Opinion of the Advocate General — ECLI:EU:C:2025:187
Date: 2025-03-13
Language of the case: Slovenian
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Anonymised version 
Translation C-715/23 – 1 
Case C-715/23 
Request for a preliminary ruling 
Date lodged: 
23 November 2023 
Referring court:  
Državna revizijska komisija za revizijo postopkov oddaje javnih 
naročil (Slovenia) 
Date of the decision to refer: 
23 November 2023 
Appellant:  
Farmacija, d.o.o. 
Respondent:  
Občina Benedikt 
      
[…] 
REQUEST FOR A  
PRELIMINARY RULING 
Parties to the main proceedings 
1 Applicant: Farmacija, […], Lubiana – Polje (‘the applicant for review’) is 
calling for legal protection against the Občina Benedikt (Municipality of 
Benedikt), […], Benedikt (‘the Municipality of Benedikt’) in connection with the 
exercise of pharmaceutical activity in that municipality. Because the conduct of 
the Municipality of Benedikt, which is the subject of dispute between the parties, 
also affects the position of MN, […], Maribor, which exercises pharmaceutical 
EN 
REQUEST FOR A PRELIMINARY RULING 23. 11. 2023 – CASE C-715/23 
 
2  
Anonymised version 
activities in that municipality, this entity must also be considered a party in the 
main proceedings. 
Referring body 
2 The Državna revizijska komisija za revizijo postopkov oddaje javnih naročil 
(State Public Procurement Tribunal, Slovenia), 1 (‘the Državna revizijska 
komisja’), is a referral body in the Republic of Slovenia that – pursuant to the 
Zakon o pravnem varstvu v postopkih javnega naročanja (Law on legal protection 
in public procurement procedures, ‘the ZPVPJN’) 2 – is a special, independent and 
autonomous national body tasked with determining whether public contracts have 
been awarded legally at all stages of the award procedure (Article 60(1) of the 
ZPVPJN).  
3 In the Republic of Slovenia, legal protection against breaches of the procedure for 
awarding public contracts and against breaches of the procedure for awarding 
concessions, governed by the Zakon o nekaterih koncesijskih pogodbah (Law on 
certain concession contracts, ‘the ZNKP’), 3 is provided through the following 
procedures: 
– a preliminary review procedure before the contracting authority, 
– a review procedure before the Državna revizijska komisja, and 
– court proceedings at first instance before the Okrožno sodišče (District 
Court, Slovenia) designated as having exclusive jurisdiction by the law 
governing the judicial system. 
Legal protection before the Okrožno sodišče (District Court) is limited to the 
assessment of liability to pay compensation for the damage that has arisen and to 
recognition of actions to obtain a declaration that the corresponding contracts are 
invalid. 
4 If the contracting authority rejects the application for review on procedural 
grounds in the course of a preliminary review proceeding, the applicant for review 
may appeal. In such a case, as part of the appeal procedure, the Državna revizijska 
komisija assesses the legality of the conduct of the contracting authority in terms 
of the rejection of the application for review. 
5 The Court of Justice of the European Union has already recognised that the 
Državna revizijska komisija has the status of a ‘national court or tribunal’ within 
the meaning of Article 267 TFEU in its judgments of 8 June 2017, Medisanus 
 
