Exclusion of rescue services upheld – SKW Schwarz successfully represents Red Cross Solingen before the CJEU

Rules on public procurement do not apply to rescue services of non-profit organizations. This decision was issued by the Court of Justice of the European Union (CJEU) in the case of Falck Rettungsdienste GmbH et al. v. City of Solingen (C-465/17) on March 21, 2019. SKW Schwarz lawyers René M. Kieselmann and Dr. Mathias Pajunk represented the German Red Cross, District Chapter Solingen, as interveners.

Photocredits: Comofoto – fotolia.com

In 2016, the City of Solingen issued an invitation to bid on rescue services. It made use of the “rescue services exception” and only included non-profit organizations in the procedure. Subsequently, private provider Falck filed a lawsuit against the City. Düsseldorf Higher Regional Court referred the question to the CJEU as to how the exclusion from the scope of application (Section 107(1)(4) German Act against Restraints of Competition), transposed into German law since 2016, was to be interpreted. It was disputed, among other things, whether contracts for rescue services, including transport by ambulance, fell under the term “danger prevention services.” The Higher Regional Court also wanted to know how the term “non-profit organizations or associations” was to be interpreted.

In its ruling, the CJEU held that both emergency rescue interventions with an ambulance and qualified patient transport with an ambulance are to be classified as danger prevention and fall under the exception.

Finally, the Court concluded that non-profit organizations or associations whose purpose is to undertake social tasks, which have no commercial purpose and which reinvest any profits in order to achieve the objective of that organization or association are covered by the concept of “non-profit organizations or associations” within the meaning of the relevant EU Directive.

“The decision means an unexpectedly clear victory for the non-profit organizations and for preserving the mainly honorary rescue capacities of non-police danger prevention in Germany,” said René Kieselmann. “The commercialing of rescue services through public procurement law has come to an end.” In recent years, there have been various misguided effects in award procedures that had a negative impact on full-time and voluntary staff of service providers. “The decision of the Court of Justice of the European Union also clarifies issues that had remained open after the Advocate General’s Opinion in November 2018,” added Dr. Mathias Pajunk. Above all, it was unclear whether qualified patient transport was still covered by the exclusion because it was considered to be part of danger prevention. The Court of Justice has affirmed this in favor of the public aid organizations. René Kieselmann concluded: “Now the exciting question arises as to how contracts will be awarded outside of procurement law. We are advocating a ‘planning model’ in which – without the disadvantages of invitations for bids – incentives are set for a strong honorary office.”