Opinion of the Advocate General — ECLI:EU:C:2007:487
Date: 2007-09-06
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

summary, I reject not only the theory that payment of the fee is an obligation borne by the customer in exchange for access to public programming, but also the idea that the State receives back consideration for its economic support in the form of the public broadcasting service. 4. An activity free from competition 61. Although it is irrelevant to define what is meant by ‘body governed by public law … established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character’, (27) the Austrian Government and the EFTA Surveillance Authority are correct to incorporate an examination of the competitive position of the broadcasters in the context of that question referred for a preliminary ruling. 62. Taking account of the system for collection of the broadcasting fee, established by a specific piece of legislation with the rights and powers of public law referred to above (collection of monies and possible compulsory enforcement), it cannot validly be sustained that the generation of financial resources designed to satisfy a need of general interest for public programming, which the broadcasters indisputably provide, is independent of market conditions. The monies which the broadcasters receive from the fee do not come from their running a business in rivalry with their competitors, but are paid by the community, (28) and they are not concerned by the use actually made by the consumers of the audiovisual programmes offered to them. 63. That form of sheltered activity in the market frees the broadcasters of any uncertainty as to their income, since they have the State’s guarantee, manifested in the budgets drawn up by the KEF. Accordingly, even if the argument that the origin of the funds is private were accepted, the confident assurance which the broadcasters can have in the arrival of their pecuniary resources does not differ from that which they may have when capital is placed directly at their disposal by the State. 64. In response to my question at the hearing whether that guarantee of funding of the broadcasters which the German Government is constitutionally obliged to provide extends to debts contracted by them, (29) the German Government categorically rejected such a possibility. However, as the Commission pointed out, that question never arises, since the KEF regularly checks the broadcasters’ pecuniary needs, and comfortably meets them; indeed, the broadcasters are freed from resorting to private credit in the critical situation of insolvency, which reinforces the public character of the subsidy. 5. Other matters for consideration 65. From all of the foregoing it can be concluded that the economic resources which support the work of the broadcasters are public. None the less, some further reflections may be added. 66. Thus, first, it is established case-law that the autonomous concept of Community law of ‘contracting authority’ must be given an interpretation which is both functional (30)and broad, (31) taking account of the fact that the aim is to avoid the risk of preference being given to national tenderers or applicants whenever a contract is awarded by contracting authorities, and the possibility that bodies financed or controlled by the State may be guided by considerations other than economic ones. (32) 67. In that context, in response to a question I put to them at the hearing, the broadcasters stated that none of the 11 businesses contacted by the GEZ to submit binding tenders was based in another Member State. That fact alone reveals that the fears of the Community legislature were not unfounded. 68. Secondly, the broadcasters, relying in part on German academic writing, (33) stress the constitutional imperative of impartiality which protects them from any intervention by the public authorities in their management. 69. The excellence of Article 5(1) of the German Constitution, which has succeeded in creating a public broadcasting service of quality, needs no comment, but there is no incompatibility between that imperative and the broadcasters’ obligation at issue to respect and comply with the procedures for public tendering laid down by the Community directives. 70. Within the observations submitted on this reference for a preliminary ruling, no argument has been adduced to demonstrate that making the broadcasters subject to the procedures of the Directives might endanger their neutrality. Moreover, the freedom of the press enjoyed by broadcasting and its impartiality have never been criteria by which to judge whether bodies governed by public law are contracting authorities. (34) 71. Lastly, it is common ground that the broadcasters receive the vastly predominant part of their financing from the fee as opposed to other sources of income, in particular advertising, which leads to the conclusion that, taking due notice of the explanations offered, the manner in which the broadcasters meet their costs satisfies the requirement, that they should be financed for the most part by the State, of the first alternative of the third indent of the second subparagraph of Article 1(b) of Directive 92/50. 