Order;Summary — ECLI:EU:C:2020:88
Date: 2020-02-06
Language of the case: Italian
Court formation: Ninth Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary C-11/19 — 1 
Case C-11/19 
Summary of the order for reference pursuant to Article 98(1) of the Rules of 
Procedure of the Court of Justice 
Date lodged:  
7 January 2019 
Referring court:  
Consiglio di Stato (Italy) 
Date of the decision to refer:  
26 July 2018 
Appellant:  
Azienda ULSS No 6 Euganea 
Respondent:  
Pia Opera Croce Verde Padova 
Interveners: 
Azienda Ospedaliera di Padova 
Regione Veneto 
Croce Verde Servizi 
 
Subject matter of the main proceedings 
The appeal brought by Azienda U.L.S.S. No 6 Euganea, and the cross-appeal 
lodged by Pia Opera Croce Verde Padova, against judgment No 275/2018 of the 
Tribunale amministrativo regionale del Veneto (Regional Administrative Court, 
Veneto) concerning the award, through a tender procedure launched by Azienda 
ULSS No 6 (Local health authority No 6) by decision No 979/2017, of a contract 
for the provision of ambulance transport services for patients receiving 
haemodialysis at Azienda U.L.S.S. No 6 and Azienda Ospedaliera di Padova 
(Padova Hospital). 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-11/19  
 
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Subject matter and legal basis of the reference 
The compatibility with Directive 2014/24/EU of Veneto Regional Law 26/2012, 
principally Article 5 thereof, in the light of rules on public-public partnership and 
Articles 15 of Law 241/1990 and 5(6) of Legislative Decree 50/2016; in 
particular, the referring court asks the Court of Justice about the award, under a 
system of direct agreements, of the contract for the service concerned and about 
the purported obligation to state reasons for the choice, by the contracting 
authority, to open a tender procedure rather than make a direct award. 
Questions referred 
-‘Where both parties concerned are public bodies, do recital 28 of Directive 
2014/24/EU and Articles 10 and 12(4) thereof preclude the applicability of 
Article 5 of Veneto Regional Law 26/2012, in conjunction with Articles 1, 2, 3 and 
4 thereof, on the basis of the public-public partnership referred to in Article 12(4) 
of Directive 2014/24/EU and Articles 5(6) of Legislative Decree 50/2016 and 15 
of Law 241/1990?’ 
-‘Where both parties concerned are public bodies, do recital 28 of Directive 
2014/24/EU and Articles 10 and 12(4) thereof preclude the applicability of the 
provisions of Veneto Regional Law 26/2012, on the basis of the public-public 
partnership referred to in Article 12(4) of Directive 2014/24/EU and Articles 5(6) 
of Legislative Decree 50/2016 and 15 of Law 241/1990, in the limited sense of 
placing the contracting authority under an obligation to give the reasons for the 
decision to award the contract for the provision of ordinary patient transport 
services by way of tender procedure rather than by direct award of the contract?’ 
Provisions of EU law relied on 
Directive 2014/24/EU, in particular: recital 28, recital 33, Article 10, Article 12, 
Article 74 et seq. 
Provisions of national law relied on 
Decree of the President of the Council of Ministers of 12 January 2017, entitled 
‘Definition and updating of the basic levels of care’; in particular Article 7, under 
which ‘1. In emergency situations outside hospital, the National Health Service 
shall ensure the timely provision of health care services aimed at stabilising the 
patient, by providing safe transport to the most appropriate hospital. The 
provision of territorial emergency services shall be coordinated and managed 
around the clock by the 118 Operations Centres. 2. The following, in particular, 
shall be guaranteed: (a) the provision of health care services by means of basic 
and advanced, land and air, aid and rescue vehicles with appropriately trained 
medical staff, and (b) secondary assisted and non-assisted ambulance services’. 
