08/05/2019
Decision of the European Court of Justice in C-465/17 Falck [ECLI:EU:C:2019:234]
Article 10 of Directive 2014/24 (transposed in Regulation 10 of the Public Contracts Regulations 2015 (PCR)), sets out a number of specific exclusions for service contracts. Where a service contract falls within one of the exclusions listed, the Directive/PCR do not apply and there is no requirement to award the contract using the procedures set out in the Directive/PCR.
Article 10(h) of Directive 2014/24 (transposed in PCR 10(1)(h)), sets out an exclusion for “civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations” which fall within specified CPV[1] codes.
There is a carve-out from this exclusion for “patient transport ambulance services”. Where services are classified as “patient transport ambulance services” they will not fall within the exclusion in Article 10(h)/PCR 10(1)(h). Contracts for “patient transport ambulance services” over the relevant threshold must be awarded using the light touch regime.
In the Falck case the European Court of Justice looked at whether specific contracts for emergency and non-emergency ambulance services fell within the definition of “danger prevention services” and thus within the exclusion, when provided by non-profit organisations or associations. It also considered whether the services fell within the definition of “patient transport ambulance services”, to which the light touch regime applies.
Facts
In March 2016, the City of Solingen, Germany (Solingen) decided to award a new five-year contract for the provision of municipal emergency services. The contract was divided into two lots;
- Transport by “qualified ambulance”, being the transport of a patient by ambulance while care is provided by a paramedic and medical assistant; and
- Transport by “emergency ambulance”, being the care and treatment of patients in an emergency situation by an emergency worker and paramedic, while being transported in a rescue vehicle.
Solingen did not publish a contract notice for the opportunity. Instead it invited 4 public aid organisations to submit tenders. It did not run a competitive procurement process under the EU rules. Solingen did so on the basis that the services fell with the exclusion from application of the EU rules under the national rules transposing Article 10(h). Solingen awarded two contracts, one for each lot, to 2 of the public aid organisations.
Falck was a provider of emergency response and patient care services but was not invited to tender. Falck challenged Solingen’s decision to award the contract without an EU tender process. It argued that Solingen’s contract/s did not fall within the “danger prevention services” exclusion and so an EU procurement procedure should have been followed.
The Higher Regional Court, Dusseldorf referred a number of questions to the ECJ including whether the services concerned fell within the definition of “danger prevention services”.
Findings
In determining the correct interpretation of the “danger prevention services” exclusion, the ECJ focused on two questions:
- Do both transport by “qualified ambulance” and transport by “emergency ambulance”, fall within the definition of the exclusion for “danger prevention services” and the CPV codes listed? and
- Will either of the above fall within the definition of “patient transport ambulance services” and so be subject to the light touch regime?
The ECJ held that:
Services for transport by “emergency ambulance” are “danger prevention services”, regardless of whether or not the “danger” is of a collective nature (such as a national disaster endangering a large group of people). They are also covered by CPV code 75252000-7 (rescue services). Transport by “emergency ambulance” will therefore fall within the exclusion in Article 10(h) where the services are provided by non-profit organisations or associations.
Services for transport by “qualified ambulance” are “danger prevention services” (again, regardless of whether the service relates to a collective “danger”). They are, however, only covered by CPV code 85143000-3 (ambulance service) where:
- the service is undertaken by personnel properly trained in first aid; and
- it is provided to a patient whose state of health is at risk of deterioration during that transport.
When both of these conditions are satisfied then transport in an ambulance will fall within the exclusion where the services are provided by non-profit organisations or associations.
[1] Common Procurement Vocabulary.
