OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 14 November 2018 ( 1 )

Case C‑465/17

Falck Rettungsdienste GmbH,

Falck A/S

v

Stadt Solingen,

interveners:

Arbeiter-Samariter-Bund Regionalverband Bergisch Land e.V.,

Malteser Hilfsdienst e.V.,

Deutsches Rotes Kreuz, Kreisverband Solingen

(Request for a preliminary ruling from the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf, Germany))

(Reference for a preliminary ruling — Public procurement — Directive 2014/24/EU — Specific exclusions relating to service contracts — Civil defence, civil protection and danger prevention services — Non-profit organisations or associations — Ambulance services)

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.

I. Legislative framework

A. EU law

1. Directive 2014/24

3. Recitals 28 and 118 of that directive read as follows: ‘(28) This Directive should not apply to certain emergency services where they are performed 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. However, that exclusion should not be extended beyond that strictly necessary. It should therefore be set out explicitly that patient transport ambulance services should not be excluded. In that context it is furthermore necessary to clarify that CPV [Common Procurement Vocabulary] Group 601 “Land Transport Services” does not cover ambulance services, to be found in CPV class 8514. It should therefore be clarified that services, which are covered by CPV code 85143000‑3, consisting exclusively of patient transport ambulance services, should be subject to the special regime set out for social and other specific services (the “light regime”). Consequently, mixed contracts for the provision of ambulance services in general would also be subject to the light regime if the value of the patient transport ambulance services were greater than the value of other ambulance services. … (118) In order to ensure the continuity of public services, this Directive should allow that participation in procurement procedures for certain services in the fields of health, social and cultural services could be reserved for organisations which are based on employee ownership or active employee participation in their governance, and for existing organisations such as cooperatives to participate in delivering these services to end users. This provision is limited in scope exclusively to certain health, social and related services, certain education and training services, library, archive, museum and other cultural services, sporting services, and services for private households, and is not intended to cover any of the exclusions otherwise provided for by this Directive. Those services should only be covered by the light regime.’

4. In accordance with Article 10, Directive 2014/24 is not to apply to public service contracts for: ‘… (h) civil defence, civil protection, and danger prevention services ( 3 ) that are provided by non-profit organisations or associations, and which 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; …’

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: (a) its objective is the pursuit of a public service mission linked to the delivery of the services referred to in paragraph 1; (b) profits are reinvested with a view to achieving the organisation’s objective. Where profits are distributed or redistributed, this should be based on participatory considerations; (c) the structures of management or ownership of the organisation performing the contract are based on employee ownership or participatory principles, or require the active participation of employees, users or stakeholders; and (d) the organisation has not been awarded a contract for the services concerned by the contracting authority concerned pursuant to this Article within the past three years. …’

B. National law

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.’

II. Facts and questions referred

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: ‘(1) Do the care and treatment of emergency patients in an ambulance by an emergency worker/paramedic and the care and treatment of patients in a patient transport ambulance by a paramedic/medical assistant constitute “civil defence, civil protection, and danger prevention services” within the meaning of Article 10(h) of Directive 2014/24 which come under CPV codes 75252000‑7 (rescue services) and 85143000‑3 (ambulance services)? (2) Can Article 10(h) of Directive 2014/24 be understood as meaning that “non-profit organisations or associations” include, in particular, aid organisations that are recognised under national law as civil defence and civil protection organisations? (3) Are “non-profit organisations or associations” within the meaning of Article 10(h) of Directive 2014/24 those whose mission is fulfilled in the achievement of tasks in the public good, which do not operate with a view to making a profit and which reinvest any profits in order to realise the mission of the organisation? (4) Is the transport of a patient in an ambulance while care is provided by a paramedic/medical assistant (so-called qualified patient transport) a “patient transport ambulance service” within the meaning of Article 10(h) of Directive 2014/24, which is not covered by the exclusion and to which Directive 2014/24 applies?’

III. Procedure before the Court of Justice and positions of the parties

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: — The first question must be answered in the negative. It advocates a restrictive interpretation of the exclusion on the basis of which danger prevention would be confined to the largest and most serious emergencies. — The second question must also be answered in the negative, since, under German law, recognition of the status of civil protection and civil defence organisations is not subject to their being non-profit-making. — The third question also warrants an answer in the negative, since the conditions which the national legislation attaches to the definition of an organisation as non-profit-making are not consistent with the case-law of the Court of Justice. — The fourth question must be answered in the affirmative, as is clear from the wording of Article 10(h) and recital 28 of Directive 2014/24.