AZIENDA ULSS 
 
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Legislative Decree 117/2017 establishing the Third Sector Code; in particular, 
Article 57(1), under which ‘contracts for the provision of emergency health 
transport services may, as a matter of priority, be awarded to voluntary 
organisations which have been included in the Single National Third Sector 
Register for at least six months and belong to a network of associations as 
referred to in Article 41(2) and are accredited under relevant regional legislation, 
if it exists, where, on account of the specific nature of the service, the direct award 
of a contract ensures that a service in the public interest is provided, in a system 
which actually contributes to a social purpose and pursues objectives connected 
with the good of the community, in an economically efficient and appropriate 
manner, and in compliance with the principles of transparency and non-
discrimination’. 
Veneto Regional Law 26/2012; in particular Article 1, under which ‘The Region 
of Veneto shall lay down the rules governing the regional system of health 
transport aid and rescue services, giving health-care bodies and authorised and 
accredited associations the possibility of tendering to provide intrinsically health-
related emergency, aid and rescue transport services, having regard to their 
geographic coverage, how well they are established in the health and welfare 
fabric of Veneto, and efficiency and quality of the service rendered, in the public 
interest and in compliance with the principles of universality, the good of the 
community, economic efficiency and suitability’; Article 2, under which ‘1. For 
the purposes of this Law, “emergency, aid and rescue transport service” shall 
have following meaning: activity carried out using aid and rescue vehicles, by 
medical and non-medical staff assigned to that service, in the performance of the 
following functions: (a) the provision of emergency ambulance services using aid 
and rescue vehicles and managed by the operations coordination centres of the 
medical emergency service; (b) the provision of transport services ensuring basic 
levels of care using aid and rescue vehicles; (c) the provision of transport services 
where the patient’s clinical condition is such that only an aid and rescue vehicle 
may be used for that purpose and entails the need, during the journey, for the 
assistance of medical or other appropriately trained staff and a requirement to 
ensure continuity of care’; Article 3(1), under which ‘1. The provision of 
emergency aid and rescue services referred to in Article 2 can be carried out only 
by persons holding the relevant authorisation and regional accreditation ...’; 
Article 4, under which ‘1. Within sixty days of the entry into force of this Law, the 
Regional Government shall approve a regional list containing, for an initial 
period, health care bodies and associations already authorised which have 
provided emergency patient transport services in the region for at least five years, 
on behalf of aziende unità locali socio-sanitarie (local health and welfare bodies) 
(ULSSs) with local jurisdiction, on the basis of specific contracts and/or 
agreements that have been entered into for that purpose, and which hold the 
requisite authorisations ... in compliance with EU legislation on freedom of 
establishment and freedom to provide services. 2. In addition to the persons 
referred to in paragraph 1, the regional list referred to therein shall also include 
the committees of the Croce Rossa Italiana (Italian Red Cross) (CRI), following 
specific agreement by the Veneto regional committee thereof, and public welfare 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-11/19  
 
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and charity organisations (IPABs) which provide emergency patient transport 
services ... 3. The regional list referred to in paragraph 1 shall be updated 
annually with the addition of new health bodies and associations which satisfy the 
authorisation and accreditation requirements … 4. Persons on the regional list 
shall be subject to periodic checks to establish that the requirements are, and 
continue to be, satisfied’; Article 5, under which ‘1. The provision of emergency, 
aid and rescue transport services shall be carried out by ULSS bodies and 
persons on the regional list referred to in Article 4. 2. The relationship with the 
ULSS bodies, and the ways in which the persons on the regional list referred to in 
Article 4 may participate in the provision of rescue, aid and emergency services 
shall be governed by appropriate contracts, entered into on the basis of a model 
approved by the Regional Government and made public in accordance with the 
national and EU legislation on public procurement in force. 3. The contracts 
referred to in paragraph 2 shall provide for a budgeting system established in 
accordance with criteria based on the application of standard costs identified by 
the Regional Government and updated every three years ... 5. Where the provision 
of rescue, aid and emergency transport services cannot be carried out by the 
persons on the regional list referred to in Article 4, the ULSS bodies may award 
the contract for the provision of those services, in return for payment, to persons 
identified by means of a public tender procedure, in accordance with national and 
EU legislation on public procurement in force, who meet the requirements 
designed to ensure appropriate levels of quality and enhance the welfare function 
of the service.’ 
