9 THE ITALIAN LAW JOURNAL NO. 1 (2023)
Public Services Beyond State and Market.
by Rocco Alessio Albanese This work discusses how different conceptions of contract within European Private Law shape the way of managing and providing public services. DOI 10.23815/2421-2156.ITALJ ISSN 2421-2156
Rethinking Contract as a Tool for Decommodification Within European Private Law
The argument builds on an overview of the EU legal framework in the domain of public services. The regime of public procurement and the divide between economic and non-economic Services of General Interest are addressed. Attention is given to the recent focus on both social and environmental issues and the social economy. This broad analysis allows us to question competition as the major organizational criterion in the legal arrangement of public services, however, the trends characterising the Italian laboratory are discussed to deal with the implementation of EU rules at the domestic level.
The critique of the dominant market-oriented and regulatory schemes leads to a new understanding of the overall topic. While antagonistic conceptions of contract serve as basic infrastructures of the market as a socio-legal institution, more sophisticated approaches can play an unexpected role in experimenting with alternative organizations of public services. From this perspective a commons-oriented view of the new property theory is adopted too, to provide end-users with a new legal zone of agency.
Although some questions remain open, one can claim that contract can be a tool of de-commodification, capable of bringing public services beyond state and market.
