On 10 March 2011, the European Court of Justice (ECJ) found that a contract for emergency rescue services was a ‘service concession’ and outside the scope of the procurement directive. The issue arose in the course of an action before a German national court to concerning the decision by the Passau municipal association to terminate and re-award the contract and a number of questions were put to the ECJ. At the centre of the dispute was whether the contract was a ‘public service contract’ and should be tendered in accordance with the EU directive or was a ‘service concession’ and outside the scope of the directive. The ECJ concluded that, where the service provider was fully remunerated by persons other than the municipality and bears an operating risk (for instance the usage fees are dependent on negotiations with third parties and it is not guaranteed full coverage of its costs) then the contract is a ‘service concession’. In this case, usage fees were mostly paid by the social security institution (on behalf of persons covered by a statutory insurance scheme) and the service provider. The ECJ took the view that the service provider had to negotiate with the social security institutions and carried some risk that fees would not cover all operating expenses.