1 […] 
2 […] 
3 […] 
FARMACIJA 
 
3 
Anonymised version 
(C-296/15, EU:C:2017:431), 10 September 2020, Tax-Fin-Lex (C-367/19, 
EU:C:2020:685), and 10 November 2022, Sharengo (C-486/21, EU:C:2022:868). 
6 The circumstances justifying the conclusion that the Državna revizijska komisija 
has been recognised as having the status of ‘national court or tribunal’ within the 
meaning of Article 267 TFEU have not changed since the above-mentioned 
judgments of the Court of Justice. 4 
Subject matter of the main proceedings 
7 On 11 March 2022, the Municipality of Benedikt granted MN authorisation for an 
indefinite period to run a branch pharmacy located in Benedikt, without (prior) 
publication of a concession notice. 
8 The applicant filed an application for review with the Municipality of Benedikt, 
complaining that, by issuing the above-mentioned authorisation, the Municipality 
had granted a concession for the exercise of pharmaceutical activity without 
having carried out the corresponding procedure, and had therefore breached 
Directive 2014/23. 
9 The Municipality of Benedikt rejected the application for review, without 
examining it on the merits, considering that the applicant for review did not enjoy 
legal protection in the preliminary review procedure and in the review procedure. 
In that sense, in the view of the Municipality of Benedikt, the granting of 
authorisation to operate a branch pharmacy does not, in essence, constitute the 
award of a services concession, which would be governed by the ZNKP. 5 
10 The applicant lodged an appeal against this decision of the Municipality of 
Benedikt, which was referred by the Municipality of Benedikt to the Državna 
revizijska komisija. The applicant for review reiterates that, by granting the 
authorisation, the Municipality of Benedikt awarded a services concession without 
conducting the relevant procedure, claiming, in essence, that a concession for the 
exercise of pharmaceutical activity falls within the scope of the ZNKP or within 
the scope of Directive 2014/23. 
11 The Državna revizijska komisija’s decision in the proceedings in question turns on 
whether the granting of authorisation for the purpose of exercising pharmaceutical 
activity falls within the scope of Directive 2014/23. 
12 In the opinion of the Državna revizijska komisija, the Municipality of Benedikt 
awarded a concession for the exercise of pharmaceutical activity when it granted 
authorisation for the operation of a branch pharmacy. Indeed, pharmaceutical 
activity can also be carried out in a branch pharmacy. Although national 
 
4 […] 
5 The ZNKP transposed Directive 2014/23 into Slovenian law. 
REQUEST FOR A PRELIMINARY RULING 23. 11. 2023 – CASE C-715/23 
 
4  
Anonymised version 
legislation provides for the granting of authorisation for the operation of a branch 
pharmacy, this does not constitute an authorisation within the meaning of 
recital 14 of Directive 2014/23, namely an authorisation by which the Member 
State or a public authority thereof establishes the conditions for the exercise of an 
economic activity that is granted on request of the economic operator (and not on 
the initiative of the contracting authority), where the economic operator meets 
certain predetermined requirements. 6 
13 The Municipality of Benedikt meets the criteria enabling it to be considered a 
contracting authority within the meaning of Article 6 of Directive 2014/23. 
Because the authorisation for exercise of pharmaceutical activity in the Benedikt 
area is granted for an indefinite period of time, the Državna revizijska komisija 
believes that the estimated value of the pharmaceutical service exceeds the 
threshold laid down in Article 8 of Directive 2014/23. 7 
14 However, the Državna revizijska komisija has doubts as to whether services 
relating to pharmaceutical activity constitute, in substance, services falling within 
the scope of Directive 2014/23. 
Relevant legal provisions 
European Union law 
15 Directive 2014/23/EU of the European Parliament and of the Council of 
26 February 2014 on the award of concession contracts 
As laid down in Article 1 of Directive 2014/23: 
This Directive establishes rules on the procedures for procurement by contracting 
authorities and contracting entities by means of a concession, whose value is 
estimated to be not less than the threshold laid down in Article 8. 
Under Article 4 of Directive 2014/23: 
1. This Directive does not affect the freedom of Member States to define, in 
conformity with Union law, what they consider to be services of general 
economic interest, how those services should be organised and financed, in 
compliance with the State aid rules, and what specific obligations they 
should be subject to. Equally, this Directive does not affect the way in which 
the Member States organise their social security systems. 
 
6 The number of pharmacy outlets in a given area is limited, as a municipality may only establish 
a new pharmacy (branch) where the legal conditions for its opening (number of inhabitants in 
the catchment area, distance between the existing pharmacy and the new branch) are met. 
7 The Državna revizijska komisija does not have any data on the estimated value, as the 
Municipality of Benedikt considers that neither the ZNKP nor Directive 2014/23 is applicable to 
the present case and therefore considers that it is not required to calculate the estimated value. 
FARMACIJA 
 
