BGH approves grants for municipal clinics

But transparent calculation and inclusion in demand plan necessary
Karlsruhe (jur). Municipalities are allowed to subsidize their hospitals if they are necessary to secure their care. On Thursday, March 24, 2016, this was decided by the Federal Court of Justice (BGH) in Karlsruhe (Ref .: I ZR 263/14). He rejected a complaint of the Federal Association of German Private Clinics (BDPK) against the district of Calw in principle. According to this, a notification to the EU Commission is not required if it is made clear in advance which deficits are assumed and to what extent.

Picture: Kzenon - fotolia

The complaint of the BDPK was directed against a decision of the county council to compensate for the deficit of the district hospitals Calw GmbH with two hospitals in Calw and Nagold until 2016. The decision was taken in 2013, after the clinics had generated a deficit of more than three in 2011 and 6.2 million in 2012. In addition, the county took over sureties over almost 15 million euros for investment.

In the opinion of the BDPK, these are subsidies that should have been reported and approved by the EU Commission. Unauthorized payments violate European state aid law. According to the case-law of the Court of First Instance of the European Union (ECJ), aid is only permitted for clinics which take on certain special tasks. This is not the case with the district hospitals of Calw. There is therefore no substantive reason for subsidies.

In the lower courts, the district court of Tübingen (judgment and JurAgentur-notification of 23 December 2013, ref .: 5 O 72/13) and the Higher Regional Court (OLG) Stuttgart (judgment and JurAgentur-notification of 20 November 2014) dismissed the action.

The BGH has now followed this in principle and dismissed the claim with regard to the period from 2014 onwards. The deficit compensation by the district had the purpose to obtain the care services of the hospitals, said the Karlsruhe judge to justify. Both hospitals were included in the demand plan of the state of Baden-Württemberg. This proves that "their operation is necessary for the needs of the population".

EU law is therefore 'services of general economic interest'. Compensation payments are generally permitted and, under certain conditions, would not have to be approved by the EU Commission.

However, one of the conditions for such an 'exemption' is that an institution has been given prioritized services and that it clearly and transparently determines how possible compensatory payments are calculated.

The district of Calw had commissioned its clinics in 2008 and then again with the district council decision of December 2013 with the clinical care. However, according to the BGH, only the current "commission" clearly regulated how the annual compensation payment should be calculated.

The mandate from 2008 does not meet the "transparency requirements" for an exemption from the "obligation to notify" to Brussels, the judges ruled. Therefore, the Stuttgart Higher Regional Court is now to examine whether the deficit adjustment for the years 2012 and 2013 was lawful for other reasons, or whether it is inadmissible aid. (Mwo / fle)