Azienda sanitaria locale n. 5 ‘Spezzino’ and Others v San Lorenzo Soc. coop. Sociale and Croce Verde Cogema cooperativa sociale Onlus.
Date: 2014-12-11
34. That annex is divided into two parts, A and B. Urgent and emergency ambulance services are covered by Category 2 in Annex II A to Directive 2004/18 as regards the transport aspects of those services, and Category 25 in Annex II B to that directive as regards the medical aspects thereof (see, with regard to the corresponding categories in Annexes I A and I B to Council Directive 92/50/EEC of 18 June 1992, relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1) judgment in Tögel , C‑76/97, EU:C:1998:432, paragraph 39).
36. Such a framework agreement constitutes a framework agreement within the meaning of Article 1(5) of Directive 2004/18 and therefore falls, generally speaking, within the definition of public contract (see, to that effect, judgment in Commission  v Italy , C‑119/2006, EU:C:2007:729, paragraphs 43 and 44), and the fact that it is concluded on behalf of non-profit-making bodies cannot exclude that classification (see, to that effect, judgment in Commission v Italy , EU:C:2007:729, paragraph 41).
37. It must also be observed that the fact that that framework agreement and the specific agreements which flow from it do not provide for financial payments for the benefit of the voluntary associations other than the reimbursement of costs is not a decisive factor. A contract cannot fall outside the concept of public contract merely because the remuneration remains limited to reimbursement of the expenditure incurred to provide the agreed service (judgment in Ordine degli Ingegneri della Provincia di Lecce and Others , C‑159/11, EU:C:2012:817, paragraph 29). Therefore, as the Advocate General noted in point 27 of his Opinion, it is immaterial whether the costs to be reimbursed to an association cover only costs directly relating to the performance of the services concerned or extend also to a part of the general costs.
40. However, it must be recalled that it is a consequence of the mixed nature of services which, such as those at issue in the main proceedings, are covered by both Annexes II A and II B to Directive 2004/18, that Article 22 of that directive is applicable. In accordance with that article, public contracts or, where appropriate, framework agreements where the value exceeds the relevant threshold laid down in Article 7 thereof and which concern such services must be awarded in accordance with Articles 23 to 55 where the value of the services listed in Annex II A is greater than the value of the services listed in Annex II B.
41. If the value of the services in Annex II B exceeds that of the services in Annex II A, the contract must be awarded in accordance with Articles 23 and 35(4) of Directive 2004/18 only. By contrast, the other rules laid down by the directive in relation to the coordination of procedures, in particular those applicable to the requirements to put out contracts to competition by means of prior advertising and those laid down in Article 53 of the Directive relating to the contract award criteria, are not applicable to such contracts (judgments in Commission  v Ireland , C‑507/03, EU:C:2007:676, paragraph 24, and Commission  v Ireland , C‑226/09, EU:C:2010:697, paragraph 27).
42. The EU legislature took as its starting-point the assumption that contracts for the services referred to in Annex II B to Directive 2004/18 are, in principle, in the light of their specific nature, not of sufficient cross-border interest to justify their award being subject to the conclusion of a tendering procedure intended to enable undertakings from other Member States to examine the contract notice and submit a tender (see, judgments in Commission  v Ireland , paragraph 25, and Strong Segurança , C‑95/10, EU:C:2011:161, paragraph 35 and the case-law cited).
43. Therefore, it follows from paragraphs 40 and 41 of the present judgment that, in so far as the value of the regional framework agreement exceeds the relevant threshold laid down in Article 7 of Directive 2004/18, all the procedural rules in that directive or solely those in Articles 23 and 35(4) thereof are applicable depending on whether or not the value of the transport services exceeds the value of the medical services. It is for the referring court to ascertain whether that agreement exceeds the threshold for application and to determine the value of the respective transport and medical services.
44. If the value of the regional framework agreement exceeds the relevant threshold laid down in Article 7 and the value of the transport services exceeds that of the medical services, it must be held that Directive 2004/18 precludes legislation such as that at issue in the main proceedings which provides that the local authorities are to entrust the provision of urgent and emergency ambulance services on a preferential basis and by direct award, without any advertising, to the voluntary bodies mentioned in the agreements.
