1. 

According to Article 10(h) of Directive 2014/24/EU, ( 2 ) that directive is not to apply to public contracts for certain civil defence, civil protection and danger prevention services that are provided by non-profit organisations or associations.

2. 

This reference for a preliminary ruling seeks to ascertain whether that exclusion includes ‘ambulance services’ and what interpretation is to be given to the concept of ‘non-profit organisations or associations’. The issue arises as to whether the laws of the Member States are to be taken into account in defining the meaning of that expression.

3.

Recitals 28 and 118 of that directive read as follows:

…

4.

In accordance with Article 10, Directive 2014/24 is not to apply to public service contracts for:

‘…

…’

5.

Article 76 provides:

‘1.   Member States shall put in place national rules for the award of contracts subject to this Chapter in order to ensure contracting authorities comply with the principles of transparency and equal treatment of economic operators. Member States are free to determine the procedural rules applicable as long as such rules allow contracting authorities to take into account the specificities of the services in question.

2.   Member States shall ensure that contracting authorities may take into account the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantaged and vulnerable groups, the involvement and empowerment of users and innovation. Member States may also provide that the choice of the service provider shall be made on the basis of the tender presenting the best price-quality ratio, taking into account quality and sustainability criteria for social services.’

6.

Article 77 provides:

‘1.   Member States may provide that contracting authorities may reserve the right for organisations to participate in procedures for the award of public contracts exclusively for those health, social and cultural services referred to in Article 74, which are covered by CPV codes 75121000‑0, 75122000‑7, 75123000‑4, 79622000‑0, 79624000‑4, 79625000‑1, 80110000‑8, 80300000‑7, 80420000‑4, 80430000‑7, 80511000‑9, 80520000‑5, 80590000‑6, from 85000000‑9 to 85323000‑9, 92500000‑6, 92600000‑7, 98133000‑4 and 98133110‑8.

2.   An organisation referred to in paragraph 1 shall fulfil all of the following conditions:

…’

7.

In accordance with Paragraph 107(1), point 4, first part, of the Gesetz gegen Wettbewerbsbeschränkungen, ( 4 ) that Law is not to apply to the award of contracts for civil defence, civil protection and danger prevention services that are provided by non-profit organisations or associations and that are covered by CPV codes 7520000‑3, 75251000‑0, 75251100‑1, 75251110‑4, 75251120‑7, 75252000‑7, 75222000‑8, 98113100‑9 and 85143000‑3, except patient transport ambulance services.

8.

By that provision, the German legislature transposed into its national law Article 10(h) of Directive 2014/24, but it added a second part worded as follows:

‘[N]on-profit organisations or associations within the meaning of this point shall be, in particular, aid organisations recognised as civil defence and civil protection organisations under federal or Land law’.

9.

According to Paragraph 2(1) of the Gesetz über den Rettungsdienst sowie die Notfallrettung und den Krankentransport durch Unternehmer, ( 5 ) emergency medical services include emergency response, patient transport and the provision of care to large numbers of sick and injured in the event of exceptional disasters.

10.

The first sentence of Paragraph 2(2) of the RettG NRW states that the emergency response service has the task of performing life-saving measures on emergency patients at the site of an emergency and, while making and keeping them fit to be transported and preventing any further harm to them, transporting them by emergency doctor’s vehicle or ambulance to a hospital suitable for the provision of further care.

11.

Pursuant to Paragraph 2(3) of the RettG NRW, the patient transport service has the task of providing professional help to the sick and injured or other persons in need of help who are not covered by subparagraph 2 and transporting them by ambulance under the care of medically qualified personnel.

12.

The second sentence of Paragraph 26(1) of the Zivilschutz- und Katastrophenhilfegesetz ( 6 ) states that organisations eligible to work alongside their public-sector counterparts in performing the tasks provided for in that Law include in particular the Arbeiter-Samariter-Bund, the Deutsche Lebensrettungsgesellschaft, the Deutsches Rotes Kreuz (German Red Cross), the Johanniter-Unfall-Hilfe and the Malteser-Hilfsdienst.

13.

