In a recent judgment of interest to readers in the health sector (Case C-456/17 Falck Rettungsdienste v Stadt Solingen) the European Court has confirmed that ambulance services which transport patients in medical emergencies are exempt from the scope of the procurement law regime.
A local authority, Solingen in Germany, renewed its ambulance services contract for five years. It did so with no OJEU advertisement but rather by simple invitation to four providers, of whom two were selected.
Article 10 of the Public Contracts Directive (which mirrors Regulation 10 of the Public Contracts Regulations 2015 (“PCR 2015”) sets out a list of contracts which are excluded from the scope of the procurement rules. Regulation 10(1)(h) says that the following services contracts are exempt (my emphasis):
10(1)(h) [contracts] for civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transport ambulance services;
A procurement challenge was brought, arguing that the above expressly states that patient transport ambulance services are NOT an excluded contract, so Solingen should have advertised the contract and had not done so.
In autumn 2018, the Advocate-General (“A-G”) provided an opinion to the European court, suggesting that urgent emergency transport of patients, provided by medically qualified professionals, is an excluded services contract. However where the transport is not of an emergency nature and is carried out in an ambulance intended for transport only, with no medical care, then this is a ‘patient transport ambulance service’ and so is not excluded from the PCR 2015.
The Court then looked at the case in March 2019 and found that Recital 28 of the Directive assists the A-Gs view:
28. The Directive should not apply to certain emergency services where they are performed by non-profit organisations or associations, since the particular nature of those organisations would be difficult to preserve if the service providers had to be chosen in accordance with the procedures set out in the Directive.
The question was whether “Danger prevention services” would cover emergency ambulance services. The European Court decided that this “danger prevention” exclusion does cover a situation where:
- There is care of patients in an emergency in a rescue vehicle;
- Which is manned by an emergency worker/paramedic;
- Who is trained in first aid; and
- Where the care is provided to a patient whose health is at risk of deterioration during the transport (i.e. there is a medical emergency).
The case offers helpful clarification to those involved in either procuring or supplying these particular services.