5 
Anonymised version 
2. Non-economic services of general interest shall fall outside the scope of this 
Directive. 
Article 19 of Directive 2014/23 states as follows: 
Concessions for social and other specific services listed in Annex IV falling 
within the scope of this Directive shall be subject only to the obligations arising 
from Article 31(3) and Articles 32, 46 and 47. 
National law 
16 Zakon o nekaterih koncesijskih dejavnostih (Law on certain concession 
[contracts], ‘the ZNKP’) 
Article 2 of the ZNKP states as follows: 
The following terms are used in this Law: 
18. ‘non-economic services of general interest’: non-economic services that, by 
law, are provided as services of general interest and are not offered on the market 
for remuneration, which are therefore subject to specific public service 
obligations. 
Article 10 of the ZNKP states as follows: 
The provisions of this law and the provisions of special laws apply to concessions 
governed by this law and special laws, where they are not contrary to this law. 
Article 11(1) of the ZNKP provides: 
This law shall not apply to: 
1. concessions for non-economic services of general interest. 
Article 15 of the ZNKP establishes as follows: 
Concessions for social services and other specific services listed in Annex IV to 
Directive 2014/23/EU shall be subject to the provisions of this law governing the 
obligation to prepare preparatory acts, the obligation to publish notices referred to 
in Articles 35 and 40 of this law, and legal protection in concessionaire selection 
procedures under this law. 
17 Zakon o zdravstveni dejavnosti (Law on healthcare, ‘the ZZDej’) 8 
Article 1 of the ZZDej states as follows: 
 
8 […] 
REQUEST FOR A PRELIMINARY RULING 23. 11. 2023 – CASE C-715/23 
 
6  
Anonymised version 
Healthcare is provided at primary, secondary and tertiary level. 
Primary healthcare covers basic healthcare and pharmaceutical activity. 
Article 3 of the ZZDej states as follows: 
Healthcare providers are domestic and foreign natural and legal persons that have 
obtained authorisation from the Ministry of Health to provide healthcare. 
The public health service includes health services that are guaranteed to be 
provided on a continuous and regular basis, in the public interest, by the State and 
local authorities and which, on the basis of the principle of solidarity and in 
accordance with the rules governing healthcare and health insurance, are 
guaranteed as rights deriving from compulsory health insurance and are funded, in 
whole or in part, through public resources, drawn primarily from compulsory 
health insurance. The health services referred to in the preceding sentence, as non-
economic services of general interest, must be provided by non-profit healthcare 
providers in such a way that the surplus of revenue over expenditure is allocated 
to the provision and development of healthcare. 9 
Article 20(1) of the ZZDej establishes the following: 
Pharmaceutical activity is carried out in accordance with a special law. This law 
applies to matters not regulated by a special law. 
18 Zakon o lekarniški dejavnosti (Law on pharmaceutical activity, ‘the ZLD-1’) 10 
Article 1 of the ZLD-1 states that: 
This law regulates the purpose, content and conditions for carrying out 
pharmaceutical activity, the organisation, conditions and procedures for issuing 
and implementing concessions, professionals in the pharmaceutical sector and 
their professional associations, online pharmaceutical activity and supervision. 
Article 2 of the ZLD-1 establishes that: 
The purpose of pharmaceutical activities is to ensure an efficient and high-quality 
supply of medicines and other products to support medical treatment and health 
protection, and to provide advice to patients and health professionals on their safe, 
correct and effective use. 
In addition to the purpose described in the preceding paragraph, pharmaceutical 
activity also ensures that pharmaceutical treatment can be provided for the 
 
9 Article 3(2), second sentence, of the ZZDej was annulled by the Ustavno sodišče Republike 
Slovenije (Constitutional Court of the Republic of Slovenia) in so far as it regulates the surplus 
of revenue over expenditure for operators of pharmaceutical activity under concession. 
10 […] 
FARMACIJA 
 
