OPINION OF ADVOCATE GENERAL
MENGOZZI
delivered on 30 January 2013 ( 1 )
Case C‑526/11
IVD GmbH & Co. KG
v
Ärztekammer Westfalen-Lippe
(Request for a preliminary ruling from the Oberlandesgericht Düsseldorf – Vergabesenat (Germany))
‛Public procurement — Directive 2004/18/EC — Article 1(9), second subparagraph, point (c) — Concepts of ‘body governed by public law’ and of financing and supervision by the State — Professional association having a statutory right to raise contributions from its members, but having broad discretion in determining the amount of the contributions’
I – Introduction
1.
In this request for a preliminary ruling, the Oberlandesgericht Düsseldorf – Vergabesenat (the chamber having jurisdiction in public procurement matters of the Higher Regional Court of Düsseldorf) (Germany) asks the Court for an interpretation of second subparagraph, point (c) of Article 1(9) of Directive 2004/18/EC, ( 2 ) concerning the concept of ‘body governed by public law’. The referring cout asks, in essence, whether the Ärztekammer Westfalen-Lippe (the association of doctors in Westphalia-Lippe (‘the doctors’ association’)) is a body governed by public law and, consequently, a contracting authority within the meaning of that directive.
II – Legal framework
A – EU law
2.
Under the second and third subparagraphs of Article 1(9) of Directive 2004/18:
‘A “body governed by public law” means any body:
(a)
established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b)
having legal personality; and
(c)
financed, for the most part, by the State, 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.
Non-exhaustive lists of bodies and categories of bodies governed by public law which fulfil the criteria referred to in (a), (b) and (c) of the second subparagraph are set out in Annex III. …’
3.
With regard to the Federal Republic of Germany, that annex refers to professional associations, and in particular professional associations representing medical practitioners, among the authorities created by Federal, State or local authorities (Part III, category 1.1, second indent).
B – German law
4.
Paragraph 6(1)(1) to (5) of the Law on health professions of the Land of North Rhein-Westphalia (Heilberufsgesetz des Landes Nordrhein-Westfalen (‘the HeilBerG NRW’)) lays down in general terms the tasks of those professions, including those of the doctors’ association.
5.
According to that provision, the tasks of the doctors’ association are, inter alia, to support the public health service and public veterinary service, to adopt an opinion at the request of the supervisory authority, to guarantee an emergency medical and dental service outside consultation hours, to publicise it and to issue an emergency service regulation; to promote and carry out the professional training of members and to promote and carry out measures concerning the quality of health and veterinary services.
6.
Moreover, it is apparent from the documents before the Court that the HeilBerG NRW grants to the doctors’ association, in order for it to fulfil the tasks conferred on it, the right to raise contributions from its members (first sentence of Paragraph 6(4)), provides that the amount of the contributions must be fixed by regulations adopted by the assembly of that association (Paragraph 23(1)) and makes those regulations subject to the approval of a supervisory authority (Paragraph 23(2)), that approval being intended only to ensure that that association has a balanced budget.
III – The main proceedings and the question referred
7.
The doctors’ association initiated a procedure for the award of a public contract for the printing and distribution of its newsletter and the placement of advertising and the sale of subscriptions, and a contract notice was published in the Official Journal of the European Union on 5 November 2010. After two other tenderers had been rejected, the choice was to be made between IVD GmbH & Co. KG (‘IVD’) and WWF Druck + Medien GmbH, and the tender of the latter was ultimately successful.
8.
IVD challenged that award by means of a complaint and then an application for review before the Vergabekammer (the chamber with jurisdiction at first instance in public procurement matters), claiming that the successful tenderer had not submitted some of the references required by the contracting authority. Its application for review was dismissed by that authority which ruled that it was unfounded.
9.
The referring court, that is to say the Oberlandesgericht Düsseldorf – Vergabesenat, before which the dispute was brought, decided of its own motion to make a reference to the Court on the issue of the doctors’ association’s status as a contracting authority, an issue on which the admissibility of the application for review brought by IVD depends.
10.
That court considers that the tasks entrusted to that association by Paragraph 6(1)(1) to (5) by the HeilBerG NRW are tasks ‘in the general interest, not having an industrial or commercial character’. It also notes that that asssociation has legal personality. Accordingly, the referring court considers that the conditions set out in points (a) and (b) of the second subparagraph of Article 1(9) of Directive 2004/18 are fulfilled.
