CELEX: 62006CJ0337
Language: en
Date: 2007-12-13 00:00:00
Title: Judgment of the Court (Fourth Chamber) of 13 December 2007.#Bayerischer Rundfunk and Others v GEWA - Gesellschaft für Gebäudereinigung und Wartung mbH.#Reference for a preliminary ruling: Oberlandesgericht Düsseldorf - Germany.#Directives 92/50/EEC and 2004/18/EC - Public service contracts - Public broadcasting bodies - Contracting authorities - Bodies governed by public law - Condition that the activity of the institution be ‘financed, for the most part, by the State’.#Case C-337/06.

Case C-337/06
      Bayerischer Rundfunk and Others 
      v
      GEWA – Gesellschaft für Gebäudereinigung und Wartung mbH
      (Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf)
      (Directives 92/50/EEC and 2004/18/EC – Public service contracts – Public broadcasting bodies – Contracting authorities – Bodies governed by public law – Condition that the activity of the institution be ‘financed, for the most part, by the State’)
      Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 6 September 2007 
      Judgment of the Court (Fourth Chamber), 13 December 2007 
      Summary of the Judgment
      1.     Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Contracting authorities –
            Body governed by public law 
      (Council Directive 92/50, Art. 1(b), second para., third indent)
      2.     Approximation of laws – Procedures for the award of public service contracts – Directive 92/50 – Scope 
      (Council Directive 92/50, Art. 1(a)(iv))
      1.     Article 1(b) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts provides
         in its first subparagraph that the expression ‘contracting authorities’ includes ‘bodies governed by public law’, and, in
         its second subparagraph, that a ‘body governed by public law’ means any body established for the specific purpose of meeting
         needs in the general interest, not having an industrial or commercial character (first indent), having legal personality (second
         indent), and financed, for the most part, by the State, or 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 (third indent).
      
      Concerning the third indent, the expression ‘financed, for the most part, by the State’ must be interpreted as meaning that
         there is such financing when the activities of public broadcasting bodies, with legal personality, 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 which are not part of the structure of the State, 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.
      
      Moreover, where the activities of public broadcasting bodies are financed according to such procedures, the condition of ‘financing
         … by the State’ does not require the direct interference of the State or other public authorities when such bodies award public
         contracts which have no connection with the performance of their public service remit in the proper sense. Given that, in
         view of their method of financing, the very existence of the public broadcasting bodies in question depends on the State,
         the criterion of the dependence of those bodies on the State is satisfied, without it being necessary for the public authorities
         to have any real influence on the various decisions of the bodies in question on the awarding of contracts.
      
      (see paras 41, 50, 54-55, 60, operative part1-2)
      2.     Article 1(a)(iv) of Directive 92/50 relating to the coordination of procedures for the award of public service contracts,
         which provides that that directive does not apply to public contracts for services which fall within the essential function
         of public broadcasting bodies, namely the creation and production of programme material, must be interpreted as meaning that
         only those public contracts which relate to the services specified in that provision are excluded from the scope of that directive.
      
      Since that provision constitutes an exception to the principal objective of the Community rules on the awarding of public
         contracts, namely freedom of movement of services and a market open to competition which is as wide as possible, it must be
         interpreted strictly. Accordingly, the only public contracts excluded from the scope of Directive 92/50 are those for the
         services specified in Article 1(a)(iv) of that directive, namely contracts for the acquisition, development, production or
         co-production of programme material by broadcasters and contracts for broadcasting time. On the other hand, the Community
         rules apply in full to public contracts for services which have no connection to the activities which form part of the performance
         of the public‑service remit, in the proper sense, of the public broadcasting bodies.
      
      (see paras 62, 64, 67, operative part 3)
JUDGMENT OF THE COURT (Fourth Chamber)
      13 December 2007 (*)
      
      (Directives 92/50/EEC and 2004/18/EC – Public service contracts – Public broadcasting bodies – Contracting authorities – Bodies governed by public law – Condition that the activity of the institution be ‘financed, for the most part, by the State’)
      In Case C‑337/06,
      REFERENCE for a preliminary ruling under Article 234 EC, by the Oberlandesgericht Düsseldorf (Germany), made by decision of
         21 July 2006, received at the Court on 7 August 2006, in the proceedings
      
      Bayerischer Rundfunk,
      
      Deutschlandradio,
      
      Hessischer Rundfunk,
      
      Mitteldeutscher Rundfunk,
      
      Norddeutscher Rundfunk,
      
      Radio Bremen,
      
      Rundfunk Berlin-Brandenburg,
      
      Saarländischer Rundfunk,
      
      Südwestrundfunk,
      
      Westdeutscher Rundfunk,
      
      Zweites Deutsches Fernsehen
      v
      GEWA ‑ Gesellschaft für Gebäudereinigung und Wartung mbH,
      
      intervening party:
      Heinz W. Warnecke, trading under the name of Großbauten Spezial Reinigung,
      
