Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik v AOK Rheinland/Hamburg.
Date: 2009-06-11
40. By its first question, the national court asks, essentially, whether statutory sickness insurance funds, such as those at issue in the main proceedings, having regard to their characteristics set out in the order for reference, should be regarded as contracting authorities for the purposes of the application of the provisions of Directive 2004/18.
41. In order to answer that question, an underlying preliminary question, which is apparent from the grounds for the reference for a preliminary ruling and the problem set out therein by the national court, must first be considered, namely, whether the fact that the statutory sickness insurance funds at issue in the main proceedings are expressly mentioned in Annex III to Directive 2004/18 is sufficient for them to be regarded, on that ground alone, as bodies governed by public law and therefore, as contracting authorities.
42. The applicant in the main proceedings and the Commission of the European Communities argue that the mere inclusion of a body in Annex III to Directive 2004/18 is a sufficient condition for considering that body to be governed by public law. Inclusion in the list raises an irrebuttable presumption that the body may be so classified, which makes any additional consideration of the nature and characteristics of the body at issue superfluous.
43. That argument cannot be accepted.
44. It can be seen from letter (b) of the first paragraph of Article 234 EC, that a national court may, at any time, request the Court to rule on the validity of an act of the institutions of the European Community if it considers that a decision by the Court on the question is necessary to enable it to give judgment.
45. In that regard, it should be pointed out that the Community rules at issue, namely Directive 2004/18, contain both substantive rules, such as those in the second subparagraph of Article 1(9) of that Directive, which lays down the conditions which a body must fulfil if it is to be regarded as a contracting authority within the meaning of the Directive, and measures implementing those substantive rules, such as the inclusion in Annex III to the same directive of a non-exhaustive list of public bodies deemed to fulfil those conditions. In such a context, the Community judicature, when a reasoned request to that effect is referred to by a national court, must make sure that the Community measure in question is internally consistent by verifying whether the inclusion of a given body in the said list constitutes a correct application of the substantive criteria laid down in the abovementioned provision. The Court’s intervention in that regard is a requirement of legal certainty, which is a general principle of Community law.
46. In the present case, the national court raises, although not expressly, a question concerning the validity of the inclusion in the list in Annex III of Directive 2004/18 of the statutory sickness insurance fund at issue in the main proceedings. It refers to differences between the case-law and legal literature in Germany on the question whether such inclusion constitutes a sufficient and exclusive condition for the purpose of classifying such funds as bodies governed by public law and even makes clear its own doubts in that regard. For those reasons, it frames its first question in terms of the substantive conditions laid down in letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18.
47. Consequently, the national court wishes to ask the Court for a ruling on the validity of the inclusion of the body at issue in the main proceedings in Annex III to Directive 2004/18 in the light of the substantive conditions laid down in that provision.
48. In order to answer that question, it must be noted that, according to the settled case-law of the Court, the three conditions laid down in letters (a), (b) and (c) of the second subparagraph of Article 1(9) of Directive 2004/18 which must be fulfilled if a body is to be regarded as governed by public law are cumulative (Case C‑393/06 Ing. Aigner  [2008] ECR I‑2339, paragraph 36 and the case-law cited therein).
49. As is clear from the order for reference, the conditions laid down in letters (a) and (b) of the second subparagraph of Article 1(9) of Directive 2004/18 are fulfilled in the present case. The statutory sickness insurance funds at issue are legal persons governed by public law, they were established for the specific purpose of meeting needs relating to public health, which are needs in the general interest, and those needs do not have an industrial or commercial character inasmuch as the benefits are provided on a non-profit-making basis. It remains to be considered, therefore, whether at least one of the alternative conditions laid down in the three alternatives set out in letter (c) of the second subparagraph of Article 1(9) has been fulfilled in the present case and, first, the condition concerning their being financed, for the most part, by the State.
50. It must be recalled first with regard to that condition that, as is apparent from the national system in question and from the orders of the Bundesverfassungsgericht cited in paragraphs 24 and 25 of the present judgment, the protection of public health is a fundamental task of the State and the statutory public insurance funds are integrated into the State and, in fact, perform indirectly missions of public administration.
51. Furthermore, in accordance with the Court’s case-law, the first alternative in letter (c) of 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 (see, to that effect, Case C‑337/06 Bayerischer Rundfunk and Others  [2007] ECR I‑11173, paragraphs 34 and 49).