11.
However, it is unsure whether the right to raise contributions from its members, which is available to the doctors’ association, constitutes indirect State financing which fulfils the condition set out in point (c) of the second subparagraph of Article 1(9) of Directive 2004/18.
12.
The referring court notes that the HeilBerG NRW does not determine the amount of the contributions raised by the doctors’ association and does not lay down the extent and method of fulfilment of the tasks conferred on it in such a way that that association could set the amount of the contribution only within limited parameters. In fact, since it has broad discretion in fulfilling its tasks, that association has broad discretion in determining its financial requirements and thus in fixing the amount of the contributions. The referring court also points out that, althought there is a system of approval by the supervisory authority, that approval is intended only to ensure that the doctor’s association has a balanced budget.
13.
Having regard to those specific considerations and to Bayerischer Rundfunk and Others ( 3 ) and Hans & Christophorus Oymanns, ( 4 ) the referring Court asks whether the characteristics established by the Court in those judgments are necessary in order to fulfil the condition of indirect State financing.
14.
In that context, the Oberlandesgericht Düsseldorf – Vergabesenat decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:
‘Is a … professional association … within the meaning of Article 1(9) second subparagraph, point (c) of Directive 2004/18/EC … “financed, for the most part, by the State” or is it subject to “management supervision” by the State, if:
—
the body has the right by law to raise contributions from its members but does not set the amount of those contributions or the extent of the services to be financed thereby;
—
the fees regulations, however, require approval by the State?’
IV – The procedure before the Court
15.
Observations were submitted by IVD, the doctors’ association, the Czech Government and the the European Commission.
16.
The doctors’ association and the Commission presented argument at the hearing on 8 November 2012.
V – Legal analysis
A – The scope of the question referred
17.
First of all, it should be recalled that Annex III to Directive 2004/18 lists German professional associations representing medical practitioners among the contracting authorities deemed to fulfil the substantive conditions of that directive. ( 5 )
18.
Accordingly, that listing includes the doctors’ association at issue in the main proceedings.
19.
Although the questioin raised by the referring court relates to the interpretation of point (c) of the second subparagraph of Article 1(9) of Directive 2004/18, it indirectly calls into question the validity of the inclusion of that association in Annex III to that directive.
20.
As the Court has already had the opportunity to point out in Hans & Christophorus Oymanns, the inclusion of a body in Annex III to Directive 2004/18 constitutes only a simple or rebuttable presumption that that body is a contracting authority under that directive, so that the European Union judicature must make sure that the European Union measure in question is internally consistent by verifying whether that inclusion constitutes a correct application of the substantive criteria laid down in the second subparagraph of Article 1(9) of Directive 2004/18. ( 6 ) ( 7 )
21.
The Court has actually already had the opportunity to point out that Directive 2004/18 contains 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. ( 8 )
22.
As a result, the answer to be given to the question referred will also make it possible to determine whether it was right to include German associations representing doctors, in so far as they include the doctors’ association at issue in the main proceedings, in Annex III to Directive 2004/18.
23.
Accordingly, it is important to point out, first, that the three criteria laid down by Article 1(9) of Directive 2004/18 are cumulative. ( 9 ) An entity constitutes a body governed by public law,
—
subject to the procedures for the award of public contracts, where that entity was point (a);
—
established for the specific purpose of meeting needs in the general interest, not being of an industrial or commercial nature; point (b) has legal personality; and
—
point (c) is financed, for the most part, by the State, regional or local authorities, or other bodies governed by public law; or is subject to management supervision by those bodies; or has 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.
24.
As is clear from the order for reference, the conditions laid down in points (a) and (b) of the second subparagraph of Article 1(9) of Directive 2004/18 are fulfilled in the case in the main proceedings. ( 10 )
25.
Secondly, it is necessary to take into consideration the three alternative criteria laid down in point (c) of the second subparagraph of Article 1(9) of Directive 2004/18.
26.
In that regard, the referring court seems to have considered that neither the last of those criteria, that is, in essence, the one linked to the appointment by the public authorities of the majority of members of one of the organs of the entity, nor the second, concerning the management supervision of the entity by those public authorities, is satisfied in the present case.