      THE COURT (Fourth Chamber),
      composed of K. Lenaerts, President of the Chamber, G. Arestis, R. Silva de Lapuerta, E. Juhász (Rapporteur) and J. Malenovský,
         Judges,
      
      Advocate General: D. Ruiz-Jarabo Colomer,
      Registrar: B. Fülöp, Administrator,
      having regard to the written procedure and further to the hearing on 14 June 2007,
      after considering the observations submitted on behalf of:
      –       Bayerischer Rundfunk, Deutschlandradio, Hessischer Rundfunk, Mitteldeutscher Rundfunk, Norddeutscher Rundfunk, Radio Bremen,
         Rundfunk Berlin-Brandenburg, Saarländischer Rundfunk, Südwestrundfunk, Westdeutscher Rundfunk, Zweites Deutsches Fernsehen,
         by B. Mitrenga and K.‑P. Mailänder, Rechtsanwälte, and by C.-E. Eberle and J. Betz, Justiziare, and by N. Hütt, Referentin
         im Justiziariat,
      
      –       GEWA ‑ Gesellschaft für Gebäudereinigung und Wartung mbH, by C. Antweiler and K. P. Dreesen, Rechtsanwälte,
      –       the German Government, by M. Lumma, acting as Agent,
      –       the Austrian Government, by M. Fruhmann, acting as Agent,
      –       the Polish Government, by E. Ośniecka-Tamecka, acting as Agent,
      –       the Commission of the European Communities, by X. Lewis and B. Schima, acting as Agents,
      –       the European Free Trade Association Surveillance Authority, by B. Alterskjær and L. Young, acting as Agents,
      after hearing the Opinion of the Advocate General at the sitting on 6 September 2007
      gives the following
      Judgment
      1       This reference for a preliminary ruling relates to the interpretation of the first condition of the third indent of the second
         subparagraph of Article 1(b) and Article 1(a)(iv) of 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).
      
      2       The dispute in the proceedings from which the reference has been made is whether the German public broadcasting bodies (Landesrundfunkanstalten)
         are contracting authorities for the purposes of application of the Community rules on the award of public contracts.
      
       Legal context
       Community legislation
      3       Under Article 7(1), Directive 92/50 is to apply to public service contracts the estimated value of which, net of VAT, is not
         less than ECU 200 000.
      
      4       Article 1(b) of Directive 92/50 provides:
      ‘“[C]ontracting authorities” shall mean the State, regional or local authorities, bodies governed by public law, associations formed by one or more of
         such authorities or bodies governed by public law. 
      
      “Body governed by public law” means any body:
      –       established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character,
         
      
      and
      –       having legal personality 
      and
      –       financed, for the most part, by the State, or 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. 
      
      The lists of bodies or of categories of such bodies governed by public law which fulfil the criteria referred to in the second
         subparagraph of this point are set out in Annex I to Directive 71/305/EEC. These lists shall be as exhaustive as possible
         and may be reviewed in accordance with the procedure laid down in Article 30b of that Directive’. 
      
      5       That provision is repeated in almost identical terms in Article 1(9) of 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 (OJ 2004 L 134, p. 114). The purpose of that directive, as set out in Recital (1) of its preamble,
         was a recasting within a single measure of the separate directives which applied to the procedures for awarding public contracts
         in the three areas mentioned above and, under Article 80, the date for transposition of that directive into the legal systems
         of the Member States was to be no later than 31 January 2006. 
      
      6       The German public broadcasting bodies are not mentioned in either the Annex referred to in the last subparagraph of Article
         1(b) of Directive 92/50 or Annex III to Directive 2004/18, which is of similar content.
      
      7       Article 1(a)(iv) of Directive 92/50 provides that the following are excluded from its provisions:
      ‘[C]ontracts for the acquisition, development, production or co-production of programme material by broadcasters and contracts
         for broadcasting time’. 
      
      8       That provision was repeated in identical wording in Article 16(b) of Directive 2004/18.
      9       The rationale underlying that provision is set out in the eleventh recital of the preamble to Directive 92/50 where it is
         stated:
      
      ‘Whereas the award of contracts for certain audiovisual services in the broadcasting field is governed by considerations which
         make the application of procurement rules inappropriate’.
      
