Farmacija, d.o.o. v Občina Benedikt (C-715/23)

Contents

Judgment of the Court (Fourth Chamber)10 July 2025^note(Reference for a preliminary ruling — Procedures for the award of concession contracts — Directive 2014/23/EU — Article 4(2) — Non-economic services of general interest — Article 19 — Social and other specific services — Scope of those provisions — Activity consisting in the operation of a pharmacy establishment)In Case C‑715/23,REQUEST for a preliminary ruling under Article 267 TFEU from the Državna revizijska komisija za revizijo postopkov oddaje javnih naročil (State Public Procurement Tribunal, Slovenia), made by decision of 23 November 2023, received at the Court on 23 November 2023, in the proceedingsFarmacija d.o.o.vObčina Benedikt,intervening party:MN,THE COURT (Fourth Chamber),composed of I. Jarukaitis, President of the Chamber, N. Jääskinen (Rapporteur), A. Arabadjiev, M. Condinanzi and R. Frendo, Judges,Advocate General: R. Norkus,Registrar: M. Longar, Administrator,having regard to the written procedure and further to the hearing on 12 December 2024,after considering the observations submitted on behalf of:– Farmacija d.o.o., by K. Zdolšek, odvetnica,– the Slovenian Government, by N. Pintar Gosenca and A. Vran, acting as Agents,– the Czech Government, by L. Halajová, M. Smolek and J. Vláčil, acting as Agents,– the Greek Government, by K. Georgiadis, V. Karra and S. Papaioannou, acting as Agents,– the European Commission, by A. Kraner, L. Malferrari and G. Wils, acting as Agents,after hearing the Opinion of the Advocate General at the sitting on 13 March 2025,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 4(2) and Article 19 of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ 2014 L 94, p. 1).

2The request has been made in the context of a dispute between Farmacija d.o.o., (‘Farmacija’), a limited liability company, and Občina Benedikt (Municipality of Benedikt, Slovenia) concerning the issue by the latter of an authorisation to operate a pharmacy branch on its territory without prior publication of a concession notice.

Legal context

European Union law

3Recitals 6 and 36 of Directive 2014/23 are worded as follows:(6) It should be recalled that Member States are free to decide, in compliance with the principles of the TFEU on equal treatment, non-discrimination, transparency and the free movement of persons to organise the provision of services either as services of general economic interest or as non-economic services of general interest or as a mixture thereof. … In addition, this Directive does not deal with the funding of services of general economic interest or with systems of aid granted by Member States, in particular in the social field, in accordance with Union rules on competition. It is appropriate to clarify that non-economic services of general interest should not fall within the scope of this Directive.…(36) This Directive should not apply to certain emergency services where they are performed by non-profit organisations or associations, since the particular nature of those organisations would be difficult to preserve if the service providers had to be chosen in accordance with the procedures set out in this Directive. … It should therefore be clarified that services which are covered by CPV code 85143000-3, consisting exclusively of patient transport ambulance services should be subject to the special regime set out for social and other specific services (the “light regime”). …’

4Article 1 of that directive, entitled ‘Subject matter and scope’, provides, in paragraphs 1 and 4 thereof:1. This Directive establishes rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession, whose value is estimated to be not less than the threshold laid down in Article 8.…4. Agreements, decisions or other legal instruments that organise the transfer of powers and responsibilities for the performance of public tasks between contracting authorities or contracting entities or groupings of contracting authorities or contracting entities, and which do not provide for remuneration to be given for contractual performance, are considered to be a matter of internal organisation of the Member State concerned and, as such, are not affected in any way by this Directive.’

5Article 4 of that directive, entitled ‘Freedom to define services of general economic interest’, provides:1. This Directive does not affect the freedom of Member States to define, in conformity with Union law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to. Equally, this Directive does not affect the way in which the Member States organise their social security systems.2. Non-economic services of general interest shall fall outside the scope of this Directive.’