Paragraph 18(1), first sentence, and (2) of the Gesetz über den Brandschutz, die Hilfeleistung und den Katastrophenschutz ( 7 ) provides:

‘1.   Private aid organisations shall lend assistance in the event of accidents and public emergencies, major relief operations and disasters, if they have registered their willingness to work with the public services with the highest supervisory authority and the latter has recognised both their eligibility to do so and the need for their assistance (recognised aid organisations). …

2.   In the case of the organisations referred to in the second sentence of Paragraph 26(1) of the [ZSKG] …, a registration of willingness to work alongside the public services and a general recognition of eligibility to do so shall not be required.’

14.

In March 2016, the City of Solingen (Germany) decided to award a new five-year contract for the provision of municipal emergency services. ( 8 ) Instead of publishing the contract notice, the municipal body invited tenders from four aid organisations. Finally, it awarded two of the tenderers (Arbeiter-Samariter-Bund and Malteser Hilfdienst) one each of the two lots into which the contract was divided.

15.

Falck Rettungsdienste and Falck, undertakings providing emergency response and patient care services, submitted before the Vergabekammer Rheinland (Public Procurement Tribunal for the Rhineland, Germany) an objection to the effect that the aforementioned award should have complied with the public procurement procedures under EU law.

16.

The Tribunal dismissed the challenge on 19 August 2016, on the ground that Paragraph 107(1), point 4, of the GWB was applicable.

17.

That decision was appealed to the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany), which has referred to the Court of Justice for a preliminary ruling the following questions:

18.

The reference for a preliminary ruling was registered at the Court of Justice on 2 August 2017. Written observations have been lodged by Arbeiter-Samariter-Bund, Falck Rettungsdienste, Malteser Hilfsdienst, the German Red Cross, the City of Solingen, the German, Norwegian and Romanian Governments and the Commission. With the exception of the Norwegian and Romanian Governments, all the parties attended the public hearing held on 5 September 2018.

19.

Falck Rettungsdienste submits as a preliminary point that Article 10(h) of Directive 2014/24 is contrary to primary law, inasmuch as it establishes an exclusion based on a personal rather than a material criterion. That provision must therefore be interpreted in such a way as to bring it into line with the rules of EU law, and so as to clarify the conditions which primary law attaches to the direct award of contracts to non-profit associations.

20.

In the view of Falck Rettungsdienste:

21.

The City of Solingen:

22.

Arbeiter-Samariter-Bund shares, in essence, the position adopted by the City of Solingen with respect to the first, third and fourth questions. As regards the second question, it submits that the national legislature used the discretion available to it in transposing the concept of non-profit organisation. The same arguments are advanced by Malteser Hilfdienst.

23.

The German Red Cross, which begins by expressing its disagreement with the preliminary observations made by Falck Rettungsdienste, adopts a position similar to that of City of Solingen in relation to the first and third questions. On the second question, it, like Arbeiter-Samariter-Bund, contends that the Member States have some discretion in defining non-profit organisations. In connection with the fourth question, it submits that qualified patient transport is a crucial component not only of civil defence and civil protection but also of danger prevention. In its view, such transport falls within the scope ratione materiae of the exclusion at issue.

24.

In the view of the German Government:

25.

The Norwegian Government:

26.

The Romanian Government has commented only on the first and fourth questions, which it has examined jointly. In its opinion, civil defence, civil protection and danger prevention services encompass assistance both to groups of individuals in extreme situations and to individuals under threat to life or health from common dangers. An interpretation of Article 10(h) of Directive 2014/24 in the light of recital 28 thereof calls for emphasis to be placed on the concept of exclusive transport rather than on the type of response personnel or on the care received during transport.

27.

From that point of view, ambulance services include both emergency medical response and non-emergency unassisted patient transport. In the first category, there is no difference between transport by ambulance in the charge of an emergency doctor and paramedic and transport by ambulance in the care of a paramedic and a medical assistant, since both services exhibit features of emergency medical response and are exclusively concerned with the end objective of preventing danger. The second category, on the other hand, consists of services which, being provided by ambulances that are not equipped for emergency medical intervention and are driver-only operated, such that they do not fall within the scope of civil defence, civil protection or danger prevention.

28.

According to the Commission:

29.

