Alternatives to Public Procurement: Free Choice in Marketised Social Services – Legal Challenges Illustrated via Long-Term Care

Abstract

In light of Europe’s ageing population, the article explores the legal dimensions to freedom of choice within marketised social services, especially in the context of long-term care. It offers critical analysis of the implementation of the free-choice model in Estonia within the framework of European Union public-procurement law and Estonian law on administrative co-operation. The landscape has been a legal ‘no man’s land’ somewhat: this demand-based model with an unlimited number of providers falls outside the traditional public-procurement framework, and how the general principles for transfer of public tasks to the private sector might apply to a free-choice model, which does not entail explicit ‘transfer’, has remained unclear. Although the Estonian care reform of 2023 established a funding model, it did not resolve the legal uncertainties surrounding public–private co-operation and user rights. As care homes in Estonia are largely run by the private sector, vague legal regulation and weak state supervision pose a threat to access, the care services’ quality, and their economic efficiency. Drawing on international comparisons with the Nordic countries, the article warns against uncritical adoption of market-based models, stressing the need to balance the roles of public authorities and private providers. The paper underscores the crucial role of legal professionals in ensuring that public–private co-operation for social services upholds both individuals’ fundamental rights and public interests.