Case C‑113/13

Azienda sanitaria locale n. 5 ‘Spezzino’ and Others

v

San Lorenzo Soc. coop. Sociale

and

Croce Verde Cogema cooperativa sociale Onlus

(Request for a prelimianry ruling from the Consiglio di Stato)

‛Reference for a preliminary ruling — Ambulance services — National legislation reserving ambulance services for public health establishments to registered voluntary associations fulfilling the legal requirements on a preferential basis — Compatibility with EU law — Public procurement — Articles 49 TFEU and 56 TFEU — Directive 2004/18/EC — Mixed services, covered both by Annex IIA and Annex II B to Directive 2004/18 — Article 1(2)(a) and (d) — Concept of ‘public service contracts’ — Pecuniary nature — Consideration consisting in the reimbursement of expenses incurred’

Summary — Judgment of the Court (Fifth Chamber), 11 December 2014

1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Framework agreement relating to ambulance services carried out by voluntary organisations on a non-profit making basis which receive only repayment of their expenses — Included

   (European Parliament and Council Directive 2004/18, Art. 1(5))

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Publicity requirements — Contracts with a value less than the threshold fixed by the directive or relating to services referred to in Annex II B — Contracts of certain cross-border interest — Obligations of the contracting entities

   (Arts 49 TFEU and 56 TFEU; European Parliament and Council Directive 2004/18, Arts 21, 23 and 35(4) and Annex II B)

3. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Scope of the obligation in the field of public procurement

   (Arts 49 TFEU, 56 TFEU and 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)

4. Freedom of establishment — Freedom to provide services — Restrictions — National legislation reserving on a preferential basis the provision of ambulance services to voluntary organisations — Unlawful — Justification — Need to maintain, for reasons of public health, financial equilibrium with regard to the provision of ambulance services — Lawfulness — Condition — Not for profit — Verification by the national court

   (Arts 49 TFEU and 56 TFEU)

1.  See the text of the decision.

   (see paras 36-38)

2.  See the text of the decision.

   (see paras 40-42, 45, 46)

3.  As regards a request for a preliminary ruling in the area of public procurement which concerns the application of the general principles of equal treatment and non-discrimination and the obligation of transparency flowing from Articles 49 TFEU and 56 TFEU, it is for the national court to establish the findings necessary for the Court to ascertain whether there is certain cross-border interest justifying the application of those principles. As is clear from Article 94 of its Rules of Procedure, the Court of Justice must be able to find in a request for a preliminary ruling a summary of the facts on which the questions are based and the connection, inter alia, between those facts and the questions. Therefore, the findings necessary to verify the existence of certain cross-border interest must be made before the questions are referred to the Court.

   However, by reason of the spirit of cooperation in relations between the national courts and the Court of Justice in the context of the preliminary rulings procedure, the lack of such preliminary findings by the referring court relating to the existence of certain cross-border interest does not lead to the request being inadmissible if, in spite of those failings, the Court, having regard to the information available from the file, considers that it is in a position to give a useful answer to the referring court. That is the case, in particular, where the order for reference contains sufficient relevant information for the existence of such an interest to be determined. Nevertheless, the Court’s answer is given subject to the proviso that, on the basis of a detailed assessment of all the relevant facts in the case in the main proceedings, certain cross-border interest in the case in the main proceedings is established by the referring court.

   (see paras 47, 48)

4.  Articles 49 TFEU and 56 TFEU must be interpreted as not precluding national legislation which provides that the provision of urgent and emergency ambulance services must be entrusted on a preferential basis and awarded directly, without any advertising, to the voluntary associations covered by the agreements, in so far as the legal and contractual framework in which the activity of those associations is carried out actually contributes to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency on which that legislation is based.

   A Member State, in the context of its discretion to decide the level of protection of public health and to organise its social security system, may take the view that recourse to voluntary associations is consistent with the social purpose of the emergency ambulance services and may help to control costs relating to those services. Not only the risk of seriously undermining the financial balance of a social security system may constitute per se an overriding reason in the general interest capable of justifying an obstacle to the freedom to provide services, but also the objective of maintaining, on grounds of public health, a balanced medical and hospital service open to all may also fall within one of the derogations, on grounds of public health in so far as it contributes to the attainment of a high level of health protection.

   However, it is essential that, where they act in that context, the voluntary associations do not pursue objectives other than the good of the community and economic efficiency, do not make any profit as a result of their services, apart from the reimbursement of the variable, fixed and on-going expenditure necessary to provide them, and do not procure any profit for their members. Furthermore, although it is permissible to maintain a workforce, for it would, without one, be almost impossible for those associations to act effectively in numerous domains in which the principle of the good of the community may naturally be implemented, the activities of those associations must strictly comply with the requirements laid down by national law relating to them. It is for the national court to carry out all the assessments required in order to verify whether the system of organisation of emergency ambulance services at issue in the main proceedings actually contributes to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency on which that system is based.

