Procurement in a Nutshell – Court considers the applicability of procurement rules to ambulance services
7th June, 2019
Following a request for a preliminary ruling made by a German court, the Court of Justice of the European Union (CJEU) has examined the concept and definition of "danger prevention services" which, under the Public Procurement Directive, are excluded from the scope of application of the usual rules of public procurement providing certain criteria are satisfied.
Click here to read the judgment.
The dispute arose following the direct award of a contract for the care of patients in an emergency situation by an emergency worker assisted by a paramedic, and the transport of ambulance patients cared for by a paramedic assisted by a medical assistant, without the prior publication of a contract notice in the Official Journal of the European Union.
Despite inviting four public aid associations to submit tenders for the contract the Contracting Authority failed to publish a contract notice, a fact which, according to the Claimant company, meant that that it had acted in contravention of procurement law. Contrary to this, the Contracting Authority sought to argue that its actions were permitted as a result of Article 10 of the Procurement Directive ‘Specific exclusions for service contracts’.
Specific exclusions for service contracts
Article 10 of the Procurement Directive (and Regulation 10 of the Public Contracts Regulations 2015) explains that the rules implementing the Public Contracts Directive do not apply to various contracts providing that certain criteria is satisfied.
One such exemption, set out at Article 10 (h), explains that public service contracts for certain “civil defence, civil protection, and danger prevention services”, which “are provided by non-profit organisations or associations”, are exempt “except [for] patient transport ambulance services”.
Matters referred to the CJEU
After hearing the case, the German Court referred four questions to the CJEU, one of which being:
- Is the transport of a patient in an ambulance while care is provided by a paramedic/medical assistant (so-called transport by qualified ambulance) a “patient transport ambulance service” within the meaning of Article 10 (h) of the Directive, which is not covered by the exclusion and to which the Directive applies?
What did the judgment say?
Whilst recognising the specific exemption, the CJEU was quick to point out that a difference in situation existed between an ambulance acting in the context of an emergency situation and an ambulance providing other transport services such as taking a patient home post-treatment.
Importantly, with regard to the former situation, the Court explained that providing the following criteria are satisfied the exemption at 10 (h) would apply:
- A patient is undergoing care in an emergency situation;
- The care is being provided in a “rescue vehicle” which is manned by an emergency worker/paramedic;
- The emergency worker/paramedic must be trained in first aid; and
- The care is being provided to a patient whose state of health is at risk of deterioration during the period of transport.
Why is this important?
At the same time as offering a useful insight into the correct interpretation of the Procurement rules and their effect on ambulance services, the case is a useful reminder of the Specific exclusions for service contracts as set out by Article 10 of the Procurement Directive and Regulation 10 of the Public Contracts Regulations 2015.
If you have any queries in relation to the above, or in relation to any other aspect of procurement law, please do not hesitate to contact our procurement hotline on: 0330 137 3451.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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