21. The City of Solingen: — Argues, in relation to the first question, that ‘danger prevention’ should be interpreted as including any act aimed at preventing an individual from being exposed to risk and/or harm, which would include transport by qualified ambulance. — Submits, in connection with the second question, that the German legislature’s reference to public aid associations is simply an ‘instance’ which does not prevent other bodies from asserting their status as ‘non-profit organisations’ within the meaning of Directive 2014/24. — Construes that term, in response now to the third question, as requiring only the disinterested performance of public-service tasks. — Contends that the answer to the fourth question should be that the exception to the exclusion in Article 10(h) of Directive 2014/24 does not include transport by qualified ambulance. In particular, emergency response and qualified transport form an organisational unit that calls for uniform treatment.

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: — As regards the first question, danger prevention should be interpreted extensively so as to include assistance to patients involved in individual accidents and emergencies, as compared with situations of large-scale damage that are more typical of civil defence and civil protection. — On the second question, it shares the position of the City of Solingen, and points out the fact that the concept of non-profit organisation must be understood in the light of recital 28 of Directive 2014/24. The ‘particular nature’ of such organisations can be determined only within the legal and material framework of the Member State in which they perform their tasks. — As for the third question, it submits that the national legislature has defined the non-profit nature of organisations as lying, on the one hand, in the fact that they act, in the interests of the well-being and security of citizens, in the areas of non-police damage prevention, civil defence and civil protection, and, on the other hand, in the fact that many of their tasks are entrusted to volunteers; the consequences of this approach, it submits, are no different from those that would follow from applying different or additional criteria. — The fourth question warrants an answer in the negative, on account of the difference between basic patient transport and transport by qualified ambulance.

25. The Norwegian Government: — Submits that damage prevention services are not confined to those provided in the event of major disasters but include situations such as that described by the referring court in the first question, which, it argues, in answer to the fourth question, does not constitute a ‘patient transport ambulance service’. — On the second and third questions, it contends that the concept of non-profit organisation warrants an independent interpretation and is capable of including an organisation recognised as such by national law, in so far as the latter is consistent with that interpretation. Nonetheless, the assessment as to whether an organisation is non-profit-making varies according to the divergent traditions of the Member States, to which it is appropriate in principle to entrust such an assessment, rather than to impose on them a definition which goes beyond that which would follow from a ‘natural interpretation’ of the directive. On a natural interpretation, non-profit organisations perform public-service tasks, have no commercial purpose and reinvest any profits they generate in pursuit of the objectives they serve.

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: — In relation to the first question, danger prevention is not confined to exceptional emergencies or dangers affecting large groups of people. — The second and third questions warrant a joint examination that supports the inference of answers in the negative and affirmative respectively. Non-profit organisations cannot be regarded as having to be ones recognised by national law as having public service status, but are, rather, those which exhibit the characteristics listed in the third question raised by the referring court. — On the fourth question, the difference between the exclusion and the exception to that exclusion in Article 10(h) of Directive 2014/24 lies in whether the contract provides only for patient transport or also for other services such as medical assistance during transport. The distinction must be drawn at the time of selecting the procurement procedure rather than in the context of an emergency or in the course of transporting the patient.

IV. Analysis

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.

A. The ambulance service in the context of Directive 2014/24 (first and fourth questions)

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’: — Emergency care and treatment of patients who have been involved in an accident or similar event (‘Notfallpatienten’), which is provided in an emergency ambulance (‘Rettungswagen’) ‘by an emergency worker/paramedic’. — Patient care and treatment provided in a patient transport ambulance (‘Krankentransportwagen’) by a paramedic/medical assistant’.

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: — general ‘ambulance services’ (covered by code 851430000‑3), which are exempt from the discipline of Directive 2014/24; and — ‘passenger transport ambulance services’, which come under a specific heading in that directive, known as the light regime. ( 24 ) They would otherwise appear, by virtue of their nature, under the heading ‘road transport’.

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.

B. The concept of a non-profit organisation in the context of Directive 2014/24 (second and third questions)

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.