6Article 5(1) of the same directive states:‘For the purposes of this Directive the following definitions apply:(1) ……(b) “services concession” means a contract for pecuniary interest concluded in writing by means of which one or more contracting authorities or contracting entities entrust the provision and the management of services other than the execution of works referred to in point (a) to one or more economic operators, the consideration of which consists either solely in the right to exploit the services that are the subject of the contract or in that right together with payment.The award of a works or services concession shall involve the transfer to the concessionaire of an operating risk in exploiting those works or services encompassing demand or supply risk or both. The concessionaire shall be deemed to assume operating risk where, under normal operating conditions, it is not guaranteed to recoup the investments made or the costs incurred in operating the works or the services which are the subject matter of the concession. The part of the risk transferred to the concessionaire shall involve real exposure to the vagaries of the market, such that any potential estimated loss incurred by the concessionaire shall not be merely nominal or negligible’.

7Article 19 of Directive 2014/23, entitled ‘Social and other specific services’, provides:‘Concessions for social and other specific services listed in Annex IV falling within the scope of this Directive shall be subject only to the obligations arising from Article 31(3) and Articles 32, 46 and 47.’

8Annex IV to that directive, entitled ‘Services referred to in Article 19’, refers to health, social and related services, including services corresponding to codes 85000000-9 to 85323000-9 of the Common Procurement Vocabulary (CPV) nomenclature, adopted pursuant to Regulation (EC) No 2195/2002 of the European Parliament and of the Council of 5 November 2002 on the Common Procurement Vocabulary (CPV) (OJ 2002 L 340, p. 1), including pharmacy services, which fall within code 85149000-5.

Slovenian law

The ZNKP

9Article 2 of the Zakon o nekaterih koncesijskih pogodbah (Law on certain concession contracts) (Uradni list RS, No 9/2019), in the version applicable to the dispute in the main proceedings (‘the ZNKP’), provides, in paragraph 18 thereof:‘“non-economic services of general interest” [means] non-economic services which are provided by law as services of general interest and which are not offered on the market for remuneration and are therefore subject to specific public service obligations.’

10Article 9 of that law provides:‘This Law shall apply to concession contracts the estimated value of which, excluding value added tax …, is equal to or greater than the value provided for in Article 8(1) of [Directive 2014/23].’

11Article 10 of that law states:‘Concessions which are governed by this Law and by special laws shall be subject to this Law and to the provisions of special laws provided that they are not contrary to this Law.’

12Article 11(1) of the same law provides‘This Law shall not apply to:1. concessions for non-economic services of general interest. …’

13Article 15 of the ZNKP provides:‘Concessions for social services and other specific services referred to in Annex IV to [Directive 2014/23] shall be subject to the provisions of this Law which governs the obligation to prepare preparatory acts, the obligation to publish the notice referred to in Articles 35 and 40 of this Law, and legal protection in concessionaire selection procedures under this Law.’

The Law on Healthcare

14Article 2 of the Zakon o zdravstveni dejavnosti (Law on Healthcare) (Uradni list RS, No 9/92), in the version applicable to the dispute in the main proceedings, provides:‘Healthcare is provided at primary, secondary and tertiary levels.Primary healthcare covers basic healthcare and pharmaceutical activity.’

15Article 3 of that law provides:‘Healthcare providers are domestic and foreign natural and legal persons which have obtained authorisation from the Ministry of Health to provide healthcare.The public health service includes health services which are guaranteed to be provided on a continuous and regular basis, in the public interest, by the State and local authorities and which, on the basis of the principle of solidarity and in accordance with the rules governing healthcare and health insurance, are guaranteed as services of the statutory health insurance scheme and are financed, in whole or in part, by public funds, in particular by the statutory health insurance scheme. The health services referred to in the preceding sentence are provided, as non-economic services of general interest, by non-profit healthcare providers in such a way that the surplus of revenue over expenditure is used for the provision and development of healthcare.’

16Article 20 of that law states, in the first paragraph thereof:‘Pharmaceutical activity is carried out in accordance with a special law. This Law applies to matters not regulated by a special law.’

The Law on Pharmaceutical Activity

17Article 1 of the Zakon o lekarniški dejavnosti (Law on Pharmaceutical Activity) (Uradni list RS, No 85/16), in the version applicable to the dispute in the main proceedings, provides:‘This Law regulates the purpose, content and conditions for carrying out pharmaceutical activity, the organisation, conditions and procedures for issuing and implementing concessions, professionals in the pharmaceutical sector and their professional associations, online pharmaceutical activity and supervision.’

