Lifeline Ambulance Services Ltd v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 23 October 2012
• Neutral Citation: [2012] IEHC 432
• Docket Number: [2011 No. 6526 P]
• Court: High Court
• Date: 23 October 2012

Lifeline Ambulance Services Ltd v Health Service Executive

MR JUSTICE COOKE

APPROVED TEXT

COMPETITION

BETWEEN:

LIFELINE AMBULANCE SERVICES LIMITED

PLAINTIFF

AND

HEALTH SERVICE EXECUTIVE

DEFENDANT

[2012] IEHC 432

[No. 6526 P/2011]

THE HIGH COURT

COMPETITION LAW

Dominant position

Undertaking - Economic activity - Meaning of "for gain" - Public authority providing ambulance services - Company providing ambulance services - Difference between European law "undertaking" and Competition Act "undertaking" - Nature of defendant's activity - Statutory responsibilities - Service in public interest - Exemption from competition rules - Duty to use resources efficiently - Whether defendant conducting economic activity for gain - Whether undertaking for some but not all of its services - Whether defendant obliged to continue to purchase ambulance services from private operators - Whether possible to distinguish between ambulance services for public patient transport/emergency response and ambulance services for private patient transport/events - Whether end user of supplementary ambulance services purchased from private operators - Whether any abuse of dominant position - In re Arthur Average Association for British, Foreign and Colonial Ships (1875) 10 LR Ch App 542; Bettercare Group Ltd v Director General of Fair Trading (Case No 1006/2/1/01) [2002] Competition Appeal Reports 299; Competition Authority Enforcement Decision ED/01/008 (10/10/2008); Competition Authority v O'Regan [2007] IESC 22, [2007] 4 IR 737; Deane v Voluntary Health Insurance Board [1992] 2 IR 319; FENIN v European Commission (Case C-205/03P) [2003] ECR II-357 (Court of First Instance); [2006] ECR I-6295; Firma Ambulanz Glöckner v Landkreis Südwestpfalz (Case C-475/99) [2001] ECR I-8089; Geraets-Smits v Stichting Ziekenfonds VGZ (Case C-157/99) [2001] E.C.R. I-5473; Höfner and Elser v Macrotron GmbH (Case C-41/90) [1991] ECR I-1979; IMS Health GmbH v NDC Health GmbH (Case C-418/01) [2004] ECR I-5039; LTU v Eurocontrol (Case C-29/76) [1976] ECR 1541; Medicall Ambulance Limited v Health Service Executive [2011] IEHC 76, [2011] 1 IR 402; MOTOE v Dimosio (C-49/07) [2008] ECR I-4863, [2009] All ER (EC) 150; Oscar Bronner GmbH v Mediaprint (Case C-7/97) [1998] ECR I-7791; SAT Fluggesellschaft mbH v Eurocontrol (Case C-364/92) [1994] ECR I-43 and Sodemare SA v Regione Lombardia (Case C-70/95) [1997] ECR I-3395 considered - Competition Act 2002 (No 14), ss 3 and 5 - Health Act 2004 (No 42), s 7 - Council Regulation No 1/2003 (EC), Articles 3 and 35 - Treaty on the Functioning of the European Union, Articles 102 and 106 - Finding that claim based on competition rules could not be maintained (2011/6256P - Cooke J - 23/10/2012) [2012] IEHC 432

Lifeline Ambulance Services Ltd v Health Service Executive

Facts: The plaintiff was an undertaking that operated a fleet of ambulances. The defendant was a public authority established under the Health Act 2004. The plaintiff sought declaratory and injunctive relief against the defendant based upon s. 5 Competition Act 2002 and Article 102 TFEU. The plaintiff alleged that it was at risk of being eliminated from the market arising from the decision of the defendant to do away with reliance upon the purchase of ambulance services of the plaintiff to supplement its own fleet. The Court considered whether a public authority, if it operated as an undertaking, could be required to purchase a minimum level of services from outside private contractors, so as to preserve the presence of those contractors.

Held by Cooke J. that for the purposes of competition law, a distinction had to be made between the operation of ambulance services for emergency and public patient transportation and on the other hand, services provided for the transport of private patients. The defendant did not operate as an "undertaking" in the use of its ambulance fleet for emergency services and the transport of public patients. The provision of those services was not an economic activity for which it was engaging in "for gain". The activity of purchasing for those services was one carried out by the defendant as an end user

COMPETITION ACT 2002 S5

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 102

MEDICALL AMBULANCE LTD v HEALTH SERVICE EXECUTIVE 2011 1 IR 402

COMPETITION ACT 2002 S3(1)

EEC REG 1/2003 ART 2

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 101

COMPETITION AUTHORITY v O'REGAN 2007 4 IR 737

HOFNER & ELSER v MACROTRON GMBH 1991 ECR I-1979 1993 4 CMLR 306

DEANE v VHI 1992 2 IR 319

ARTHUR AVERAGE ASSOCIATION FOR BRITISH FOREIGN & COLONIAL SHIPS, IN RE 1875 10 LR CH APP 542

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 81

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 82

EEC REG 1/2003 ART 3(1)

