# C_2009180EN.01000401.xml

| 1.8.2009 | EN | Official Journal of the European Union | C 180/4 |
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1.8.2009

EN

Official Journal of the European Union

C 180/4

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Judgment of the Court (Fourth Chamber) of 11 June 2009 (Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf — Germany) — Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik v AOK Rheinland/Hamburg

(Case C-300/07) (1)

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(Directive 2004/18/EC - Public supply contracts and public service contracts - Statutory sickness insurance funds - Bodies governed by public law - Contracting authorities - Invitation to tender - Manufacture and supply of orthopaedic footwear individually tailored to patients’ needs - Detailed advice provided to patients)

2009/C 180/06

Language of the case: German

Referring court

Referring court

Oberlandesgericht Düsseldorf

Parties to the main proceedings

Parties to the main proceedings

Applicant: Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik

Applicant:

Defendant: AOK Rheinland/Hamburg

Defendant:

Re:

Re:

Reference for a preliminary ruling — Oberlandesgericht Düsseldorf — Interpretation of Article 1(2)(c) and (d), (4), (5), and (9), second subparagraph, (c), of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Call for tenders by a sickness insurance fund within a statutory insurance scheme relating to the supply of orthopaedic shoes for insured persons — Meaning of ‘body governed by public law’ — Services comprising the supply of shoes manufactured according to the individual requirements of each insured person together with detailed consultation concerning the use of the product — Whether classified as ‘public supply contracts’ or ‘public services contracts’

Operative part of the judgment

Operative part of the judgment

| 1. | The first alternative of letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that there is financing, for the most part, by the State when the activities of statutory sickness insurance funds are chiefly financed by contributions payable by members, which are imposed, calculated and collected according to rules of public law such as those in the main proceedings. Such sickness insurance funds are to be regarded as bodies governed by public law and therefore as contracting authorities for the purposes of the application the rules in that directive. |
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1.

The first alternative of letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts must be interpreted as meaning that there is financing, for the most part, by the State when the activities of statutory sickness insurance funds are chiefly financed by contributions payable by members, which are imposed, calculated and collected according to rules of public law such as those in the main proceedings. Such sickness insurance funds are to be regarded as bodies governed by public law and therefore as contracting authorities for the purposes of the application the rules in that directive.

| 2. | When a mixed public contract concerns both products and services, the criterion to be applied in order to determine whether the contract in question is a supply contract or a service contract is the respective value of the products and services covered by the contract. Where the products supplied are individually manufactured and tailored to the needs of each customer and where each customer must receive individual advice on the use of the products, the manufacture of those products must be classified in the ‘supply’ part of the said contract for the purposes of calculating the value of each part thereof. |
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2.

When a mixed public contract concerns both products and services, the criterion to be applied in order to determine whether the contract in question is a supply contract or a service contract is the respective value of the products and services covered by the contract. Where the products supplied are individually manufactured and tailored to the needs of each customer and where each customer must receive individual advice on the use of the products, the manufacture of those products must be classified in the ‘supply’ part of the said contract for the purposes of calculating the value of each part thereof.

| 3. | If the provision of services is regarded as being more important than the supply of products in the contract in question, an agreement such as the one at issue in the main proceedings, concluded between a statutory sickness insurance fund and a trader, in which payment for the various types of service to be provided by the trader and the duration of the agreement are determined, with the trader undertaking an obligation to implement the agreement in regard to insured persons who ask him to do so and the abovementioned fund alone paying that trader for its services, must be regarded as a framework agreement within the meaning of Article 1(5) of Directive 2004/18. |
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3.

If the provision of services is regarded as being more important than the supply of products in the contract in question, an agreement such as the one at issue in the main proceedings, concluded between a statutory sickness insurance fund and a trader, in which payment for the various types of service to be provided by the trader and the duration of the agreement are determined, with the trader undertaking an obligation to implement the agreement in regard to insured persons who ask him to do so and the abovementioned fund alone paying that trader for its services, must be regarded as a framework agreement within the meaning of Article 1(5) of Directive 2004/18.

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(1)  OJ C 235, 6.10.2007.

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