   (see paras 57, 59, 61, 63, 65, operative part)

Case C‑113/13

Azienda sanitaria locale n. 5 ‘Spezzino’ and Others

v

San Lorenzo Soc. coop. Sociale

and

Croce Verde Cogema cooperativa sociale Onlus

(Request for a prelimianry ruling from the Consiglio di Stato)

‛Reference for a preliminary ruling — Ambulance services — National legislation reserving ambulance services for public health establishments to registered voluntary associations fulfilling the legal requirements on a preferential basis — Compatibility with EU law — Public procurement — Articles 49 TFEU and 56 TFEU — Directive 2004/18/EC — Mixed services, covered both by Annex IIA and Annex II B to Directive 2004/18 — Article 1(2)(a) and (d) — Concept of ‘public service contracts’ — Pecuniary nature — Consideration consisting in the reimbursement of expenses incurred’

Summary — Judgment of the Court (Fifth Chamber), 11 December 2014

1. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Scope — Framework agreement relating to ambulance services carried out by voluntary organisations on a non-profit making basis which receive only repayment of their expenses — Included

   (European Parliament and Council Directive 2004/18, Art. 1(5))

2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Publicity requirements — Contracts with a value less than the threshold fixed by the directive or relating to services referred to in Annex II B — Contracts of certain cross-border interest — Obligations of the contracting entities

   (Arts 49 TFEU and 56 TFEU; European Parliament and Council Directive 2004/18, Arts 21, 23 and 35(4) and Annex II B)

3. Questions referred for a preliminary ruling — Admissibility — Need to provide the Court with sufficient information on the factual and legislative context — Scope of the obligation in the field of public procurement

   (Arts 49 TFEU, 56 TFEU and 267 TFEU; Rules of Procedure of the Court of Justice, Art. 94)

4. Freedom of establishment — Freedom to provide services — Restrictions — National legislation reserving on a preferential basis the provision of ambulance services to voluntary organisations — Unlawful — Justification — Need to maintain, for reasons of public health, financial equilibrium with regard to the provision of ambulance services — Lawfulness — Condition — Not for profit — Verification by the national court

   (Arts 49 TFEU and 56 TFEU)

1.  See the text of the decision.

   (see paras 36-38)

2.  See the text of the decision.

   (see paras 40-42, 45, 46)

3.  As regards a request for a preliminary ruling in the area of public procurement which concerns the application of the general principles of equal treatment and non-discrimination and the obligation of transparency flowing from Articles 49 TFEU and 56 TFEU, it is for the national court to establish the findings necessary for the Court to ascertain whether there is certain cross-border interest justifying the application of those principles. As is clear from Article 94 of its Rules of Procedure, the Court of Justice must be able to find in a request for a preliminary ruling a summary of the facts on which the questions are based and the connection, inter alia, between those facts and the questions. Therefore, the findings necessary to verify the existence of certain cross-border interest must be made before the questions are referred to the Court.

   However, by reason of the spirit of cooperation in relations between the national courts and the Court of Justice in the context of the preliminary rulings procedure, the lack of such preliminary findings by the referring court relating to the existence of certain cross-border interest does not lead to the request being inadmissible if, in spite of those failings, the Court, having regard to the information available from the file, considers that it is in a position to give a useful answer to the referring court. That is the case, in particular, where the order for reference contains sufficient relevant information for the existence of such an interest to be determined. Nevertheless, the Court’s answer is given subject to the proviso that, on the basis of a detailed assessment of all the relevant facts in the case in the main proceedings, certain cross-border interest in the case in the main proceedings is established by the referring court.

   (see paras 47, 48)

4.  Articles 49 TFEU and 56 TFEU must be interpreted as not precluding national legislation which provides that the provision of urgent and emergency ambulance services must be entrusted on a preferential basis and awarded directly, without any advertising, to the voluntary associations covered by the agreements, in so far as the legal and contractual framework in which the activity of those associations is carried out actually contributes to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency on which that legislation is based.

   A Member State, in the context of its discretion to decide the level of protection of public health and to organise its social security system, may take the view that recourse to voluntary associations is consistent with the social purpose of the emergency ambulance services and may help to control costs relating to those services. Not only the risk of seriously undermining the financial balance of a social security system may constitute per se an overriding reason in the general interest capable of justifying an obstacle to the freedom to provide services, but also the objective of maintaining, on grounds of public health, a balanced medical and hospital service open to all may also fall within one of the derogations, on grounds of public health in so far as it contributes to the attainment of a high level of health protection.

   However, it is essential that, where they act in that context, the voluntary associations do not pursue objectives other than the good of the community and economic efficiency, do not make any profit as a result of their services, apart from the reimbursement of the variable, fixed and on-going expenditure necessary to provide them, and do not procure any profit for their members. Furthermore, although it is permissible to maintain a workforce, for it would, without one, be almost impossible for those associations to act effectively in numerous domains in which the principle of the good of the community may naturally be implemented, the activities of those associations must strictly comply with the requirements laid down by national law relating to them. It is for the national court to carry out all the assessments required in order to verify whether the system of organisation of emergency ambulance services at issue in the main proceedings actually contributes to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency on which that system is based.

   (see paras 57, 59, 61, 63, 65, operative part)