Opinion of the Advocate General — ECLI:EU:C:2013:40
Date: 2013-01-30
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 — Judgment of the Court (Fifth Chamber), 12 September 2013 Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Contracting authorities — Body governed by public law — Concept — Professional association financed for the most part by contributions paid by its members and having autonomy to fix the amount of contributions approved by a supervisory authority and to determine the extent — Not included (European Parliament and Council Directive 2004/18, Art. 1 (9), second subpara.(c)) Point (c) of the second subparagraph of Article 1(9) of Directive 2004/18 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 a body such as a professional association governed by public law satisfies neither the criterion relating to financing for the most part by the public authorities when that body is financed for the most part by contributions paid by its members, in respect of which it is authorised by law to fix and collect the amount, if that law does not determine the scope of, and procedures for, the actions undertaken by that body in the performance of its statutory tasks, which those contributions are intended to finance, nor the criterion relating to management supervision by the public authorities simply because the decision by which that body sets the amount of those contributions must be approved by a supervisory authority. In that connection, as regards the first criterion laid down in point (c) of the second subparagraph of Article 1(9) of Directive 2004/18 relating to financing for the most part by the public authorities includes a method of indirect financing which may be made by means of a fee provided for and imposed by statute as regards its principle and amount, and which does not constitute consideration for actual use of services provided by the body concerned by the persons liable to pay the fee and in respect of which the detailed rules for collection derive from the powers of a public authority. Although the fact that, formally, a body itself fixes the amount of contributions which provide for the greater part of its functions does not exclude the fact that there may be indirect financing satisfying that criterion, that is not the case where the body has a considerable degree of autonomy to determine the nature, scope and procedures for the actions it undertakes in order to perform its tasks and to set the budget necessary to that end and, consequently, the amount of contributions it will claim from its members. Furthermore, as regards the second criterion laid down in point (c) of the second subparagraph of Article 1(9) of Directive 2004/18 relating to management supervision by the public authorities, a review ex post facto does not satisfy that criterion, in principle, for such a review does not enable the public authorities to influence the decisions of the body in question in relation to public contracts. That is the case, in principle, of a general review of legality conducted ex post facto by a supervisory authority and, a fortiori, of an action taken by that authority in the form of approval of the body’s decision fixing the amount of contributions which provide for the greater part of its financing, which is confined to ascertaining that the body’s budget is balanced. Therefore, the means of financing of a body, such as a professional association governed by public law, do not constitute financing for the most part by the public authorities and do not allow management supervision of that body by the public authorities. (see paras 22-27, 29-31, operative part)