CELEX: C2001/369/05
Language: en
Date: 2001-12-22 00:00:00
Title: 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)

22.12.2001                EN                    Official Journal of the European Communities                                            C 369/3
                   JUDGMENT OF THE COURT                                                     JUDGMENT OF THE COURT
                           (Sixth Chamber)                                                            (Fifth Chamber)
                         of 16 October 2001                                                        of 25 October 2001
in Case C-429/99: Commission of the European Communi-
                   ties v Portuguese Republic (1)                          in Case C-475/99 (reference for a preliminary ruling
                                                                           from the Oberverwaltungsgericht Rheinland-Pfalz): Firma
                                                                                Ambulanz Glöckner v Landkreis Südwestpfalz (1)
(Telecommunications — Directives 90/388/EEC and
96/19/EC — Voice telephony — ‘Callback’ services —
                           Portugal Telecom)                               (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 —
                            (2001/C 369/04)                                Restriction of competition — Public interest task — Justifi-
                                                                                  cation — Effect on trade between Member States)
                   (Language of the case: Portuguese)
                                                                                                      (2001/C 369/05)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                                            (Language of the case: German)
                                                                           (Provisional translation; the definitive translation will be published
In Case C-429/99: Commission of the European Communities                                       in the European Court Reports)
(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
                                                                           In Case C-475/99: reference to the Court under Article 177 of
Commission Directive 90/388/EEC of 28 June 1990 on
                                                                           the EC Treaty (now Article 234 EC) from the Oberverwaltungs-
competition in the markets for telecommunications services
                                                                           gericht Rheinland-Pfalz (Germany) for a preliminary ruling in
(OJ 1990 L 192, p. 10), in the version resulting from
                                                                           the proceedings pending before that court between Firma
Commission Directive 96/19/EC of 13 March 1996 amending
                                                                           Ambulanz Glöckner v Landkreis Sildwestpfalz, joined parties:
Directive 90/388/EEC with regard to the implementation of
                                                                           Arbeiter-Samariter-Bund Landesverband Rheinland-Pfalz eV,
full competition in telecommunications markets (OJ 1996
                                                                           Deutsches Rotes Kreuz Landesverband Rheinland-Pfalz eV,
L 74, p. 13), the Portuguese Republic has failed to fulfil its
                                                                           and Vertreter des öffentlichen Interesses, Mainz — on the
obligations under that provision — the Court (Sixth Chamber),
                                                                           interpretation of Articles 85, 86 and 90 of the EC Treaty (now
composed of: F. Macken, President of the Chamber, N. Colne-
                                                                           Articles 81 EC, 82 EC and 86 EC — the Court, composed
ric, C. Gulmann (Rapporteur), J.-P. Puissochet, and V. Skouris,
                                                                           of: A. La Pergola, President of the Chamber, M. Wathelet
Judges; P. Léger, Advocate General; R. Grass, Registrar, has
                                                                           (Rapporteur), D.A.O. Edward, S. von Bahr and C.W.A. Timmer-
given a judgment on 16 October 2001, in which it:
                                                                           mans, Judges; F.G. Jacobs, Advocate General; H.A. Rühl,
                                                                           Principal Administrator, for the Registrar, has given a judgment
1.    Declares that by postponing until 1 January 2000 the abolition       on 25 October 2001, in which it has ruled:
      of the exclusive rights enjoyed by Portugal Telecom in respect of
      the ‘call-back’ system, the Portuguese Republic has failed to        —     A national provision such as Paragraph 18(3) of the Rettungs-
      fulfil its obligations under the fourth subparagraph of Article            dienstgesetz, as enacted on 22 April 1991, under which the
      2(2) of Commission Directive 90/388/EEC of 28 June 1990                    authorisation necessary for providing ambulance transport
      on competition in the markets for telecommunications services,             services will be refused by the competent authority if its use
      in the version resulting from Commission Directive 96/19/EC                might prejudice the functioning and profitability of the public
      of 13 March 1996 amending Directive 90/388 with regard                     emergency ambulance service, the operation of which has been
      to the implementation of full competition in telecommunications            an entrusted to medical aid organisations like those involved in
      markets;                                                                   the main proceedings, is of a nature such as to confer on the
                                                                                 latter organisations a special or exclusive right within the
