European Commission v Federal Republic of Germany.
Date: 2010-04-29
18. The Commission received a number of complaints from, inter alia, undertakings established in Member States other than the Federal Republic of Germany concerning the award of contracts for public ambulance services in the Federal Republic of Germany.
General background
40. Since the conditions for admissibility of an action and of the complaints set out therein are a matter of public policy, the Court may consider them of its own motion in accordance with Article 92(2) of its Rules of Procedure. Furthermore, it is entitled to ascertain of its own motion whether the procedural safeguards conferred by the European Union’s legal order have been complied with (see, to that effect, Case C‑291/89 Interhotel  v Commission  [1991] ECR I‑2257, paragraphs 14 and 15).
41. It should be pointed out that, in an action for failure to fulfil obligations, the purpose of the pre-litigation procedure is to give the Member State concerned an opportunity, on the one hand, to comply with obligations under European Union law and, on the other, to avail itself of its right to defend itself against the charges formulated by the Commission (Case C‑350/02 Commission  v Netherlands  [2004] ECR I‑6213, paragraph 18).
42. The proper conduct of that procedure constitutes an essential guarantee required by the EC Treaty not only in order to protect the rights of the Member State concerned, but also so as to ensure that any contentious procedure will have a clearly defined dispute as its subject-matter (see, to that effect, Commission  v Netherlands , paragraph 19).
43. It follows that the subject-matter of proceedings under Article 226 EC is delimited by the pre-litigation procedure governed by that provision and cannot, therefore, be extended during the judicial procedure. The Commission’s reasoned opinion and the application must be based on the same grounds and pleas, with the result that the Court cannot examine a ground of complaint which was not formulated in the reasoned opinion, which for its part must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (see Commission  v Netherlands , paragraph 20, and Case C‑441/02 Commission  v Germany  [2006] ECR I‑3449, paragraphs 59 and 60).
44. On that basis, it is incumbent on the Commission, during the pre-litigation procedure, to indicate the specific provision or provisions which define the obligation with which the Member State is alleged to have failed to comply (see Case C‑437/04 Commission  v Belgium  [2007] ECR I‑2513, paragraph 39).
54. The Commission also alleges a breach of the principle of non-discrimination contained in Articles 43 EC and 49 EC, which imposes obligations on contracting authorities over and above those arising under Directives 92/50 and 2004/18. In that respect, the condition relating to the existence of a certain cross-border interest, established in Case C‑507/03 Commission  v Ireland  [2007] ECR I‑9777, paragraphs 29 and 30, is satisfied in the present case, in view of the origin of the complaints sent to the Commission and the significant economic value of the services in question.
72. In view of the consequences arising from the application of the first paragraph of Article 45 EC and Article 55 EC, it is necessary to determine at the outset whether those provisions apply in the present case (see, to that effect, Case C‑465/05 Commission  v Italy  [2007] ECR I‑11091, paragraph 31).
– The exception under the first paragraph of Article 45 EC, in conjunction with Article 55 EC
76. In that regard, it must be borne in mind that, as derogations from the fundamental rules of freedom of establishment and freedom to provide services, Articles 45 EC and 55 EC must be interpreted in a manner which limits their scope to what is strictly necessary in order to safeguard the interests which they allow the Member States to protect (see, in particular, Case 147/86 Commission v Greece  [1988] ECR 1637, paragraph 7; Case C‑451/03 Servizi Ausiliari Dottori Commercialisti  [2006] ECR I‑2941, paragraph 45; and Case C‑438/08 Commission  v Portugal  [2009] ECR I‑0000, paragraph 34).
77. Moreover, it has consistently been held that the review of the possible application of the exceptions laid down in Articles 45 EC and 55 EC must take into account the fact that the limits imposed by those articles on the exceptions referred to fall within European Union law (see, in particular, Case 2/74 Reyners , [1974] ECR 631, paragraph 50, and Commission  v Portugal , paragraph 35).
78. According to settled case-law, the derogation provided for under those articles must be restricted to activities which, in themselves, are directly and specifically connected with the exercise of official authority (see Reyners , paragraph 45; Case C‑42/92 Thijssen  [1993] ECR I‑4047, paragraph 8; and Commission v Portugal , paragraph 36).
79. As the Advocate General noted at point 58 of her Opinion, such a connection requires a sufficiently qualified exercise of prerogatives outside the general law, privileges of official power or powers of coercion.
80. In the present case, it must first be observed that a contribution to the protection of public health, which any individual may be called upon to make, in particular by assisting a person whose life or health are in danger, is not sufficient for there to be a connection with the exercise of official authority (see, to that effect, Case C‑114/97 Commission  v Spain  [1998] ECR I‑6717, paragraph 37, and Commission  v Italy , paragraph 38).
