Bayerischer Rundfunk and Others v GEWA - Gesellschaft für Gebäudereinigung und Wartung mbH.
Date: 2007-12-13
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.
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.
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.
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.
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.
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.
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 de pendency. 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.
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.