2.    Orders the Portuguese Republic to pay the costs.                           meaning of Article 90(1) of the Treaty (now Article 86(1) EC);
                                                                           —     where the decision to grant or refuse that authorisation is taken
(1) OJ C 34 of 5.2.2000.                                                         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
 ---pagebreak--- C 369/4                  EN                       Official Journal of the European Communities                                        22.12.2001
      between those organisations, there is no breach of Article 90(1)       W.-D. Plessing and B. Muttelsee-Schön) — application for a
      of the Treaty, in conjunction with Article 85(1)(c) thereof (now       declaration that, by providing in its legislation that construc-
      Article 81(1)(c) EC);                                                  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        (a)   may not provide transfrontier services on the German
      thereof (now Article 82 EC), in so far as it is established that:            market as part of a consortium unless they have their seat
      —     the medical aid organisations such as those in question in             or at least an establishment in Germany employing their
            the main proceedings occupy a dominant position on the                 own staff and have concluded a company-wide collective
            market for emergency transport services,                               agreement for those staff;
      —     that dominant position exists on a substantial part of the
            common market, and
                                                                             (b) may not contract out workers from another country to
      —     there is a sufficient degree of probability, having regard to          other construction undertakings unless they have their
            the economic characteristics of the market in question, that           seat or at least an establishment in Germany employing
            the provision actually prevents undertakings established in            their own staff and, as members of a German employers’
            Member States other than the Member State in question                  association, are covered by framework and social-welfare
            from carrying out ambulance transport services there, or               collective agreements;
            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
                                                                             (c)   may not establish in Germany a branch recognised as a
      provided that it does not bar the grant of an authorisation to
                                                                                   construction undertaking if its staff is entrusted solely
      independent operators where it is established that the medical
                                                                                   with work on administration, marketing, planning, super-
      aid organisations entrusted with the operation of the public
                                                                                   vision and/or wages and salaries, but, in order to be so
      emergency ambulance service are manifestly unable to satisfy
                                                                                   recognised, such an establishment must employ on the
      demand in the area of emergency ambulance and patient
                                                                                   German labour market workers who spend more than
      transport services.
                                                                                   50 % of the firm’s total working time on building sites,
(1) OJ C 63 of 4.3.2000.
                                                                             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
                  JUDGMENT OF THE COURT                                      (Fifth Chamber), composed of: P. Jann, President of the
                                                                             Chamber, D.A.O. Edward (Rapporteur), A. La Pergola, L. Sevón
                           (Fifth Chamber)                                   and C.W.A. Timmermans, Judges; D. Ruiz-Jarabo Colomer,
                                                                             Advocate General; R. Grass, Registrar, has given a judgment
                        of 25 October 2001                                   on 25 October 2001, in which it:
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 —                       1.    Declares that, by providing in its legislation that construction
Articles 52 and 59 of the EC Treaty (now, after amendment,                         undertakings established in other Member States
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                           (a)   may not provide transfrontier services on the German
Member State in which services are to be provided —                                      market as part of a consortium unless they have their seat
                            Proportionality)                                             or at least an establishment in Germany employing their
                                                                                         own staff and have concluded a company-wide collective
                           (2001/C 369/06)                                               agreement for those staff;
                    (Language of the case: German)
(Provisional translation; the definitive translation will be published             (b) may not contract out workers from another country to
                    in the European Court Reports)                                       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’
In Case C-493/99: Commission of the European Communities                                 association, are covered by framework and social-welfare
(Agent: J. Sack) v Federal Republic of Germany (Agents:                                  collective agreements;