27.
It should be noted, however, with regard to the criterion linked to the supervision by the public authorities of the management of the body, that, whilst the wording of the question referred to the Court mentions that criterion, the referring court provided no ground explaining its possible doubts as to its application in the present case.
28.
That uncertainty should therefore reasonably lead to the assumption that the referring court seeks to exclude the application of that criterion in the case in the main proceedings. Moreover, as the doctors’ association and the Commission pointed out in their respective written observations, in the light of the information provided by the referring court, it appears that the possibility that the management of that association is supervised must be rejected. Indeed, whereas the existence of such supervision must make it possible to influence the decisions in relation to public contracts of the body which is subject thereto, the Court has already held that the criterion of managerial supervision cannot be regarded as being satisfied in the case of mere review. ( 11 ) However, in all likelihood, this appears to be the nature of the review of legality, with a right to information, exercised over the doctors’ association by the supervisory authority, pursuant to Paragraph 28(1) of the HeilBerG NRW. ( 12 )
29.
In the light of those observations, I consider that it is unnecessary further to dwell on the fulfilment of the criterion of managerial supervision by the public authorities of the body at issue in the main proceedings.
30.
It is important, however, to verify whether the criterion concerning financing, for the most part, by the public authorities is fulfilled in the present case.
B – The criterion of financing, for the most part, by the public authorities
31.
I would recall that the referring court asks whether the criterion of financing, for the most part, by the public authorities, provided for by point (c) of the second subparagraph of Article 1(9) of Directive 2004/18, is fulfilled if a professional association, such as that at issue in the main proceedings, is financed (for the most part) ( 13 ) by a contribution from its members, if it has the right by law to raise those contributions but does not set the amount of those contributions or the extent of the services to be financed thereby.
32.
In their respective observations, the doctors’ association and the Czech Republic propose that that question should be answered in the negative, whereas the Commission takes the opposite view.
33.
As it explained at greater length at the hearing before the Court, the Commission’s reasoning is based, in particular, on the argument that mere ‘proximity’ to the State authorities is sufficient for the purposes of fulfilling the criterion of financing, for the most part, by the public authorities.
34.
It is true, and I fully concur, that, with regard, in particular, to the interpretation of that expression, it is appropriate to refer to the aim of the directives in relation to awarding public contracts, and in particular the aim of avoiding 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. ( 14 )
35.
Accordingly, the concept of ‘contracting authority’, including a ‘body governed by public law’, must be interpreted in functional terms, with the objective of eliminating barriers to the freedom to provide services and goods and opening up markets in the Member States to competition which is undistorted and as wide as possible. ( 15 )
36.
The approach advocated by the Commission, based on the objectives pursued by Directive 2004/18, could therefore lead to a flexible or broad interpretation of the link between the public authorities and the body whose financing, and thus its status as a ‘contracting authority’, is at issue.
37.
It is important, however, not to lose sight of the fact that it is also clear from the case-law that each of the alternative criteria set out in point (c) of the second subparagraph of Article 1(9) of Directive 2004/18 is presented as a variant of ‘close dependency’ on another contracting authority, the State, regional or local authorities or other bodies governed by public law. ( 16 )
38.
An excessively broad interpretation of the first of the three criteria listed by that provision might not only distort the need to demonstrate the existence of close dependency of the body at issue on the public authorities, but would also deprive the other two criteria referred to in that article of effectiveness.
39.
Acccordingly, I cannot agree with the disproportionately broad interpretation of the criterion of financing, for the most part, by the public authorities which is advocated by the Commission and which seeks to treat ‘close dependency’ of the body at issue on the public authorities in the same way as mere ‘proximity’ to them.
40.
I am of the opinion that excluding the excessively broad interpretation advocated by the Commission is particulary justified, since the present case, like Bayerischer Rundfunk and Others and Hans & Christophorus Oymanns, raises the delicate issue of indirect financing by the public authorities and the limits on the application of EU rules on the award of public contracts.
41.
Following the finding that point (c) of the second subparagraph of Article 1(9) of Directive 2004/18 contains no details as to the procedures for delivering the financing in question, the Court, inter alia, held in those two judgments that that provision laid down no requirement that the activity of the bodies in question should be directly financed by the State or by another public body, and accordingly a method of indirect financing is sufficient. ( 17 )
42.
