When consulted by the Landkreis, the two medical aid organisations which operate the public ambulance service and the patient transport service (the German Red Cross and the Workers' Samaritan Federation) gave as their reason for refusing the authorisation requested the fact that their own emergency facilities in the relevant area were not fully used and were operating at a loss, so that the arrival of a new service provider would oblige them either to increase the price of their services or to reduce them.

In those circumstances, the Landkreis refused to grant the renewal requested.

The national court hearing the case between Ambulanz Glöckner and the competent authorities asked the Court of Justice whether the grant of a monopoly over the transport of patients in a limited geographical area was compatible with the Community rules on competition.

The Court held first of all that medical aid organisations responsible for running the public ambulance service to which are reserved the emergency transport services are undertakings subject to Community competition law. In the view of the Court, they enjoy a special or exclusive right owing to the protection granted to them for transporting patients (in emergency and non-emergency cases), which is likely to affect the capacity of other undertakings to carry out this economic activity.

The Court leaves it to the German court to determine whether there is any abuse of a dominant position, which, if established, would cover "a substantial part of the common market" (20 000 square kilometres of territory and around four million inhabitants potentially concerned, a number higher than the population of some Member States) and would therefore affect users. It is also for the national court to determine whether operators from other Member States might be prevented from actually running ambulance transport services in Germany or even from establishing themselves there.

The Court goes on to examine whether any abuse of a dominant position might be justified under the EC Treaty by the existence of a task of general economic interest.

The Court considers that the medical aid organisations are indeed entrusted with a task of general economic interest, consisting of an obligation to provide permanently the service of transporting sick or injured persons throughout the territory concerned, at uniform rates and on identical conditions as to quality, without regard to individual situations or to the degree of economic profitability of each individual operation.

In that context, restrictions or exclusions of competition may be permissible if they are necessary for the performance of the particular task entrusted.

There is a need to offset the costs of providing the emergency transport service with revenue from non-emergency transport, which is a more lucrative activity. Economic balance is thus achieved in both sectors.

The German court must therefore determine whether the restriction of competition placed on non- emergency patient transport services is necessary to enable the medical aid organisations to carry out their task of general interest (in all situations and 24 hours a day) in economically acceptable conditions.

Moreover, it must be ascertained that the medical aid organisations occupying a dominant position are able to provide not only the public emergency ambulance service but also the transport service in an effective manner, failing which independent operators should be allowed to operate.
                

Unofficial document for media use only; not binding on the Court of Justice. Available in English, French and German For the complete text of the judgment, please consult our Internet page www.curia.eu.int  at approximately 3 p.m. today. For further information please contact Fionnuala Connolly: Tel: (00 352) 4303 3355; fax: (00 352) 4303 2731