6. Response to the first and second questions referred for a preliminary ruling 72. In the light of the foregoing reflections, I invite the Court of Justice to answer the first and second questions of the Oberlandesgericht Düsseldorf as follows: the indirect financing of bodies through the payment of fees by the possessors of radio or television receivers constitutes funding within the meaning of the provision at issue, analysis of which excludes the addition of other criteria, such as, for example, direct State influence on the awarding of public contracts by the body which the State is financing. C – The third question referred for a preliminary ruling 73. By this question the referring court seeks to know whether Article 1(a)(iv) of Directive 92/50 includes within its scope services which are ancillary and secondary, and are not specifically related to programming. 74. I have already referred to the usefulness of answering this, if the broadcasters are to be categorised as a ‘contracting authority’. In requesting an interpretation of that provision, the Oberlandesgericht seeks to clarify its scope ratione materiae in order to decide whether services for cleaning the premises of such authorities are excluded. 75. The wording of the provision is so clear that it is sufficient to turn to the adage in claris non fit interpretatio. The provision exempts from the requirement of compliance with public tendering procedures contracts closely bound up with the content of radio and television programmes (acquisition, development, production, co‑production and those related to obtaining broadcasting time). 76. Since the above is an exception to the general rule, a strict interpretation is required, to the effect that any other activity ancillary to those expressly listed must be carried out within a contract governed by law, after a public invitation of tenders. 77. That conclusion appears to be supported by the history of the Community legislation, as emerges from comparison of the respective recitals of the grounds of Directives 92/50 and 2004/18. Thus, the 25th recital in the preamble to Directive 2004/18 has added detail to the succinct 11th recital in the preamble to Directive 92/50, including ‘other preparatory services, such as those relating to scripts or artistic performances necessary for the production of the programme’. On the other hand, it does not extend to ‘supply of technical equipment necessary’ to the production of those programmes. 78. Consequently, if specialised technical support cannot find refuge in the exception, nor can cleaning services for the broadcasters’ buildings. 79. In brief, both grammatical and textual analysis militate in favour of using the argumentum a contrario when dealing with the scope ratione materiae of Directive 92/50 in relation to the contracts concluded with the German broadcasters. 80. I will allow myself a final comment, since it is within that provision that the constitutional guarantee of the impartiality of the German broadcasters is found to be respected, rather than in the way in which they are financed; (35) accordingly the Community legislature has provided for the programming exception in order to take account of social and cultural considerations, as is stated in the said 25th recital in the preamble to Directive 2004/18. VI – Conclusion 81. In accordance with the foregoing, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Oberlandesgericht of Düsseldorf in the following terms: (1) On a proper construction of the first alternative of the third indent of the second subparagraph of Article 1(b) of Directive 92/50 of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, the requirement of ‘financing by the State’ extends to indirect financing of certain organisations through the payment of fees by those persons who possess broadcasting receivers, and it may not be made subject to other conditions, such as, for example, that the State have a direct influence on the awarding of public contracts by the organisation which it finances. (2) Article 1(a)(iv) of Directive 92/50 excludes from its scope of application only those services which it specifies, and includes all others which are ancillary and secondary, which are not specific to programming. 1 – Original language: Spanish. 2 – Decimus Junius Juvenal (probably born between 55 and 60 AD in Aquino and certainly deceased after 127 AD), author of the Satires, of whose life the only other biographical details are those found in occasional confidences in his own works. At the end of his life, he may have been exiled for a time because of his criticism of the authorities, perhaps because he alluded in one of his poems to Titus Elius Alcibíades, a steward of the emperor Hadrian. (Translator’s note: reference to Spanish text not translated.) 