Case C‑532/03, Commission v Ireland

Commission cannot start Article 226 EC action on the basis of a mere presumption

The Commission claimed the arrangements under which emergency ambulance services were provided by the Dublin City Council by agreement with the Eastern Regional Health Authority without there having been any prior advertising constituted a breach of Articles 43 EC and 49 EC and of the general principles of Community law (notably those of transparency and equality or non-discrimination).

The Commission was of the view that the award should have been advertised in accordance with
Directive 92/50.

The Court however held that it was apparent from the form of order sought that the present action did not concern the application of Directive 92/50, but concerned the question whether there was an infringement Articles 43 EC and 49 EC.

The Court held that, without prejudice to the obligation of the Member States, under Article 10 EC, to facilitate the achievement of the Commission’s tasks, which consisted in particular, pursuant to Article 211 EC, in ensuring that the provisions of the Treaty and the measures taken by the institutions pursuant thereto were
applied (see e.g.
Case C‑494/01 Commission v Ireland) in an action for failure to fulfil obligations it was incumbent upon the Commission to prove the allegation that the obligation had not been fulfilled.

It was the Commission’s responsibility to place before the Court the information needed to enable the Court to establish that the obligation has not been fulfilled, and in so doing the Commission may not rely on any
presumption. (see e.g.
Case C‑404/00 Commission v Spain [2003], paragraph 26; and Case C‑135/05 Commission v Italy [2007]).

The Court held that the national legislation empowered both the Authority and the Dublin City Council to carry out emergency ambulance services.

Between 1899 and 1960, the Dublin City Council provided emergency ambulance services in its capacity as a health authority. It subsequently acted in its capacity as a local authority and, under the national legislation concerned, provided those services through its permanent fire brigade service.

Consequently, it had not been demonstrated that there had been an award of a public contract, since it was conceivable that DCC provided emergency ambulance services in the exercise of its own powers derived directly from statute.

The mere fact that, as between two public bodies, funding arrangements existed in respect of such services did not imply that the provision of the services concerned constituted an award of a public contract.

Text of Judgment