The questions referred by the national court seek, in essence, to ascertain what conditions an ambulance service must fulfil in order to be included in or excluded from the scope of Directive 2014/24. Those conditions concern: (a) the nature of that service itself, viewed objectively; and (b) a specific personal or subjective feature of the provider of the service, which must be a non-profit organisation or association.

30.

The first and fourth questions raised by the referring court have to do with the objective activity of the ambulance service. In principle, such a service will be excluded from the scope of Directive 2014/24 only if, being amenable to classification in the category of ‘civil defence, civil protection and danger prevention services’, it is not simply a ‘patient transport ambulance service’. The latter services make up the exception to the exclusion and, as such, are subject to the general public procurement rules.

31.

The second and third questions relate to the subjective status of the ambulance service provider, which has to be a ‘non-profit organisation or association’. This issue, in particular, is whether this is an independent concept of EU law.

32.

The referring court wishes to ascertain whether the following two specific services fall within the category of ‘civil defence, civil protection and danger prevention services’:

33.

Although both services provide care and treatment to patients, they differ in relation to the criterion of ‘emergency’, which, from the point of view of both the characteristics of the vehicle and the situation of the person being attended to, is met only in the context of the former. In the case of the former service, therefore, the ambulance is [literally] a ‘rescue vehicle’, while, in the case of the latter, it is only a ‘transport’ vehicle.

34.

The referring court is clear that the aforementioned services ‘are neither civil defence nor civil protection’ services. ( 9 ) In its view, which is shared by those who have participated in the proceedings, those services might, ‘at most’, ( 10 ) come under the heading of ‘danger prevention’.

35.

Directive 2014/24 does not define ‘danger prevention’, nor does it expressly refer to the right of Member States to determine its meaning. The view must therefore be taken, in accordance with the case-law of the Court of Justice, that that concept calls for an independent interpretation that is uniform throughout the European Union. ( 11 )

36.

In order to find the independent meaning that must be given to danger prevention, it is appropriate to start with the literal wording of Article 10(h) of Directive 2014/24. In this regard, mention must almost inevitably be made of Article 196 TFEU, which, as Falck Rettungsdienste has submitted, uses the term ‘risk prevention’ in the context of ‘civil protection’ to refer to ‘natural or man-made disasters’. ( 12 ) This would support the idea that that term cannot accommodate emergency services provided in situations involving danger to individuals.

37.

It is my view, however, that, just as, in Article 196 TFEU, danger prevention is associated with civil protection, ( 13 ) Article 10(h) of Directive 2014/24 employs that term in reference to an activity with connotations of its own which are not necessarily identifiable with civil protection.

38.

After all, in Article 10(h) of Directive 2014/24, danger prevention appears to be different from civil protection and civil defence and therefore falls to be interpreted as an independent activity. As the referring court points out, if this were not the case, danger prevention services would always be civil defence or civil protection services. ( 14 )

39.

In fact, the conceptual autonomy of danger prevention would stand in opposition to civil protection and civil defence as activities geared towards the management of disasters affecting large numbers of people. In contrast to such situations of collective impact, the danger prevention to which Directive 2014/24 relates would be that in which individuals are in a situation of personal danger.

40.

There is, however, a problem with the interpretation thus advocated by the referring court. The term ‘prevention’ in its most common sense, as Falck Rettungsdienste has emphasised, ( 15 ) denotes the anticipation of a risk or danger. It therefore implies protection which is preventive rather than reactive to a risk which has been realised by, and damage which has been caused by, the materialisation of a danger.

41.

If that semantic issue were to prevail, the ambulance service at issue in these proceedings would be excluded, almost in principle, from the scope of ‘danger prevention’. Only by way of a highly contrived interpretation could it be said that transporting the sick or injured by ambulance is an act of preventing the risk of a deterioration in their state of health that would exist if that transport were not available.

42.

The misgivings prompted by a literal interpretation can, however, be overcome by a schematic interpretation of Article 10(h) of Directive 2014/24. That provision does not as a matter of general and abstract principle exclude from the scope of Directive 2014/24 all ‘civil defence, civil protection and danger prevention’ services, but only those included in certain CPV codes.

43.

