Keywords

Summary



Keywords

1. Approximation of laws – Procedures for the award of contracts in the public works, public supply and public service sectors – Directive 2004/18 – Contracting authorities

(European Parliament and Council Directive 2004/18, Art. 1(9), second para., (c))

2. Approximation of laws – Procedures for the award of contracts in the public works, public supply and public service sectors – Directive 2004/18 – Mixed public contract both for the supply of goods and for the provision of services

(European Parliament and Council Directive 2004/18, Art. 1(2)(c), first para., and (d), second para.)

3. Approximation of laws – Procedures for the award of contracts in the public works, public supply and public service sectors – Directive 2004/18 – Scope

(European Parliament and Council Directive 2004/18, Art. 1(4) and (5))

Summary

1. The first alternative of letter (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 there is financing, for the most part, by the State when the activities of statutory sickness insurance funds are chiefly financed by contributions payable by members, which are imposed, calculated and collected according to rules of public law. Such sickness insurance funds are to be regarded as bodies governed by public law and therefore as contracting authorities for the purposes of the application of the rules in that directive.

The test of the first alternative in letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18 contains no details as to the procedures for delivering the financing to which that provision relates. Thus, in particular, there is no requirement that the activity of the bodies in question should be directly financed by the State or by another public body, failing which the condition attaching to that point is not satisfied. A method of indirect financing is therefore sufficient.

Financing of a statutory sickness insurance scheme which is brought into being by a measure of the State, is, in practice, guaranteed by the public authorities and is secured by methods of collection which fall under the provisions of public law, satisfies the condition of being financed, for the most part, by the State for the purposes of the application of the Community rules on the awarding of public contracts.

(see paras 51, 57, 59, operative part 1)

2. When a mixed public contract concerns both products and services, the criterion to be applied in order to determine whether the contract in question is a supply contract or a service contract is the respective value of the products and services covered by the contract. Where the products supplied are individually manufactured and tailored to the needs of each customer and where each customer must receive individual advice on the use of the products, the manufacture of those products must be classified in the ‘supply’ part of the said contract for the purposes of calculating the value of each part thereof.

When a contract concerns both the supply of products and the provision of services, the second indent of Article 1(2)(d) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts contains a specific rule fixing a criterion for classifying contracts, so that the contract can be regarded as either a contract for products or a contract for services, namely, the respective value of the products and services covered by the contract. Furthermore, in accordance with the definition of the concept of ‘public supply contracts’ contained in the first indent of Article 1(2)(c) of Directive 2004/18, that concept covers transactions such as, for example, the purchase or rental of ‘products’, without being more specific and without making a distinction according to whether the product in question was manufactured in a standardised manner or in an individualised manner, that is to say, in accordance with the actual preferences and needs of the customer. Consequently, the concept of ‘product’ to which that provision makes general reference also includes the manufacturing process, irrespective of whether the product under consideration is supplied to consumers ready-made or after being manufactured in accordance with consumers’ requirements.

(see paras 61, 64, 66, operative part 2)

3. If the provision of services is regarded as being more important than the supply of products in the contract in question, an agreement concluded between a statutory sickness insurance fund and a trader, in which payment for the various types of service to be provided by the trader and the duration of the agreement are determined, with the trader undertaking an obligation to implement the agreement in regard to insured persons who ask him to do so and the abovementioned fund alone paying that trader for its services, must be regarded as a framework agreement within the meaning of Article 1(5) of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.

With regard to the distinction between a service concession within the meaning of Article 1(4) and a framework agreement within the meaning of Article 1(5) of Directive 2004/18, it flows from the definition of a service concession in the said directive that such a concession is distinguished by a situation in which a right to operate a particular service is transferred by the contracting authority to the concessionaire and that the latter enjoys, in the framework of the contract which has been concluded, a certain economic freedom to determine the conditions on which that right is exercised since, in parallel, the concessionary is, to a large extent, exposed to the risks involved in the operation of the service. On the other hand, the distinguishing characteristic of a framework agreement is that the activity of the trader who has concluded the agreement is restricted in the sense that all contracts concluded by that trader during a given period must comply with the conditions laid down in the agreement.

(see paras 71, 76, operative part 3)