EN Official Journal of the European Union C 209/19

Action brought on 16 April 2008 — Commission of the European Communities v Federal Republic of Germany

(Case C-160/08)

(2008/C 209/27)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by M. Kellerbauer and D. Kukovec, Agents)

Defendant: Federal Republic of Germany

Form of order sought

— declare that, by failing to publish notices of contracts awarded and by failing to make a public call for tenders or failing transparently to award service contracts in the field of public ambulance services, the Federal Republic of Germany has failed to fulfil its obligations under Directives 92/50/EEC (1) and 2004/18/EC (2) and infringed the principles of freedom of establishment and freedom to provide services (Articles 43 EC and 49 EC);

— order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The Commission states that its attention has been drawn by several complaints to the procurement practice for service contracts in the field of public ambulance services in the Federal Republic of Germany. Those complaints objected to the fact that contracts in that field were, as a rule, not the subject of a call for tenders and not awarded transparently. In the Commission's view, the generally small number of Europe-wide calls for tenders for ambulance services by local authorities as bodies responsible for the public ambulance service (13 contract notices in a period of six years, by only 11 out of the 400-plus German districts and cities with district status) is evidence of a widespread practice in Germany of not awarding those ambulance services in accordance with the requirements of the European procurement directives and the fundamental principles of Community law. Moreover, those contracts were awarded without measures to ensure the appropriate transparency and to avoid discrimination.

It says that by that award practice the Federal Republic of Germany has failed to fulfil its obligations under Directives 92/50/EEC and 2004/18/EC and infringed the principles of freedom of establishment and freedom to provide services laid down in Articles 43 EC and 49 EC, in particular the prohibition of discrimination contained in those principles.

Local authorities as bodies responsible for the ambulance service are contracting authorities within the meaning of Article 1(b) of Directive 92/50/EEC or Article 1(9) of Directive 2004/18/EC. It should also be undisputed that contracts awarded in the field of public ambulance services constitute public contracts for consideration that are caught by those directives and clearly exceed the relevant threshold value for the directives to be applicable. It follows from all those circumstances that the contracts for services in question should have been awarded in the procedures laid down by the directives and in compliance with their general provisions on equal treatment and non-discrimination.

Since the present case concerns contracts of obvious cross-border interest, in addition to the obligations under Directives 92/50/EEC and 2004/18/EC the general principles of freedom of establishment and freedom to provide services under the EC Treaty were also infringed by the awards that were made without transparency.

Ambulance services, like transport services and medical services in the context of the public ambulance service, do not fall within the exceptions in Article 45 EC in conjunction with Article 55 EC, under which activities which in a given Member State are connected, even occasionally, with the exercise of official authority are excluded, as far as that State is concerned, from the chapter of the EC Treaty on freedom of establishment and freedom to provide services. The exception in Article 45 EC, which as an exception to the fundamental freedoms must be interpreted strictly, is strictly limited to those activities which constitute as such a direct and specific participation in the exercise of public power. The question of whether public power is being exercised is not to be answered by reference to the public-law nature of the activity in question; rather, what is decisive is the possibility of making use, as against the citizen, of public powers and powers of coercion.

The Commission is convinced that the award practice in the field of the ambulance service could, even if foreign providers of services take part, be designed in such a way that a comprehensive, rapid and high-quality ambulance service is ensured throughout the country.

(1) OJ 1992 L 209, p. 1.

(2) OJ 2004 L 134, p. 114.