Among the services covered by those codes are some which fall within the concept of prevention in a technical or strict sense ( 16 ) and others which, being essentially reactive rather than preventive (for example, ‘rescue services’), ( 17 ) may be provided both in disaster situations and in cases of harm or danger to individuals.

44.

If, as Falck Rettungsdienste submits, ( 18 ) the concepts of ‘civil protection, civil defence and danger prevention’ were ‘material criteria’ for identifying, from among all the services covered by the CPV codes mentioned in Article 10(h) of Directive 2014/24, those provided in disaster situations, the only ‘rescue services’ under CPV code 75252000‑7 to be excluded from the scope of the directive would, in consequence, be those delivered to large numbers of people, not those provided in an emergency response for the benefit of a single individual.

45.

Now, the CPV codes listed in Article 10(h) of Directive 2014/24 specifically include code 85143000‑3, which designates ‘ambulance services’. There would appear to be no reason not to apply in this case the ‘material criterion’ advocated by Falck Rettungsdienste and to conclude that the exclusion provided for in that provision relates only to ambulance services in disaster situations.

46.

However, Article 10(h) of Directive 2014/24 defines ambulance services in such a way that that term is not only inconsistent with that ‘material criterion’ but actually contradicts it.

47.

In providing that ‘civil defence, civil protection and danger prevention services … which are covered by CPV code … 85143000‑3 (ambulance services) … except patient transport ambulance services ( 19 ) fall outside the scope of Directive 2014/24, Article 10(h) of that directive specifies an exclusion which, if that provision were subject to the criterion that it relates only to disaster situations, would be unnecessary, as the German Government submits. ( 20 )

48.

If the legislature thought it relevant to refer to ‘patient transport ambulance services’, it was because those services would otherwise have to be construed as being covered by the exclusion provided for in Article 10(h) of Directive 2014/24 (CPV 85143000‑3). It is clear, moreover, that the mere transport of patients is incongruous with a disaster situation, those affected by which, rather than as patients, are more appropriately described as injured persons or victims requiring urgent transfer to hospital under optimum medical care, not transport alone.

49.

That conclusion is confirmed by a teleological interpretation of that provision. From this point of view, particular relevance attaches to recital 28 of Directive 2014/24, which states that the latter ‘should not apply to certain emergency services where they are provided by non-profit organisations or associations, since the particular nature of those organisations would be difficult to preserve if the service providers had to be chosen in accordance with the procedures set out in this directive’.

50.

Two aspects of that statement strike me as significant. First, the fact that the legislature refers to ‘certain emergency services’. And, secondly, the fact that those services are identified in relation to ‘non-profit organisations or associations’ the ‘particular nature’ of which the legislature wishes to preserve. The exclusion is thus defined by reference to the provider of the service rather than by reference to the scale of the situation in which that provider must act.

51.

In other words, whether the situation in question is an emergency involving a single individual or one of large-scale damage, what matters is that it should be an emergency of the kind usually responded to by non-profit organisations or associations. The purpose of that provision of Directive 2014/24 is to preserve those organisations, the continued existence of which could be threatened if they had to submit to the procurement procedures laid down in that directive.

52.

In short, what matters is not so much to determine whether an emergency has arisen from a catastrophic event or from a situation involving danger to an individual (road traffic accident, house fire), as to identify the types of emergency that are the principal focus of non-profit organisations traditionally working in the field of healthcare and even humanitarian relief.

53.

Thus, as the referring court points out, ‘non-profit organisations and associations not only provide services in the areas of civil defence and civil protection [but] are also and primarily active in the area of providing daily emergency response services to individuals’. ( 21 )

54.

To the extent that the intention set out in recital 28 is given normative expression in Article 10(h) of Directive 2014/24, it is my view that the ‘civil defence, civil protection and danger prevention services’ mentioned in that article are to be regarded as being equivalent to the ‘emergency services’ referred to in that recital, and must therefore be identified by reference to ‘non-profit organisations or associations’.

55.

In effect, recital 28 foreshadows the exclusion which, for our purposes here, Article 10(h) of Directive 2014/24 creates for ambulance services provided by non-profit organisations or associations when responding to the types of emergency that represent the customary focus of their work.

56.