V. Conclusion

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: — The urgent transport of patients in an emergency ambulance in which care and treatment are provided by an emergency worker/paramedic must be classified as an ‘ambulance service’ (CPV code 85143000‑3) the public procurement of which may not be made subject to the procedures laid down in Directive 2014/24, provided that that service is delivered by a non-profit organisation or association. — The non-urgent transport of patients in a patient transport ambulance by a paramedic/medical with a paramedic/medical assistant must be classified as a ‘patient transport ambulance service’ which does not fall within the scope of the exclusion applicable to ‘ambulance services’ in general. — ‘Non-profit organisations or associations’ are those which do not seek to make a profit and, if they do generate profits inadvertently, use these to pursue their social activities. An organisation may not be granted that status on the sole basis of its recognition as an aid association under national law.

( 1 ) Original language: Spanish.

( 2 ) Directive of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65).

( 3 ) For some incomprehensible reason, the Spanish version uses the adjective ‘laborales’ (industrial) to qualify the noun ‘danger’, which is not qualified by an adjective in any other language version. Hereafter, therefore, I shall refer only to ‘danger prevention’.

( 4 ) Law against restrictions of competition (‘GWB’).

( 5 ) Law governing the Emergency Medical Service as well as Emergency Rescue and Patient Transport by Contractors of [the Land of] North Rhine-Westphalia (‘RettG NRW’).

( 6 ) Law on civil protection and civil defence (‘ZSKG’), as last amended by Paragraph 2, point 1, of the Law of 29 July 2009.

( 7 ) Law on fire protection, emergency relief and civil protection (‘BHKG’).

( 8 ) According to the order for reference, ‘the procurement procedure, which was divided into two lots, had as its subject matter the provision of personnel for a number of municipal emergency ambulances … and patient transport ambulances … and the provision of vehicle locations … It was concerned with the deployment on emergency response calls of municipal ambulances tasked principally with the care and treatment of emergency patients by an emergency worker acting with the support of paramedics, and the deployment of patient transport ambulances tasked principally with the care and treatment of patients by a paramedic acting with the support of a medical assistant.

( 9 ) Paragraph 14 of the order for reference.

( 10 ) Cited above.

( 11 ) See, inter alia, judgment of 21 December 2011, Ziolkowski and Szeja (C‑424/10 and C‑425/10, EU:C:2011:866), paragraph 32.

( 12 ) The terminological equivalence as between Article 196 TFEU and Article 10(h) of Directive 2014/24 [which exists in Spanish, but not in English, where ‘danger prevention’ is used in Article 10(h) of Directive 2014/24, but ‘risk prevention’ is used in Article 196 TFEU] is, however, only partial, since the former refers to ‘civil protection’ (‘Katastrophenschutz’, ‘protection civile’) and (‘risk prevention’) (‘Risikoprävention’, ‘prévention des risques’), but not also to ‘civil defence’, as the latter does.

( 13 ) Under the heading to Title XXIII of Part III of the TFEU of ‘Civil protection’, Article 196(1) defines civil protection services as ‘systems for preventing and protecting against natural or man-made disasters’. Encouragement from the European Union in that context comes in the form of support for the measures adopted by the Member States ‘in risk prevention, in preparing their civil-protection personnel and in responding to … disasters’ (Article 196(1)(a)). Danger prevention, staff training and response thus make up the sequence of physical processes comprising a comprehensive disaster management service.

( 14 ) Paragraph 14 of the order for reference. In the view of the referring court, it is ‘[m]ore logical … to assume that danger prevention refers to something that is not covered by the concepts of civil defence and civil protection because the damage is not caused by the man-made accidents and disasters, natural disasters and terrorist or military threats or risks causing serious harm to human life which those concepts encompass’.

( 15 ) Paragraph 55 of its observations.

( 16 ) Thus, CPV 75251110‑4 (‘fire-prevention services’) or CPV 981131000‑9 (‘nuclear safety services’).

( 17 ) CPV 75252000‑7.

( 18 ) Paragraph 61 Falck Rettungsdienste’s observations.

( 19 ) Emphasis added.

( 20 ) Paragraph 24 of the German Government’s observations.

( 21 ) Paragraph 14 of the order for reference. Emphasis added. The same argument was put forward by the City of Solingen in paragraph 31 of its written observations.

( 22 ) That is to say, emergency services provided by non-profit organisations or associations.

( 23 ) This group comprises a total of 15 codes, from 60100000‑9 (‘road transport services’) to 60183000‑4 (‘hire of vans with driver’), including ‘taxi services’ (60120000‑5), ‘special-purpose road-passenger transport services’ (60130000‑8) and ‘non-scheduled passenger transport’ (60140000‑1).