45. By contrast, if the referring court were to find that either the threshold has not been reached or that the value of the medical services exceeds the value of the transport services, only the general principles of transparency and equal treatment flowing from Articles 49 TFEU and 56 TFEU would be applicable in addition to Articles 23 and 35(4) of Directive 2004/18 (see, to that effect, judgments in Commission v Ireland , EU:C:2007:676, paragraph 26 and the case-law cited, and Strong Segurança , EU:C:2011:161, paragraph 35).
46. However, in order for those principles to apply in relation to public procurement activities in respect of which all the relevant elements are confined to a single Member State, it is necessary for the contract at issue in the main proceedings to be of certain cross-border interest (see, to that effect, judgments in Commission  v Ireland , EU:C:2007:676, paragraph 29; Commission  v Italy , C‑412/04, EU:C:2008:102, paragraphs 66 and 81; SECAP and Santorso , C‑147/06 and C‑148/06, EU:C:2008:277, paragraph 21; Serrantoni and Consorzio stabile edili , C‑376/08, EU:C:2009:808, paragraph 24; and Commission  v Ireland , EU:C:2010:697, paragraph 31).
47. Nevertheless the referring court has not established the findings necessary for the Court to ascertain whether, in the case in the main proceedings, there is certain cross-border interest. As is clear from Article 94 of the Rules of Procedure of the Court of Justice, in the version in force with effect from 1 November 2012, it must be able to find in a request for a preliminary ruling a summary of the facts on which the questions are based and the connection, inter alia, between those facts and the questions. Therefore, the findings necessary to verify the existence of certain cross-border interest, and more generally all the findings to be made by the national courts and on which the applicability of an act of secondary and primary legislation of the European Union depends, must be made before the questions are referred to the Court.
48. By reason of the spirit of cooperation in relations between the national courts and the Court of Justice in the context of the preliminary rulings procedure, the lack of such preliminary findings by the referring court relating to the existence of certain cross-border interest does not lead to the request being inadmissible if, in spite of those failings, the Court, having regard to the information available from the file, considers that it is in a position to give a useful answer to the referring court. That is the case, in particular, where the order for reference contains sufficient relevant information for the existence of such an interest to be determined. However, the Court’s answer is given subject to the proviso that, on the basis of a detailed assessment of all the relevant facts in the case in the main proceedings, certain cross-border interest in the case in the main proceedings is established by the referring court (see judgments in SECAP and Santorso , EU:C:2008:277, paragraph 34 and Serrantoni and Consorzio stabile edili , EU:C:2009:808, paragraph 25).
49. As regards the objective criteria that may indicate the existence of a cross-border interest, the Court has already held that such criteria may be, in particular, that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the technical characteristics of the market (see judgments in SECAP and Santorso , EU:C:2008:277, paragraph 31, and Belgacom , C‑221/12, EU:C:2013:736, paragraph 29). The referring court may, in its overall assessment of the existence of certain cross-border interest also take account of the existence of complaints brought by operators situated in other Member States, provided that it is determined that those complaints are real and not fictitious. More particularly, as regards ambulance services, the Court has held, in an action for failure to fulfil obligations, that certain cross-border interest cannot be established solely on the basis of the fact that several operators in other Member States had lodged a complaint with the European Commission and that the contracts concerned were of significant economic value (see, to that effect, judgment in Commission  v Germany , C‑160/08, EU:C:2010:230, paragraph 18, 27 et seq., 54 and 123).
51. EU law on public tendering, in so far as it concerns, inter alia, public service contracts, is intended to ensure the free movement of services and the opening-up to competition in the Member States which is undistorted and as wide as possible (see judgment in Bayerischer Rundfunk and Others , C‑337/06, EU:C:2007:786, paragraph 39 and the case-law cited).
52. It must therefore be held that a system of agreements such as that instituted by Article 75b of the LR No 41/2006 leads to a result contrary to those objectives. By providing that the competent public authorities are to have recourse, by direct award, on a preferential basis to voluntary associations covered by the agreements to satisfy needs in that area, such legislation excludes for-profit entities from an essential part of the market concerned. According to the case-law of the Court, the award, in the absence of any transparency, of a contract to an undertaking located in the same Member State as the contracting authority amounts to a difference in treatment to the detriment of undertakings which might be interested in that contract but are situated in another Member State. Unless it is justified by objective circumstances, such a difference in treatment, which, by excluding all undertakings located in another Member State, operates mainly to the detriment of the latter undertakings, amounts to indirect discrimination on the basis of nationality, prohibited under Articles 49 TFEU and 56 TFEU (see, to that effect, judgments in Commission  v Ireland , EU:2007:676, paragraphs 30 and 31; Commission  v Italy , EU:C:2007:729, paragraph 64; and Commission  v Italy , EU:C:2008:102, paragraph 66).