      10     That reason is further explained in Recital 25 of the preamble to Directive 2004/18 which provides:
      ‘The awarding of public contracts for certain audiovisual services in the field of broadcasting should allow aspects of cultural
         or social significance to be taken into account which render application of procurement rules inappropriate. For these reasons,
         an exception must therefore be made for public service contracts for the purchase, development, production or co-production
         of off-the-shelf programmes and other preparatory services, such as those relating to scripts or artistic performances necessary
         for the production of the programme and contracts concerning broadcasting times. However, this exclusion should not apply
         to the supply of technical equipment necessary for the production, co-production and broadcasting of such programmes … ’ 
      
       National legislation
      11     The abovementioned Article 1(b) of Directive 92/50 has been transposed into national law by Article 98(2) of the Law against
         restrictions on competition (Gesetz gegen Wettbewerbsbeschränkungen). That provision is identical in content to the Community
         rules, the sole difference being that, as regards the definition of ‘body governed by public law’, the condition that the
         activities of the body in question be financed for the most part by the public authorities is qualified by the statement that
         the financing may be undertaken ‘by shareholding in capital or otherwise’.
      
      12     The second subparagraph of Article 5(1) of the German Basic Law is worded as follows:
      ‘The freedom of the press and the freedom of reporting by broadcasts and film are guaranteed.’ 
      13     That provision has been consistently interpreted by the highest German courts, in particular by the Bundesverfassungsgericht
         (Federal Constitutional Court) and the Bundesverwaltungsgericht (Federal Administrative Court), as imposing an absolute prohibition
         on any interference or any intervention by the public authorities in the management and operation of the public broadcasting
         bodies and an obligation of strict neutrality in relation to the programme material of those bodies. That provision of the
         Basic Law is of cardinal importance in the structure of the present German state and aims to ensure that broadcasting does
         not become a political instrument. It represents a constitutional guarantee of the right to freedom of expression and the
         right to receive information from a plurality of sources, and also of the existence of public broadcasting bodies and of their
         financing and development. 
      
      14     Those bodies are institutions governed by public law, endowed with legal personality and invested with a remit to serve the
         public interest. They are independent of the State authorities, self-managed and organised in such a way as to exclude any
         influence by the public authorities. In accordance with the case-law of the highest German courts, those bodies are not part
         of the structure of the State.
      
      15     The financing of those bodies is governed by State Treaties (Staatsverträge), that is, treaties entered into by the Federal
         authority (Bund) and the Länder.
      
      16     Article 11(1) of the State Treaty on broadcasting (Rundfunkstaatsvertrag) provides:
      ‘The funds made available for operating costs must enable the public broadcasting bodies to fulfil their constitutional and
         statutory purposes; and must in particular guarantee the existence of public-law broadcasting and its development.’
      
      17     In accordance with Article 12 of the State Treaty in question, more than half of the needs of the public broadcasting bodies
         are primarily financed by fees paid by citizens and, for the balance, by advertising and other revenues. In accordance with
         the case‑law of the Bundesverfassungsgericht, financing by means of a fee is appropriate to the remit of public service broadcasting,
         satisfies the constitutional guarantee of financing and represents a functional method of financing which ensures that autonomy
         of programming is protected from any political interference by the State.
      
      18     The detailed procedures for collection of the fee are governed by the State Treaty on the regulation of the broadcasting fee
         (Staatsvertrag über die Regelung des Rundfunkgebührenwesens) of 31 August 1991, as amended on 11 September 1996 (GVBl. NRW
         1996, p. 431, ‘the State Treaty on the broadcasting fee’). Under that State Treaty, it is possession of a broadcasting receiver
         which gives rise to the obligation to pay the fee. The circumstance that the receiver is not actually used has no bearing
         on the obligation to pay. Entitlement to the fee lies formally with the regional broadcasting bodies established in the territories
         of each of the Länder.
      
      19     The regulations on the amount of the fee, calculated by reference to the established financial needs of the public broadcasting
         bodies, are to be found in the State Treaty on the financing of broadcasting (Rundfunkfinanzierungsstaatsvertrag) of 26 November
         1996 (GVBl. NRW 1996, p. 484). The amount of the fee is formally approved by the Parliaments and Governments of the Länder.
      