3 – ‘The same people, … now that their votes are not for sale to anyone, have cast aside their worries. Those who previously had the power to make Emperors, generals, commanders of legions, the power to do anything, are now content to covet two things, bread and the Games. …’, Satire X, verses 74-81. (Translator’s note: free translation.) 4 – It is a commonplace to consider that novel, written in 1948 after the trauma of the Second World War, not so much as a diatribe against totalitarianism, but as a warning of the subtlety with which such a regime can be established, through manipulation of the media of communication. 5 – Directive 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). 6 – Council Directive 92/50/EEC of 18 June 1992 relating to the coordination of procedures for the award of public service contracts (OJ 1992 L 209, p. 1). 7 – Council Directive of 26 July 1971 concerning the co-ordination of procedures for the award of public works contracts (OJ 1971 L 206, p. 26). 8 – Since 1 January 1999 the Law in force is that of the Sixth Reform by Law 703-4/1 of 26 August 1998 (BGBl. I, p. 358). 9 – This is the approach of the Austrian Government and also of the Polish Government, although the latter deals with them separately. 10 – In points 5 and 6 of this Opinion this option is explained. 11 – Case C‑237/99 Commission v France [2001] ECR I‑939, paragraph 48 et seq. 12 – Case C‑380/98 University of Cambridge [2000] ECR I‑8035, paragraphs 22 to 25. 13 – Point 11 et seq. of this Opinion. 14 – On the legal principles of that State, Maurer, H., Allgemeines Verwaltungsrecht, 12th ed. revised and enlarged, Ed. C.H. Beck, Munich, 1999, p. 352 et seq. 15 – While the German Government states that the word ‘Gebühr’ (tax or levy) is not suitable to describe the obligation to pay, some academic writing ascribes it to tax law as ‘Abgabe’ (duty or burden); Boesen, A., Vergaberecht: Kommentar zum 4. Teil des GWB, published by Bundesanzeiger, 1st ed., Cologne, 2000, p. 151, No 73. 16 – University of Cambridge, paragraph 20, and Commission v France, paragraph 44. 17 – Von Kirchmann, J.-H., Die Wertlosigkeit der Jurisprudenz als Wissenschaft, Berlin, Springer, 1848. 18 – Frenz, W., ‘Öffentlich-rechtliche Rundfunkanstalten als Beihilfeempfänger und öffentlich Auftraggeber’, in WRP – Wettbewerb in Recht und Praxis, 3/2007, p. 269. 19 – Dreher, M., ‘Öffentlich-rechtliche Anstalten und Körperschaften im Kartellvergaberecht’, NZBau – Neue Zeitschrift für Baurecht und Vergabe, 6/2005, p. 302. 20 – Opitz, M., ‘Vergaberechtliche Staatsgebundenheit des öffentlichen Rundfunks?’, NVwZ – Neue Zeitschrift für Verwaltungsrecht, No 9/2003, p. 1090. 21 – Frenz, W., op. cit., p. 272. The broadcasters, in their observations, mention an action on grounds of infringement of the Constitution which is pending before the Bundesverfassungsgericht (German Constitutional Court) directed against the decrease introduced by the Länder on the proposed increase of the rate of the fee. 22 – Case C‑306/97 Connemara Machine Turf [1998] ECR I‑8761, paragraph 34. 23 – Commission v France, cited above, paragraph 49. 24 – Paragraph 21 of the judgment. 25 – Hailbronner, K., ‘Öffentliches Auftragswesen’, in Grabitz, E./Hilf, M., Das Recht der Europäischen Union, Ed. C.H. Beck, Munich, 2006, B 4, p. 22, No 121. 26 – According to University of Cambridge, above cited, paragraph 25. 27 – Case C‑360/96 BFI Holding [1998] ECR I‑6821, paragraphs 48 to 50. 28 – Seidel, I., ‘Öffentliches Auftragswesen’, in Dauses, M., Handbuch des EU-Wirtschaftsrechts, Editorial C.H. Beck, Munich, 2006, p. 27, No 82; Boesen, A., op. cit., p. 152. 29 – Until now, the requirement for a public mechanism for the offsetting of debts had been referred to solely in the context of analysis of the first indent of the second subparagraph of Article 1(b) of the Community directives on public contracts, on the condition of the general interest; Joined Cases C‑223/99 and C‑260/99 Agorà and Excelsior [2001] ECR I‑3605, paragraph 40. 30 – Case C‑360/96 BFI Holding [1998] ECR I‑6821, paragraph 62; Case C‑353/96 Commission v Ireland [1998] ECR I‑8565, paragraph 36; Case C‑470/99 Universale-Bau [2002] ECR I‑11617, paragraph 53; Case C‑373/00 Adolf Truley [2003] ECR I‑1931, paragraph 41; and Case C‑283/00 Commission v Spain [2003] ECR I‑11697, paragraph 73. 31 – Wollenschläger, F., ‘Der Begriff des “öffentlichen Auftraggebers” im Lichte der neuesten Rechtsprechung des Europäischen Gerichtshofes’, EWS (Europäisches Wirtschafts- und Steuerecht), nº 8/2005, p. 345. 32 – University of Cambridge, paragraph 17; Universale-Bau, paragraph 52; and Adolf Truley, paragraph 42, all cited above. 33 – Dreher, M., op. cit., p. 303; Hailbronner, K., op. cit., p. 22, No 123. 34 – Seidel, I., op cit., p. 27, No 82. 35 – Also Boesen, A., op. cit., p. 152, No 75.