7 
Anonymised version 
purpose of maintaining health and obtaining the clinical, humanitarian and 
economic results expected from a therapy. 
Article 5 of the ZLD-1 states as follows: 
Pharmaceutical activity is a public health service that guarantees the continuous 
and regular supply of medicines to the population and health professionals and the 
pharmaceutical treatment of patients. 
Pharmaceutical activity takes place at the primary, secondary and tertiary levels of 
healthcare. 
The network of pharmaceutical activities under this law is guaranteed at primary 
level by the municipality or several neighbouring municipalities jointly, and at 
secondary and tertiary levels by the State. 
Article 6(1) of the ZLD-1 states as follows: 
Pharmaceutical activity includes: 
– the supply of prescription and non-prescription medicines for human and 
veterinary use, 
– the supply of food for special medical purposes,  
– the pharmaceutical treatment of patients, 
– the advisory activities of pharmacists, 
– pharmaceutical intervention, 
– telepharmacy services, 
– the preparation of magistral drugs for human and veterinary use, 
– the preparation of products to support therapies and health maintenance, 
– the production of galenical drugs for human and veterinary use, 
– radiopharmaceutical activities, 
– quality control of raw materials for the preparation and production of 
magistral and galenical drugs, 
– quality control of galenical drugs, 
– monitoring of data and reporting of adverse reactions or suspected adverse 
reactions, 
REQUEST FOR A PRELIMINARY RULING 23. 11. 2023 – CASE C-715/23 
 
8  
Anonymised version 
– the take-back of unused or residual medicines in accordance with the 
regulations governing the management of medicinal waste, 
– other activities related to the supply of medicines and other products, 
ensuring their correct, rational and safe use. 
Article 7 of the ZLD-1 states as follows: 
In addition to the activities referred to in the previous article, pharmacies may also 
carry out the following activities: 
– the supply of other products to support therapy and health maintenance, 
– the production of galenical products, 
– the preparation of homeopathic magistral drugs, 
– the supply of veterinary products, 
– the supply of biocides and chemicals, 
– the performance of self-diagnosis measurements and tests, 
– prevention and health education activities, 
– pedagogical and educational activities, 
– scientific research activities, 
– other activities and services in the field of health promotion and protection, 
– the delivery of medicines and other products to the homes of patients, to 
health professionals and to other natural or legal persons, 
– other pharmaceutical-related services. 
Article 8(1) of the ZLD-1 states as follows: 
Pharmaceutical activity at primary level is exercised: 
– in a pharmacy, 
– in a branch pharmacy, or 
– at a doctor’s dispensary. 
Article 15(1) of the ZLD-1 states as follows: 
Pharmaceutical activity is funded through public and private resources. The public 
resources referred to in the previous sentence include, in particular: 
FARMACIJA 
 
9 
Anonymised version 
– payments for services provided in the context of pharmaceutical activity on 
the basis of contracts concluded with health insurance bodies, 
– payments from budget appropriations, 
– the founding institution’s resources. 
Article 27(1) of the ZLD-1 states as follows: 
A public pharmacy body at primary level is established within its territory by a 
municipality or jointly by several neighbouring municipalities, after consultation 
with the competent professional body and with the agreement of the Ministry. 
Article 39(1) of the ZLD-1 states as follows: 
For the exercise of pharmaceutical activity at primary level, a concession may be 
granted, under the conditions laid down in this law, to a natural person who is the 
owner of the pharmaceutical business or to a legal person in which the owner of 
the pharmaceutical business – who is also the manager or the governing body of 
that legal person – holds more than 50% of the share capital (‘the 
concessionaire’). 
Description of the pharmaceutical activity at issue in the main proceedings 
19 In the Republic of Slovenia, pharmaceutical activity is regulated by law in order to 
ensure that all services involving the supply of medicines to users are performed 
by persons adequately qualified for that purpose, so as to avoid the risk of 
harming the health of the users of those services. The fundamental objective of 
carrying out pharmaceutical activity is therefore not the making of a profit, but, 
rather, the pursuit of an individual profit-making purpose is subordinate to the 
exercise of the right to healthcare and, within the community, to the satisfaction of 
public needs in the interest of public health. The above applies irrespective of who 
is exercising the pharmaceutical activity. 
20 In the Republic of Slovenia, pharmaceutical activity is part of the health service 
and is carried out as a public health service, through which the continuous and 
regular supply of medicines to the population and health professionals and the 
pharmaceutical treatment of patients is guaranteed. The purpose of these activities 
is to ensure an efficient and high-quality supply of medicines and other products 
to support medical treatment and health protection, and to provide advice to 
patients and health professionals on their safe, correct and effective use. An 
essential element of pharmaceutical activity is the supply of prescription and non-
prescription medicines for human and veterinary use (retail trade in medicines), 
and the supply of foods for special medical purposes, where supply of a medicine 
means the delivery of the medicine to the user along with the provision of 
appropriate instructions for use and advice on correct and safe use. The retail trade 
in medicines for human use, accompanied by appropriate professional advice, is 
REQUEST FOR A PRELIMINARY RULING 23. 11. 2023 – CASE C-715/23 
 