18Article 2 of that law provides, in paragraph 1 thereof:‘The purpose of pharmaceutical activity is to ensure an efficient and high-quality supply of medicines and other products to support medical treatment and health protection, and to provide advice to patients and health professionals on their safe, correct and effective use.’

19Article 4 of that law states, in point 8 of paragraph 1 thereof:‘A pharmaceutical activity provider [means]: a natural or legal person having a concession to exercise a pharmaceutical activity in accordance with this Law, a public pharmacy establishment, a hospital or other providers in accordance with this Law.’

20Article 5 of the same law provides:(1) Pharmaceutical activity is a public health service which guarantees a continuous and regular supply of medicines to the population and health professionals as well as the pharmaceutical treatment of patients.(2) Pharmaceutical activity is carried out at the primary, secondary and tertiary levels of healthcare.(3) The pharmacy distribution plan referred to in this Law is guaranteed at primary level by the municipality or by several neighbouring municipalities jointly and, at secondary and tertiary levels, by the State.’

21Article 10 of the Law on Pharmaceutical Activity, in the version applicable to the dispute in the main proceedings, provides, in paragraphs 2 to 4 and 7 thereof:(2) A pharmacy branch may carry out its activity only under the professional supervision of the pharmacy that organised it. The manager of the pharmacy that organised the branch shall be responsible for its operation.(3) Authorisation to operate a pharmacy branch shall be issued by the municipality on whose territory the branch is established, following prior notification to [the “Lekarniška zbornica Slovenije” (Slovenian Chamber of Pharmacy)] and with the consent of the Ministry.(4) Authorisation to operate a pharmacy branch may also be issued for a limited period or for a specific period of the year (tourist season).…(7) A pharmacy branch shall commence its pharmaceutical activity only once authorisation has been issued to it in accordance with the first paragraph of Article 67 of this Law.’

22Article 15 of that law provides, in paragraph 1 thereof:‘Pharmaceutical activity shall be financed by public and private funds. The public funds referred to in the preceding sentence include, in particular:– payments for the work carried out in the context of the pharmaceutical activity on the basis of a contract concluded with health insurance bodies,– payments from budget appropriations,– the founding institution’s own funds.’

23Article 27 of that law provides, in paragraph 1 thereof:‘A public pharmacy establishment at primary level is created within its territory by a municipality or by several neighbouring municipalities jointly, after the prior opinion of the competent chamber and with the agreement of the Ministry.’

24Article 39(1) and (2) of the same law provides:(1) For the exercise of pharmaceutical activity at primary level, a concession may be granted, under the conditions laid down in this Law, to a natural person operating a pharmacy or to a legal person in which the pharmacy operator, who is also its manager or governing body, holds more than 50% of the share capital (“the concessionaire”).(2) The concessionaire shall organise pharmacies or pharmacy branches as its own organisational units for the exercise of the pharmaceutical activity in the areas for which it holds a concession or authorisation to operate a pharmacy branch, in accordance with the pharmacy distribution plan at primary level, subject to the prior opinion of the competent chamber and the agreement of the Ministry.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

25On 11 March 2022, the Municipality of Benedikt, without first publishing a concession notice, granted MN an authorisation to operate a branch of a pharmacy establishment on its territory for an indeterminate period.

26Farmacija filed an application for review of that authorisation before the Municipality of Benedikt. Farmacija considered, in essence, that that municipality had granted a concession for the exercise of a pharmacy establishment activity without the applicable procedure having been followed, in breach of Directive 2014/23.

27The Municipality of Benedikt dismissed the application for review without an examination on the merits, taking the view that Farmacija did not have a right of action either in the context of the pre-review procedure or in the context of the actual review procedure. That municipality thus considers that the issue of an authorisation to operate a branch of a pharmacy establishment does not constitute, substantively, an award of a services concession.

