62007CC0300_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. In the present reference for a preliminary ruling, the Procurement Division of the Oberlandesgericht (Higher Regional Court) Düsseldorf (Germany) asks the Court to interpret Directive 2004/18/EC in the context of German statutory sickness insurance funds. (2) The referring court is asking, in essence, whether those funds constitute bodies governed by public law, and therefore contracting authorities, and how one should classify the contract at issue.
I – Legal framework
A – Community law
2. Article 1(9) of Directive 2004/18 provides:
‘“Contracting authorities” means the State, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law.
A “body governed by public law” means any body:
(a) established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b) having legal personality; and
(c) financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or subject to management supervision by those bodies; or having an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law.
Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. Member States shall periodically notify the Commission of any changes to their lists of bodies and categories of bodies.’
3. Part III, Category 1.1 of Annex III to the directive sets out under ‘Germany’ the following: ‘Sozialversicherungen (Krankenkassen, Unfall- und Rentenversicherungsträger)/(social security institutions: health, accident and pension insurance funds)’.
4. Article 79 of the directive, entitled ‘Amendments’, provides that ‘in accordance with the procedure referred to in Article 77(2), the Commission may amend … (d) the lists of bodies and categories of bodies governed by public law in Annex III, when, on the basis of the notifications from the Member States, these prove necessary …’
5. Article 1 of the directive, entitled ‘Definitions’, provides as follows:
‘2.(a) “Public contracts” are contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive.
…
(c) “Public supply contracts” are public contracts other than those referred to in (b) having as their object the purchase, lease, rental or hire purchase, with or without option to buy, of products.
…
(d) “Public service contracts” are public contracts other than public works or supply contracts having as their object the provision of services referred to in Annex II.
A public contract having as its object both products and services within the meaning of Annex II shall be considered to be a “public service contract” if the value of the services in question exceeds that of the products covered by the contract.
…
4. “Service concession” is a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment.
5. A “framework agreement” is an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged.
…’
6. Article 32(2) of the directive provides that ‘for the purpose of concluding a framework agreement, contracting authorities shall follow the rules of procedure referred to in this Directive …’
7. Article 21 of the directive provides that ‘contracts which have as their object services listed in Annex II B shall be subject solely to Article 23 and Article 35(4)’.
8. The subject of Annex II B’s Category No 25 is ‘Health and social services’.
9. Article 22 of the directive provides that ‘contracts which have as their object services listed both in Annex II A and in Annex II B shall be awarded in accordance with Articles 23 to 55 where the value of the services listed in Annex II A is greater than the value of the services listed in Annex II B. In other cases, contracts shall be awarded in accordance with Article 23 and Article 35(4).’
10. Finally, Article 1(4) of Directive 1999/44/EC (3) provides that ‘contracts for the supply of consumer goods to be manufactured or produced shall also be deemed contracts of sale for the purpose of this Directive’.
B – National law
11. The German public health system and the organisation and financing of the public sickness insurance funds in that country are dealt with in Books IV and V of the Sozialgesetzbuch (Social Code; ‘the SGB’). Paragraph 1(1) of the SGB provides that these funds have, as a community based on the principle of solidarity, the task of maintaining, restoring and improving the health of the persons insured.
12. Statutory sickness insurance funds are corporations governed by public law and have legal personality as well as a right of self-government. While persons insured under the compulsory scheme may select the particular statutory sickness insurance fund, they may not choose between a public and a private sickness insurance fund. The funds are financed by way of (i) compulsory contributions from insured persons, (ii) direct payments from the Federal State and (iii) compensatory payments from the financial compensation system, composed of the various public sickness insurance funds, and from the risk structure compensation mechanism.
13. The amount of the contributions depends solely on the income of the insured, up to the income limit for the assessment of contributions. Other factors, such as age, previous illnesses or the number of co-insured persons, are irrelevant. In practice, the insured part of the contributions is deducted by the employer from the employee’s salary and the contribution – together with the employer’s part of the contribution – is then paid to the sickness insurance fund. Payment and collection of contributions are compulsory under provisions of public law.