Although, in each of those judgments, the Court found that the bodies at issue were actually financed indirectly by the public authorities, the precise and relevant circumstances underlying that finding were the subject of fierce debate in the present case between the doctors’ association and the Czech Republic, on the one hand, and the Commission, on the other hand.
43.
Those circumstances warrant some attention.
44.
In Bayerischer Rundfunk and Others, the Court was asked whether the public broadcasting bodies in Germany were contracting authorities, although their activity was financed, for the most part, by television licence fees for which individuals who possessed a receiver were liable.
45.
In that case, the Court pointed out that the television licence fee had its origin in the State Treaty on broadcasting, in other words in a measure of the State, and was not the result of any contractual arrangement entered into by those bodies and the customers. ( 18 ) The amount of the fee was determined by formal decision of the Parliaments and Governments of the Länder, adopted on the basis of a report drawn up by an independent commission of experts responsible for examining estimates of the financial requirements declared by those bodies. The Parliaments and Governments could depart from those recommendations only on a limited number of grounds. ( 19 )
46.
However, the Court found that, even if the position were that the Parliaments and Governments of the Länder were obliged to follow without qualification those recommendations, 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 that commission of experts. ( 20 )
47.
As regards the procedures for the levying of the fee, the Court noted that it was clear from the State Treaty that the latter was recovered by an association governed by public law which had the task of invoicing and collecting the fee and, on behalf of the public broadcasting bodies, issued notices of liability to the charge. ( 21 ) Similarly, if payment was not made on time, notices of arrears were the subject of enforcement by administrative proceedings, through the possibility of having recourse to enforced collection following an application by the broadcasting organisation concerned, with the result that the bodies in question enjoyed the powers of a public authority. ( 22 )
48.
The Court concluded that, although the State granted to those bodies the right to collect the fee themselves, the fact that the financing was brought into being by a measure of the State, was guaranteed by the State and was secured by methods of charging and collection which fell within public authority powers satisfied the condition of ‘financing … by the State’ for the purposes of application of the Community rules on the awarding of public contracts. ( 23 )
49.
In the second of the judgments cited above, that is to say Hans & Christophorus Oymanns, which, furthermore, again related to the Federal Republic of Germany, the national court in essence asked, inter alia, whether, in view of their method of financing, statutory sickness insurance funds could be regarded as being financed, for the most part, by the State, within the meaning of point (c) of the second subparagraph of Article 1(9) de la Directive 2004/18.
50.
The Court based its affirmative response on four considerations.
51.
First, it pointed out, that the statutory sickness insurance funds were financed, for the most part, by compulsory contributions from members which were paid without any specific consideration in return, since membership of the funds, and payment of contributions, were both required by law. ( 24 )
52.
Secondly, and although, unlike in Bayerischer Rundfunk and Others, the contribution rate was fixed by the funds themselves, the Court endorsed the assessment of the national court that the funds had a very limited discretion in that regard inasmuch as their mission was to provide the benefits laid down in the social security legislation. According to the Court, therefore, since the benefits, and the expenditure connected with them, were imposed by law and the funds performed their functions on a non-profit-making basis, the contribution rate had to be set in such a way that the revenue accrued was no lower and no higher than expenditure. ( 25 )
53.
Thirdly, the Court noted that the setting of the contribution rate by the statutory sickness insurance funds required, in any event, the approval of the body which supervised each fund so that the amount of those contributions was to some extent, laid down by law, the other revenue (direct payments by the federal authorities) being, however, unquestionably direct financing by the State. ( 26 )
54.
Fourthly and finally, with regard to the the collection and recovery of contributions, the Court pointed out that contributions were collected without any possibility of intervention on the part of the insured person and were also compulsorily recovered on the basis of the provisions of public law. ( 27 )
55.
The Court concluded from this that the statutory sickness insurance funds were therefore, albeit essentially in an indirect manner, financed, for the most part, by the public authorities.
56.
What can be inferred from those two judgments?
57.
In the first place, it is perfectly clear that in order to find that a body is indirectly financed, for the most part, by the public authorities, the Court uses the ‘body of evidence’ method.
58.