28Farmacija lodged an appeal against that decision, which was referred back to the Državna revizijska komisija za revizijo postopkov oddaje javnih naročil (State Public Procurement Tribunal, Slovenia), which is the referring tribunal. Farmacija reiterated before that body the view that, by issuing the authorisation for a service concession without following the procedure laid down by the ZNKP and Directive 2014/23, the Municipality of Benedikt had infringed those acts.

29The referring tribunal considers that the authorisation to operate a pharmacy branch issued by the Municipality of Benedikt corresponds to the award of a concession for the exercise of a pharmaceutical activity. However, that tribunal has doubts as to whether a service for the exercise of a pharmaceutical activity falls within the scope of Directive 2014/23. More specifically, it wonders whether such a service must be regarded as a non-economic service of general interest or as a service of general economic interest.

30In that regard, the referring tribunal notes, first, that the Slovenian legislature has provided that healthcare, of which pharmaceutical activity forms part, constitutes a non-economic service of general interest. According to that tribunal, it is necessary to take into account the essential role that pharmacy establishments play in public health, as well as their financing, which places them in a privileged relationship with the State and distinguishes them from other economic operators.

31Second, that tribunal observes that the Court of Justice has already held, in the judgment of 14 July 2022, ASADE (C‑436/20, EU:C:2022:559), that services provided for remuneration constitute economic activities. It notes that, under the national legislation, service providers such as pharmacy establishments are remunerated by funds from compulsory health insurance, but also by funds from users.

32Furthermore, in so far as services that are pharmacy establishments, such as those at issue in the dispute before the referring tribunal, cannot be regarded as constituting a non-economic service of general interest on the ground that the providers of those services receive remuneration, which brings those services within the scope of Directive 2014/23, the referring tribunal asks whether those same services are capable of falling within the concept of ‘social and other specific services’ referred to in Article 19 of that directive.

33In those circumstances, the Državna revizijska komisija za revizijo postopkov oddaje javnih naročil (State Public Procurement Tribunal) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:(1) Can a service relating to the exercise of a pharmaceutical activity, the main purpose of which is to supply users with prescription and non-prescription medicines for human use, along with advice to users on the correct and safe use of those medicines, be classified as a “non-economic service of general interest” within the meaning of Article 4(2) of [Directive 2014/23]?(2) Can a service relating to the exercise of a pharmaceutical activity, the main purpose of which is to supply users with prescription and non-prescription medicines for human use, along with advice to users on the correct and safe use of those medicines, be classified in the same way as social and other specific services, within the meaning of Article 19 of Directive 2014/23?’

Consideration of the questions referred

Admissibility

34The Slovenian Government considers that the present request for a preliminary ruling from the Državna revizijska komisija za revizijo postopkov oddaje javnih naročil (State Public Procurement Tribunal) is not admissible in so far as that body is not, under the provisions of national law, the authority competent to hear the dispute in the main proceedings and that, therefore, it does not have the status of ‘court or tribunal’, within the meaning of Article 267 TFEU.

35In that regard, according to settled case-law, in the context of the procedure for cooperation between national courts and the Court of Justice instituted by Article 267 TFEU, whether a body making a reference is a ‘court or tribunal’ depends on a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (judgment of 8 June 2017, Medisanus, C‑296/15, EU:C:2017:431, paragraph 33 and the case-law cited).

36In the present case, it should be recalled that the Court has already had occasion to find, in the judgment of 8 June 2017, Medisanus (C‑296/15, EU:C:2017:431), that the Državna revizijska komisija za revizijo postopkov oddaje javnih naročil (State Public Procurement Tribunal) fulfilled the criteria to be considered a ‘court or tribunal of a Member State’ within the meaning of Article 267 TFEU.

37That consideration was not called into question by the Court in its judgments of 10 September 2020, Tax-Fin-Lex (C‑367/19, EU:C:2020:685), and of 10 November 2022, SHARENGO (C‑486/21, EU:C:2022:868), answering questions for a preliminary ruling also referred by the Državna revizijska komisija za revizijo postopkov oddaje javnih naročil (State Public Procurement Tribunal).

38The Slovenian Government, however, submits that the present case can be distinguished from those in which the Court recognised that that tribunal is a court or tribunal in so far as it does not have jurisdiction to rule on the case in the main proceedings, which means that that tribunal is not a ‘court or tribunal’ for the purposes of Article 267 TFEU.

