La regulación legal de la prestación del servicio público y la regulación contractual de su gestión indirectasu confusión en la jurisprudencia sobre los conciertos farmacéuticos

Resumo

Until two Judgments of the Supreme Court of June 24, 2019, the agreements signed by the Health Services with the pharmacy offices, to provide the service of pharmaceutical assistance of the National Health System, had not received a legal qualification in case law. The legal classification of pharmaceutical agreements by the Supreme Court as a non-commercial operation, which generates ex lege obligations, has serious consequences because it excludes the application of the Public Sector Contract Act. In the analysis of these Judgments, we argue that they make the mistake of applying the legal regime of the provision of public service by the pharmacist to the user, which has a legal regulation, to the relationship between the Public Administration and the pharmacist to arrange the management of the service, which has a contractual regulation.