      20     The public broadcasting bodies have established, by means of an administrative agreement, a central agency for the collection
         of fees, the Gebühreneinzugszentrale der öffentlich-rechtlichen Rundfunkanstalten (‘the GEZ’). The GEZ is an association governed
         by public law which has in particular the task of invoicing and collecting the fee. The GEZ has no legal personality and has
         no capacity to bring legal proceedings but it acts for and on behalf of the various regional public broadcasting bodies. However,
         as regards recovery of the fee from the citizens, the GEZ issues a notice of liability to the charge, which is to say it acts
         as an official authority. Similarly, if the fee is not paid, Article 7(6) of the State Treaty on the broadcasting fee provides
         that ‘notices of arrears of the broadcasting fee are subject to enforcement by administrative proceedings. The regional broadcasting
         organisation entitled to the funds may send the request for assistance in enforcement directly to the authority having jurisdiction
         over the place of domicile or habitual residence of the persons liable to pay the fee … ’.
      
      21     Monitoring and verification of the financial requirements declared by the public broadcasting bodies are entrusted to an independent
         commission, the Kommission zur Überprüfung und Ermittlung des Finanzbedarfs der Rundfunkanstalten (Commission for the study
         and assessment of the financial needs of public broadcasting bodies ‘the KEF’). That commission, consisting of 16 independent
         experts, receives and examines estimated requirements as submitted by the public broadcasting bodies and discusses them with
         their representatives. The KEF issues a report at least once every two years, and on that report the Parliaments and Governments
         of the Länder base their formal decisions on the amount of the fee. That procedure, in which the KEF now has a role, was set
         up following a judgment of the Bundesverfassungsgericht of 22 February 1994, which ruled that a procedure whereby the decision
         on the amount of the fee was taken by the First Ministers of the Länder without advice from an independent commission did
         not guarantee the independence required by the Basic Law.
      
      22     The revenues from the fees are allocated, in particular, to the public broadcasting bodies and to the media authority of the
         Land concerned.
      
       The main proceedings and the questions referred for a preliminary ruling
      23     In August 2005, the GEZ sent a written invitation to 11 cleaning businesses to submit binding tenders for the provision of
         cleaning services in its premises in Cologne. No formal procedure for the awarding of public contracts compatible with the
         Community rules took place. The stipulated duration of the contract was from 1 March 2006 until 31 December 2008, the contract
         being tacitly renewable from year to year. The GEZ estimated the total outlays per annum at more than EUR 400 000. 
      
      24     The undertaking GEWA ‑ Gesellschaft für Gebäudereinigung und Wartung mbH, one of the cleaning businesses to which the invitation
         to tender was sent, was informed by the GEZ in November 2005 that it had not been awarded the contract. Since GEWA considered
         that the GEZ as a contracting authority should have submitted the cleaning contract to an invitation to tender which complied
         with the Community rules, it brought an action before the public contracts division of the Bezirksregierung (District Administration)
         of Cologne. That body upheld the action, ruling that the contract at issue was alien to the actual activity of broadcasting
         and was consequently subject to the Community law relating to public contracts. 
      
      25     The public broadcasting bodies appealed against that decision to the public contracts division of the Oberlandesgericht (Higher
         Regional Court) Düsseldorf, claiming that they were not contracting authorities, given that the public broadcasting service
         is financed for the most part by the fee paid by the television viewers and that there is no public funding nor public control
         of that service.
      
      26     The referring court finds that the conditions set out in the first and second indents of the second subparagraph of Article
         1(b) of Directive 92/50, and in indents (a) and (b) of the second subparagraph of Article 1(9) of Directive 2004/18, on the
         definition of ‘body governed by public law’ are satisfied in this case, inasmuch as the public broadcasting bodies were established
         specifically to satisfy needs in the general interest, not having an industrial or commercial character and are endowed with
         legal personality. The court states moreover that, as regards the three conditions to be found respectively, in the third
         indent of the second subparagraph of Article 1(b) of Directive 92/50 and in indent (c) in the second subparagraph of Article
         1(9) of Directive 2004/18, the last two are not satisfied in this case, inasmuch as the public authorities do not exercise
         any supervision over the management of those bodies and have no influence on appointments to their governing bodies. The issue
         still to be determined therefore is whether the activity of the bodies in question is financed for the most part by the State
         or by other contracting authorities, so that they may be regarded as ‘bodies governed by public law’ and, consequently, as
         ‘contracting authorities’.
      
      27     The referring court states that, according to one school of thought in current German case-law and academic writing, the condition
         of being ‘financed, for the most part, by the State’ requires a direct causal link between that financing and the State. That
         approach takes as its sole criterion whether the State is the origin or source of the funds, which is to say whether the funds
         come from the State budget, and takes no account either of the fact that the liability of customers to pay the fee is based
         on a provision of law or of the fact that collection of that fee is carried out by means of a transfer of public authority
         powers. According to that first approach, direct State financing must also enable the State or other public authorities to
         exercise a concrete influence on the various procedures for the awarding of contracts by the body in receipt of the financing.
      