39In that regard, it is apparent from the case-law of the Court that, first, it is not for the Court to call into question the referring tribunal’s assessment of the admissibility of the action in the main proceedings, which falls, in the context of the preliminary ruling proceedings, within the jurisdiction of the national court; nor is it for the Court to determine whether the order for reference was made in accordance with the rules of national law governing the organisation of the courts and legal proceedings. The Court must abide by the decision from a court of a Member State requesting a preliminary ruling in so far as that decision has not been overturned in any appeal procedures provided for by national law (see, to that effect, judgments of 16 July 2020, Governo della Repubblica italiana (Status of Italian magistrates), C‑658/18, EU:C:2020:572, paragraph 61, and of 30 September 2020, CPAS de Liège, C‑233/19, EU:C:2020:757, paragraph 36 and the case-law cited).

40Second, it is settled case-law that, in the context of the cooperation between the Court and the national courts, provided for in Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. It follows that questions relating to EU law enjoy a presumption of relevance and that where the questions submitted concern the interpretation of EU law, the Court is in principle required to give a ruling. The Court may refuse to rule on a question referred by a national court for a preliminary ruling only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment of 25 February 2025, Sąd Rejonowy w Białymstoku and Adoreikė, C‑146/23 and C‑374/23, EU:C:2025:109, paragraph 37 and the case-law cited).

41In the present case, it should be noted that it is for the referring tribunal alone to determine the limits of its own jurisdiction. Furthermore, it should also be held that the questions asked by that tribunal relate to the purpose of the dispute in the main proceedings, that none of those questions is hypothetical and that the Court has before it the factual and legal material necessary to give a useful answer to those questions within the meaning of the case-law of the Court cited above.

42It follows that the request for a preliminary ruling is admissible.

The first question

43By its first question, the referring tribunal asks, in essence, whether Article 4(2) of Directive 2014/23 must be interpreted as meaning that the activity of operating a pharmacy establishment, the essential part of which consists in the supply, for remuneration, of medicines for human use, whether or not subject to medical prescription, and in the provision of advice on the correct and safe use of those medicines, falls within the concept of ‘non-economic services of general interest’, referred to in that provision.

44In order to answer that question, it is necessary to interpret the concept of ‘non-economic services of general interest’, within the meaning of Article 4(2) of Directive 2014/23, which determines the scope of that directive by excluding those services. It is apparent from the wording of that provision, read in the light of recital 6 of that directive, that ‘non-economic services of general interest’ do not fall within the scope of that directive.

45It should be noted in that regard that, first, the concept of ‘non-economic services of general interest’ has not been defined in the FEU Treaty or in secondary legislation, inter alia in Directive 2014/23.

46Second, it should be pointed out that Article 4(2) of Directive 2014/23 does not contain any express reference to the law of the Member States for the purpose of determining the meaning and scope of the concept of ‘non-economic services of general interest’, either.

47According to settled case-law, it follows from the need for a uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union, which must take into account the context of that provision and the purpose of the legislation in question (see, to that effect, judgments of 18 January 1984, Ekro, 327/82, EU:C:1984:11, paragraph 11, and of 13 March 2025, APS Beta Bulgaria and Agentsia za kontrol na prosrocheni zadalzhenia, C‑337/23, EU:C:2025:183, paragraph 49 and the case-law cited).

48Therefore, the question whether the services provided in the context of the activity of a pharmacy establishment constitute non-economic services of general interest, for the purposes of the EU legislation, is one of EU law. Thus, the classification, by the national legislature, of such an activity as falling within the scope of a non-economic service of general interest, emphasised by the Slovenian Government, cannot be decisive (see, to that effect, judgments of 10 July 2014, Impresa Pizzarotti, C‑213/13, EU:C:2014:2067, paragraph 40, and of 14 July 2022, ASADE, C‑436/20, EU:C:2022:559, paragraph 55 and the case-law cited).