( 24 ) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114), as amended by Commission Regulation (EU) No 1251/2011 of 30 November 2011 (OJ 2011 L 319, p. 43), which is the immediate precursor to Directive 2014/24, also distinguished between those two types of ambulance service. As the Court of Justice held in its judgment of 11 December 2014, Azienda sanitaria locale n.o 5 Spezzino and Others (C‑113/13, EU:C:2014:2440, paragraphs 33 and 34), Directive 2004/18 applies to public service contracts, which Article 1(2)(d) thereof defines as public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II thereto, which is divided into two parts (A and B). Urgent and emergency ambulance services are covered by Category 2 in Annex II A as regards the transport aspects of those services, and Category 25 in Annex II B as regards the medical aspects thereof.

Now, whereas, according to Article 22 of Directive 2004/18, contracts which also have as their object services which appear in those two annexes are to be awarded in accordance with the common procedure (where the value of the services listed in Annex II is greater than the value of the services listed in Annex II B) or (otherwise) in accordance with a light procedure, recital 28 of Directive 2014/24 provides that ‘mixed contracts for the provision of ambulance services in general would also be subject to the light regime if the value of the patient transport ambulance services were greater than the value of other ambulance services’. For the reasons I shall explain at length, those ‘other ambulance services’ can only be healthcare services provided otherwise than in emergency situations.

( 25 ) This would be the scenario, for example, in the case of patients transported to hospital for dialysis, check-ups, whether regular or otherwise, diagnostic tests, clinical analyses or any other type of medical examination. At the hearing, there was general agreement that transport of this kind could not be caught by the exception to the exclusion. The City of Solingen stated, moreover, that such transport was not included in the contract at issue.

( 26 ) See point 36 above.

( 27 ) Paragraph 45 of the German Government’s observations.

( 28 ) Judgments of 11 December 2014, Azienda sanitaria locale n.o5 Spezzino and Others (C‑113/13, EU:C:2014:2440), paragraph 61, and of 28 January 2016, CASTA and Others (C‑50/14, EU:C:2016:56), paragraph 64. Both judgments confirm that, from the point of view of EU primary law, there are no grounds for challenging the validity of this type of direct award. In the operative part of the former, the Court held 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’. That ruling is reiterated, with very slight variations, in the latter judgment.

( 29 ) Judgment of 28 January 2016, CASTA and Others (C‑50/14, EU:C:2016:56), paragraph 62.

( 30 ) An opinion which, from its submissions at the hearing, the German Government appears to share.

( 31 ) Paragraph 15 of the order for reference.

( 32 ) Such organisations or associations could operate via agencies trading in the legal form, for example, of limited liability companies, provided that the latter are non-profit-making. The referring court will, if necessary, have to ascertain whether this is the case here.

( 33 ) The relationship between Article 10(h) and recital 28 of Directive 2014/24 is reproduced in the case of Article 77(1) and recital 118 of the same directive. While recital 28 refers to ‘non-profit organisations or associations’ as entities whose emergency services are excluded from the scope of Directive 2014/24 by virtue of Article 10(h) of that directive, recital 118 refers to ‘organisations which are based on employee ownership or active employee participation in their governance’ and ‘existing organisations such as cooperatives [which] participate in delivering [certain health, social and cultural] services to end users’; these organisations must fulfil the conditions set out in Article 77(2) of Directive 2014/24 in order for the Member States to be able to reserve the right for them to participate in procedures for the award of public contracts. There is no equivalence, therefore, between the organisations mentioned in recital 28 and those mentioned in recital 118. There is, in consequence, no such equivalence between Article 10(h) (which excludes certain activities pursued by the former organisations from the scope of Directive 2014/24) and Article 77 (which allows certain activities pursed by the latter organisations to have that directive applied to them in a particular way).

( 34 ) Article 77(2)(b) of Directive 2014/24. It is true that this provision requires that ‘profits [be] reinvested with a view to achieving the organisation’s objective’; it does not, however, rule out their existence or, in particular, prohibit their distribution, albeit on the basis of ‘participatory considerations’.

( 35 ) Paragraph 107(1), point 4, second part, of the GWB.

( 36 ) Paragraph 40 of the German Government’s observations. At the hearing, there was some debate as to whether that limit on numbers, which the national legislation itself does not lay down (by virtue of the use of the expression ‘in particular’), exists in fact.

( 37 ) That is the situation in this case, according to the City of Solingen in paragraphs 37 and 38 of its written observations.

( 38 ) Paragraph 15 of the order for reference.