That evidence may, in my view, be listed as follows: first of all, the resource in question originates with the State and its payment is compulsory; next, its collection from those liable to pay it and the methods for determining it, and, where appropriate, the extent and degree of the control exercised over those methods by the supervisory public authorities, are authoritarian in nature, and; finally, public authority powers are granted to the bodies in question to ensure recovery of that resource.
59.
In the second place, however, it remains unclear whether each element of that evidence must be found to exist in a given situation and what is the relative weight which the Court attaches to each element.
60.
I consider that the answer to those questions lies in part in the need to find a ‘close dependency’ of the body in question on the public authorities.
61.
However, it seems to me that, in the light of the evidence highlighted in point 58 of this Opinion, such a close dependency is absent in the case of the body at issue in the main proceedings.
62.
First of all, it is true that it is the HeilBerG NRW, that is to say the law of a German Land, which grants the the doctors’ association the right to collect the contribution in order to ensure the financing of the tasks sets out in Paragraph 6(1) thereof. The imposition of that contribution has, as acknowledged by all the interested parties who submitted observations before the Court, a public origin, in this case at the infra-State level. Moreover, the contribution is paid without any specific consideration therefor.
63.
However, as was rightly observed by the Czech Republic, it is important to point out that, unlike Bayerischer Rundfunk and Others and Hans & Christophorus Oymanns, that contribution is collected not from third parties (taxable persons or consumers), but from the members of the body at issue themselves.
64.
In that regard, the power granted to the the doctors’ association does not seem very different from the powers vested in all ‘regulated’ professional associations in order to ensure the financing of their duties, which are, inter alia, to safeguard profession rules of conduct and ethics, a high level of expertise and vocational training for their members, and to secure relationships between those members. Moreover, those are also the types of tasks which are referred to in Paragraph 6 of the HeilBerG NRW and which must be financed by the contribution collected by the doctors’ association.
65.
Furthermore, and based on similar reasoning, I cannot concur with the Commission’s argument that there is a transfer of public authority powers to the doctors’ association with regard to determining the amount of the contributions. Indeed, by definition, a public authority power is exercised on a person, whether natural or legal, who has no ability to influence the amount of the contribution demanded, like the taxable persons and consumers in Bayerischer Rundfunk and Others and Hans & Christophorus Oymanns.
66.
However, it is common ground that, in the main proceedings, the amount of the contributions is decided by the General Assembly of the doctors’ association at which all members designate representatives who participate with a right to vote and that, accordingly, each member can, indirectly at least, influence it. If the Commission’s line of argument were to be followed, it would be tantamount to accepting that the members of the doctors’ association who form part of its assembly enjoy a transfer of public authority powers to be exercised, paradoxically, on themselves. ( 28 )
67.
Next, and this point is of course linked to the preceding one, I consider that the discretion available to the doctors’ association concerning the calculation of contributions is, contrary to what the Commission claims, important evidence as regards finding that there is a ‘close dependency’ of that body on the public authorities.
68.
Indeed, to the extent that, as the Commission acknowledges, the tasks of the doctors’ association are defined in a quite broad and vague manner, the autonomy enjoyed by that body in calculating the amount of the contribution also allows it considerable latitude in assessing the extent and method of fulfilment of the tasks which it will be in a position to finance. ( 29 ) Similarly, that entity may choose to favour or develop a particular task based on the amount of contributions that it has decided to set.
69.
It also follows from the HeilBerG NRW and from the evidence adduced by the doctors’ association at the hearing before the Court that the supervisory authority has no power to intervene in relation to the amount of the contribution determined by the assembly of that association. In fact, the only power that that authority has in that regard lies in the statutory control of the budgetary balance between revenues and expenses for which the doctors’ association is responsible.
70.
That situation therefore contrasts with that in Hans & Christophorus Oymanns, in which, I would recall, the Court found that there was a ‘very limited’ discretion on the part of the statutory sickness insurance funds in determining their contributions. That assessment must, in my view, be read in the light of paragraph 17 of that judgment, according to which those funds had to calculate the contributions in such a way as to cover, when combined with other resources, the expenses stipulated by law and to guarantee that the means of operating and statutory reserves were available.
71.
However, it follows from the information provided by the referring court that the doctors’ association has significant discretion as regards the extent of its expenditure which is determined on the basis of the methods chosen by that association to fulfil its tasks, which, moreover, are themselves laid down by the HeilBerG NRW in a quite broad and vague manner.