14. The contribution rate is not set by the State, but by the statutory sickness insurance funds. These funds have to calculate the rates in such a way as to cover, when combined with other resources, the expenses stipulated by law and to guarantee that the operating means and statutory reserves are available. The setting of the contribution rate requires the approval of each sickness insurance fund’s State supervisory authority and the amount of the contributions is to some extent laid down by law. It must be set in such a way that the revenue accrued is not lower or higher than expenditure. Since the vast majority of the benefits to be provided are laid down by law, the amount of expenditure cannot – to any significant extent – be directly influenced by the sickness insurance fund in question.
15. Differences in expenditure as a result of different risk structures on the part of the insured are largely cushioned by the risk structure compensation mechanism. There is also a certain ‘solidarity obligation’ between the sickness insurance funds. In this way the State indirectly guarantees that the liabilities of the individual funds are met. The sickness insurance funds have a right to self-government and are subject to State supervision. Legal supervision in the German health system is not limited to mere review.
16. Certain measures require an authorisation by the supervisory authorities, such as modification of the statutes of the sickness insurance funds, setting the contribution rates, construction and acquisition of land or software. The supervisory authorities are required to verify the sickness insurance funds’ commercial, accounting and operational management. The State supervisory authority may require documents to be submitted and information to be issued. The provisional budget of every sickness insurance fund is to be submitted to the State supervisory authority in good time.
17. Given that, in the context of the system at issue, the insured has a right, via the sickness insurance fund not to reimbursement of costs but to free access to the corresponding services, a so-called principle of ‘services in kind’, the sickness insurance funds are encouraged to conclude with different suppliers ‘provision schemes’ which are multi-sectoral or interdisciplinary. These ‘integrated provision schemes’ are concluded between the funds and different suppliers eligible to provide treatment to the insured. They define the remuneration for different formulae of the integrated provision scheme which are intended to pay for the totality of services that the insured can call on in the context of the scheme. It is the sickness insurance fund that is party to the integrated provision scheme contract and is to pay the remuneration of the provider. The participation of those insured in the different formulae of the scheme is optional, but once the insured opts for such a formula, he is required to call on the services of the provider with whom the relevant sickness insurance fund has concluded such a contract.
II – Facts and the questions referred
18. By a notice in the journal Orthopädie-Schuhtechnik
in June 2006, AOK Rheinland, a statutory sickness insurance fund which merged with AOK Hamburg, thus forming the defendant fund in the main proceedings (hereinafter ‘AOK’), invited orthopaedic footwear makers to submit tenders for the manufacture and supply of footwear, suitable for diabetic foot syndrome, for the integrated provision scheme within the meaning of Paragraph 140a et seq. of the SGB V for the period from 1 September 2006 to 31 December 2006. The services to be provided were divided according to cost into different groups for which the tenderer had to submit prices. Under ‘Special conditions’, it was provided that patients holding a sickness insurance card and an appropriate medical prescription should contact the relevant orthopaedic footwear makers directly; a declaration of assumption of costs from AOK was not necessary. The contracting party’s task was to manufacture and check individually tailored orthopaedic footwear, whilst detailed advice had to be given prior to measurement, on supply and in the course of the prescribed check-ups. Apart from contributions by patients, payments were to be made by AOK.
19. Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik (‘Oymanns’), an orthopaedic footwear company, submitted a tender, following which, it lodged a complaint relating to infringements of procurement law. The objections were rejected by AOK on the ground that the rules of procurement law were not relevant. Oymanns instituted procurement review proceedings before the Procurement Chamber which dismissed the application for review. Oymanns then lodged a complaint against that decision before the referring court.
20. The Oberlandesgericht Düsseldorf has decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘1. (a)	Is the requirement of “financing by the State” as referred to in the first alternative of letter (c) of the second subparagraph of Article 1(9) of the directive to be interpreted as including a situation where the State prescribes membership of a sickness insurance fund and the duty to pay contributions – whose amount is dependent on income – to the relevant sickness insurance fund, which sets the contribution rate, but the sickness insurance funds are linked to one another by a system of solidarity-based financing described in greater detail in the grounds hereof and the satisfaction of the liabilities of each individual sickness insurance fund is guaranteed?
(b) Is the requirement referred to in the second alternative of letter (c) of the second subparagraph of Article 1(9) that the body be “subject to management supervision by those bodies” to be interpreted to the effect that State legal supervision which concerns current or future transactions – with other possible means of State intervention described in the grounds hereof – is sufficient to satisfy that requirement?
