Keywords
Summary

Keywords

1. Competition - Community rules - Undertaking - Meaning - Medical aid organisations providing emergency and patient transport - Covered - Public service obligations responsible for making their services less competitive - No effect

(EC Treaty, Arts 85, 86 and 90 (now Art. 81 EC, 82 EC and 86 EC))

2. Competition - Undertakings to which Member States grant special or exclusive rights - Meaning - Medical aid organisations providing emergency transport which have an exclusive right to transport patients - Covered

(EC Treaty, Art. 90(1) (now Art. 86(1) EC))

3. Competition - Public undertakings and undertakings to which Member States grant special or exclusive rights - Medical aid organisations providing emergency transport which have an exclusive right to transport patients - Dominant position - Abuse - Criteria for assessment

(EC Treaty, Arts 86 and 90 (now Art. 82 EC and 86 EC))

4. Competition - Dominant position - Medical aid organisations providing emergency transport which have an exclusive right to transport patients - Whether trade between Member States affected - Criteria for assessment

(EC Treaty, Art. 86 (now Art. 82 EC))

5. Competition - Undertakings to which Member States grant special or exclusive rights - Undertakings entrusted with the operation of services of general economic interest - Exclusive right to transport patients given to medical organisations already providing emergency transport - Whether permissible - Limit based on the existence of specific services, severable from the service of general economic interest and not compromising its financial equilibrium - Whether exceeded - Not exceeded - Limit based on incapacity to satisfy demand

(EC Treaty, Art. 90(1) and (2) (now Art. 86(1) and (e) EC))

Summary

1. The concept of an undertaking, in the context of competition law, covers any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed. Any activity consisting in offering goods and services on a given market is an economic activity.

In that connection, entities such as medical aid organisations providing emergency transport services and patient transport services must be treated as undertakings within the meaning of the competition rules laid down by the Treaty. Public service obligations may, of course, render the services provided by a given medical aid organisation less competitive than comparable services rendered by other economic operators not bound by such obligations, but that fact cannot prevent the activities in question from being regarded as economic activities.

( see paras 19, 21-22 )

2. A national provision under which the authorisation necessary for providing ambulance transport services will be refused by the competent authority if its use might prejudice the functioning and profitability of the public emergency ambulance service, the operation of which has been entrusted to medical aid organisations, is of a nature such as to confer on the latter organisations a special or exclusive right within the meaning of Article 90(1) of the Treaty (now Article 86(1) EC).

The reservation of patient transport services to medical aid organisations entrusted with the public ambulance service is sufficient for that measure to be characterised as a special or exclusive right within the meaning of Article 90(1) of the Treaty. Protection is thereby conferred by a legislative measure on a limited number of undertakings which may substantially affect the ability of other undertakings to exercise the economic activity in question in the same geographical area under substantially equivalent conditions.

( see paras 23-25, 66 and operative part )

3. An abuse within the meaning of Article 86 of the Treaty (now Article 82 EC) is committed where, without any objective necessity, an undertaking holding a dominant position on a particular market reserves to itself an ancillary activity which could be carried out by another undertaking as part of its activities on a neighbouring but separate market, with the possibility of eliminating all competition from that undertaking. Where the extension of the dominant position of an undertaking to which the State has granted special or exclusive rights results from a State measure, such a measure constitutes an infringement of Article 90 of the Treaty (now Article 86 EC) in conjunction with Article 86 of the Treaty.

In that connection, the adoption of a legislative measure, the application of which involves prior consultation of medical aid organisations which have an exclusive right on the emergency transport market in respect of any application for authorisation to provide non-emergency patient transport services submitted by an independent operator, gives an advantage to those organisations, by also allowing them to provide such services exclusively. The application of that measure therefore has the effect of limiting markets to the prejudice of consumers within the meaning of Article 86(b) of the Treaty (now Article 82(b) EC), by reserving to those medical aid organisations an ancillary transport activity which could be carried on by independent operators.

( see paras 40, 43 )

4. If an agreement, decision or practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant.

In the case of services, that effect may consist in the activities in question being conducted in such a way that their effect is to partition the common market and thereby restrict freedom to provide services, which constitutes one of the objectives of the Treaty. Similarly, trade between Member States may be affected by a measure which prevents an undertaking from establishing itself in another Member State with a view to providing services there on the market in question.

In that connection, it is necessary to determine whether, having regard to the economic characteristics of the emergency transport market and the patient transport market, there is a sufficient degree of probability that a national measure the application of which involves prior consultation of medical aid organisations which have an exclusive right on the emergency transport market in respect of any application for authorisation to provide non-emergency patient transport services submitted by an independent operator will actually prevent operators established in Member States other than the Member State in question either from providing ambulance transport services in that Member State or from establishing themselves there.

( see paras 48-50, 66 and operative part )

5. Article 90(2) of the Treaty (now Article 86(2) EC), read in conjunction with paragraph (1) of that provision, allows Member States to confer, on undertakings to which they entrust the operation of services of general economic interest, exclusive rights which may hinder the application of the rules of the Treaty on competition in so far as restrictions on competition, or even the exclusion of all competition, by other economic operators are necessary to ensure the performance of the particular tasks assigned to the undertakings holding the exclusive rights.

In order to determined whether the restriction of competition is necessary to enable the holder of an exclusive right to perform its task of general interest in economically acceptable conditions, the starting point must be the premiss that the obligation, on the part of the undertaking entrusted with such a task, to perform its services in conditions of economic equilibrium presupposes that it will be possible to offset less profitable sectors against the profitable sectors and hence justifies a restriction of competition from individual undertakings in economically profitable sectors.

Even if the exclusion of competition is not justified in certain cases involving specific services, severable from the service of general interest in question, if those services do not compromise the economic equilibrium of the service of general economic interest performed by the holder of the exclusive rights, that is not the case where, in a Member State, the services in question are the emergency transport service and the patient transport service, traditionally assumed by the medical aid organisations. First, the two types of service are so closely linked that it is difficult to sever the non-emergency transport services from the task of general economic interest constituted by the provision of the public ambulance service, with which they also have characteristics in common. Second, the extension of the medical aid organisations' exclusive rights to the non-emergency transport sector does indeed enable them to discharge their general-interest task of providing emergency transport in conditions of economic equilibrium. The possibility which would be open to private operators to concentrate, in the non-emergency sector, on more profitable journeys could affect the degree of economic viability of the service provided by the medical aid organisations and, consequently, jeopardise the quality and reliability of that service.

However, it is only if it were established that the medical aid organisations entrusted with the operation of the public ambulance service were manifestly unable to satisfy demand for emergency ambulance services and for patient transport at all times that the justification for extending their exclusive rights, based on the task of general interest, could not be accepted.

In that connection, it is necessary to determine whether the medical aid organisations which occupy a dominant position on the markets in question are in fact able to satisfy demand and to fulfil not only their statutory obligation to provide the public emergency ambulance services in all situations and 24 hours a day but also to offer efficient patient transport services.

( see paras 56-57, 59-62, 64, 66 and operative part )