EEC REG 1/2003 35

EUROPEAN COMMUNITIES (IMPLEMENTATION OF THE RULES ON COMPETITION LAID DOWN IN ARTICLES 81 AND 82 OF THE TREATY) REGULATIONS SI 195/2004

COMPETITION ACT 2002 S4

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 106

SAT FLUGGESELLSCHAFT MBH v EUROPEAN ORGANISATION FOR THE SAFETY OF AIR NAVIGATION (EUROCONTROL) 1994 ECR I-43 1994 5 CMLR 208

TREATY OF ROME ART 86

TREATY OF ROME ART 90

U (LT) v EUROCONTROL 1976 ECR 1541

FIRMA AMBULANZ GLOCKNER v LANDKREIS SUDWESTPFALZ 2001 ECR I-8089 2002 4 CMLR 21

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 106(1)

TREATY OF ROME ART 90(2)

MOTOSYKLETISTIKI OMOSPONDIA ELLADOS NPID (MOTOE) v DIMOSIO 2008 ECR I-4863 2008 5 CMLR 11 2009 AER (EC) 150

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 106(2)

TREATY OF ROME ART 50

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 57

BSM GERAETS-SMITS v STICHTING ZIEKENFONDS VGZ & HTM PEERBOOMS v STICHING CZ GROEP ZORGVERZEKERINGEN CASE C-157/99 2001 ECR 1-5473

TREATY OF ROME ART ART 49

BETTERCARE GROUP LTD v DIRECTOR GENERAL OF FAIR TRADING 2002 COMPAR 299

COMPETITION ACT 1998 S18(2)(A)

COMPETITION ACT 2002 S5(2)(A)

SODEMARE SA & ORS v REGIONE LOMBARDIA 1997 ECR I-3395 1997 3 CMLR 591 1998 4 CMLR 667

COMPETITION ACT 2002 S2

COMPETITION ACT 2002 S5(1)

COMPETITION ACT 2002 S5(2)

HEALTH ACT 2004 S7

OSCAR BRONNER GMBH & CO KG v MEDIAPRINT ZEITUNGS - UND ZEITSCHRIFTENVERLAG GMBH & CO KG & ORS 1999 4 CMLR 112 1998 ECR I-7791

IMS HEALTH GMBH v NDC HEALTH 2004 ECR 1-5039

1 1. The plaintiff in this action is an undertaking that operates a fleet of ambulances and is engaged in the business of providing transport for hospital patients and others in need of such services. The defendant is a public authority established under the Health Act 2004, charged with statutory responsibility for the provision and administration of the wide range of the State's health services, including hospitals, clinics and other health facilities. The defendant too, operates a fleet of ambulances called the "National Ambulance Service" ("NAS").

2 2. The plaintiff claims declaratory and injunctive relief against the defendant based upon s. 5 of the Competition Act 2002 and Article 102 TFEU. It alleges that it is at risk of being eliminated from the market in which it has been operating by the decision or strategy of the defendant to reduce and eventually to do away with any reliance upon the purchase of ambulance services such as those offered by the plaintiff in order to supplement those provided by the defendant's own fleet.

3 3. Essentially, the central issue of legal principle raised by the claims in the action can be expressed in the form of a question. Can a public authority, if it operates as an "undertaking" in the sense of the definition of that term in the Act of 2002, be required on the basis of s. 5 of that Act to continue to purchase a minimum level of services from outside private contractors in order to preserve the presence of those contractors in the relevant market? This is the judgment of the Court on a series of preliminary issues that it has directed to be tried arising out of those claims (see paragraph 13 below).

4 4. It is fair to say that the provision of healthcare services in the State is a somewhat complex mixture of State-provided or State-funded services on the one hand and privately provided and insurance funded services on the other. There are three broad categories of healthcare services: primary healthcare, which is that provided immediately by general practitioners, dentists and other healthcare workers directly to their patients; secondary healthcare which is mainly medical treatment carried out in hospitals, clinics and other facilities; and tertiary healthcare which comprises nursing homes, convalescent homes and similar facilities. The HSE has a variety of roles in each of these areas.

5 5. Public healthcare in the State is provided through the defendant. Private healthcare must be paid for by patients or by their insurers. The defendant owns and operates hospitals and other healthcare facilities in which public patients are treated. The defendant's public hospitals also have a substantial proportion of beds in which private patients are treated and for which the defendant charges the patients or their insurers. A major sector of the healthcare system, however, is made up of the private or "voluntary" hospitals in which private/insured patients are treated. A substantial number of "public" patients are also treated in voluntary hospitals and the cost of their treatment is borne by the State and paid for through the defendant. Hence the description of the healthcare system as being "mixed".

6 6. It goes without saying that the availability of a nationwide ambulance service is crucial to the delivery of effective healthcare services, both emergency and non-emergency services. Patients need to be brought to hospital from home or the scenes of accidents and to be transferred between hospitals or other facilities often over long...