2. If the first question – in part (a) or (b) – is answered in the affirmative, are letters (c) and (d) of Article 1(2) of the directive to be interpreted as meaning that the provision of goods which are individually manufactured and tailored, in terms of their form, to meet the needs of the particular customer, and on whose use the individual customer is to be advised, are to be classified as “supply contracts” or as “service contracts”? Is only the value of the particular services to be taken into consideration?
3. If the provision referred to in the second question is to be or could be classified as a “service”, is Article 1(4) of the directive – as distinct from a “framework agreement” within the meaning of Article 1(5) of the directive – to be interpreted as meaning that a “service concession” also includes the award of a contract in the form where
– the decision on whether and in what cases the contractor is awarded specific contracts is taken not by the contracting authority, but by third parties,
– the contractor is paid by the contracting authority because by law only that authority is liable to pay remuneration and is required to provide the service to third parties, and
– the contractor does not have to provide, or offer as available, services of any kind prior to their use by the third parties?’
21. Written observations were submitted by Oymanns, AOK and the Commission. The parties submitted oral argument at the hearing which took place on 19 June 2008.
III – Assessment
A – The first question
22. By its first question, the Oberlandesgericht Düsseldorf essentially seeks guidance as to whether the sickness insurance funds constitute bodies governed by public law within the meaning of Directive 2004/18, since in Germany it is disputed whether, despite being mentioned in Annex III to the directive, statutory sickness insurance funds should be regarded as bodies governed by public law.
1. Principal arguments of the parties
23. Oymanns, the applicant in the main proceedings, submits that the fact that German sickness insurance funds are listed in Annex III to Directive 2004/18 constitutes a conclusive presumption that the Community legislature considered those funds to be bodies governed by public law. Oymanns essentially maintains that the sickness insurance funds are financed, for the most part, by the State and that their management is supervised by the State.
24. AOK, the defendant in the main proceedings, submits that the listing in Annex III to Directive 2004/18 is merely indicative. As to the financing by the State, it must flow directly from public resources. Finally, AOK submits, in essence, that the public authorities exercise a mere legal review.
25. The Commission
observes that the sickness insurance funds are explicitly cited in Annex III to the directive and considers, therefore, that they should be classified as bodies governed by public law. In addition, the Commission maintains essentially that the funds at issue fulfil the conditions to be classified as such.
2. Appraisal
26. According to Article 1(9) of Directive 2004/18, to establish that the sickness insurance funds at issue in the main proceedings constitute contracting authorities, they must fulfil the conditions to be characterised as bodies governed by public law.
27. In that connection, as Advocate General Ruiz-Jarabo Colomer observed in Bayerischer Rundfunk and Others, (4) ‘it is established case-law that the autonomous concept of Community law of “contracting authority” must be given an interpretation which is both functional (5) and broad, (6) 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’. (7)
28. First of all, the German statutory sickness insurance funds are explicitly mentioned in Annex III to the directive. The annex in question contains a non-exhaustive list of Member States’ bodies governed by public law which ‘fulfil the criteria referred to in [Article 1(9)]’ of the directive.
29. It should be noted that Member States may not unilaterally amend Annex III to the directive. Article 1(9) of the directive provides that Member States must notify the Commission of any changes to their lists of bodies governed by public law. It follows from Article 79 of the directive (8) that only the Commission is empowered to amend ‘the lists of bodies and categories of bodies governed by public law in Annex III, when, on the basis of the notifications from the Member States, these prove necessary’. When it does so, the Commission is required to follow the comitology procedure. (9) It follows from the documents before the Court that to date the comitology procedure has not been set in motion as regards German sickness insurance funds.
30. In the light of the foregoing, I consider that the fact that the German sickness insurance funds are listed in Annex III to the directive gives rise to a presumption that they should be regarded as contracting authorities pursuant to the directive. (10) While the list contained in Annex III is not exhaustive in nature, the Community legislature by its adoption of the list has indicated certain bodies which are, in its view, to be classified as bodies governed by public law. (11) In addition, the list in Annex III may only be amended according to the comitology procedure described above. (12)
31. I would note in that regard that the position of the Community legislature is reflected by a judgment of the Bundesverfassungsgericht (Federal Constitutional Court) of 31 January 2008, (13) in which that court stated that the local sickness insurance funds are bodies governed by public law.
32. Nonetheless, I will demonstrate that the German sickness insurance funds should, in any event, be classified as contracting authorities.
