Judgment of the Court (Fifth Chamber) of 25 October 2001 in Case C-475/99 (reference for a preliminary ruling from the Oberverwaltungsgericht Rheinland-Pfalz): Firma Ambulanz Glöckner v Landkreis Südwestpfalz (Articles 85, 86 and 90 of the EC Treaty (now Articles 81 EC, 82 EC and 86 EC) — Transport of sick or injured persons by ambulance — Special or exclusive rights — Restriction of competition — Public interest task — Justification — Effect on trade between Member States)
Date: 2001-12-22
Institutions: Court of Justice
Subjects: interpretation of the law, monopoly, transport of patients

22.12.2001

EN

Official Journal of the European Communities

C 369/3

JUDGMENT OF THE COURT

JUDGMENT OF THE COURT

(Sixth Chamber)

of 16 October 2001

(Fifth Chamber)

of 25 October 2001

in Case C-429/99: Commission of the European Communi-
ties v Portuguese Republic (1)

(Telecommunications — Directives 90/388/EEC and
96/19/EC — Voice telephony — ‘Callback’ services —
Portugal Telecom)

(2001/C 369/04)

(Language of the case: Portuguese)

in Case C-475/99 (reference for a preliminary ruling
from the Oberverwaltungsgericht Rheinland-Pfalz): Firma
Ambulanz Glöckner v Landkreis Südwestpfalz (1)

(Articles 85, 86 and 90 of the EC Treaty (now Articles 81
EC, 82 EC and 86 EC) — Transport of sick or injured
persons by ambulance — Special or exclusive rights —
Restriction of competition — Public interest task — Justifi-
cation — Effect on trade between Member States)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(2001/C 369/05)

(Language of the case: German)

In Case C-429/99: Commission of the European Communities
(Agent: A. Alves Vieira) v Portuguese Republic (Agents:
L. Fernandes, P. de Pitta e Cunha and N. Ruiz) application for
a declaration that, by not adopting all the measures necessary
to comply with the fourth subparagraph of Article 2(2) of
Commission Directive 90/388/EEC of 28 June 1990 on
competition in the markets for telecommunications services
in the version resulting from
(OJ 1990 L 192, p. 10),
Commission Directive 96/19/EC of 13 March 1996 amending
Directive 90/388/EEC with regard to the implementation of
full competition in telecommunications markets (OJ 1996
L 74, p. 13), the Portuguese Republic has failed to fulfil its
obligations under that provision — the Court (Sixth Chamber),
composed of: F. Macken, President of the Chamber, N. Colne-
ric, C. Gulmann (Rapporteur), J.-P. Puissochet, and V. Skouris,
Judges; P. Léger, Advocate General; R. Grass, Registrar, has
given a judgment on 16 October 2001, in which it:

1. Declares that by postponing until 1 January 2000 the abolition
of the exclusive rights enjoyed by Portugal Telecom in respect of
the ‘call-back’ system, the Portuguese Republic has failed to
fulfil its obligations under the fourth subparagraph of Article
2(2) of Commission Directive 90/388/EEC of 28 June 1990
on competition in the markets for telecommunications services,
in the version resulting from Commission Directive 96/19/EC
of 13 March 1996 amending Directive 90/388 with regard
to the implementation of full competition in telecommunications
markets;

2. Orders the Portuguese Republic to pay the costs.

(1) OJ C 34 of 5.2.2000.

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-475/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Oberverwaltungs-
gericht Rheinland-Pfalz (Germany) for a preliminary ruling in
the proceedings pending before that court between Firma
Ambulanz Glöckner v Landkreis Sildwestpfalz, joined parties:
Arbeiter-Samariter-Bund Landesverband Rheinland-Pfalz eV,
Deutsches Rotes Kreuz Landesverband Rheinland-Pfalz eV,
and Vertreter des öffentlichen Interesses, Mainz — on the
interpretation of Articles 85, 86 and 90 of the EC Treaty (now
Articles 81 EC, 82 EC and 86 EC — the Court, composed
of: A. La Pergola, President of the Chamber, M. Wathelet
(Rapporteur), D.A.O. Edward, S. von Bahr and C.W.A. Timmer-
Jacobs, Advocate General; H.A. Rühl,
mans,
Principal Administrator, for the Registrar, has given a judgment
on 25 October 2001, in which it has ruled:

Judges; F.G.