72.
Moreover, in Hans & Christophorus Oymanns, for the purpose of finding that there was a close dependency of the statutory sickness insurance funds on the public authorities, the Court also pointed out that those funds were financed directly by the State, whereas, in the main proceedings, in no way is provision made for such financing for the benefit of the doctors’ association.
73.
Furthermore, it seems likely that, in the light of the broad discretion available to the doctors’ association, the members of its assembly, that is to say the representatives of the contributors themselves, will be guided by essentially economic considerations in establishing the methods of fulfilling its tasks and, therefore, in determining the amount of contributions which the members of that association are willing to pay. ( 30 )
74.
Under those circumstances, it seems to me that such a body will not be led to bear higher financial costs than those imposed on it by purely economic considerations when deciding to have recourse to the market, with the result that it seems inconceivable to me that there could be a link of close dependency on the State, so long as it is the contributors themselves who determine the amount of the contributions which they must pay.
75.
Finally, as regards the power of the doctors’ association to adopt internal administrative provisions, to determine penalty payments against members who fail to comply with their legal or statutory obligations and to recover those penalty payments, ( 31 ) I consider that, once again, that power is not very different from that conferred on professional associations in relation to their members, by virtue of the need to allow them to self-regulate the profession for which they constitute ‘the association’.
76.
Under those circumstances, I suggest that the Court should answer the question referred to the effect that the fact that a State measure confers on a body such as the doctors’ association the right to raise contributions from its members but does not set the amount of those contributions or the extent of the services to be financed thereby is not sufficient to create a link of close dependency on the public authorities within the meaning of point (c) of the second subparagraph of Article 1(9) of Directive 2004/18.
77.
Therefore, the simple presumption of compliance with the substantive requirements laid down by that provision of Directive 2004/18, which stems from the inclusion of the doctors’ association at issue in the main proceedings in Annex III to that directive may be regarded as being rebuttable.
VI – Conclusion
78.
In the light of all the foregoing reasons, I suggest that the Court answer the question referred by the Oberlandesgericht Düsserdorf – Vergabesenat as follows:
Point (c) of the second subparagraph of 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 must be interpreted as meaning that a State measure which confers on a body, such as the Ärztekammer of Westphalia-Lippe at issue in the main proceedings, the right to raise contributions from its members but does not set the amount of those contributions or the extent of the services to be financed thereby is not sufficient to create a link of close dependency on the public authorities, which is necessary to fulfil the criterion of financing, for the most part, by the State, regional or local authorities, or other bodies governed by public law, as laid down in that article.
( 1 ) Original language: French.
( 2 ) Directive 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).
( 3 ) Case C-337/06 [2007] ECR I-11173.
( 4 ) Case C-300/07 [2009] ECR I-4779.
( 5 ) Moreover, it must be pointed out in that regard that the Federal Republic of Germany is unique among the Member States in listing professional associations, including professional associations representing medical practitioners, under the category of ‘authority’.
( 6 ) See, to that effect, Hans & Christophorus Oymanns, paragraphs 41 to 47. Moreover, as already pointed out by Advocate General Mazák in point 29 of his Opinion in that case, Member States may not unilaterally amend Annex III to Directive 2004/18. It follows from Article 79 of that directive that only the Commission is empowered to amend ‘the lists of bodies and categories of bodies governed by public law in Annex III, when, on the basis of the notifications from the Member States, these prove necessary’.
( 7 ) That examination by the European Union judicature can also be understood in the light of the delimitation of jurisdiction between the national courts and the Court with regard to reviewing the validity of a European Union measure. Although the former may, in principle, be led to assume responsibility for carrying it out, the Court alone has jurisdiction to declare that such an act is invalid (see, to that effect, inter alia, Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415, paragraph 17; Case C-119/05 Lucchini [2007] ECR I-6199, paragraph 53; and Case C-366/10 Air Transport Association of America and Others [2011] ECR I-13755, paragraphs 47 and 48).
( 8 ) Hans & Christophorus Oymanns, paragraph 45.