33. The definition of a ‘contracting authority’ in Article 1(9) of Directive 2004/18 follows the wording of the earlier directives on public procurement. In fact, the directive represents to a large extent a recasting or consolidation of the provisions of all the preceding directives on the award of public contracts. (14)
34. The Court held that, in accordance with the case-law, the conditions laid down in Article 1(9) of the directive – namely, that the body (i) be established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; (ii) have legal personality; and (iii) be financed, for the most part, by the State – are cumulative. (15) As regards the third condition of ‘close dependency of a body on the State’, however, the Court held that its various conditions are alternative. (16)
35. It appears from the documents before the Court that it is not disputed that the first two of the above three conditions are fulfilled in the present case.
36. On account of this, I shall therefore concentrate on the third element of sufficient proximity to the State. In regard to this condition, it is necessary, in particular, to analyse whether the sickness insurance funds (i) are financed by the State and/or (ii) are subject to management supervision by it.
37. First of all, as regards the first alternative – financing by the State – it follows from Bayerischer Rundfunk and Others (17) that not only direct financing by the State, but also indirect financing, is sufficient to satisfy the definition. In the particular context of broadcasting, the Court held that the expression ‘financed, for the most part, by the State’ is to be understood as meaning that such financing exists where there are: (i) the activities of public broadcasting bodies invested with a remit to serve the public interest, independent of the State authorities, self-managed and organised in such a way as to exclude any influence by the public authorities; and (ii) those activities are for the most part financed by a fee payable by persons who possess a receiver, which is imposed, calculated and levied according to the rules of State treaties concluded for those purposes and is not the result of any contractual arrangement entered into by those bodies and the customers.
38. The present case is similar in that the sickness insurance funds are financed by way of compulsory contributions which are fixed by law. In that connection, it matters little in my view whether a body receives the financial means directly from the State, by way of a tax, or indirectly, (18) by way of compulsory contributions fixed by law.
39. It follows from the documents before the Court that that argument is confirmed by the fact that in the course of planned reforms in Germany (to simplify the collection of contributions and the risk structure compensation mechanism) consideration has been given to leaving the collection of contributions to a national central unit (health fund) which would then provide the sickness insurance funds with (risk-weighted) contributions for each member.
40. It should be noted that the vast majority of the German population (around 90%) is insured with such a fund, as is required by law, and that the financing of those funds is guaranteed through compulsory membership and contributions. The Commission refers to the information provided by the German Federal Ministry of Health according to which the contributions constitute 95% of the funds’ income.
41. In addition, the amount of the contributions depends solely on the income of the insured, up to the income limit for the assessment of contributions. Furthermore, since their financing is guaranteed by the State, the funds enjoy a special position vis-à-vis their competitors (namely private insurance funds). The obligation to provide benefits is independent of the actual payment of insurance contributions. In that connection, the services provided by the sickness insurance funds do not constitute ‘specific consideration’ for the health services provided, within the meaning of the Court’s case-law. (19)
42. The referring court draws a distinction between the present case and the situation in Bayerischer Rundfunk and Others (20) in that here the contribution rate is not set by the State, but by the statutory insurance fund.
43. In that regard, it should be borne in mind that it is apparent from the order for reference that the setting of the contribution rate requires the approval of the State supervisory authorities. Furthermore, the law lays down precisely how those rates are to be calculated and that the revenue accrued may not be lower or higher than expenditure. Since the vast majority of the benefits to be provided are laid down by law, the amount of expenditure – and as a result the setting of the contribution rate – to a great extent cannot be directly influenced by the sickness insurance fund in question.
44. Therefore, in the light of the foregoing considerations, I consider that the sickness insurance funds fulfil the third condition (first alternative) since they are financed, for the most part, by the State.
45. Turning to the second alternative, namely the proximity to the State through supervision, in Adolf Truley
the Court held that, in the light of the case-law, ‘the criterion of managerial supervision cannot be regarded as being satisfied in the case of mere review since, by definition, such supervision does not enable the public authorities to influence the decisions of the body in question in relation to public contracts’. (21) However, as is apparent from the considerations in points 17 to 19 of the present Opinion and as submitted by the referring court, managerial supervision within the German system of statutory sickness insurance is not limited to ‘mere review’ within the meaning of that case-law.
