Firma Ambulanz Glöckner v Landkreis Südwestpfalz.
Date: 2001-10-25
10 It is to be remembered in this regard that it is not for the Court of Justice to rule on the interpretation of provisions of national law but that it must take account, under the division of jurisdiction between the Community courts and the national courts, of the factual and legislative context, as described in the order for reference, in which the question put to it is set.
The main proceedings
19 As regards the first of those points, the concept of an undertaking, in the context of competition law, covers any entity engaged in an economic activity, regardless of the legal status of the entity or the way in which it is financed (Joined Cases C-180/98 to C-184/98 Pavlov and Others [2000] ECR I-6451, paragraph 74). Any activity consisting in offering goods and services on a given market is an economic activity (Pavlov and Others, paragraph 75).
21 Public service obligations may, of course, render the services provided by a given medical aid organisation less competitive than comparable services rendered by other operators not bound by such obligations, but that fact cannot prevent the activities in question from being regarded as economic activities.
24 In the latter case, the reservation of patient transport services to the medical aid organisations entrusted with the public ambulance service is sufficient for that measure to be characterised as a special or exclusive right within the meaning of Article 90(1) of the Treaty, for protection is conferred by a legislative measure on a limited number of undertakings which may substantially affect the ability of other undertakings to exercise the economic activity in question in the same geographical area under substantially equivalent conditions.
39 It must be borne in mind that the mere creation of a dominant position through the grant of special or exclusive rights within the meaning of Article 90(1) of the Treaty is not in itself incompatible with Article 86 of the Treaty. A Member State will be in breach of the prohibitions laid down by those two provisions only if the undertaking in question, merely by exercising the special or exclusive rights conferred upon it, is led to abuse its dominant position or where such rights are liable to create a situation in which that undertaking is led to commit such abuses (see Pavlov, cited above, paragraph 127).
40 It is settled case-law that an abuse within the meaning of Article 86 of the Treaty is committed where, without any objective necessity, an undertaking holding a dominant position on a particular market reserves to itself an ancillary activity which could be carried out by an other undertaking as part of its activities on a neighbouring but separate market, with the possibility of eliminating all competition from that undertaking (judgment in Case C-18/88 GB-INNO-BM [1991] ECR I-5941, paragraph 18). Where the extension of the dominant position of an undertaking to which the State has granted special or exclusive rights results from a State measure, such a measure constitutes an infringement of Article 90 in conjunction with Article 86 of the Treaty (GB-INNO-BM, paragraph 21, and Case C-203/96 Dusseldorp and Others [1998] ECR I-4075, paragraph 61).
47 As far as this question is concerned, according to the case-law of the Court, the interpretation and application of the condition relating to effects on trade between Member States contained in Articles 85 and 86 of the Treaty must be based on the purpose of that condition which is to define, in the context of the law governing competition, the boundary between the areas respectively covered by Community law and the law of the Member States. Thus, Community law covers any agreement or any practice which is capable of constituting a threat to freedom of trade between Member States in a manner which might harm the attainment on the objectives of a single market between the Member States, in particular by sealing off national markets or by affecting the structure of competition within the common market (Case 22/78 Hugin v Commission [1979] ECR 1869, paragraph 17).
48 If an agreement, decision or practice is to be capable of affecting trade between Member States, it must be possible to foresee with a sufficient degree of probability, on the basis of a set of objective factors of law or of fact, that they may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in such a way as to cause concern that they might hinder the attainment of a single market between Member States. Moreover, that effect must not be insignificant (Case C-306/96 Javico [1998] ECR I-1983, paragraph 16).
49 In the case of services, that effect may consist, as the Court has held, in the activities in question being conducted in such a way that their effect is to partition the common market and thereby restrict freedom to provide services, which constitutes one of the objectives of the Treaty (Case 30/87 Bodson [1988] ECR 2479, paragraph 24). Similarly, trade between Member States may be affected by a measure which prevents an undertaking from establishing itself in another Member State with a view to providing services there on the market in question (see, to that effect, Case 161/84 Pronuptia [1986] ECR 353, paragraph 26).
55 With regard to those arguments, the medical aid organisations are incontestably entrusted with a task of general economic interest, consisting in the obligation to provide a permanent standby service of transporting sick or injured persons in emergencies throughout the territory concerned, at uniform rates and on similar quality conditions, without regard to the particular situations or to the degree of economic profitability of each individual operation.
56 However, Article 90(2) of the Treaty, read in conjunction with paragraph (1) of that provision, allows Member States to confer, on undertakings to which they entrust the operation of services of general economic interest, exclusive rights which may hinder the application of the rules of the Treaty on competition in so far as restrictions on competition, or even the exclusion of all competition, by other economic operators are necessary to ensure the performance of the particular tasks assigned to the undertakings holding the exclusive rights (Case C-320/91 Corbeau [1993] ECR I-2533, paragraph 14).
57 The question to be determined, therefore, is whether the restriction of competition is necessary to enable the holder of an exclusive right to perform its task of general interest in economically acceptable conditions. The Court has held that the starting point in making that determination must be the premiss that the obligation, on the part of the undertaking entrusted with such a task, to perform its services in conditions of economic equilibrium presupposes that it will be possible to offset less profitable sectors against the profitable sectors and hence justifies a restriction of competition from individual undertakings in economically profitable sectors (Corbeau, paragraphs 16 and 17).
59 It is true that, in paragraph 19 of Corbeau, the Court held that the exclusion of competition is not justified in certain cases involving specific services, severable from the service of general interest in question, if those services do not compromise the economic equilibrium of the service of general economic interest performed by the holder of the exclusive rights.
60 However, that is not the case with the two services now under consideration, for two reasons in particular. First, unlike the situation in Corbeau, the two types of service in question, traditionally assumed by the medical aid organisations, are so closely linked that it is difficult to sever the non-emergency transport services from the task of general economic interest constituted by the provision of the public ambulance service, with which they also have characteristics in common.