That recital states that the exclusion of emergency services provided by non-profit organisations ‘should not be extended beyond that strictly necessary’, there being a need to ‘set out explicitly that patient transport ambulance services should not be excluded’.

57.

The issue, then, is how to distinguish between an ambulance service provided in response to an emergency and the mere transport of patients by ambulance. It is this issue which the fourth question addresses when asking whether the transport of a patient in an ambulance while care is provided by a paramedic/medical assistant (so-called ‘transport by qualified ambulance’) may be regarded as a ‘patient transport ambulance service’ within the meaning of Article 10(h) of Directive 2014/24.

58.

The legislature’s intention was to confine the exclusion (that is to say, the exemption from the ordinary rules of Directive 2014/24) to emergency services. ( 22 ) Symmetrically, in referring to ‘patient transport ambulance services’ as an exception to the exclusion, the legislature makes those services subject to (simplified) public procurement procedures in cases where their purpose is not to respond to an emergency but only to facilitate the transport of a patient by ambulance.

59.

Read in this way, Directive 2014/24 will not apply to general ambulance services which, as well as performing a mere transport function, deliver medical or healthcare assistance appropriate to the proper attendance of patients in emergency situations; appropriate, that is to say, to the provision of a service which no other alternative means of transport could provide.

60.

After stating that Directive 2014/24 is not applicable to ‘patient transport ambulance services’, recital 28 is at pains to point out that those services ‘should be subject to the special regime set out for social and other specific services (the “light regime”)’. In order to give effect to the application of that light regime, the same recital states that patient transport ambulance services do not form part of the ‘[road] transport services’ group, ( 23 ) which is subject to the general regime under the directive.

61.

There are thus two co-existent categories of service:

62.

In other words, if ‘transport’ is removed as an inherent component of the ambulance service, the component that remains in CPV code 85143000‑3 (that is to say, the service excluded from the application of Directive 2014/24/EU) is characterised predominantly by healthcare. Whether it is administered by a doctor, a healthcare technician or a paramedic, what matters, in my opinion, is that the necessary assistance provided should be essential to enabling the patient to be (urgently) transferred to hospital in such a way as to ensure that he receives the medical care necessary to save his life and preserve his health or well-being in as short a time as possible; essential, in other words, to being able to respond to an emergency situation, the exclusion from Directive 2014/24 being applicable, in accordance with recital 28 thereof, only to ‘emergency services’, as I have said before.

63.

The two particular scenarios described by the referring court can be assessed on those premisses.

64.

The first concerns transport and emergency care and treatment of patients who have been involved in an accident or similar incident (‘Notfallpatienten’), which is provided in an emergency ambulance (‘Rettungswagen’) ‘by an emergency worker/paramedic’. I don’t think there is any issue in assigning these services to CPV code 85143000‑3 (ambulance services) and in stating, therefore, that Directive 2014/24 does not apply to them, provided that they are delivered by non-profit organisation or association.

65.

The second scenario (fourth question) concerns care and treatment of patients which is provided in a patient transport ambulance (‘Krankentransportwagen’) ‘by a paramedic/medical assistant’. This, therefore, is a ‘patient transport ambulance service’ even where it is provided with the assistance of the aforementioned healthcare professionals. In my opinion, there is no emergency properly so-called here: patients can ask someone to travel with them in the transport vehicle, but they do not require emergency medical care. ( 25 ) The exception to the exclusion, provided for in Article 10(h), in fine, of Directive 2014/24/EU, is therefore applicable.

66.

As with ‘danger prevention’, ( 26 ) once we have determined the meaning of ‘non-profit organisations or associations’ as referred to in Article 10(h) of Directive 2014/24, we must adopt an independent definition of that expression that is uniform across the European Union.

67.

The German Government submits that the decisive factor is not so much the concept of ‘non-profit organisations or associations’ as the ‘particular nature’ of those bodies, which, it contends, Directive 2014/24 seeks to ‘preserve’ by excluding them from its scope (recital 28).

68.

According to the German Government, in order to identify the particular nature of such organisations, regard must perforce be had to the legislative and substantive framework of the State in which they operate, since it is the Member States which are best placed to assess which organisations fit that description. ( 27 ) In its submission, the proposition that observance of national law is key to assessing whether an organisation is non-profit-making is borne out by two judgments of the Court of Justice. ( 28 )

69.