( 9 ) Case C-44/96 Mannesmann Anlagenbau Austria and Others [1998] ECR I-73, paragraph 21; Case C-360/96 BFI Holding [1998] ECR I-6821, paragraph 29; Joined Cases C-223/99 and C-260/99 Agorà and Excelsior [2001] ECR I-3605, paragraph 26; Bayerischer Rundfunk and Others, paragraph 48; and Case C-393/06 Ing. Aigner [2008] ECR I-2339, paragraph 36.
( 10 ) In paragraphs 7 to 9 of its observations, the Czech Republic expressed doubts as to whether the condition laid down in point (a) of the second subparagraph of Article 1(9) of Directive 2004/18 is fulfilled, claiming, in particular, that the activities of the doctors’ association are sectoral and therefore do not have general effect. That assessment, however, which is essentially factual in nature, is the responsibility of the referring court, which, as already stated, considers (correctly) that, in the light of the tasks of the doctors’ association linked to public health, the condition set out in point (a) is fulfilled.
( 11 ) Case C-373/00 Adolf Truley [2003] ECR I-1931, paragraph 70.
( 12 ) The Commission points out in that regard that Paragraph 28(1) of the HeilBerG NRW must be read in conjunction with Paragraph 20(1) of the Law on the administrative organisation of the Land of North Rhine-Westphalia, according to which the supervision exercised over the authorities relates to the compliance of the tasks carried out by them with the legislation in force and with Paragraph 121 of the municipal code of the same Land, pursuant to which the supervisory authorities may at any time inquire into the affairs of the authorities.
( 13 ) The fact that the doctors’ association is financed ‘for the most part’ by those contributions was confirmed by that association’s representative at the hearing before the Court. According to the case-law (see, to that effect, Bayerischer Rundfunk and Others, paragraph 33 and the case-law cited), that condition is satisfied if more than one half of the income comes from the resource in question.
( 14 ) Bayerischer Rundfunk and Others, paragraph 36 and case-law cited.
( 15 ) Ibid., paragraph 37.
( 16 ) See, to that effect, in particular, Mannesmann Anlagenbau Austria and Others, paragraph 20; Case C-380/98 University of Cambridge [2000] ECR I-8035, paragraph 20; and Bayerischer Rundfunk and Others, paragraph 53.
( 17 ) Bayerischer Rundfunk and Others, paragraphs 34 and 49, and Hans & Christophorus Oymanns, paragraph 51.
( 18 ) Bayerischer Rundfunk and Others, paragraph 41.
( 19 ) Ibid., paragraph 42.
( 20 ) Ibid., paragraph 43.
( 21 ) Ibid., paragraph 44.
( 22 ) Ibid., paragraph 44.
( 23 ) Ibid., paragraphs 47 and 48.
( 24 ) Hans & Christophorus Oymanns, paragraphs 52 and 53.
( 25 ) Ibid., paragraph 54.
( 26 ) Ibid., paragraph 55.
( 27 ) Ibid., paragraph 56.
( 28 ) Unlike the situations giving rise to Bayerischer Rundfunk and Others and Hans & Christophorus Oymanns, the notices of contributions issued by the doctors’ association in the present case, which, according to the Commission, are comparable to recovery orders, are addressed to the very members of that association who have determined the amount of the contributions in question and not to third parties who have no influence on setting that amount.
( 29 ) In its observations, the doctors’ association set out, using examples, the discretion available to it to carry out its tasks. Thus, with regard to the task of informing its members and the public on the activities of the doctors’ association and on topics related to the profession, which forms part of the tasks of associations, the doctors’ association established, along with the association of doctors’ funds in Westphalia-Lippe, a ‘patient advice centre’ which has three doctors and three administrative staff. The list in Paragraph 6(1) of the HeilBerG NRW does not specifically provide for the establishment and making available of a patient advice centre. Therefore, the doctors’ association has broad discretion as to the method of fulfilment of its tasks.
( 30 ) In addition, the argument of the Commission that the territorial exclusivity enjoyed by the doctors’ association should lead to its classification as a contracting authority in order to encourage the opening of the market does not seem relevant to me. Quite apart from the fact that it is not a criterion for the application of Directive 2004/18, the participation of members of the doctors’ association in determining its tasks and in establishing the contribution that it collects leads those members and therefore the association itself to take decisions on the basis of principally economic considerations when deciding to have recourse to the market.
( 31 ) Paragraph 58 of the HeilBerG NRW.
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