49As the Advocate General observed in points 59, 61 and 62 of his Opinion, the proper functioning of the internal market of the European Union, which includes, inter alia, freedom to provide services and freedom of establishment, as is apparent from Article 26(2) TFEU, can be ensured only by a uniform understanding of the concept of ‘non-economic services of general interest’. Otherwise, the relevant rules of EU law would run the risk of being applied inconsistently, which is liable to cause a fragmentation of the internal market. Thus, having regard to the fact that the details of the pharmacy establishments’ activity may vary significantly from one Member State to another, owing to the specific characteristics of the applicable national legislation, the legal characterisation of its nature by the Member States cannot be decisive. Consequently, Member States’ competence to provide, commission and organise non-economic services of general interest, as referred to in recital 6 and Article 4(1) of Directive 2014/23 and as provided for in Article 2 of Protocol (No 26) on services of general interest (OJ 2012 C 326, p. 308), annexed to the FEU Treaty, cannot constitute a barrier to an autonomous interpretation of that concept.

50As regards the definition of the concept of ‘non-economic services of general interest’, within the meaning of Article 4(2) of Directive 2014/23, it should be noted, as the Advocate General did in point 53 of his Opinion, that that concept contains two cumulative elements. Such a service must, first, be supplied for purposes of general interest and, second, be non-economic. It is therefore necessary, in order to determine whether the services of the pharmacy establishments fall within the scope of that provision, to ascertain whether or not they are economic.

51In that regard, in so far as the concept of ‘non-economic services of general interest’ appears in Directive 2014/23, it must be interpreted in the light of the case-law of the Court and, more particularly, of that relating to observance of the freedoms enshrined in the FEU Treaty and of the principles deriving therefrom, such as equal treatment, non-discrimination, mutual recognition, proportionality and transparency which must be guaranteed under that directive, the legal basis of which includes Article 53(1) and Articles 62 and 114 TFEU.

52In particular, the concept of ‘services’ within the meaning of Article 4(2) of Directive 2014/23 must be interpreted in the light of the freedom to provide services enshrined in Article 56 TFEU, the scope of which is limited to economic activities (see, to that effect, judgment of 14 July 2022, ASADE, C‑436/20, EU:C:2022:559, paragraph 59). Furthermore, as that concept defines the field of application of one of the fundamental freedoms guaranteed by the FEU Treaty, it may not be interpreted restrictively (see, to that effect, judgment of 11 April 2000, Deliège, C‑51/96 and C‑191/97, EU:C:2000:199, paragraph 52 and the case-law cited).

53It is also apparent from the case-law of the Court that provision of services for remuneration constitutes an ‘economic activity’, it being understood that the essential characteristic of remuneration resides in the fact that it constitutes financial consideration for the service in question, although there is no requirement that it be paid for by the recipient of that service (see, to that effect, judgments of 1 February 2017, Commission v Hungary, C‑392/15, EU:C:2017:73, paragraph 100, and of 14 July 2022, ASADE, C‑436/20, EU:C:2022:559, paragraph 60).

54Those considerations are supported by the actual wording of Directive 2014/23. Article 1 of that directive, entitled ‘Subject matter and scope’, states, in essence, that agreements, decisions or other legal instruments that organise the transfer of powers and responsibilities for the performance of public tasks entrusted by contracting authorities or contracting entities to economic operators must be remunerated in order to fall within the scope of that directive.

55As regards, in particular, the activity of a pharmacy establishment, the Court has stated that it constitutes the exercise of an economic activity, falling within the scope of Article 49 TFEU (judgment of 19 December 2019, Comune di Bernareggio, C‑465/18, EU:C:2019:1125, paragraph 27 and the case-law cited), and that a pharmacist pursues the objective of making a profit, even if he or she is presumed to operate the pharmacy having regard to his or her training, professional experience and responsibility in the light of rules of law or professional conduct (see, to that effect, judgment of 19 May 2009, Apothekerkammer des Saarlandes and Others, C‑171/07 and C‑172/07, EU:C:2009:316, paragraph 37).

56That finding cannot be called into question by the arguments put forward by the Slovenian Government according to which the gainful activity of a pharmacy establishment is merely incidental, is financed in part by public funds and forms an integral part of the health system, based on the principle of solidarity. The only decisive factor for the classification of the activity of such an establishment as an economic service is that the services linked to that activity are provided for remuneration.

