Opinion of the Advocate General — ECLI:EU:C:2010:509
Date: 2010-09-09
Language of the case: German
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, as is shown by the case-law cited above, the lack of direct remuneration of the service provider means that the service contract at issue should be classified as a service concession. 28. However, the existence of direct remuneration of the service provider by the public authority concerned does not necessarily imply that there is a public service contract. It follows from the finding of the Court that indirect remuneration is ‘one means of’ exercising the right, granted to the provider, to exploit the service, (16) that there are also other means of exercising that right. That explains why, in Contse and Others, (17)Commission v Italy (18) and Hans & Christophorus Oymanns, (19) the Court examined whether the contracts at issue could constitute service concessions, even though the service providers had been remunerated directly by the public authorities concerned. 29. In those judgments, the Court established ‘subsidiary criteria’ allowing it to be concluded, where there is direct remuneration, that the service provider assumed the risk of exploiting the service at issue, such as the criterion of the delegation of liability for all harm suffered on account of a failure of the service at issue, (20) or the criterion of the existence of a certain economic freedom to determine the conditions under which a particular service is exploited. (21) Furthermore, the Court has also set out, evidently without claiming that they are exhaustive, the characteristics which are not decisive for the purposes of classifying the agreements at issue, such as the length of the agreements at issue, the significant initial investment for which the service provider is responsible, or a large degree of independence of performance on the part of the service provider. (22) 30. It must nevertheless be noted that the ‘subsidiary criteria’ were used only where the service provider was remunerated directly. That could establish that the lack of direct remuneration of the service provider is a sufficient criterion for classifying a contract at issue as a service concession. 31. In the present case, it is clear that the provider of the rescue service at issue is remunerated not by the public authority which assigned to it the service in question, but by third parties, namely by social security institutions, privately insured persons and uninsured persons. (23) 32. Subject to verification by the referring court, it seems to me that, even if the social security institutions themselves could be considered as the contracting authority within the meaning of the definition in Article 1(9) of Directive 2004/18, they represent persons who are sufficiently distinct from and independent of the public authority which assigned the service in question in order to justify the finding that the service provider was remunerated ‘by third parties’. (24) 33. The peculiar feature of the present case is that the entities which enjoy the right of use, namely the social security institutions, privately insured persons and uninsured persons, pay for that right not the rescue service provider directly, but the Central Settlement Office for the Rescue Service in Bavaria. It remains therefore to be established whether that fact can affect the finding that the lack of direct remuneration of the service provider constitutes a sufficient criterion for the purposes of classifying the contract at issue as a service concession. 34. In my opinion, that question should be answered in the negative. The fact that some ‘intermediary’ comes between the service provider and the party paying for that service in no way calls into question the other finding, namely that the service provider is not remunerated directly by the public authority which assigned to it the service in question, in particular where the public authority concerned has no influence over the remuneration. 35. That leads me to the conclusion that the lack of direct remuneration of the service provider by the public authority which assigned to it the service in question represents a sufficient criterion for the purposes of classifying the contract at issue as a service concession. In that regard, it is not important to know, first, who pays the remuneration due in respect of the services provided, assuming that it is a body which is sufficiently distinct from and independent of the public authority which assigned the service in question, or, second, what the procedures for collection of the remuneration are. 36. With regard to the question whether it is decisive, for the purposes of classifying such a service contract as a service concession, that the operating risk connected with the service at issue assumed by the service provider be limited from the outset, that is even where the service is provided by the contracting authority, I consider that the answer should be based on Eurawasser. (25) 37. It is true that, in the present case, the question of the degree of operating risk connected with the rescue service is open to debate. However, those are findings of fact which, so far as necessary, are to be undertaken by the referring court. 