46. The Court confirmed in Adolf Truley (22) that the criterion of management supervision ‘is, however, satisfied where the public authorities supervise not only the annual accounts of the body concerned but also its conduct from the point of view of proper accounting, regularity, economy, efficiency and expediency’ which appears to be the case in the main proceedings. The Commission correctly pointed out that the fulfilment of the criterion of management supervision follows already from the closely-meshed nature of the applicable legal framework, in particular the SGB V. The latter also regulates the legal relations between the funds and the various service providers such as doctors, dentists, pharmacists etc. The law lays down the tasks which the sickness insurance funds must undertake, the manner in which they are required to do so and the manner in which they have to finance themselves. Finally, the supervisory authorities have the power to intervene directly in the funds’ organisation.
47. Contrary to AOK’s contention that there can effectively be no management supervision since public authorities do not have the power to annul the funds’ procurement decisions, I consider that what is relevant here is a general dependency on a contracting authority, rather than whether there is influence over specific contracts. Therefore it should not be necessary to prove that the existing management supervision is concerned with the contract award process. (23)
48. There are several parallels that I can draw with Commission
v France . (24) First, as in that case, we are also concerned here with a situation in which the activities of the sickness insurance funds ‘are very narrowly circumscribed’. Second, as the Court went on to hold in that case, it is also apparent here that: ‘since the rules of management are very detailed, the mere supervision of compliance with them may in itself lead to significant influence being conferred on the public authorities’. Third, as in the present case, the supervisory authority is empowered to ‘order that [a fund] be wound up ... and … to suspend the managerial organs, [take on management itself] or appoint a provisional administrator’. Fourth, in the above judgment the Court held that even if the exercise of the above powers conferred on the competent authority ‘is in fact the exception, it none the less implies permanent supervision, which provides the only means of detecting [management] failure’.
49. Finally, the fact that the criterion of management supervision is fulfilled in the present case is also confirmed by a judgment of the Bundesverfassungsgericht, (25) cited by the referring court, where the former court held that sickness insurance funds are ‘allowed to be self-governing in the sense of having scope for their own autonomous action only to an extremely small extent’ and for which ‘autonomous organisation of the law on statutes, organisation, contributions and benefits is largely precluded’.
50. It follows from the above that the sickness insurance funds in question also fulfil (the second alternative of) the third condition since they are subject to management supervision by the State.
51. It therefore follows that the German sickness insurance funds at issue in the main proceedings constitute bodies governed by public law because they are listed to that effect in Annex III to Directive 2004/18 and, in any event, fulfil all the conditions laid down in the Court’s case-law to be classified as such.
B – The second question
52. The first question having been answered in the affirmative, by its second question, the referring court asks in essence whether the supply at issue is a ‘supply contract’ or a ‘service contract’. The significance of this is that the classification as a ‘supply contract’ would result in the provisions of Directive 2004/18 being fully applicable.
1. Principal arguments of the parties
53. Oymanns
submits essentially that the supply of goods that are produced individually should be considered as a whole to be a supply of products.
54. AOK
maintains, in essence, that the relevant question is how to determine the value of the ‘supply’ element and the ‘services’ element which together make up a mixed contract. In a case such as this one, apart from the ‘value’ element, one has to establish which of the supplies is ‘characteristic of the contract’s content’.
55. The Commission
essentially submits that the delimitation between public supply of products and public supply of services is governed by the second paragraph of Article 1(2)(d) of the directive, which lays down the quantitative criterion of value.
2. Appraisal
56. First of all, contrary to the referring court, I consider that the Auroux and Others
case-law (26) – according to which the distinction between a public services contract and a public works contract should be determined on the basis of the main purpose
of the contract (a qualitative test) – is not applicable for the purposes of distinguishing between supply contracts and service contracts.
57. Rather, in this respect, Article 1(2)(d) of the directive provides that ‘a public contract having as its object both products and services ... shall be considered to be a “public service contract” if the value
of the services in question [(a quantitative test)] exceeds that of the products covered by the contract’ (emphasis added). (27) The interpretation that value is the sole test for determining whether the contract concerns public supplies or public services is also confirmed by the wording of Article 22 of the directive.