      28     According to another school of thought in the case-law and academic writing, one to which the referring court subscribes,
         the fact that as a matter of law individuals are obliged to pay the fee is sufficient reason to hold that the condition of
         ‘financing …by the State’ of the activity of the public broadcasting bodies in the main proceedings is satisfied. The Community
         rules on the awarding of public contracts therefore apply to those bodies, which are financed by the mandatory fee and are
         not therefore subject to the laws of the market. Moreover, to follow that school of thought further, the fact that the State
         is obliged by the Basic Law to maintain neutrality in relation to the management of those bodies and their programme material
         does not mean that public contracts entered into by them which are unconnected to their principal purpose remits should not
         be subject to the Community rules.
      
      29     Having regard to the foregoing, the Oberlandesgericht Düsseldorf decided to stay proceedings and to refer the following questions
         to the Court for a preliminary ruling:
      
      ‘(1)      Where it appears in the first condition of indent (c) of the second subparagraph of Article 1(9) of Directive 2004/18, is
         the term ‘financed…by the State’ to be interpreted as including indirect financing of certain bodies through the payment of
         fees by persons who possess broadcasting receivers, taking into account the overriding obligation imposed on the State by
         constitutional law to ensure the independent financing and the existence of those bodies? 
      
      (2)      If the first question is answered in the affirmative, is the first condition of indent (c) of the second subparagraph of Article
         1(9) of Directive 2004/18 to be interpreted as requiring that ‘financing by the State’ must involve a direct public influence
         on the awarding of contracts by the body financed by the State? 
      
      (3)      If the second question is answered in the negative, is indent (c) of the second subparagraph of Article 1(9) of Directive
         2004/18, in the light of Article 16(b) [of that directive], to be interpreted as meaning that the only services excluded from
         its scope are those services specified in the latter provision, and that included within its scope are other services which
         are ancillary or secondary but which are not specifically related to programming (by argumentum a contrario)?’
      
       Concerning the questions referred for a preliminary ruling
      Preliminary observations 
      30     The questions as formulated by the national court make reference to the relevant provisions of Directive 2004/18. Given however
         that the facts of the case in the main proceedings fall within the scope ratione temporis of Directive 92/50, the Court’s examination and answers will relate to the corresponding provisions of Directive 92/50 in
         the light of certain clarifications made by Directive 2004/18. In any event, the provisions of the latter directive and their
         underlying principles are identical in content to the provisions and principles of the preceding directives and Directive
         2004/18 represents a recasting of pre-existing provisions. Accordingly there is no reasonable justification for a different
         approach under the new directive.
      
      31     It must also be stated that even though the German system of financing the public broadcasting bodies excludes as a matter
         of principle the exercise by the public authorities of any political influence whatsoever on those bodies, that fact alone
         does not mean that the present case should be examined solely from the point of view that it is impossible, by definition,
         for the State to exercise such influence. For the purposes of uniform interpretation and application of Community law and
         of the realisation of the objectives of the EC Treaty the Court must also take into account other considerations such as freedom
         of movement and the opening of the market.
      
       The first question 
      32     By this question, the Court is requested to interpret the concept of ‘financed, for the most part, by the State’ or by another
         public body, contained in the first condition of the third indent of the second subparagraph of Article 1(b) of Directive
         92/50, in order to answer the question whether that condition is satisfied when the activities of public broadcasting bodies
         such as those involved in the main proceedings are financed for the most part by a fee charged, assessed and collected in
         accordance with rules such as those involved in the main proceedings.
      
      33     It must first of all be pointed out that, as regards whether the financing is ‘for the most part’, it is common ground that,
         in accordance with the case-law of the Court, that condition is satisfied in this case, since more than one half of the income
         of the public broadcasting bodies in question comes from the fee at issue in the main proceedings (see, to that effect, Case
         C‑380/98 University of Cambridge [2000] ECR I‑8035, paragraph 30).
      
      34     It must then be stated that the wording of the first condition of the third indent of the second subparagraph of Article 1(b)
         of Directive 92/50 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. Examination of the financing
         procedures must therefore not be restricted to those put forward by the various interested parties in this case.
      
      35     With a view to the interpretation of the concept of ‘financed … by the State’ or by other public bodies, it is appropriate
         to refer to the aim of the Community directives in relation to public contracts, as stated in the case-law of the Court.
      
      36     In accordance with that case-law, the aim of the directives in relation to awarding public contracts is to avoid both the
         risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities
         and the possibility that a body financed or controlled by the State, regional or local authorities or other bodies governed
         by public law may choose to be guided by considerations other than economic ones (University of Cambridge, paragraph 17, and case-law there cited).
      
