Opinion of the Advocate General — ECLI:EU:C:2014:291
Date: 2014-04-30
Language of the case: Italian
Subject matter: Competition;Agreements, decisions and concerted practices;Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Italy

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, and more generally all the findings to be made by the national courts and on which the applicability of an act of secondary and primary legislation of the European Union depends, must be made before the questions are referred to the Court. 48 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. However, 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 judgments in SECAP and Santorso, EU:C:2008:277, paragraph 34 and Serrantoni and Consorzio stabile edili, EU:C:2009:808, paragraph 25). 49 As regards the objective criteria that may indicate the existence of a cross-border interest, the Court has already held that such criteria may be, in particular, that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the market (see judgments in SECAP and Santorso, EU:C:2008:277, paragraph 31, and Belgacom, C‑221/12, EU:C:2013:736, paragraph 29). The referring court may, in its overall assessment of the existence of certain cross-border interest also take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious. More particularly, as regards ambulance services, the Court has held, in an action for failure to fulfil obligations, that certain cross-border interest cannot be established solely on the basis of the fact that several operators in other Member States had lodged a complaint with the European Commission and that the contracts concerned were of significant economic value (see, to that effect, judgment in Commission v Germany, C‑160/08, EU:C:2010:230, paragraph 18, 27 et seq., 54 and 123). 50 Subject to that proviso, it must be held that the general principles of transparency and equal treatment flowing from Articles 49 TFEU and 56 TFEU may, in principle, be applicable to a framework agreement such as the regional framework agreement and agreements such as those flowing from it. 51 EU law on public tendering, in so far as it concerns, inter alia, public service contracts, is intended to ensure the free movement of services and the opening-up to competition in the Member States which is undistorted and as wide as possible (see judgment in Bayerischer Rundfunk and Others, C‑337/06, EU:C:2007:786, paragraph 39 and the case-law cited). 52 It must therefore be held that a system of agreements such as that instituted by Article 75b of the LR No 41/2006 leads to a result contrary to those objectives. By providing that the competent public authorities are to have recourse, by direct award, on a preferential basis to voluntary associations covered by the agreements to satisfy needs in that area, such legislation excludes for-profit entities from an essential part of the market concerned. According to the case-law of the Court, the award, in the absence of any transparency, of a contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in that contract but are situated in another Member State. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 49 TFEU and 56 TFEU (see, to that effect, judgments in Commission v Ireland, EU:2007:676, paragraphs 30 and 31; Commission v Italy, EU:C:2007:729, paragraph 64; and Commission v Italy, EU:C:2008:102, paragraph 66). 53 However, it must be held that, under Article 75b(1) and (2)(a) of the LR No 41/2006, the method of organising ambulance services at issue in the main proceedings is grounded in the principles of universality, the good of the community, economic efficiency and suitability, the recourse on a preferential basis to the voluntary organisations covered by the agreement seeking specifically to ensure that that public service is provided in an economically balanced manner for budgetary purposes. In so far as it provides for the participation of voluntary associations in a public service and refers to the principle of the good of the community, Article 75b is part of the constitutional and legal provisions relating to the voluntary activities of citizens mentioned in paragraphs 9 to 11 of the present judgment. 54 Such objectives are taken into consideration by EU law. 55 In that connection, it must be recalled, in the first place, that EU law does not detract from the power of the Member States to organise their public health and social security systems (see to that effect, in particular, judgments in Sodemare and Others, C‑70/95, EU:C:1997:301, paragraph 27 and the case-law cited, and Blanco Pérez and Chao Gómez, C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 43 and the case-law cited). 56 It is true, in the exercise of that power the Member States may not introduce or maintain unjustified restrictions of the exercise of fundamental freedoms in the area of health care. However, in the assessment of compliance with that prohibition, account must be taken of the fact that the health and life of humans rank foremost among the assets or interests protected by the Treaty and it is for the Member States, which have a discretion in the matter, to decide on the degree of protection which they wish to afford to public health and on the way in which that degree of protection is to be achieved (see to that effect, judgments in Commission v Germany, C‑147/07, EU:C:2008:492, paragraphs 46 and 51 and the case-law cited, and Blanco Pérez and Chao Gómez, EU:C:2010:300, paragraphs 43, 44, 68 and 90 and the case-law cited). 57 Furthermore, 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 (see to that effect, judgment in Stamatelaki, C‑444/05, EU:C:2007:231, paragraphs 30 and 31 and the case-law cited). Thus, measures which aim, first, to meet the objective of guaranteeing in the territory of the Member State concerned sufficient and permanent access to a balanced range of high-quality medical treatment and, secondly, assist in ensuring the desired control of costs and prevention, as far as possible, of any wastage of financial, technical and human resources are also covered (see to that effect judgment in Commission v Germany, EU:C:2008:492, paragraph 61). 58 In the second place, it must be recalled that, in paragraph 32 of the judgment in Sodemare and Others, EU:C:1997:301, the Court held that a Member State may, in the exercise of the powers it retains to organise its social security system, consider that a social welfare system for elderly people necessarily implies, with a view to attaining its objectives, that the admission of private operators to that system as providers of social welfare services is to be made subject to the condition that they are non-profit-making. 59 Therefore, 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. 60 However, it must be observed that a system of organisation of the emergency ambulance services such as that at issue in the main proceedings, consisting, for the competent authorities, in recourse on a preferential basis to voluntary associations, must actually contribute 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. 61 In that connection, it is essential that, where they act in that context, the voluntary associations do not pursue objectives other than those mentioned in the previous paragraph of the present judgment, 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. 62 Having regard to the general principle of EU law on the prohibition of abuse of rights (see, by analogy, judgment in 3M Italia, C‑417/10, EU:C:2012:184, paragraph 33), the application of that legislation cannot be extended to cover the wrongful practices of voluntary associations or their members. Thus, the activities of voluntary associations may be carried out by the workforce only within the limits necessary for their proper functioning. As regards the reimbursement of costs, it must be ensured that profit making, even indirect, cannot be pursued under the cover of a voluntary activity and that volunteers may be reimbursed only for expenditure actually incurred for the activity performed, within the limits laid down in advance by the associations themselves. 63 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, as regulated by the applicable legislation and implemented by the regional framework agreements and the individual agreements which flow from there, 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. 64 As regards the interpretation of the rules of the Treaty on competition, it follows from the findings relating to the interpretation of EU law on public procurement that there is no need to examine legislation such as that at issue in the main proceedings in relation to those rules on competition. 65 Having regard to all of the foregoing considerations, the answer to the questions referred is that Articles 49 TFEU and 56 TFEU must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, 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. Costs 66 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Fifth Chamber) hereby rules: Articles 49 TFEU and 56 TFEU must be interpreted as meaning that they do not preclude national legislation, such as that at issue in the main proceedings, 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. [Signatures] * Language of the case: Italian.