58. Since the question of the value is a matter of fact, it must be dealt with by the referring court. However, the general rule is that the contract is a supply contract if the value of the consideration attributable to the goods is equal to or greater than the value attributable to the services. Otherwise the contract is a public services contract. (28)
59. Therefore it will be necessary to determine how the production of the individually tailored footwear is to be regarded in the context of the overall supply (consisting inter alia of the manufacture of shoes and related services).
60. None the less, it would appear to me that prima facie the production of individual items of footwear should be regarded as part of the supply. In that connection, the referring court submits that, on the basis of a provisional estimate, the value of the supply of footwear would be higher than the value of the services, despite the extensive consultation duties. Furthermore, the referring court rightly points out that Article 1(4) of Directive 1999/44 treats contracts for the supply of consumer goods to be manufactured as contracts of sale, irrespective of whether they relate to standardised items or items individually tailored to the specific procurement process (so-called ‘non-fungible’ goods). This confirms that the assessment depends on the relative value of the footwear manufactured and of the advice.
61. In addition, the Commission rightly observes that Regulation (EC) No 2195/2002 on the Common Procurement Vocabulary, (29) in which orthopaedic shoes are cited on various occasions, gives rise to the presumption that they constitute ‘products’, even if they require the provision of advice. (30) Finally, in line with the second subparagraph of Article 1(2)(d), it may even be argued that the contract in question in the main proceedings is a public supply contract (supply of products, in casu, shoes) which, incidentally, also covers a very particular form of ‘installation operations’ (supply of services, in casu, detailed consultation on the use of the product). Other examples might include: a contract for a data processing system often covering both hardware (goods) and bespoke software or a contract for both the supply of products (for example, vehicles) and their maintenance. (31)
62. Consequently, the second question should be answered to the effect that the provision of goods which are individually manufactured and tailored, in terms of their form, to meet the needs of the particular customer, and on whose use the individual customer is to be advised, is to be classified as ‘supply contracts’ or as ‘service contracts’, depending on the value of the particular services to be taken into consideration which is a question of fact that must be dealt with by the referring court.
C – The third question
63. Should the supply referred to in the second question be classified as a ‘service’, by its third question, the referring court essentially seeks to know whether a ‘service concession’ – as distinct from a ‘framework agreement’ – is applicable in circumstances such as those in the main proceedings. The referring court notes that classification as a ‘service contract’ on the basis of national law results in the application of certain procurement legislation with the result that Oymanns’ application would at least be partially successful, whereas it would have to be dismissed from the outset if the contract were to be regarded as a ‘service concession’.
1. Principal arguments of the parties
64. Oymanns
argues that the integrated provision scheme constitutes a framework agreement in that it merely defines the framework applicable to individual contracts – which will be concluded at a later stage – and, in particular, pricing.
65. AOK
argues, in essence, that the envisaged supply in the context of the integrated provision scheme constitutes a service concession; the framework agreement is not applicable in that the sickness insurance fund loses control – by virtue of concluding its contract with the provider – over the rest of the procedure.
66. The Commission
maintains essentially that the agreement between the sickness insurance fund and a provider constitutes a framework agreement.
2. Appraisal
67. On one hand, the directive defines a ‘service concession’ as ‘a contract of the same type as a public service contract except for the fact that the consideration for the provision of services consists either solely in the right to exploit the service or in this right together with payment’.
68. On the other hand, a ‘framework agreement’ is defined as ‘an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged’.
69. First of all, I agree with Oymanns that the agreement in question cannot be a service concession since it is the sickness insurance fund – and not the patient, apart from small contributions – which is responsible for remuneration. In that connection, reference is made to Parking Brixen . (32) The integrated provision scheme cannot be classified as a service concession, since the latter involves a transfer of the right to exploit a particular service and the concessionaire bears all or a major part of the economic risk related to the exploitation. In the case at hand, the provider is not required to provide any service before entering into an individual contract with an insured person. Therefore, he does not obtain as compensation any prior right to exploit a service. (33) The provider is required to provide his service upon request of the insured, without, however, any possibility to negotiate on price or his own compensation, which is agreed with the sickness insurance fund, and will be paid to him by the latter. Thus the provider does not bear any economic risk for the purpose of the above Community case-law.