      37     The Court has restated those objectives, adding that the concept of ‘contracting authority’, including a ‘body governed by
         public law’, must be interpreted, in the light of those objectives, in functional terms (Case C‑237/99 Commission v France [2001] ECR I‑939, paragraphs 42 and 43, and case-law there cited).
      
      38     The Court has held that the purpose of coordinating at Community level the procedures for awarding public contracts is to
         eliminate barriers to the freedom to provide services and goods and therefore to protect the interests of traders established
         in a Member State who wish to offer goods or services to contracting authorities established in another Member State (University of Cambridge, paragraph 16, and Commission v France, paragraph 41).
      
      39     As regards specifically public service contracts, the Court has emphasised that same primary objective, namely the free movement
         of services and the opening-up to competition in the Member States which is undistorted and as wide as possible (see, to that
         effect, Case C-26/03 Stadt Halle and RPL Lochau [2005] ECR I‑1, paragraphs 44 and 47).
      
      40     A method of financing public broadcasting bodies such as that in the main proceedings must be assessed in the light of those
         objectives and in relation  to those criteria, which implies that the concept of ‘financed … by the State’ must also receive
         a functional interpretation. 
      
      41     It must first of all be stated that the fee which provides the greater part of the funding of the activities of the bodies
         in question has its origin in the State Treaty on broadcasting, in other words in a measure of the State. The fee is provided
         for and imposed by statute and is not the result of any contractual arrangement entered into by those bodies and the customers.
         Liability to pay that fee arises out of the mere fact of possession of a receiver and is not in consideration of actual use
         of the services provided by the bodies in question.
      
      42     It must then be observed that the determination of the amount of the fee is not the product of any contractual relationship
         between the public broadcasting bodies in the main proceedings and the customers either. Under the State Treaty on the financing
         of broadcasting, the amount is determined by formal decision of the Parliaments and Governments of the Länder, adopted on
         the basis of a report drawn up by the KEF in relation to the financial requirements declared by those bodies themselves. The
         Parliaments and Governments of the Länder are free not to follow the recommendations of the KEF, while respecting the principle
         of the freedom of broadcasting, but on limited grounds, namely where the amount of the fee represents for the customers a
         financial burden which is disproportionate with regard to the general economic and social situation, and capable of affecting
         adversely their access to information (see judgment of the Bundesverfassungsgericht of 11 September 2007 BvR 2270/05, BvR
         809/06 and BvR 830/06).
      
      43     Even if the position were that the Parliaments and Governments of the Länder were obliged to follow without qualification
         the recommendations of the KEF, it would remain the case that this mechanism for fixing the amount of the fee was established
         by the State, which has thereby transferred public authority powers to a commission of experts.
      
      44     As regards the procedures for the levying of the fee, it is clear from the State Treaty on the broadcasting fee that the latter
         is recovered by GEZ which, on behalf of the public broadcasting bodies, issues notices of liability to the charge, in other
         words by act of an official authority. Similarly, if payment is not made on time, notices of arrears are the subject of enforcement
         by administrative proceedings, and the public broadcasting organisation concerned, as the party entitled to payment, may send
         the request for enforcement assistance directly to the authority which has jurisdiction. Accordingly, in this respect the
         bodies in question enjoy the powers of a public authority.
      
      45     The resources thus allocated to those bodies are paid without any specific consideration in return, within the meaning of
         the case-law of the Court (see, to that effect, University of Cambridge, paragraphs 23 to 25). Indeed, no contractual consideration is linked to those payments, since neither the liability to pay
         the fee nor its amount is the result of any agreement between the public broadcasting bodies and the customers, the latter
         being obliged to pay the fee provided only that they possess a receiver, irrespective of whether they use the service offered
         by those bodies. Accordingly, customers must pay the fee, even if they have never made use of the services of those bodies.
      
      46     The argument of the applicants in the main proceedings that the determining factor cannot be that the fee is provided for
         in a provision of law, otherwise all the doctors, lawyers and architects established in the Federal Republic of Germany would
         be ‘financed by the State’ because the levels of their fees are fixed by the State, is ineffectual. Even though those levels
         are regulated by the State, the consumer always enters of his own free will into a contractual relationship with the members
         of those professions and always receives an actual service. In addition, the financing of the activities of members of those
         professions is neither ensured nor guaranteed by the State.
      
