Federal Constitutional Court - Press office -
Press release no. 46/2010 of 8 July 2010
Order of 8 June 2010 – 1 BvR 2011/07, 1 BvR 2959/07 –
Constitutional Complaints against Incorporation of Private Companies
into Public Rescue Services Unsuccessful
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.
This press release is also available in the original german version.
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