“shared” public administration: third sector, public procurement and services

Abstract

The essay is structured into two sections, corresponding to different objectives of analysis, interconnected.

The first section examines the evolution of the institutions governed by Title VII of the Third Sector Code (co-programming, co-planning, and conventions), and their relationship with the market-driven logic underpinning public procurement law. This analysis departs both from pan-competitive approaches – admirably represented by Opinion no. 2052/2018 of the Council of State — and from perspectives that, in emphasizing the preferential treatment for non-profit entities, see an absolute and non-graded dichotomy between third sector law and public procurement law. From this "middle ground" perspective, the analysis of the institutions established by articles 55 and subs. of the Third Sector Code is conducted through a comparison with European Union law and its categories. In particular, the essay explores the relationship between these institutions and the models of in-house providing and public-public partnerships (paragraphs 1 and 1.1), highlighting their shared reliance on the principle of self-organization of the public administration, as an extension of the constitutional principle of good governance and the principle of result.

In the subsequent paragraphs (2 and 2.1), this essay analyses the effects of the balance achieved at the European level between the values of competition and solidarity and its implications on the domestic legal system. Paragraph 3 focuses on “co-planning for implementation”, an form of shared administration that demonstrates more intensely the tension between European public procurement law and Third Sector law. The analysis seeks to emphasize the collaborative and non-synallagmatic nature of this institution, highlighting its objective differences from traditional outsourcing mechanisms. In this regard, the essay criticizes the administrative case law which identifies the gratuitous or non-onerous nature of the relationship as a distinctive feature: paragraph 4 is precisely dedicated to demonstrating the limitations of this approach and to identifying the “authenticity” of expense reimbursement as the constitutive element of the privileged relationships between public administration and the Third Sector.

The second section of the essay develops a theoretical reconstruction of this new way of administration (shared administration), with the aim of deepening its function and its systematic implications on the administrative action plan. Starting from the framing of the co-planning for implementation as an organizational tool for the delivery of public functions and services (paragraph 5), the essay examines the consequences of this reconstruction for the legal regime governing the activities of Third Sector Entities. In the subsequent paragraphs (6 and 6.1), the institutions under study are analysed in relation to specific theories regarding the relationship between State and civil society, addressing questions such as: what corollaries of horizontal subsidiarity emerge in co-programming and co-planning? And what are the points of contact with the conception of “objective administration”?

In the concluding paragraph (7), a synthesis of the argumentative trajectory is provided, along with critical observations regarding the approach — endorsed by decision no. 131/2020 of the Constitutional Court — that considers shared administration and public procurement as two separate worlds. Although widespread, this approach appears unsatisfactory both operationally and theoretically, since it seems to support the return of a dichotomous vision of the relationship between competition and solidarity and it neglects the shared objective of co-planning and traditional outsourcing solutions: the implementation of social rights enshrined in the Constitution.