However, neither of those judgments recognised the Member States as having any discretion to prescribe the definition of non-profit organisations, recognising only their discretion ‘to decide the level of protection of public health and to organise [their] social security system[s]’, and to state, on the basis of that information, ‘that recourse to voluntary associations is consistent with the social purpose of a medical transport service and may help to control costs relating to that service’. ( 29 )

70.

In truth, the concept of ‘non-profit organisations or associations’ is precise enough not to necessitate the grant of a margin of discretion. The fact that an organisational structure is based on voluntary activity may indicate that it is not profit-making, but not necessarily. What matters for our purposes here is that the bodies providing the services at issue are non-profit-making. A literal interpretation of the formulation ‘non-profit …’ is therefore sufficient.

71.

The referring court proposes a definition which seems reasonable to me. ( 30 ) Non-profit organisations, it states, are ones which carry on an activity by which ‘they do not seek to make a profit’ but which they pursue ‘for the benefit of the community without thereby obtaining any financial gain’. ( 31 )

72.

Strictly speaking, the notions of ‘benefit [to] the community’ and ‘achievement of tasks in the public good’, to use the expression contained in the third question, are redundant. After all, recital 28 of Directive 2014/24 speaks of non-profit organisations or associations which perform emergency services, that is to say, services which fulfil a purpose in the general public interest in their own right.

73.

The decisive factor, I would reiterate, is that organisations or associations which provide the services referred to in recital 28 and Article 10(h) of Directive 2014/24 should not seek to make a profit from the pursuit of such emergency activities. ( 32 )

74.

This feature aside, the aforementioned organisations do not, in my opinion, also have to satisfy the conditions laid down in Article 77(2) of Directive 2014/24.

75.

According to paragraph 1 of that article, Member States’ contracting authorities may reserve to certain organisations the right to participate in procedures for the award of contracts exclusively for certain health, social and cultural services, ( 33 ) if they fulfil the conditions listed in paragraph 2.

76.

None of those conditions includes the non-existence of a profit-making aim. In fact, one of them is based on the contrary assumption. This is true of the condition relating to the distribution of profits, which requires the organisations referred to in paragraph 1 to distribute profits on the basis of participatory considerations. ( 34 )

77.

It is my view, therefore, that the distinctive feature of a non-profit organisation or association is precisely that it should not seek to make a profit and, if it generates profits inadvertently (that is to say, without having set out to do so), that it should use these to pursue its social activities; in this instance, to provide emergency healthcare services.

78.

The national legislation provides that ‘non-profit organisations or associations [within the meaning of the exclusion provided for in Article 10(h) of Directive 2014/24] shall be, in particular, aid organisations recognised as civil protection and civil defence organisations under federal or Land law’. ( 35 )

79.

In the view of the German Government, that provision does not lay down a numerus clausus with respect to the organisations to which the exclusion provided for in Article 10(h) of Directive 2014/24 applies. Recognition as an ‘aid association’ is not therefore an essential condition which a non-profit body must fulfil in order to benefit from the aforementioned exclusion. ( 36 )

80.

What matters here, however, is not so much that the national legislation does not prohibit the recognition as non-profit-making of bodies that satisfy the definition of ‘non-profit organisations or associations’ within the meaning of Article 10(h) of Directive 2014/24, ( 37 ) as the fact that it attributes that status to organisations which do not fit the definition of that term.

81.

After all, as the referring court states, ‘statutory recognition as civil protection and civil defence organisations under national law does not necessarily depend … on whether the organisation is non-profit-making’. ( 38 )

82.

If that were the case, which it falls to the national court to determine, recognition as an aid organisation under national law would not be sufficient to support the view that an organisation or association is non-profit-making within the meaning of Article 10(h) of Directive 2014/24. The latter status is subject to proof that the organisation or association looking to acquire it does not seek to make a profit and, if it does generate profits inadvertently, it uses them to pursue its social mission.

83.

In the light of the foregoing, I propose that the Court of Justice reply to the Oberlandesgericht Düsseldorf (Higher Regional Court, Dusseldorf, Germany) as follows:

Article 10(h) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC must be interpreted as meaning that: