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Constitutional complaints against incorporation of private companies into public rescue services unsuccessful
Press Release No. 46/2010 of 08 July 2010
Order of 8 June 2010
1 BvR 2011/07
There are currently ground-based rescue services encompassing ambulances and emergency rescue services in all Bundesländer (states) under public authority (public rescue services). The implementation of the public rescue services occasionally is incumbent upon the fire department, however, in most Länder such responsibility is transferred to private relief organisations, such as e.g., the German Red Cross, and private companies. The legal structures for the transfers vary widely. While in some cases only a public rescue service is provided for within which private service providers can participate (uniform or incorporation model), in other Länder private rescue services are permitted in addition to the public services (dual system or separation model).
In the Free State of Saxony, in addition to the public rescue service there originally also was a private one. The public authority responsible for the rescue service transferred the implementation of emergency rescue and ambulance services to private relief organisations or other companies by way of a contract under public law. In addition to this companies with approval to provide emergency or ambulance services could also operate a private rescue service in their own name, under their own responsibility, and on their own account. Approval was to be denied if it was expected that by using their service the public interest in a fully-functioning rescue service would be impaired (protection of functionality clause).
The change from a dual system to an incorporation model for the rescue service was carried out through the Saxon Act on Fire Prevention, Rescue Services, and Disaster Control (Sächsisches Gesetz über den Brandschutz, Rettungsdienst und Katastrophenschutz - SächsBRKG), particularly by § 31 SächsBRKG, which took effect on 1 January 2008. Pursuant thereto, the participation of private rescue companies is only possible within the framework of the public rescue services. The public authority of the rescue services transfers the implementation of emergency rescue and ambulance services by a contract under public law after conducting a selection procedure. It establishes uniform compensation for the emergency services with the entity bearing the costs or sets the fees by regulation. It is further incumbent upon the public authority responsible for the rescue services to establish command centres; these usually are cross-organisational facilities that arrange for deployment of and steer the rescue services, notify the fire departments and support their deployment operations, and notify disaster control units.
The primary goal of the new law, which also repealed the Act on Fire Prevention and Fire Department Assistance at Accident Sites (Gesetz über den Brandschutz und die Hilfeleistung der Feuerwehren bei Unglücksfällen) and the Act on Disaster Control in the Free State of Saxony (Gesetz über den Katastrophenschutz im Freistaat Sachsen), is to guarantee efficient protection of the citizenry from fires, accidents, public emergencies, and disasters by uniformity in organisation and implementation in all areas.
The First Senate of the Federal Constitutional Court in part dismissed as inadmissible the constitutional complaints raised by both complainants, who operate private rescue service companies in Saxony, and otherwise rejected them. The challenged provisions did violate the complainants' fundamental rights, particularly not their occupational freedom. The restructuring of the rescue services is justified by the overriding importance of the public welfare objectives pursued.
In essence, the decision is based on the following considerations:
One of the constitutional complaints is inadmissible to the extent that it complains of the structuring of the selection procedure provided for in the new law, because it is reasonable to expect the affected complainant to take legal action before the relevant courts in the event there is a negative decision for the complainant in the selection procedure.
Both constitutional complaints are otherwise unfounded. The change in the system to exclusively public rescue service does affect the occupational freedom of the complainants. This is because participation in the public rescue services not only requires the conclusion of a contract under public law with the authority responsible for the rescue services, but rather, an interested party also must have prevailed against its competitors in a selection procedure. Such a selection procedure, however, only takes place when and to the extent there is a need for ambulances and emergency doctor vehicles. Moreover, private companies can no longer provide their rescue services on the basis of their own contractual agreements with the entities bearing the costs of the rescue services and the health insurance companies.
These encroachments upon the complainants' occupational freedom, however, are justified. In reorganising the rescue services the legislature pursued legitimate goals for the public welfare and also was entitled to assume that within the framework of its discretion in evaluation and prognosis the rules complained of are suitable and necessary to achieve these objectives.
The improvement of the protection of the citizenry's life and health pursued by the reorganisation concerns public welfare needs of paramount importance, which would be placed in serious jeopardy without the encroachment upon occupational freedom. Through the incorporation of private companies into the public rescue services, their admittance is now dependent upon the need for ambulances and emergency doctor vehicles. This avoids overcapacity, which in light of high investment and maintenance costs gives rise to the fear that a competitive struggle among private rescue companies would arise, which would severely interfere with the functionality of the rescue services.
In addition, the legislature was entitled to assume that the complete transfer of the rescue services to public responsibility will contribute to general standardisation of the protection concept among fire departments, rescue services, and disaster control and is both suitable and necessary for contributing to the efficient implementation of emergency rescue and ambulance services. The incorporation allows consolidation of public authority responsibilities and power and thus, guarantees improved coordination of deployments of the fire department, rescue services, and disaster control, as well as access to all necessary resources in individual cases both in routine deployments as well as in complex accidents, major damage sites, and disaster situations. Further, the framework of an exclusively publicly organised rescue service also opens the possibility to flexible and uniform planning of command centres and rescue stations, which do not need to take into account existing approvals for private companies. Thus, comprehensive and professional provision of rescue services for the citizenry while avoiding unnecessary duplication can more easily be ensured. Particularly in cases of larger cross-organisational deployments or major damage sites, the most comprehensive and quickest possible centralised coordination of all available rescue equipment and personnel is obviously beneficial. The protection of functionality clause previously regulated in the dual system, whereby the admittance of private companies was only allowed where the functionality of the public rescue services would not be impaired or endangered, is not similarly efficient for improving the functionality of the public rescue services. This is because it neither contributes to standardisation of the structures and procedures of fire departments, rescue services, and disaster control services, nor to more efficient coordination of rescue service deployments.
The encroachment upon the complainants' occupational freedom is also justified in regard to economic efficiency. The legislature was entitled to assume that the complete incorporation of private providers into the public rescue services will exclude or at least reduce costly duplications of personnel and rescue equipment by improved planning ability and efficiency in the coordination of deployments. Thus, the number of command centres is reduced and the remaining centres can operate more cost-effectively. The potential for savings also rises through improved networking among the rescue services with fire departments and disaster control services. The organisational consolidation of emergency rescue and ambulance services in the public rescue services likewise contributes to the economic efficiency of the entire system. In contrast to public authorities, private companies are not obliged to also offer their services in unprofitable regions. In order to minimise their costs public rescue services therefore are dependent upon the contributions that ambulance services, which tend to be profitable, provide toward balancing out the expenses for the provision of comprehensive rescue services and, in particular here, expenses for emergency rescue.
Finally, the regulated system change is suitable and necessary to also achieve the targeted goal of a transparent and procedure for admittance that provides equality of opportunities. In practice, the former legal situation led to a closed system of established providers; in the public rescue services contracts with relief organisations, and in the private rescue services company approvals, were regularly extended. In contrast to this, abandoning the separation between public and private rescue services now for the first time has opened competition among relief organisations and private companies for all necessary capacities at the same conditions; all, particularly new bidders, in principle have the same chance to be selected as service providers.
Within the framework of evaluating all relevant circumstances, it must be recognised that through the restructuring the private companies' access to work in the Saxony rescue services is not per se prevented; they have the possibility that they previously had to operate professionally as a provider in the rescue and ambulance services. Those remaining encroachments on their occupational freedom do not appear unreasonable in light of the overriding public welfare objectives of the efficient protection of the life and health of the citizenry.
In conclusion, the restructuring of the rescue service also cannot be objected to under constitutional law based upon the protection of legitimate expectations. Through the challenged statute, the holders of approvals for the implementation of emergency rescue and ambulance services were granted a four-year transition period during which they can continue to operate their companies under the former legal framework. After the expiration of the four-year transition period, it is reasonable to expect the complainants to bid together with all other interested parties for the conclusion of a contract in a transparent and selection procedure that provides equality of opportunities. They have no claim for permanent maintenance of their occupational activities in the rescue services. If the intention of the law as it is here is in contrast to unchanged occupational activity, the protection of legitimate expectations does not require that the affected parties receive this possibility to the former extent.