10  
Anonymised version 
only carried out in pharmacies and specialised outlets, but to a very limited extent 
in the latter. 11 
21 The network of pharmaceutical activities at primary level is managed by the 
municipalities, which are autonomous local authorities. Municipalities exercise 
their competence to establish a network of pharmaceutical activities through the 
(co-)establishment of a public pharmaceutical body, and thus by granting a 
concession for the exercise of pharmaceutical activity to a natural or legal person. 
Pharmaceutical activity takes place in pharmacies, branch pharmacies or doctor’s 
dispensaries. 
22 Legal persons (not established by a municipality) may therefore only exercise 
pharmaceutical activity if a concession is granted. This position is held by natural 
or legal persons (not established by a municipality) in the territory of the 
municipality that granted the concession, or in the territory of neighbouring 
municipalities, if these have jointly granted a concession. It is therefore only 
through the granting of a concession that natural or legal persons (not established 
by a municipality) are given the possibility of exercising pharmaceutical activity. 
23 Pharmaceutical activity is funded through public and private resources. Public 
resources – namely funds generated through compulsory health insurance – are 
used to fund the supply of prescription medicines, which includes both the 
prescription medicine itself 12 and the pharmaceutical service associated with that 
supply, as well as the provision of appropriate instructions and advice on the 
correct and safe use of the medicine. The pharmaceutical service charge for the 
supply of a prescription medicine (weighted by score) is the same for all 
prescription medicines and for all pharmaceutical service providers. Public 
resources are also used to fund stand-by and on-call services. 
24 Non-prescription medicines are paid for entirely from private or user resources. In 
this context, some non-prescription medicines have a maximum price, while 
others have a price determined according to free market rules. 
 
11 Namely only with the specific authorisation of the Javna agencija Republike Slovenije za 
zdravila in medicinske pripomočke (Public Agency of the Republic of Slovenia for Medicinal 
Products and Medical Devices) and only for medicinal products and medical devices not subject 
to medical prescription, which are intended only to alleviate the mildest symptoms and the use 
of which may involve only a low level of risk. In such cases, that Agency may also impose 
restrictions on the dosage of medicinal products, the size of the corresponding packs and the 
number of units sold [Article 126 of the Zakon o zdravilih (Law on medicinal products)]. 
12 Medicines that can be prescribed under health insurance are classified in lists (so-called positive 
or intermediate lists). Inclusion on the list also depends on the proportion of the price of the 
listed medicine that is covered by compulsory health insurance. The remainder is covered by 
supplementary health insurance or is borne by the user himself or herself if no supplementary 
health insurance has been taken out in the form of voluntary health insurance. 
FARMACIJA 
 
11 
Anonymised version 
Grounds for seeking a preliminary ruling 
25 The Državna revizijska komisija is seeking to determine whether pharmaceutical 
activity, such as that at issue in the main proceedings, where the essential element 
is the supply to users of prescription and non-prescription medicines for human 
use, along with advice on the correct and safe use of such products, can be 
regarded as a non-economic service of general interest falling outside the scope of 
Directive 2014/23. 
26 Directive 2014/23 does not explicitly define the terms ‘non-economic services of 
general interest’ and ‘services of general economic interest’. In terms of settled 
case-law, it follows from the need for a uniform application of EU law and the 
principle of equality that the terms of a provision of EU law, which make no 
express reference to the law of the Member States for the purpose of determining 
its meaning and scope, must normally be given an autonomous and uniform 
interpretation throughout the European Union, which must take into account the 
context of the provision and the objective pursued by the legislation in question. 
27 It follows from recital 6 of Directive 2014/23 that Member States are free to 
decide to organise the provision of services either as services of general economic 
interest or as non-economic services of general interest or as a mixture thereof. It 
is clear from the case-law of the Court of Justice 13 that EU law does not detract 
from the power of the Member States to organise their social security systems and 
to adopt, in particular, provisions intended to govern the organisation of health 
services such as pharmacies, and account must be taken of the fact that the health 
and life of humans rank foremost among the assets and interests protected by the 
Treaty and that it is for the Member States to determine the level of protection 
which they wish to afford to public health and the way in which that level is to be 
achieved. 
28 The national legislature has expressly established that healthcare is a non-
economic service of general interest. Since pharmaceutical activity is part of 
healthcare, the legislature has thus established that pharmaceutical activity is also 
a non-economic service of general interest. 
29 Although, according to the Državna revizijska komisija, pharmaceutical activity is 
a socially relevant activity, since its purpose is to ensure public health and its 
primary objective is not to make a profit, it is nevertheless apparent from case-law 
that services normally provided for remuneration constitute economic activities, 
since the essential characteristic of remuneration resides in the fact that it 
 