38. The degree of operating risk connected with the service in question is not decisive. What is decisive is the transfer to the service provider of the risk to which the public authority assigning the service in question would itself be exposed if it had to perform the service itself. (26) Conclusion 39. In the light of the foregoing considerations, I propose that the Court should answer as follows the questions referred by the Oberlandesgericht München: The lack of direct remuneration of the service provider by the public authority which assigned to it the service in question constitutes a sufficient criterion for the purposes of classifying a contract as a service concession within the meaning of Article 1(4) 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. In that regard, it is not important to know, first, who pays the remuneration due in respect of the services provided, assuming that it is a body which is sufficiently distinct from and independent of the public authority which assigned the service in question, second, what the procedures for collection of the remuneration are or, third, whether the operating risk connected with the service at issue is limited from the outset. 1 – Original language: French. 2 – OJ 2004 L 134, p. 114. 3 – The contracts concluded between Stadler, on the one hand, and Passau municipal association, on the other hand, were terminated on the initiative of Passau municipal association. It appears that the termination of the contracts was connected with the BayRDG, which entered into force on 1 January 2009, and, more specifically, with Article 13(1) thereof, containing a list of organisations which must be given priority in the assignment of the rescue services. 4 – These are the organisations with which, after the termination of the contracts concluded with Stadler, Passau municipal association concluded contracts for the provision of rescue services. 5 – It is clear from the order for reference that the Bundesgerichtshof (the Federal Court of Justice) has already held the tender model to be a service contract. In the light of Case C-160/08 Commission v Germany [2010] ECR I-0000, it can be concluded that the Court is of the same opinion. 6 – See Case C-382/05 Commission v Italy [2007] ECR I-6657, paragraph 31, and Case C-196/08 Acoset [2009] ECR I-9913, paragraph 38. 7 – See Case C-91/08 Wall [2010] ECR I-0000, paragraph 33 and case-law cited. 8 – See, to that effect, Case C-458/03 Parking Brixen [2005] ECR I-8585, paragraph 32. 9 – Case C-206/08 Eurawasser [2009] ECR I-8377. 10 – Cited in footnote 8 above, paragraph 40. 11 – Cited in footnote 6 above, paragraph 34. 12 – Cited in footnote 6 above, paragraph 39. 13 – Cited in footnote 9 above, paragraph 53. 14 – In the Court’s case-law, there are also judgments in which the indirect nature of the remuneration has sufficed, in itself, for the Court to hold that the contract at issue was a service concession. That was the case, for example, in Case C-410/04 ANAV [2006] ECR I-3303, paragraph 16, and in Case C-324/07 Coditel Brabant [2008] ECR I-8457, paragraph 24. 15 – See, to that effect, Parking Brixen (cited in footnote 8 above, paragraph 39); Eurawasser (cited in footnote 9 above, paragraph 51) and Acoset (cited in footnote 6 above, paragraph 39). 16 – Eurawasser (cited in footnote 9 above, paragraph 53). 17 – Case C-234/03 Contse and Others [2005] ECR I-9315. 18 – Cited in footnote 6 above. 19 – Case C-300/07 Hans & Christophorus Oymanns [2009] ECR I-4779. 20 – Contse and Others (cited in footnote 17 above, paragraph 22). 21 – Hans & Christophorus Oymanns (cited in footnote 19 above, paragraph 71). 22 – Commission v Italy (cited in footnote 6 above, paragraphs 42 and 44). 23 – The parties to the main proceedings agree that approximately 10% of the usage fees are due to be paid by privately insured persons and uninsured persons. 24 – Social security institutions were also central to the case leading to the judgment in Hans & Christophorus Oymanns (cited in footnote 19 above). Although in that case they were characterised as public authorities which assigned the service in question while having paid the remuneration due for that service, they restrict themselves, in the present case, to paying the remuneration due for the services provided. 25 – Cited in footnote 9 above. 26 – In her Opinion of 29 October 2009 in the case leading to the judgment in Joined Cases C-145/08 and C-149/08 Club Hotel Loutraki and Others [2010] ECR I-0000, Advocate General Sharpston reached a similar conclusion, considering the decisive factor to be not the fact that the operating risk is itself significant, but that the operating risk, whatever it is, previously assumed by the contracting authority, be transferred to the successful tenderer, fully or to a significant extent.