52. It must first be observed, that the statutory sickness insurance funds at issue in the main proceedings are financed, in accordance with the relevant national rules, by contributions from members, including the contributions paid on their behalf by their employers, by direct payments from the Federal authorities and by compensatory payments between the funds resulting from the risk structure compensation mechanism between them. The sickness funds in question are financed, for the most part, by compulsory contributions from members.
53. Secondly, it is also apparent from the order for reference that the members’ contributions are paid without any specific consideration in return within the meaning of the Court’s case-law (see, to that effect, Case C‑380/98 University of Cambridge  [2000] ECR I‑8035, paragraphs 23 to 25). No contractual consideration is linked to those payments, since neither the liability to pay contributions nor their amount is the result of any agreement between the statutory sickness insurance funds and their members, since membership of the funds, and payment of contributions, are both required by law (see, to that effect, Bayerischer Rundfunk and Others , cited above, paragraph 45). In addition, the amount of contributions is based solely on the capacity to contribute of each member and other factors, such as the age of the insured person, his state of health or the number of co-insured persons are irrelevant in that regard.
54. Thirdly, the national court points out that, unlike the licence fee at issue in Bayerischer Rundfunk and Others , the contribution rate is fixed in the present case not by the public authorities but by the statutory sickness insurance funds themselves. However, it points out, correctly, that the funds have a very limited discretion in that regard inasmuch as their mission is to provide the benefits laid down in the social security legislation. Since the benefits, and the expenditure connected with them, are imposed by law and the funds perform their functions on a non-profit-making basis, the contribution rate must be set in such a way that the revenue accrued is no lower and no higher than expenditure.
55. Fourthly, it must be pointed out that the setting of the contribution rate by the statutory sickness insurance funds requires, in any event, the approval of the public body which supervises each fund. Thus, the amount of the contributions is, as the national court put it, to some extent, laid down by law. Finally, with regard to the funds’ other sources of revenue, the direct payments by the federal authorities, although of a smaller amount, are unquestionably direct financing by the State.
56. Lastly, with regard to the arrangements for the collection of contributions, it is clear from the order for reference that, in practice, the insured person’s part of the contributions is withheld from his salary and paid by his employer to the relevant statutory sickness insurance fund, along with the employer’s part of the contributions. Contributions are therefore collected without any possibility of intervention on the part of the insured person. The national court points out in that regard that contributions are compulsorily recovered on the basis of the provisions of public law.
57. It must therefore be considered, as the Court held in paragraph 48 of Bayerischer Rundfunk and Others , that financing of a statutory sickness insurance scheme such as that at issue in the main proceedings, 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.
58. In view of that conclusion and having regard to the alternative nature of the conditions laid down in letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18, there is no need to consider whether the condition concerning supervision of the management of the statutory sickness insurance funds by the public authorities is fulfilled in the present case.
59. The answer to be given to the first question referred is therefore that the first alternative of letter (c) of the second subparagraph of Article 1(9) of Directive 2004/18 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 as those in the main proceedings. 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 second question
62. On the other hand, in the case of a public contract for the provision of services and the carrying out of works, the third indent of Article 1(2)(d) of Directive 2004/18 employs another criterion for classification, namely, the principal object of the contract in question. That criterion was applied in Auroux and Others  (paragraphs 37 and 46), which concerned, precisely, a contract for works and services.
64. It must also be stated that, 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.
71. In any event, it flows from the abovementioned definition of a service concession 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 under 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.
72. That distinguishing factor is confirmed by the Court’s case-law, according to which a service concession exists where the agreed method of remuneration consists in the right of the service provider to exploit for payment his own service and means that he assumes the risk connected with operating the services in question (Case C‑382/05 Commission  v Italy  [2007] ECR I‑6657, paragraph 34 and the case-law cited therein).
74. It could certainly be remarked that the trader in such a case is exposed to a certain risk inasmuch as insured persons may not avail themselves of its products and services. However, that risk is limited. The trader is spared the risk connected with recovery of payment and the insolvency of the other party to the individual contract since, in law, the statutory sickness insurance fund alone is responsible for paying the trader. In addition, although the trader must be sufficiently equipped to provide its services, it does not have to incur considerable advance expenditure before an individual contract with an insured person is concluded. Finally, the number of insured persons suffering from diabetic foot syndrome, who are likely to seek out the trader in question, is known in advance, with the result that a reasonable forecast can be made as to the number of customers.