On 10 July 2025, the Court of Justice delivered a remarkable ruling in Farmacija (C-715/23), a case concerning the classification of pharmacy services concessions under Directive 2014/23/EU. The Court’s judgment brings clarity to the healthcare sector, where the specific characteristics of national legislation may vary significantly.

In line with the view taken by Advocate General Norkus, the Court of Justice confirmed that pharmacy services are an economic activity subject to EU concession rules, albeit under a simplified award procedure, envisaged by Article 19 of the Directive, for ‘social and other specific services’ listed in Annex IV to that Directive.

The Procedural Background and the Questions Referred for a Preliminary Ruling

The national dispute arises in Slovenia, where the Municipality of Benedikt granted MN an authorisation to operate a branch of a pharmacy establishment on its territory for an indeterminate period without prior publication of a concession notice.

Farmacija d.o.o., a limited liability company, challenged this decision with an application for administrative review, arguing it amounted to an unlawful award of a services concession in breach of the relevant national law (the ‘ZNKP’) and of Directive 2014/23/EU.

The Municipality of Benedikt rejected the application without examining the merits of the case, holding that the issue of authorisation to operate a branch of a pharmacy establishment does not constitute, substantively, an award of a services concession.

Farmacija lodged an appeal against that decision, which the municipality referred to the State Public Procurement Tribunal. The latter decided to refer to the Court of Justice two questions:

First, whether the 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, constitutes a ‘non-economic service of general interest’ within the meaning of Article 4(2) of Directive 2014/23, thus falling outside the Directive’s scope.

Second, whether such a service constitutes, instead, a ‘social and other specific service’ subject to a simplified procurement regime laid down in Article 19.

On the Admissibility

The Slovenian Government contested the admissibility of the request for a preliminary ruling, arguing that the Public Procurement Tribunal lacks jurisdiction to rule on the case in the main proceedings under national law. Therefore, it does not have, in this particular case, the status of a ‘court or tribunal’ within the meaning of Article 267 TFEU.

In its judgment, the Court begins by recalling that it has already had occasion to rule that the State Public Procurement Tribunal complies with Article 267 TFEU (see the judgments in Medisanus (C‑296/15), and more recently Tax-Fin-Lex (C‑367/19), and SHARENGO C‑486/21).

Furthermore, the Court reiterates that: ‘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 (…) 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 (…)’ (para. 39).

In conclusion, the it finds that it is solely for the referring body to determine ‘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 (…)’ (para 40).

The First Question

The Court of Justice then analyses the first question referred, concluding that the activity of operating a pharmacy, despite the essential role that pharmacies play in public health as well as their funding, does not fall within the concept of ‘non-economic services of general interest’, referred to in Article 4(2) of Directive 2014/23, which excludes those services from the scope of that Directive.

To begin with, the Court notes that the concept of ‘non-economic services of general interest’ has not been defined in the TFEU  or in secondary legislation, including in Directive 2014/23. However, Article 4(2) does not make reference to the law of the Member States to determine its meaning and scope (paras 43-46). In such cases, according to the Court’s settled case law, the need for a uniform application of EU law and the principle of equality requires ‘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’ (para. 47).

As previously observed by the Advocate General, this is also imposed by the proper functioning of the internal market, which includes freedom to provide services and freedom of establishment. Otherwise, the relevant rules of EU law would run the risk of being applied inconsistently, leading to a fragmentation of the internal market (para. 49).

Consequently, the fact that Slovenia’s national legislature has classified this activity as a non-economic service of general interest is not decisive. Furthermore, Member States’ competence to provide, commission, and organise non-economic services of general interest, as provided for in Directive 2014/23 and Protocol No. 26 of the TFEU, cannot preclude an autonomous interpretation of that concept (paras. 48 and 49).

As pointed out by the Advocate General and stressed by the Court, the concept of ‘non-economic services of general interest’ consists of two cumulative elements: the non-economic nature of the activity and the purposes of general interest for which they are supplied.

The Court recalls that  running a pharmacy constitutes an economic activity which falls within the scope of Article 49 TFEU (freedom of establishment), and that a pharmacist definitely works to earn a profit, even if he or she is presumed to operate the pharmacy in line with rules of law or professional conduct (para. 55), this being irrelevant the argument put forward by the Slovenian Government according to which a pharmacy’s profit-driven activities are only incidental because they are partly publicly funded and are an integrated, solidarity-based part of the healthcare system (para. 56). The core characteristic of an economic activity is the provision of services for remuneration, regardless of whether that payment comes directly from the user or from public funds like compulsory health insurance.

The Second Question

Having established the economic nature of the activity, the next logical step was to determine whether the activity of operating a pharmaceutical establishment falls within the concept of ‘social and other specific services’, referred to in Article 19 of Directive 2014/23, which provides for a simplified procurement regime (a ‘light regime’) for ‘social and other specific services’ listed in Annex IV of the Directive.

The Court confirms that pharmacy services fall squarely into this category, explicitly noting their inclusion under CPV code 85149000-5 within the ‘health, social and related services’ listed in Annex IV (para. 60).

This ‘light regime’ means that such services are exempt from the full application of the Directive, being subject only to the obligations arising from Article 31(3) and Articles 32, 46 and 47.

Specifically, while a full, complex and burdensome concession procedure is not required, contracting authorities still have a clear obligation to ensure transparency and equal treatment by publishing a prior information notice to make known the intended concession award and concession award notice after the award.

This ensures that potential operators are aware of business opportunities and that the process is publicly accountable, even if less formalised.

In light of the above, Farmacija d.o.o. was right to contest the direct award of the concession contract without prior publication of a concession notice. The municipality could not simply grant an authorisation without such a public formality.

Concluding Remarks

This ruling is a further step in the Court’s case law, which aims to ensure consistent application of EU law in crucial areas, balancing the autonomy of Member States in organising services of general economic interest and their social security systems with the need to safeguard the principles of transparency and equal treatment in the EU’s internal market, ensuring that there’s a level playing field for economic operators.

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