— A national provision such as Paragraph 18(3) of the Rettungs-
dienstgesetz, as enacted on 22 April 1991, 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
emergency ambulance service, the operation of which has been
an entrusted to medical aid organisations like those involved in
the main proceedings, 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);

— where the decision to grant or refuse that authorisation is taken
unilaterally by the competent authorities entirely on their own
responsibility, according to the conditions laid down by law and
in the absence of any agreement or concertation by those
authorities with the medical aid organisations themselves, or

C 369/4

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Official Journal of the European Communities

22.12.2001

between those organisations, there is no breach of Article 90(1)
of the Treaty, in conjunction with Article 85(1)(c) thereof (now
Article 81(1)(c) EC);

W.-D. Plessing and B. Muttelsee-Schön) — application for a
declaration that, by providing in its legislation that construc-
tion undertakings established in other Member States

— a national provision such as Paragraph 18(3) of the Rettungs-
dienstgesetz, as enacted on 22 April 1991, is contrary to
Article 90(1) of the Treaty read in conjunction with Article 86
thereof (now Article 82 EC), in so far as it is established that:

— the medical aid organisations such as those in question in
the main proceedings occupy a dominant position on the
market for emergency transport services,

— that dominant position exists on a substantial part of the

common market, and

— there is a sufficient degree of probability, having regard to
the economic characteristics of the market in question, that
the provision actually prevents undertakings established in
Member States other than the Member State in question
from carrying out ambulance transport services there, or
even from establishing themselves there;

— however, a provision such as Paragraph 18(3) of the Rettungs-
dienstgesetz 1991 is justified under Article 90(2) of the Treaty
provided that it does not bar the grant of an authorisation to
independent operators where it is established that the medical
aid organisations entrusted with the operation of the public
emergency ambulance service are manifestly unable to satisfy
demand in the area of emergency ambulance and patient
transport services.

(1) OJ C 63 of 4.3.2000.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 25 October 2001

in Case C-493/99: Commission of the European Communi-
ties v Federal Republic of Germany(1)

(Failure by a Member State to fulfil its obligations —
Articles 52 and 59 of the EC Treaty (now, after amendment,
Articles 43 EC and 49 EC) — National legislation on the
contracting out of labour in the construction industry —
Exclusion of undertakings not party to a collective agreement
for that industry and not having an establishment in the
Member State in which services are to be provided —
Proportionality)

(2001/C 369/06)

(Language of the case: German)

(a) may not provide transfrontier services on the German
market as part of a consortium unless they have their seat
or at least an establishment in Germany employing their
own staff and have concluded a company-wide collective
agreement for those staff;

(b) may not contract out workers from another country to
other construction undertakings unless they have their
seat or at least an establishment in Germany employing
their own staff and, as members of a German employers’
association, are covered by framework and social-welfare
collective agreements;

(c) may not establish in Germany a branch recognised as a
construction undertaking if its staff is entrusted solely
with work on administration, marketing, planning, super-
vision and/or wages and salaries, but, in order to be so
recognised, such an establishment must employ on the
German labour market workers who spend more than
50 % of the firm’s total working time on building sites,

the Federal Republic of Germany has failed to fulfil
its
obligations under Articles 52 and 59 of the EC Treaty (now,
after amendment, Articles 43 EC and 49 EC) — the Court
(Fifth Chamber), composed of: P.
the
Chamber, D.A.O. Edward (Rapporteur), A. La Pergola, L. Sevo´ n
and C.W.A. Timmermans, Judges; D. Ruiz-Jarabo Colomer,
Advocate General; R. Grass, Registrar, has given a judgment
on 25 October 2001, in which it:

Jann, President of

1. Declares that, by providing in its legislation that construction

undertakings established in other Member States

(a) may not provide transfrontier services on the German
market as part of a consortium unless they have their seat
or at least an establishment in Germany employing their
own staff and have concluded a company-wide collective
agreement for those staff;

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-493/99: Commission of the European Communities
J. Sack) v Federal Republic of Germany (Agents:
(Agent:

(b) may not contract out workers from another country to
other construction undertakings unless they have their seat
or at least an establishment in Germany employing their
own staff and, as members of a German employers’
association, are covered by framework and social-welfare
collective agreements;