Law 241/1990; in particular Article 15, under which ‘Also outside the cases 
referred to in Article 14, public administrative authorities may at any time enter 
into agreements among themselves with a view to laying down rules governing 
cooperation in activities of common interest (“public-public partnership”)’. 
Legislative Decree 50/2016 (Public Procurement Code); in particular Article 5(6), 
under which ‘An agreement entered into solely between two or more contracting 
authorities shall fall outside the scope of this Code where all of the following 
conditions are fulfilled: (a) the agreement establishes or implements cooperation 
between the participating contracting authorities or contracting entities with the 
aim of ensuring that public services they have to perform are provided with a view 
to achieving objectives they have in common; (b) the implementation of that 
cooperation is governed solely by considerations relating to the public interest; 
(c) the participating contracting authorities or contracting entities perform on the 
open market less than 20% of the activities concerned by the cooperation’; 
Article 17(1)(h), under which ‘1. The provisions of this Code shall not apply to 
service contracts and service concessions for: … (h) civil defence, civil 
protection, and hazard prevention services that are provided by non-profit 
organisations or associations and are covered by CPV codes 75250000-3, 
75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 
98113100-9 and 85143000-3 except patient transport ambulance services′. 
AZIENDA ULSS 
 
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Succinct presentation of the facts in the main proceedings 
1 By decision No 979/2017, Azienda ULSS No 6 Euganea (‘AULSS No 6’) invited 
tenders for a contract to provide patient transport ambulance services on the basis 
of the most economically advantageous tender. The contract is for five years and 
has an annual value of EUR 5 043 560.00. 
2 Pia Opera Croce Verde Padova (‘Croce Verde’) is a not-for-profit public welfare 
and charitable organisation which was awarded the contract for the provision of 
emergency medical services to AULSS No 6 by a contract entered into on 
22 December 2017, pursuant to Veneto Regional Law 26/2012.  
3 By action brought before the Tribunale amministrativo regionale del Veneto, 
Croce Verde contested decision No 979/2017 of AULSS No 6, together with the 
tender notice, contract documents and other procurement documents, questioning 
the choice of AULSS No 6 to award, through a tender procedure, the contract for 
the provision of ordinary ambulance services and requesting, in the alternative, 
that the tender procedure be cancelled on the grounds that it is unlawful in other 
respects. In particular, Croce Verde considers that the contract for the provision of 
ordinary transport services that had been awarded to it in 2010 following a tender 
procedure and was due to expire on 31 March 2018, should also have been 
awarded to it directly, not by means of a tender procedure, pursuant to Article 5 of 
Veneto Regional Law 26/2012, Article 15 of Law 241/1990 and Article 5(6) of 
Legislative Decree 50/2016.  
4 By judgment No 275/2018, the Tribunale amministrativo regionale del Veneto 
declared that AULSS No 6 had no right to invite tenders and rejected the other 
complaints raised by Croce Verde. In particular, the Tribunale amministrativo 
regionale del Veneto declared that the interpretation of Regional Law 26/2012, 
advocated by Croce Verde, that the model for the direct award of contracts covers 
not only rescue, aid and emergency ambulance services, but also ordinary 
ambulance services, conflicts with the opposite rule, which undoubtedly takes 
precedence, laid down in Articles 10 and 74 of Directive 2014/24/EU and 
Article 17(1)(h) of Legislative Decree No 50/2016, with the result that the 
national legislation must be disapplied. Consequently, and contrary to what Croce 
Verde has maintained, the Tribunale amministrativo regionale del Veneto also 
found that AULSS No 6 had not failed to state adequate reasons for opening a 
public tender procedure. 
5 AULSS No 6 lodged an appeal with the Consiglio di Stato (Council of State) 
against that judgment of the Tribunale amministrativo regionale del Veneto. Croce 
Verde entered an appearance, raising again, by cross-appeal, the complaints 
rejected by the Tribunale amministrativo regionale del Veneto, in particular the 
plea seeking to demonstrate that Article 5 of Regional Law 26/2012 is compatible 
with national and EU law, in the light of the rules on public-public partnership and 
Articles 15 of Law 241/1990 and 5(6) of Legislative Decree 2016, and arguing 
that those rules should be applied in favour of Croce Verde.  