70. I consider that the Commission is right to classify the agreement between the sickness insurance fund and a provider as an almost classic example of a framework agreement, because it stipulates the conditions concerning the delivery and advice for the services which will be provided over a specified period of time. It is only on the basis of the subsequent individual contracts that the supplier is required to supply the shoes and the sickness insurance fund is required to pay the compensation. The fact that the supplier does not know in advance whether and to what extent the insured will call on his services constitutes precisely one of the characteristics of a framework agreement, in accordance with Article 1(5) of the directive. I would add here that even if the referring court were to classify the supply at issue as a ‘service contract’, I consider that the supply at issue would still qualify as a framework agreement and not a service concession.
71. In view of the above, the answer to the third question must be that, should the provision of goods referred to in the second question be classified as a ‘service’, Article 1(4) of the directive – as distinct from a ‘framework agreement’ within the meaning of Article 1(5) of the directive – is to be interpreted as meaning that a provision of goods in the form of the one at issue in the main proceedings is not to be considered as a ‘service concession’.
IV – Conclusion
72. I am therefore of the opinion that the Court should answer the questions referred by the Oberlandesgericht Düsseldorf (Germany) as follows:
(1) The German sickness insurance funds at issue in the main proceedings constitute bodies governed by public law because they are listed to that effect in Annex III to 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 and, in any event, fulfil all the conditions laid down in the Court’s case-law to be classified as such;
(2) the provision of goods which are individually manufactured and tailored, in terms of their form, to meet the needs of the particular customer, and on whose use the individual customer is to be advised, is to be classified as ‘supply contracts’ or as ‘service contracts’, depending on the value of the particular services to be taken into consideration which is a question of fact that must be dealt with by the referring court;
(3) should the provision of goods referred to in the second question be classified as a ‘service’, Article 1(4) of Directive 2004/18 – as distinct from a ‘framework agreement’ within the meaning of Article 1(5) of that directive – is to be interpreted as meaning that a provision of goods in the form of the one at issue in the main proceedings is not to be considered as a ‘service concession’.
(1) .
(2)  –	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) (‘the directive’).
(3)  –	Directive of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12).
(4)  –	Case C‑337/06 [2007] ECR I‑11173, point 66.
(5)  –	See Case C‑393/06 Ing. Aigner
[2008] ECR I‑0000, paragraph 37, referring to Bayerischer Rundfunk and Others, ibid., paragraphs 36 and 37, and the case-law cited. Advocate General Ruiz-Jarabo Colomer refers here inter alia to 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.
(6)  –	In Adolf Truley, ibid., paragraph 43, the Court held that ‘given the double objective of introducing competition and transparency, the concept of a body governed by public law must be interpreted as having a broad meaning’. Advocate General Ruiz-Jarabo Colomer refers here to: Wollenschläger, F., ‘Der Begriff des “öffentlichen Auftraggebers” im Lichte der neuesten Rechtsprechung des Europäischen Gerichtshofes’ [The concept of public contracting authority in the light of the recent case-law of the Court of Justice], Europäisches Wirtschafts- und Steuerrecht, No 8/2005, p. 345.
(7)  –	Advocate General Ruiz-Jarabo Colomer refers here to the following: Case C‑380/98 University of Cambridge
[2000] ECR I‑8035, paragraph 17; Case C‑470/99 Universale-Bau and Others
[2002] ECR I‑11617, paragraph 52; and Adolf Truley, cited in footnote 5, paragraph 42.
(8)  –	Entitled ‘Amendments’.
(9)  –	Article 79 of the directive makes reference to the procedure referred to in Article 77, entitled ‘Advisory Committee’, which provides that Articles 3 and 7 of Council Decision 1999/468/EC of 28 June 1999, laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), are to apply, in compliance with Article 8 thereof.
(10)  –	In general, there should be a possibility for an authority to bring forward arguments to show why it is not (any longer) to be regarded as a body governed by public law within the meaning of the directive, but that has not been established in this case.
(11)  –	This reading appears to be in line with Adolf Truley, cited in footnote 5, in which the Court held at paragraph 44 that ‘if a specific body is not listed in Annex I to Directive 93/37, its legal and factual situation must be determined in each individual case in order to assess whether or not it meets a need in the general interest’. See also Trepte, P., Public Procurement in the EU: A Practitioner’s Guide, Second Edition, Oxford University Press, 2007, p. 102, section 2.21: ‘it was clearly thought necessary to draw up a list of those bodies in all member states which, at that time, were considered to be covered by this concept. This would suggest that the lists … indicate those entities which, at the very least
[emphasis added], are to be considered as legal persons governed by public law’. Trepte also notes that the Court has used the bodies included in the lists contained in the Annex to provide examples of the types of bodies covered and cites Case C‑360/96 BFI Holding
[1998] ECR I‑6821, paragraph 51, and Joined Cases C‑223/99 and C‑260/99 Agorà and Excelsior
[2001] ECR I‑3605, paragraph 37.