13 Judgments of the Court of Justice of 19 May 2009, Commission v Italy (C-531/06, 
EU:C:2009:315) and 19 May 2009, Apothekerkammer des Saarlandes and Others (C-171/07 
and C-172/07, EU:C:2009:316). 
REQUEST FOR A PRELIMINARY RULING 23. 11. 2023 – CASE C-715/23 
 
12  
Anonymised version 
constitutes financial consideration for the service in question, without however 
having to be paid for by the recipient of that service. 14 
30 The Državna revizijska komisija therefore doubts that a pharmaceutical service, 
such as that at issue in the main proceedings, can be classified as a non-economic 
service of general interest, since providers of pharmaceutical services are 
remunerated for the provision of such services from the resources of the 
compulsory health insurance system and from the resources of users. Under 
national legislation, 15 in the case of the supply of a prescription medicine, the 
pharmaceutical service providers receive reimbursement of the purchase price of 
the medicine from the resources of compulsory health insurance, and also receive 
a predetermined sum for the handling of the prescription, the delivery of the 
medicine and advice on its use. In the case of the supply of a non-prescription 
medicine, users pay the price in full. 
31 Where services relating to the operation of a pharmaceutical business, such as the 
one at issue in the main proceedings, where the object is primarily the supply of 
prescription and non-prescription medicines for human use along with advice on 
their correct and safe use, cannot be regarded as non-economic services of general 
interest and where, as a result, the provision of such services falls within the scope 
of Directive 2014/23, the Državna revizijska komisija raises the further question 
as to whether the provision of such services can be regarded as social services or 
other specific services referred to in Annex IV to that directive. 
32 The services mentioned could be included under the CPV code 85149000 
(Pharmaceutical services), but it is not possible to deduce from Regulation (EC) 
No 2195/2002 on the Common Procurement Vocabulary (CPV) which services 
are to be included under this CPV code. Equally, the explanatory notes on CPV 
codes, 16 which do not constitute a formal source of law, do not make it possible to 
determine which services are included under the CPV code 85149000 
(Pharmaceutical services). 
Decision and content of the request for a preliminary ruling 
33 Since the Državna revizijska komisija requires a ruling on the interpretation of 
European Union law in order for a decision to be adopted, the Državna revizijska 
komisija hereby submits the following two questions to the Court of Justice for a 
preliminary ruling under the third paragraph of Article 267 TFEU, with the 
proviso that the answer to the second question is necessary only if the answer to 
the first question is negative: 
 
14 Judgment of 14 [July] 2022, Asociación Estatal de Entidades de Servicios de Atención a 
Domicilio (ASADE), C-436/20, EU:C:2022:559. 
15 Articles 23 and 63 of the Zakon o zdravstvenem varstvu in zdravstvenem zavarovanju (Law on 
healthcare and health insurance). 
16 […] 
FARMACIJA 
 
13 
Anonymised version 
1. Can a service relating to the exercise of a pharmaceutical activity, the 
main purpose of which is to supply users with prescription and non-
prescription medicines for human use, along with advice to users on the 
correct and safe use of those medicines, be classified as a ‘non-economic 
service of general interest’ within the meaning of Article 4(2) of 
Directive 2014/23/EC? 
2. Can a service relating to the exercise of a pharmaceutical activity, the 
main purpose of which is to supply users with prescription and non-
prescription medicines for human use, along with advice to users on the 
correct and safe use of those medicines, be classified in the same way as 
social and other specific services within the meaning of Article 19 of 
Directive 2014/23? 
[…]