Privater Rettungsdienst und Krankentransport Stadler v Zweckverband für Rettungsdienst und Feuerwehralarmierung Passau.
Date: 2011-03-10
22. As a preliminary point, it must be noted that contracts concerning the provision of rescue services to the public, awarded by the Passau municipal association, are concluded in the form of the so-called ‘concession model’. That procurement model can be distinguished from the ‘tender’ model, which is a method of awarding a public service contract (see, to that effect, Case C-160/08 Commission  v Germany  [2010] ECR I-0000, paragraph 131), by the fact that, under the concession model, remuneration does not come from the contracting authority but from the sums collected from the users of the service by a central settlement office. The usage fees applicable to the service are agreed between the social security institution and the service provider selected by the Passau municipal authority.
23. In that regard, it must be recalled at the outset that the question whether an operation is to be classified as a ‘service concession’ or a ‘public service contract’ must be considered exclusively in the light of European Union law (see, inter alia, Case C‑382/05 Commission  v Italy  [2007] ECR I‑6657, paragraph 31, and Case C-196/08 Acoset  [2009] ECR I‑9913, paragraph 38).
24. It follows from a comparison of the definitions of a public service contract and a service concession provided, respectively, by Article 1(2)(a) and (d) and by Article 1(4) of Directive 2004/18, that the difference between a public service contract and a service concession lies in the consideration for the provision of services. A service contract involves consideration which, although it is not the only consideration, is paid directly by the contracting authority to the service provider (see, to that effect, Case C-458/03 Parking Brixen  [2005] ECR I-8585, paragraph 39, and Commission  v Italy , paragraphs 33 and 40), while, for a service concession, the consideration for the provision of services consists in the right to exploit the service, either alone, or together with payment (see, to that effect, Case C-206/08 Eurawasser [2009] ECR I-8377, paragraph 51).
25. In the case of a contract for the supply of services, the fact that the supplier is not remunerated directly by the contracting authority, but is entitled to collect payment from third parties, meets the requirement of consideration laid down in Article 1(4) of Directive 2004/18 (see Eurawasser , paragraph 57).
26. While the method of remuneration is, therefore, one of the determining factors for the classification of a service concession, it also follows from the case-law that the service concession implies that the service supplier takes the risk of operating the services in question and that the absence of a transfer to the service provider of the risk connected with operating the service shows that the transaction concerned is a public service contract and not a service concession ( Eurawasser , paragraphs 59 and 68, and the case-law cited).
28. The fact that the amount of the usage fees is not determined unilaterally by the provider of the rescue services, but by agreement with the social security institutions which themselves have the status of a contracting authority (see, to that effect, Case C-300/07 Hans & Christophorus Oymanns  [2009] ECR I-4779, paragraphs 40 to 59), and that those fees are not paid directly by the users of those services to the selected provider but through a central settlement office which is in charge of collecting and remitting those fees, by regular payments on account, does not affect that finding. The fact remains that all the remuneration obtained by the provider of the services comes from persons other than the contracting authority which awarded it the contract.
29. In a case such as that in the main proceedings, in order to find that there is a service concession within the meaning of Article 1(4) of Directive 2004/18, it is still necessary to establish whether the agreed method of remuneration takes the form of the right of the service provider to exploit the service and entails that it takes the risk of operating the service in question. While that risk may, at the outset, be very limited, it is necessary for classification as a service concession that the contracting authority transfer to the concession holder all or, at least, a significant share of the risk which it faces (see, to that effect, Eurawasser , paragraphs 77 and 80).
33. In that regard, it must be noted that, where the remuneration of the provider comes exclusively from a third party, the transfer by the contracting authority of a ‘very limited’ operating risk will suffice in order for a service concession to be found (see Eurawasser , paragraph 77).
34. It is not unusual that certain sectors of activity, in particular sectors involving public service utilities, such as those at issue in the main proceedings, are subject to rules which may have the effect of limiting the financial risks entailed. It must in particular remain open to the contracting authorities, acting in all good faith, to ensure the supply of services by way of a concession, if they consider that to be the best method of ensuring the public service in question, even if the risk linked to such an operation is very limited ( Eurawasser , paragraphs 72 and 74).
35. In such sectors, the contracting authority has no influence on the detailed rules of public law governing the service, and thus on the level of the risk to transfer, and it would not, moreover, be reasonable to expect a public authority granting a concession to create conditions which were more competitive and involved greater financial risk than those which, on account of the rules governing the sector in question, exist in that sector (see Eurawasser , paragraphs 75 and 76).
36. It must also be stated that it is not for the Court of Justice to classify specifically the transactions at issue in the main proceedings. The Court’s role is confined to providing the national court with an interpretation of European Union law which will be useful for the decision which it has to take in the dispute before it (see Parking Brixen , paragraph 32). The specific classification of the contract falls within the jurisdiction of the national court which must determine whether the established facts satisfy the general criteria laid down by the Court.
37. In that regard, it must be stated that the risk of the economic operation of the service must be understood as the risk of exposure to the vagaries of the market (see, to that effect, Eurawasser , paragraphs 66 and 67), which may consist in the risk of competition from other operators, the risk that supply of the services will not match demand, the risk that those liable will be unable to pay for the services provided, the risk that the costs of operating the services will not fully be met by revenue or for example also the risk of liability for harm or damage resulting from an inadequacy of the service (see, to that effect, Case C-234/03 Contse and Others [2005] ECR I‑9315, paragraph 22, and Hans & Christophorus Oymanns , paragraph 74).
38. By contrast, risks such as those linked to bad management or errors of judgment by the economic operator are not decisive for the purposes of classification as a public service contract or a service concession, since those risks are inherent in every contract, whether it be a public service contract or a service concession.
40. Considering that – as stated by the referring court itself – the social security institutions with which the service provider is obliged to hold negotiations attach importance, with regard to their legal obligations, to fixing the usage fees at the lowest possible level, that service provider also runs the risk that those fees will not suffice to cover all operating expenses.
49. It should be added that while, as European Union law now stands, service concession contracts are not governed by any of the directives by which the European Union legislature has regulated the field of public procurement, the public authorities concluding them are bound to comply with the fundamental rules of the Treaty on the Functioning of the European Union, including Articles 49 TFEU and 56 TFEU, and with the consequent obligation of transparency, where – that being a matter for the referring court to determine – the contract concerned has a certain transnational dimension (see, to that effect, Case C-91/08 Wall  [2010] ECR I-0000, paragraphs 33 and 34, and case-law cited).
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