(12)  –	Cf. the Opinion of Advocate General Alber in University of Cambridge, cited in footnote 7, point 20. A similar interpretation in Chiti, M.P., ‘The EC Notion of Public Administration: The Case of the Bodies Governed by Public Law’, European Public Law, Volume 8, Issue 4, 2002, p. 489. See also Adolf Truley, cited in footnote 5, paragraph 39, where the Court held that the list’s ‘accuracy varies considerably from one Member State to another’.
(13)  –	1 BvR 2156/02.
(14)  –	See Ing. Aigner, cited in footnote 5, paragraph 51, citing, to that effect, Bayerischer Rundfunk and Others, cited in footnote 4, paragraph 30.
(15)  –	See Ing. Aigner, cited in footnote 5, paragraph 36, referring to Case C‑237/99 Commission
v France
[2001] ECR I‑939, paragraph 40 and the case-law cited. See also Adolf Truley, cited in footnote 5, paragraph 34 and the case-law cited.
(16)  –	See Adolf Truley, cited in footnote 5, paragraph 68, referring, inter alia, to University of Cambridge, cited in footnote 7, paragraph 20, and Commission
v France, cited in footnote 15, paragraph 44.
(17)  –	Cited in footnote 4.
(18)  –	See, to that effect, Case C‑306/97 Connemara Machine Turf
[1998] ECR I‑8761, paragraph 34. See also, for instance, Brown, A., ‘Whether German public broadcasters are financed for the most part by the State so as to fall within the EU Procurement Directives: Bayerischer Rundfunk (C‑337/06)’, Public Procurement Law Review, No 4/2008, p. NA127.
(19)  –	University of Cambridge, cited in footnote 7, paragraph 21.
(20)  –	Cited in footnote 4.
(21)  –	Cited in footnote 5, paragraph 70.
(22)  –	Idem., paragraph 74.
(23)  –	See Arrowsmith, S., ‘The Law of Public and Utilities Procurement’, Thomson, Sweet & Maxwell, London, 2005, p. 260, section 5.7. In that connection, Advocate General Alber in his Opinion in University of Cambridge, cited in footnote 7, point 37, stated that ‘it is true that in Connemara Machine Turf
… and Commission
v Ireland
… the Court held that it was necessary, as regards the existence of a contracting authority in Ireland, for there to be control over the award of public supply contracts (and it was also regarded as sufficient for that control to be indirect, that is to say, not expressly provided for)’.
(24)  –	Cited in footnote 15, paragraphs 50, 52, 54 and 56.
(25)  –	Judgment of 9 June 2004, DVBl. 2004, 1161, 1163.
(26)  –	C‑220/05 [2007] ECR I‑385, paragraphs 37 and 46.
(27)  –	For a case relating both to products and to services, see, for instance, Case C‑107/98 Teckal
[1999] ECR I‑8121.
(28)  –	See Arrowsmith, S., cited in footnote 23, p. 332, section 6.73; and Trepte, P., cited in footnote 11, p. 235, section 4.107.
(29)  –	Regulation of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV) (OJ 2002 L 340, p. 1).
(30)  –	Furthermore, German law provides that shoes of such type constitute ‘auxiliary devices’, irrespective of whether they are produced serially or custom-made (Paragraph 128 of the SGB V, category 31 ‘Shoes’).
(31)  –	See Arrowsmith, S., cited in footnote 23, pp. 331-332, section 6.73.
(32)  –	Case C‑458/03 [2005] ECR I‑8585, paragraphs 39 and 40.
(33)  –	In the judgment in Case C‑324/98 Telaustria Verlag
[2000] ECR I‑745, paragraph 30 (concerning the earlier Directive 93/38/EEC), the Court defined the right to exploit a service as a ‘right to exploit for payment its own service’. In the present case the contractor does not have to set up and maintain any costly infrastructure (premises, personnel, equipment) which would have to be paid off by means of remuneration for specific contracts.