57Taking into account the fact that, as is apparent from the foregoing considerations, the services provided by pharmacy establishments do not constitute non-economic services, it is not necessary, in order to assess whether such services fall within the concept of ‘non-economic services of general interest’, within the meaning of Article 4(2) of Directive 2014/23, to ascertain whether they are provided in the public interest.

58In the light of all the foregoing considerations, the answer to the first question is that Article 4(2) of Directive 2014/23 must be interpreted as meaning that the activity of operating a pharmacy establishment, the essential part of which consists in the supply, for remuneration, of medicines for human use, whether or not subject to medical prescription, and in the provision of advice on the correct and safe use of those medicines, does not fall within the concept of ‘non-economic services of general interest’, referred to in that provision.

The second question

59By its second question, the referring tribunal asks, in essence, whether Article 19 of Directive 2014/23 must be interpreted as meaning that the activity of operating a pharmacy establishment, the essential part of which consists in the supply, for remuneration, of medicines for human use, whether or not subject to medical prescription, and in the provision of advice on the correct and safe use of those medicines, falls within the concept of ‘social and other specific services’, referred to in that Article 19.

60In that regard, it should be noted that it is apparent from a textual analysis of Annex IV to Directive 2014/23 that the category of ‘health, social and related services’ in that annex includes those corresponding to codes 85000000-9 to 85323000-9 of the Common Procurement Vocabulary (CPV) nomenclature. Since pharmacy services correspond to code CPV 85149000-5, those services must therefore be considered as specific services within the meaning of Article 19 of Directive 2014/23.

61Furthermore, Article 19 of Directive 2014/23 provides for a special regime for concessions relating to ‘social and other specific services’. That directive provides for a ‘light regime’ for those services as is stated in recital 36 thereof in so far as such services are exempt from the full application of that directive.

62Thus, under Article 19 of Directive 2014/23, concessions for social and other specific services listed in Annex IV thereto are to be subject only to the obligations arising from Article 31(3) and Articles 32, 46 and 47 of that directive. In particular, first, the contracting authorities and contracting entities are required to make known the intended award solely by means of a prior information notice, which, in accordance with Article 31(3) of that directive, is to contain the information set out in Annex VI thereto. Second, concession award notices, provided for in Article 32 of the same directive, may be grouped on a quarterly basis and must contain the information set out in Annex VIII thereto when they concern such services.

63In the present case, it is for the referring tribunal, first, to determine whether the authorisation to operate a pharmacy establishment, such as that at issue in the dispute in the main proceedings, corresponds to a concession, within the meaning of Directive 2014/23, and, where appropriate, whether that concession is subject to the simplified procurement regime laid down in Article 19 of that directive (see, to that effect, judgment of 1 August 2022, Roma Multiservizi and Rekeep, C‑332/20, EU:C:2022:610, paragraph 96).

64In the light of the foregoing considerations, the answer to the second question is that Article 19 of Directive 2014/23 must be interpreted as meaning that the activity of operating a pharmacy establishment, the essential part of which consists in the supply, for remuneration, of medicines for human use, whether or not subject to medical prescription, and in the provision of advice on the correct and safe use of those medicines, falls within the concept of ‘social and other specific services’, referred to in that Article 19.

Costs

65Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national tribunal, the decision on costs is a matter for that tribunal. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Fourth Chamber) hereby rules:

1.Article 4(2) of Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contractsmust be interpreted as meaning that the activity of operating a pharmacy establishment, the essential part of which consists in the supply, for remuneration, of medicines for human use, whether or not subject to medical prescription, and in the provision of advice on the correct and safe use of those medicines, does not fall within the concept of ‘non-economic services of general interest’, referred to in that provision.

2.Article 19 of Directive 2014/23must be interpreted as meaning that the activity of operating a pharmacy establishment, the essential part of which consists in the supply, for remuneration, of medicines for human use, whether or not subject to medical prescription, and in the provision of advice on the correct and safe use of those medicines, falls within the concept of ‘social and other specific services’, referred to in that Article 19.