82. However, such rights cannot, as such, be regarded as having a direct and specific connection with the exercise of official authority in the absence, on the part of the providers concerned, of official powers or of powers of coercion falling outside the scope of the general law for the purposes of ensuring that those rights are observed, which, as the parties agree, is within the competence of the police and judicial authorities (see, to that effect, Commission  v Italy , paragraph 39, and Commission  v Portugal , paragraph 44).
84. As the Federal Republic of Germany also asserted, the fact that the provision of public ambulance services entails collaboration with the public authorities and with professional staff on whom official powers have been conferred, such as members of the police force, does not constitute evidence that the activities of those services have a connection with the exercise of official authority either (see, to that effect, Reyners , paragraph 51).
94. It is settled case-law that, where the Commission relies on detailed complaints revealing repeated failures to comply with European Union law, it is incumbent on the Member State concerned to contest specifically the facts alleged in those complaints (see Case C‑489/06 Commission  v Greece  [2009] ECR I‑0000, paragraph 40 and the case-law cited).
99. In that regard, it must be observed that an amendment to the initial contract may be regarded as being material and, therefore, as constituting the new award of a contract for the purposes of Directive 92/50 or of Directive 2004/18, inter alia, when it extends the scope of the contract considerably to encompass services not initially covered (see, to that effect, Case C‑454/06 pressetext Nachrichtenagentur  [2008] ECR I‑4401, paragraph 36).
103. The situation complained of by the Commission in respect of the various contracts of the Land of Saxony was therefore ongoing as at the date on which the period prescribed in the reasoned opinion expired, namely 16 February 2007, which is the relevant date for assessing the existence of the alleged infringement (see, to that effect, Case C‑562/07 Commission  v Spain  [2009] ECR I‑0000, paragraph 23).
106. In that regard, it must be noted that the Commission may seek a finding that European Union law has not been complied with because a general practice contrary thereto has been adopted by the authorities of a Member State, using particular situations to shed light on that practice (see, to that effect, Case C‑248/05 Commission  v Ireland  [2007] ECR I‑9261, paragraph 64 and the case‑law cited).
107. A finding that there has been a failure to fulfil obligations on the basis of the administrative practice followed in a Member State none the less involves production by the Commission of sufficiently documented and detailed proof of the alleged practice. It must be apparent from such proof that that administrative practice is, to some degree, of a consistent and general nature. The Commission may not rely on any presumption for that purpose (see Case C‑156/04 Commission  v Greece  [2007] ECR I‑4129, paragraph 50 and the case-law cited, and Case C‑489/06 Commission  v Greece , paragraph 48).
108. When the Commission has adduced sufficient evidence to show that the authorities of the defendant Member State have developed a repeated and persistent practice which is contrary to European Union law, it is incumbent on that Member State to challenge in substance and in detail the information produced and the consequences flowing therefrom (see Case C‑494/01 Commission  v Ireland  [2005] ECR I‑3331, paragraph 47, and Case C‑248/05 Commission  v Ireland , paragraph 69).
116. In that regard, it must be borne in mind that, according to settled case-law, in proceedings under Article 226 EC for failure to fulfil obligations, it is for the Commission to prove the alleged failure by placing before the Court all the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any presumptions (see Case C‑246/08 Commission  v Finland  [2009] ECR I‑0000, paragraph 52 and the case-law cited).
123. As the Advocate General stated at point 93 of her Opinion, the Commission, moreover, has not sought to establish that the contracts identified in its action, or at least some of them, were characterised by the predominance of the value of health services over the value of transport services. In those circumstances, where, in the absence of sufficient specific information, it is conceivable that none of the contracts identified in the action is characterised by such predominance, the Court is not in a position to find that there has been a failure to comply with Articles 43 EC and 49 EC as alleged. The same conclusion applies as regards the question whether the contracts identified by the Commission have a certain cross‑border interest.
125. In paragraphs 55 and 60 of the judgment in Ambulanz Glöckner , the Court categorised emergency transport services as services of general economic interest within the meaning of Article 86(2) EC.
126. However, it is apparent from settled case-law that it is incumbent upon a Member State which invokes Article 86(2) EC to show that all the conditions for application of that provision are fulfilled (see, in particular, Case C‑159/94 Commission  v France  [1997] ECR I‑5815, paragraph 101).
131. Having regard to all of the foregoing considerations, it must be held that, by failing to publish notices of the results of the procedure for the award of contracts, the Federal Republic of Germany has failed to fulfil its obligations under Article 10 of Directive 92/50 in conjunction with Article 16 thereof or, since 1 February 2006, under Article 22 of Directive 2004/18 in conjunction with Article 35(4) thereof in relation to the award in accordance with the tender model of contracts for public emergency ambulance and qualified patient transport services in the Länder  of Saxony-Anhalt, North Rhine-Westphalia, Lower Saxony and Saxony.