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6 By interim decision 5968/2018, the Consiglio di Stato dismissed the appeal lodged 
by AULSS No 6 and, with reference to the complaints raised by Croce Verde on 
the non-application of Article 5 of Veneto Regional Law 26/2012, upheld the 
finding of the Tribunale amministrativo regionale del Veneto. In particular, the 
Consiglio di Stato stated that a distinction between emergency and non-emergency 
patient transport ambulance services arises from the rules of EU law and the rules 
of national law. Whilst ordinary ambulance transport services are subject to tender 
procedures (‘the light regime’), emergency ambulance services are, by way of 
exception, fall outside that procedure pursuant to Article 17(1)(h) of Legislative 
Decree 50/2016 where they are provided by not-for-profit organisations, which 
include public welfare and charity organisations. The Consiglio di Stato went on 
to point out that Veneto Regional Law 26/2012 covers, in addition to emergency 
transport services, other forms of ordinary patient transport which appear to 
constitute ordinary patient transport, and therefore the service at issue may fall, at 
least in part, within the scope of the regional law. Consequently, there are serious 
doubts as to whether the national provisions are compatible with EU law. 
Main arguments of the parties in the main proceedings 
7 Croce Verde complains that the Tribunale amministrativo regionale del Veneto, in 
assessing whether Article 5 of Veneto Regional Law 26/2012 is incompatible with 
EU law, failed to take account of the fact that Croce Verde is not a simple 
voluntary association governed by private law, but rather a non-profit public body, 
albeit one operating on a voluntary basis.  
8 Croce Verde further asserts that, while ordinary patient transport services are 
subject to tender procedures, Article 5(6) of Legislative Decree No 50/2016 
excludes the application of the Public Procurement Code where the conditions 
relating to public-public partnerships provided for in Article 15 of Law 241/1990 
are met. Furthermore, it follows from Veneto Regional Law 26/2012 that both 
urgent patient transport services and ordinary transport services must be provided 
pursuant to a contract, that is to say in cooperation with the bodies accredited by 
the regional health system. Consequently, where the conditions laid down in 
Article 5(6) are satisfied, as they are in this case, the direct conclusion of a 
contract between the healthcare provider and the accredited public body is a 
mandatory, not a discretionary matter, since this is dictated by Veneto Regional 
Law 26/2012. Therefore, the rule on public-public partnership, which derogates 
from the Public Procurement Code, is not at odds with and indeed takes 
precedence over Article 17(1)(h) of Legislative Decree 50/2016. 
Succinct presentation of the reasons for the reference 
9 In this order for reference, the Consiglio di Stato will consider, first, the conflict 
between Article 5 of the Veneto Regional Law and EU law.  
AZIENDA ULSS 
 
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10 The Consiglio di Stato recalls that under Article 57 of Legislative Decree 
117/2017 it is possible to award contracts directly to voluntary organisations 
(only) for ‘emergency’ ambulance services and that the call for tenders at issue 
falls within the scope of Legislative Decree No 50/2016 and, therefore, Directive 
2014/24/EU. In particular, the ambulance services covered by CPV code 
85143000-3 are among the health-care services which can be provided under 
contracts awarded by tender procedure under the ‘light regime’.  
11 The Consiglio di Stato observes, however, that the regime set out in Articles 2 and 
5 of Veneto Regional Law Veneto 26/2012 concerning ‘rescue, aid and 
emergency’ patient transport services, appears to include activities which, with 
reference to Article 2(1)(c) in particular, in fact constitute ordinary patient 
transport services. Consequently, the regime set out in Article 5 of Veneto 
Regional Law 26/2012 should be applied to the transport service at issue, which 
can be classified as an ordinary aid and rescue transport service, though not an 
emergency service. In this regard, the Consiglio di Stato notes, however, that the 
application of Article 5 also in cases which do not involve emergency aid and 
rescue services would appear to conflict with EU law. 
12 Secondly, the Consiglio di Stato states that such conflict with EU law exists even 
where the direct award of a contract constitutes implementation of a horizontal 
public-public partnership effected through agreements between various 
administrative authorities to govern the performance of activities of common 
interest on a collaborative basis (see recital 33 and Article 12(4) of Directive 
2014/24/EU and Article 15 of Law 241/1990). 