      47     It must be observed, lastly, that, in the light of the functional approach referred to above, as the Commission of the European
         Communities rightly points out, the assessment made cannot vary according to whether the financial resources pass through
         the State budget, the State first collecting the fee and then making the fee income available to the public broadcasting bodies,
         or whether the State grants to those bodies the right to collect the fee themselves.
      
      48     It must therefore be concluded that financing such as that at issue in the main proceedings, which is brought into being by
         a measure of the State, is guaranteed by the State and is secured by methods of charging and collection which fall within
         public authority powers, satisfies the condition of ‘financing … by the State’ for the purposes of application of the Community
         rules on the awarding of public contracts. 
      
      49     That method of indirect financing is sufficient for the condition on ‘financing … by the State’ laid down in the Community
         legislation to be satisfied and it is not necessary that the State itself establish or appoint a public or private body to
         the task of collection of the fee.
      
      50     The answer to be given to the first question referred is therefore that the first condition of the third indent of the second
         subparagraph of Article 1(b) of Directive 92/50 must be interpreted as meaning that there is financing, for the most part,
         by the State when the activities of public broadcasting bodies such as those in the main proceedings are for the most part
         financed by a fee payable by persons who possess a receiver, which is imposed, calculated and levied according to rules such
         as those in the main proceedings. 
      
       The second question 
      51     By its second question, the referring court asks whether the first condition of the third indent of the second subparagraph
         of Article 1(b) of Directive 92/50 must be interpreted as meaning that, if a public broadcasting body is financed according
         to the procedures set out in the first question referred for a preliminary ruling, the condition of ‘financing … by the State’
         requires the direct interference of the State or other public authorities when a contract such as that in the main proceedings
         is awarded by such a body.
      
      52     For the purposes of answering that question, it must first be observed that there is no requirement in the wording of the
         provision under consideration that, when a particular public contract is being awarded, there be direct intervention by the
         State or by another public body before the condition of ‘financing … by the State’ can be satisfied.
      
      53     As regards, secondly, the criterion of the dependence of a body on the public authorities, developed in the case-law of the
         Court as regards the three conditions to be found in the third indent of the second paragraph of Article 1(b) of Directive
         92/50 (see, to that effect, Case C‑44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I‑73, paragraph 20), the referring court refers to the above mentioned approach of one school of thought in German
         case-law and academic writing, to the effect that dependence implies that the public authorities are able to have actual influence
         on the awarding of various contracts.
      
      54     It must first be observed that the question whether the public broadcasting bodies in the main proceedings are dependent on
         the public authorities arises only in relation to the awarding of contracts which have no connection to performance of the
         defined public service remit of those bodies, as guaranteed by the German Basic Law, namely the creation and production of
         programme material. The contract at issue in the main proceedings does not fall within that particular function of those bodies.
      
      55     It must then be stated that, in this case, as is clear from the considerations elaborated when examining the first question,
         the very existence of the public broadcasting bodies in question depends on the State. The criterion of the dependence of
         those bodies on the State is thereby satisfied, and it is not necessary for the public authorities to have any real influence
         on the various decisions of the bodies in question on the awarding of contracts. 
      
      56     That dependence in the broad sense does not exclude the risk, if the Community rules on the awarding of public contracts are
         not observed, that the public broadcasting bodies in the main proceedings may allow themselves to be guided by considerations
         other than economic, inter alia, by giving preference to national tenderers or candidates. Those bodies may take such an approach
         without breaching the requirements laid down by the German Basic Law, which does not prohibit it. As the referring court judiciously
         observes, the State’s obligation of neutrality in relation to the creation of programme material by the bodies in question,
         as guaranteed by the German Basic Law and interpreted by the Bundesverfassungsgericht, does not require those bodies to be
         neutral in relation to awarding contracts. Such a risk is contrary to the objectives of the Community rules on the awarding
         of public contracts set out in paragraphs 38 and 39 of this judgment.
      
      57     The referring court asks in addition what relevance, for the purposes of answering the second question, is to be attributed
         to the position adopted by the Court in paragraph 21 of University of Cambridge, to the effect that while the way in which a particular body is financed may reveal whether it is closely dependent on another
         contracting authority, that criterion is however not an absolute one. Not all payments made by a contracting authority have
         the effect of creating or reinforcing a specific relationship of subordination or dependency. Only payments which go to finance
         or support the activities of the body concerned without any specific consideration therefor may be described as ‘public financing’.
         
      
      58     In that regard it must be observed that, as regards the relationship of the bodies in question and the consumers, it is clear
         from paragraphs 23 to 25 of University of Cambridge, that it is possible to categorise as ‘public financing’ public outlays to which no consideration in return is contractually
         linked. As has been determined in paragraph 45 of this judgment, in this case no consideration in return is contractually
         linked to the resources allocated to the public broadcasting bodies in the main proceedings, since neither the liability to
         pay the fee nor the amount of the fee is the result of an agreement between those bodies and the consumers, whose obligation
         to pay the fee arises from the mere fact of their possession of a receiver, even if they never make use of the services of
         those bodies.
      
