On 8 March 2011, the High Court (Cooke J.) determined that the HSE was an "undertaking" for the purposes of competition law when engaged in arranging or providing ambulance and other means of transport for patients to and from hospitals and other health facilities in the State.
The decision affirms the position that a public entity such as the HSE may be deemed to be an undertaking with regard to certain activities but not for other activities.
The decision of Mr. Justice Cooke was based, among other factors, on the following:
- There is a market in the State for the provision of ambulance service and there are a number of private operators operating in that market;
- A public authority while primarily established and principally engaged in activities of a public interest and of a non-economic character may be an undertaking if and when it engages in economic activities and offers goods or services for gain on a market; and
- The fact that the HSE recovers its costs from private health insurers means that it is engaged for gain in the provision of the private ambulance services even as a provider of last resort.
The Court considered that the appraisal of the activities of the HSE in the operation of ambulance services and the distinction between its statutory responsibilities to public patients and its dealings with private patients was analogous with the circumstances of the Court of Justice of the European Union (CJEU) decision in Ambulanz Glockner v Landkreis.