13 Firstly, the Consiglio di Stato considers that it is possible to accept the argument 
that a direct award by contract, as provided for in Veneto Regional Law 26/2012, 
can be said to be the general mechanism for agreements between public 
authorities, as provided for in Article 15 of Law 241/1990, which are excluded 
from the application of Legislative Decree 50/2016 and EU directives in 
accordance with the established principles laid down in EU and national case-law. 
Public bodies can ‘always’ use this general device to conclude, as in the present 
case, organisational agreements to plan and perform public rescue and aid services 
for persons in emergency situations. Such agreements cannot, however, interfere 
with the principal objective of EU rules on public procurement, that is, the 
freedom to provide services and the opening-up of undistorted competition in all 
Member States, where, according to the case-law of the Court of Justice of the 
European Union, ‘implementation of that cooperation is governed solely by 
considerations and requirements relating to the pursuit of objectives in the public 
interest and the principle of equal treatment of the persons concerned, referred to 
in Directive 92/50, is respected, so that no private undertaking is placed in a 
position of advantage vis-à-vis competitors (Commission v Germany, C-480/06, 
EU:C:2009:357, [paragraph 47]). 
14 In the view of the Consiglio di Stato, the conditions required by Article 5(6) of 
Legislative Decree 50/2016 to exclude those agreements from the application of 
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the rules governing public contracts appear to be satisfied in the present case, 
since the participation of the persons included on the regional list and the putting 
to good use the voluntary work associated therewith are a common objective of 
AULSS No 6 and Croce Verde, which is on the regional list (the provision of 
patient transport services constitutes one of the missions of Croce Verde, under 
Article 2 of its Statute), and constitute the sole reason for any contract. In 
addition, Croce Verde stated that only a very small percentage of its activities on 
the market are in the field of patient transport.  
15 At the same time, the Consiglio di Stato observes, first, that agreements between 
public authorities for the performance of activities of common interest constitute 
an alternative, but non-priority, method, as compared with the award of contracts 
for those activities to individual operators on the market and, second, that in this 
case the authorities decided to use the alternative model of inviting tenders. 
Therefore, in the view of the Consiglio di Stato, Article 5 of Veneto Regional Law 
26/2012 cannot be justified under the provisions on public-public partnerships, in 
so far as concerns the provision of non-emergency transport services. 
16 Finally, the Consiglio di Stato considers that, as regards cases of public-public 
partnership, not even the limited effect of placing the contracting authority under 
an obligation to explain the reasons for choosing to award the services contract via 
tender can be inferred from Veneto Regional Law 26/2012, since the tendering 
procedure of itself ensures observance of the Community principles of 
impartiality, prior publication, transparency, participation and equal treatment, 
through the comparison of a number of tenders on the basis of the most 
economically advantageous tender, in accordance with Article 95 of Legislative 
Decree 50/2016, which specifically assesses the quality of the service to be 
provided in addition to the economic aspect, and thus the best price-quality ratio. 
On the other hand, a requirement to state reasons does exist where the contracting 
authority intends to follow the route of awarding a contract directly, since that 
method means that there is no comparison of all the operators potentially 
interested and no assessment of the overall value for money.  
17 In the view of the Consiglio di Stato, the above considerations apply a fortiori in 
the present case, since, as argued by Croce Verde, it is the only entity accredited 
in Veneto which is a public body, which therefore, precludes any possibility of 
competition (and comparison) between persons potentially interested in providing 
the service. Croce Verde, like the other voluntary organisations on the regional 
list, is, as an economic operator, fully entitled to participate in the tender 
procedure (as recognised by case-law, given that non-profit-making bodies too 
can be classified as undertakings — see [Poucet and Pistre,] C-159/91 and 
C-160/91, EU:C:1993:63) and has the possibility of asserting in that context that 
its tender is the most advantageous.  
18 Therefore, the Consiglio di Stato considers that also in this regard Veneto 
Regional Law 26/2012 should be disapplied.