      59     Equally, in this case the State obtains no specific consideration in return, given that, as the referring court judiciously
         states, the financing in the main proceedings serves to offset the obligations engendered by performance of the State’s public‑service
         remit, which is to ensure that citizens receive objective information from a number of audiovisual sources. To that extent,
         the broadcasting bodies in the main proceedings are no different from any other public service which is subsidised by the
         State for the performance of its tasks in the public interest. 
      
      60     The answer to be given therefore to the second question referred is that the first condition of the third indent of the second
         subparagraph of Article 1(b) of Directive 92/50 must be interpreted as meaning that, if the activities of public broadcasting
         bodies such as those in the main proceedings are financed according to the procedures set out when examining the first question,
         the condition of ‘financing … by the State’ does not require that there be direct intervention by the State or by other public
         authorities in the awarding, by such bodies, of a contract such as that at issue in the main proceedings.
      
       The third question 
      61     By its third question, the referring court asks whether Article 1(a)(iv) of Directive 92/50 must, in the light of the third
         indent of the second subparagraph of Article 1(b) of that directive, be interpreted as meaning that only public contracts
         relating to the services specified in the former provision are excluded from the scope of that directive.
      
      62     Article 1(a)(iv) of Directive 92/50 provides that that directive does not apply to public contracts for services which fall
         within the essential function of public broadcasting bodies, namely the creation and production of programme material, for
         the cultural and social reasons alluded to in the eleventh recital of the preamble to Directive 92/50 and, more explicitly,
         in recital 25 of the preamble to Directive 2004/18, which render that application inappropriate.
      
      63     That provision, as the Advocate General suggests in point 80 of his Opinion, reflects the same concern as that expressed in
         the German Basic Law, namely the guarantee that the public broadcasting bodies can accomplish their public service remit with
         complete independence and impartiality.
      
      64     The provision in question being an exception to the principal objective of the Community rules on the awarding of public contracts,
         as stated in paragraph 39 of this judgment, namely freedom of movement of services and a market open to competition which
         is as wide as possible, it must be interpreted strictly. Accordingly, the only public contracts excluded from the scope of
         Directive 92/50 are those for the services specified in Article 1(a)(iv) of that directive. On the other hand, the Community
         rules apply in full to public contracts for services which have no connection to the activities which form part of the performance
         of the public‑service remit, in the proper sense, of the public broadcasting bodies.
      
      65     Support for that approach is found in the above-mentioned recital 25 in the preamble to Directive 2004/18 which states, by
         way of guidance, in the penultimate sentence, that the exclusion from application of that directive should not apply to the
         supply of technical equipment necessary for the production, co-production and broadcasting of programmes.
      
      66     However, it must be made clear that that those considerations apply only when what is at issue in a particular case is a contract
         awarded by a body to be regarded as a ‘contracting authority’ within the meaning of Article 1(b) of Directive 92/50.
      
      67     The answer to be given therefore to the third question referred is that Article 1(a)(iv) of Directive 92/50 must be interpreted
         as meaning that only those public contracts which relate to the services specified in that provision are excluded from the
         scope of that directive.
      
      Costs
      68     Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
      
      On those grounds, the Court (Fourth Chamber) hereby rules:
      1.      The first condition of the third indent of the second subparagraph of Article 1(b) of Council Directive 92/50/EEC of 18 June
            1992 relating to the coordination of procedures for the award of public service contracts must be interpreted as meaning that
            there is financing, for the most part, by the State when the activities of public broadcasting bodies such as those in the
            main proceedings are financed for the most part by a fee payable by persons who possess a receiver, which is imposed, calculated
            and levied according to rules such as those in the main proceedings. 
      2.      The first condition of the third indent of the second subparagraph of Article 1(b) of Directive 92/50 must be interpreted
            as meaning that, that, if the activities of public broadcasting bodies such as those in the main proceedings are financed
            according to the procedures set out when examining the first question, the condition of ‘financing … by the State’ does not
            require that there be direct interference by the State or by other public authorities in the awarding, by such bodies, of
            a contract such as that at issue in the main proceedings. 
      3.      Article 1(a)(iv) of Directive 92/50 must be interpreted as meaning that only the public contracts specified in that provision
            are excluded from the scope of that directive.
      [Signatures]
      * Language of the case: German.