55. In that connection, it must be recalled, in the first place, that EU law does not detract from the power of the Member States to organise their public health and social security systems (see to that effect, in particular, judgments in Sodemare and Others , C‑70/95, EU:C:1997:301, paragraph 27 and the case-law cited, and Blanco Pérez and Chao Gómez , C‑570/07 and C‑571/07, EU:C:2010:300, paragraph 43 and the case-law cited).
56. It is true, in the exercise of that power the Member States may not introduce or maintain unjustified restrictions of the exercise of fundamental freedoms in the area of health care. However, in the assessment of compliance with that prohibition, account must be taken of the fact that the health and life of humans rank foremost among the assets or interests protected by the Treaty and it is for the Member States, which have a discretion in the matter, to decide on the degree of protection which they wish to afford to public health and on the way in which that degree of protection is to be achieved (see to that effect, judgments in Commission  v Germany , C‑147/07, EU:C:2008:492, paragraphs 46 and 51 and the case-law cited, and Blanco Pérez and Chao Gómez,  EU:C:2010:300, paragraphs 43, 44, 68 and 90 and the case-law cited).
57. Furthermore, not only the risk of seriously undermining the financial balance of a social security system may constitute per se an overriding reason in the general interest capable of justifying an obstacle to the freedom to provide services, but also the objective of maintaining, on grounds of public health, a balanced medical and hospital service open to all may also fall within one of the derogations, on grounds of public health in so far as it contributes to the attainment of a high level of health protection (see to that effect, judgment in Stamatelaki , C‑444/05, EU:C:2007:231, paragraphs 30 and 31 and the case-law cited). Thus, measures which aim, first, to meet the objective of guaranteeing in the territory of the Member State concerned sufficient and permanent access to a balanced range of high-quality medical treatment and, secondly, assist in ensuring the desired control of costs and prevention, as far as possible, of any wastage of financial, technical and human resources are also covered (see to that effect judgment in Commission v Germany , EU:C:2008:492, paragraph 61).
58. In the second place, it must be recalled that, in paragraph 32 of the judgment in Sodemare and Others , EU:C:1997:301, the Court held that a Member State may, in the exercise of the powers it retains to organise its social security system, consider that a social welfare system for elderly people necessarily implies, with a view to attaining its objectives, that the admission of private operators to that system as providers of social welfare services is to be made subject to the condition that they are non-profit-making.
59. Therefore, a Member State, in the context of its discretion to decide the level of protection of public health and to organise its social security system, may take the view that recourse to voluntary associations is consistent with the social purpose of the emergency ambulance services and may help to control costs relating to those services.
60. However, it must be observed that a system of organisation of the emergency ambulance services such as that at issue in the main proceedings, consisting, for the competent authorities, in recourse on a preferential basis to voluntary associations, must actually contribute to the social purpose and the pursuit of the objectives of the good of the community and budgetary efficiency on which that system is based.
61. In that connection, it is essential that, where they act in that context, the voluntary associations do not pursue objectives other than those mentioned in the previous paragraph of the present judgment, do not make any profit as a result of their services, apart from the reimbursement of the variable, fixed and on-going expenditure necessary to provide them, and do not procure any profit for their members. Furthermore, although it is permissible to maintain a workforce, for it would, without one, be almost impossible for those associations to act effectively in numerous domains in which the principle of the good of the community may naturally be implemented, the activities of those associations must strictly comply with the requirements laid down by national law.
62. Having regard to the general principle of EU law on the prohibition of abuse of rights (see, by analogy, judgment in 3M Italia , C‑417/10, EU:C:2012:184, paragraph 33), the application of that legislation cannot be extended to cover the wrongful practices of voluntary associations or their members. Thus, the activities of voluntary associations may be carried out by the workforce only within the limits necessary for their proper functioning. As regards the reimbursement of costs, it must be ensured that profit making, even indirect, cannot be pursued under the cover of a voluntary activity and that volunteers may be reimbursed only for expenditure actually incurred for the activity performed, within the limits laid down in advance by the associations themselves.