Opinion of the Advocate General — ECLI:EU:C:2001:284
Date: 2001-05-17
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Competition — Community rules — Undertaking — Meaning — Medical aid orga­
nisations 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» 
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SUMMARY — CASE C-475/99 
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 emer­
gency 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 exis­
tence 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)) 
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 trea­
ted 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 orga­
nisation less competitive than compar­
able services rendered by other eco­
nomic operators not bound by such 
obligations, but that fact cannot pre­
vent the activities in question from 
being regarded as economic activities. 
(see paras 19, 21-22) 
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AMBULANZ GLOCKNER 
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 emer­
gency 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 exclu­
sive right within the meaning of Arti­
cle 90(1) of the Treaty. Protection is 
thereby conferred by a legislative mea­
sure on a limited number of under­
takings which may substantially affect 
the ability of other undertakings to 
exercise the economic activity in ques­
tion in the same geographical area 
under substantially equivalent condi­
tions. 
(see paras 23-25, 66 
and operative part) 
3. An abuse within the meaning of Arti­
cle 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 car­
ried 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 undertak­
ing to which the State has granted 
special or exclusive rights results from 
a State measure, such a measure con­
stitutes 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 pro­
vide 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 opera­
tors. 
(see paras 40, 43) 
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SUMMARY — CASE C-475/99 
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. Simi­
larly, trade between Member States 
may be affected by a measure which 
prevents an undertaking from estab­
lishing 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 pro­
vide non-emergency patient transport 
services submitted by an independent 
operator will actually prevent opera­
tors established in Member States other 
than the Member State in question 
either from providing ambulance trans­
port services in that Member State or 
from establishing themselves there. 
(see paras 48-50, 66 
and operative part) 
'. Article 90(2) of the Treaty (now Arti­
cle 86(2) EC), read in conjunction with 
paragraph (1) of that provision, allows 
Member States to confer, on undertak­
ings to which they entrust the opera­
tion 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 particu­
lar 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 
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AMBULANZ GLOCKNER 
presupposes that it will be possible to 
offset less profitable sectors against the 
profitable sectors and hence justifies a 
restriction of competition from indivi­
dual 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 organisa­
tions. First, the two types of service are 
so closely linked that it is difficult to 
sever the non-emergency transport ser­
vices 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 con­
ditions of economic equilibrium. The 
possibility which would be open to 
private operators to concentrate, in the 
non-emergency sector, on more profit­
able journeys could affect the degree of 
economic viability of the service pro­
vided by the medical aid organisations 
and, consequently, jeopardise the qual­
ity and reliability of that service. 
However, it is only if it were estab­
lished that the medical aid organisa­
tions 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 domi­
nant position on the markets in ques­
tion are in fact able to satisfy demand 
and to fulfil not only their statutory 
obligation to provide the public emer­
gency ambulance services in all situa­
tions and 24 hours a day but also to 
offer efficient patient transport ser­
vices. 
(see paras 56-57, 59-62, 
64, 66 and operative part) 
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