In this case the European Court of Justice has ruled that the award of contracts for the provision of transport for dialysis patients to voluntary associations directly, without going to tender, is permissible as a matter of public procurement law. This judgment brings welcome guidance to the provision by voluntary associations and community organisations of social and public purposes in a public procurement context.
CASTA and two other transport operators sought to complain about the award of the service of transporting dialysis patients by ASL TO4 to voluntary associations without competitive tendering. The Court reviewed the relevant Italian legislation which provided among other things that: (a) an active role in the provision of health services to non-profit making voluntary associations; (b) it states that those associations may only engage in commercial activities on a marginal basis (c) the social value and function of voluntary work as an expression of “solidary and pluralism” was expressly permitted; (d) it sets out the basis for the means by which voluntary associations may be financed including that payment can be through agreements concluded with public bodies and income received from marginal commercial or production activities.
The Court noted recital 28 to Directive 2014/24/EU, which states that the Directive should not apply to certain emergency services where they are performed by non-profit organisations given the particular nature of those organisations would be difficult to preserve if the service providers had to be chosen in accordance with procedures set out in the Directive. In other words, this was acknowledging that requiring contracts to be performed by not-for-profit organisations to be offered for tender may fundamentally undermine the voluntary sector.
The Court held that the national legislative provisions were enough to avert the risk of any significant distorting effect of competition in the market with traditional economic operators. The Court held that therefore the direct award of contracts for dialysis transport services between public health bodies and voluntary associations was permissible under public procurement law.
This decision must be seen as a very welcome addition to the jurisprudence guiding the significant engagement which takes place between public authorities (within and without the healthcare sector) and the broader voluntary and community sector.