IVD GmbH & Co. KG v Ärztekammer Westfalen-Lippe.
Date: 2013-09-12
18. However, as the Advocate General observed in points 20 and 21 of his Opinion, the inclusion of a given body in that annex is only the application of the substantive rule laid down in Article 1(9), second subparagraph of Directive 2004/18, which does not give rise to an irrebuttable presumption that that body is a ‘body governed by public law’ within the meaning of that provision. Therefore, it is for the judicature of the European Union, when hearing a request reasoned to that effect by the national court, to satisfy itself that the directive is internally consistent by verifying whether the inclusion of a given body in the annex constitutes a correct application of the substantive criteria (see, to that effect, Hans & Christophorus Oymanns , paragraphs 42, 43 and 45).
21. In the light of those objectives, each of those criteria must be interpreted in functional terms (see, as regards similar provisions before Directive 2004/18 Commission  v France , paragraph 43 and the case-law cited, and Bayerischer Rundfunk and Others , paragraph 40), that is to say, given an interpretation independent of the formal rules for its use (see, by analogy, Case C‑360/96 BFI Holding  [1998] ECR I‑6821, paragraphs 62 and 63), and each criterion must be understood to create close dependence on the public authorities.
22. First of all, as regards the first criterion laid down in point (c) of the second subparagraph of Article 1(9) of Directive 2004/18 relating to financing for the most part by the public authorities, the concept of financing refers to a transfer of funds made without specific consideration with the aim of supporting the activities of the body concerned (see, as regards similar provisions before Directive 2004/18, Case C‑380/98 University of Cambridge  [2000] ECR I‑8035, paragraph 21).
25. The fact that, formally, a body itself fixes the amount of contributions which provide for the greater part of its financing does not make it impossible that indirect financing could satisfy that criterion. That is the case when bodies such as statutory sickness insurance funds are financed by contributions paid by or for their members without specific consideration, when membership of such a fund and the payment of those contributions are required by law, and when the amount of those contributions, although formally fixed by the funds themselves, is, on the one hand, laid down by statute, the law determining the services provided by those funds and the associated expenses and prohibiting them from operating on a profit-making basis, and must, on the other, be authorised by the supervisory authority, and when contributions are compulsorily recovered on the basis of the provisions of public law (see, to that effect, Hans & Christophorus Oymanns , paragraphs 53 to 56).
29. Next, as regards the second criterion laid down in point (c) of the second subparagraph of Article 1(9) of Directive 2004/18, relating to management supervision by the public authorities, it must be recalled that, in principle, a review ex post facto does not satisfy that criterion, for such a review does not enable the public authorities to influence the decisions of the body in question in relation to public contracts (see, to that effect, Case C‑373/00 Adolf Truley  [2003] ECR I‑1931, paragraph 70). That is the case, in principle, of a general review of legality conducted ex post facto  by a supervisory authority and, a fortiori , of an action taken by that authority in the form of approval of the body’s decision fixing the amount of contributions which provide for the greater part of its financing, which is confined to ascertaining that the body’s budget is balanced.