Keywords
Summary

Keywords

1. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Exceptions – Scope

(Arts 45 EC and 55 EC; European Parliament and Council Directive 2004/18; Council Directive 92/50)

2. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Exceptions – Activities connected with the exercise of official authority

(Arts 45 EC and 55 EC)

3. Approximation of laws – Procedures for the award of public service contracts – Directives 92/50 and 2004/18 – Mixed transport and medical service contracts

(Art. 86(2) EC; European Parliament and Council Directive 2004/18, Arts 22 and 35(4), and Annexes IIA and IIB; Council Directive 92/50, Arts 10 and 16, and Annexes IA and IB)

Summary

1. According to the first paragraph of Article 45 EC, in conjunction with Article 55 EC, the provisions relating to the freedom of establishment and the freedom to provide services do not extend to activities that in a Member State are connected, even occasionally, with the exercise of official authority.

Such activities are also excluded from the scope of directives that, like Directives 92/50 and 2004/18, are designed to implement the provisions of the Treaty relating to the freedom of establishment and the freedom to provide services.

(see paras 73-74)

2. The derogation provided for under Articles 45 EC and 55 EC must be restricted to activities that, in themselves, are directly and specifically connected with the exercise of official authority. That is not the case as regards emergency ambulance and qualified patient transport services.

A contribution to the protection of public health, which any individual may be called upon to make, in particular by assisting a person whose life or health is in danger, is not sufficient for there to be a connection with the exercise of official authority. Nor can the right of ambulance service providers to use equipment such as flashing blue lights or sirens, and their acknowledged right of way with priority under the highway code, or matters concerning special organisational powers in the field of the services delivered, the power to request information from third parties and the deployment of other specialist services, or even involvement in the appointment of civil service administrators in connection with the services at issue and collaboration with the public authorities and with professional staff on whom official powers have been conferred be regarded as reflecting a sufficiently qualified exercise of official powers or of powers falling outside the scope of the general law.

(see paras 78, 80-84)

3. A Member State that, in relation to the award, in accordance with the ‘tender’ model, of contracts for public emergency ambulance and qualified patient transport services by virtue of which payment for those services is made directly by the contracting authorities, fails to publish notices of the results of the procedure for the award of contracts has failed to fulfil its obligations under Article 10 of Directive 92/50 relating to the coordination of procedures for the award of public service contracts, in conjunction with Article 16 thereof or, since 1 February 2006, under Article 22 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts in conjunction with Article 35(4) thereof.

Emergency ambulance or qualified patient transport services are within category 2 or 3 of Annex I A to Directive 92/50 or of Annex II A to Directive 2004/18 as well as category 25 of Annex I B to Directive 92/50 or of Annex II B to Directive 2004/18 and, therefore, the contracts for such services fall within the scope of Article 10 of Directive 92/50 or of Article 22 of Directive 2004/18. It follows from those provisions that, where contracts awarded for public ambulance services are characterised by the predominance of the value of transport services as compared with the value of health services, it is, inter alia, incumbent on the contracting authority to publish a contract notice at European Union level for the purposes of awarding the contract in question and to ensure that the results of the award of that contract are published. By contrast, where contracts awarded for public ambulance services are characterised by the predominance of the value of health services as compared with the value of transport services, the contracting authority is required to ensure that the results of the award of the contract are published.

In circumstances in which it is conceivable that none of the contracts is characterised by the predominance of the value of transport services over the value of health services, the finding of a failure to comply with Directives 92/50 and 2004/18 must be limited to an infringement of Article 10 of Directive 92/50 in conjunction with Article 16 thereof or, since 1 February 2006, of Article 22 of Directive 2004/18 in conjunction with Article 35(4) thereof, since those provisions are applicable in any event to contracts which cover both transport and health services, regardless of the respective value of those services in the contract concerned.

Failure to publish the results of the procedure for the award of the contract cannot be justified by the fact that emergency transport services are ‘services of general economic interest’ within the meaning of Article 86(2) EC. Considerations such as the need to ensure cross-subsidisation of ambulance services between profitable and less profitable geographic areas on the basis of population density or the importance of a service that is in close proximity do not clarify how the obligation to ensure that the results of the award of the contract concerned are published is liable to prevent the accomplishment of that task of general economic interest.

(see paras 92, 113-114, 122, 125, 127-129, 131, operative part)