuration of concerted action and the social concert as non-contractual formulas for the provision of care services within the framework of European and Spanish law. Drawing on the case law of the Court of Justice of the European Union and regulations on public procurement (Directives 2014/24/EU and 2014/23/EU, as well as Law 9/2017 on Public Sector Contracts), it examines the legal basis and the objectives pursued by regulating concerted action and the social concert as methods of providing services to persons outside the scope of procurement law. It is argued that the purported “non-contractual” nature of concerted action is built on a weak legal basis and has generated significant legal uncertainty, aggravated by the difficulties of our courts in assimilating the doctrine established by the CJEU in the ASADE I and ASADE II cases, leading to particularly harmful outcomes in the context of care for people in situations of physical or psychological vulnerability.

Keywords:

concerted action, social concert, public procurement, social services of general interest, services to persons, third sector