Opinion of the Advocate General — ECLI:EU:C:2025:529
Date: 2025-07-03
Language of the case: Spanish

Summary C-210/24 – 1 
Case C-210/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
14 March 2024 
Referring court: 
Órgano Administrativo de Recursos Contractuales de la Comunidad 
Autónoma de Euskadi (Spain) 
Date of the decision to refer: 
14 March 2024 
Applicant: 
Asociación de Empresas de Servicios para la Dependencia (AESTE) 
Defendant: 
Ayuntamiento de Ortuella 
  
Subject matter of the main proceedings 
Public contracts – Directive 2014/24/EU – Article 67 – Contract award criteria – 
Criterion of the most economically advantageous tender – Criterion linked to the 
subject matter of the public contract – Right of collective bargaining and action – 
Freedom to provide services – Home care service 
Subject matter and legal basis of the request 
Reference for a preliminary ruling – Public contracts – Directive 2014/24/EU – 
Article 67 – Contract award criteria – Criterion of the most economically 
advantageous tender – Criterion linked to the subject matter of the public 
contract – Charter of Fundamental Rights of the European Union – Article 28 – 
Right of collective bargaining and action – Treaty on the Functioning of the 
European Union – Article 56 – Freedom to provide services 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-210/24 
 
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Questions referred for a preliminary ruling 
‘Is a criterion for awarding a contract for services, such as that described, which: 
– assesses the increase in the total payroll cost above that determined by the 
collective agreement applicable to the sector, which the tenderer proposes to apply 
to the individuals performing the contract, and 
– obliges the successful tenderer, following collective bargaining with the 
workers’ representatives, to specify the precise form that the pay increase is to 
take, and to seek to formalise a collective agreement applicable to the staff 
assigned to the contract, 
suitable for identifying the most economically advantageous tender, as required by 
Article 67(1) of Directive 2014/24/EU? 
Does such an award criterion conflict with the freedom to provide services or 
restrict free competition, contrary to Article 56 of the Treaty on the Functioning of 
the European Union and Directives 2014/24/EU and 96/71/EC? 
Does such an award criterion infringe the right of collective bargaining recognised 
in Article 28 of the Charter of Fundamental Rights of the European Union?’ 
Provisions of European Union law and case-law relied on 
Article 56 of the Treaty on the Functioning of the European Union: 
‘Within the framework of the provisions set out below, restrictions on freedom to 
provide services within the Union shall be prohibited in respect of nationals of 
Member States who are established in a Member State other than that of the 
person for whom the services are intended. 
[…].’ 
Article 28 of the Charter of Fundamental Rights of the European Union: 
‘Within the framework of the provisions set out below, restrictions on freedom to 
provide services within the Union shall be prohibited in respect of nationals of 
Member States who are established in a Member State other than that of the 
person for whom the services are intended Workers and employers, or their 
respective organisations, have, in accordance with Union law and national laws 
and practices, the right to negotiate and conclude collective agreements at the 
appropriate levels and, in cases of conflicts of interest, to take collective action to 
defend their interests, including strike action.’ 
Directive 2014/24/EU of the European Parliament and of the Council of 
26 February 2014 on public procurement and repealing Directive 2004/18/EC, 
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recitals 98 and 99, Article 2(1)(3) and (4), Article 18(1), Articles 67 and 76 and 
Annex XIV 
Recital 98 
‘It is essential that award criteria or contract performance conditions concerning 
social aspects of the production process relate to the works, supplies or services to 
be provided under the contract. In addition, they should be applied in accordance 
with Directive 96/71/EC, as interpreted by the Court of Justice of the European 
Union and should not be chosen or applied in a way that discriminates directly or 
indirectly against economic operators from other Member States or from third 
countries parties to the GPA or to Free Trade Agreements to which the Union is 
party. Thus, requirements concerning the basic working conditions regulated in 
Directive 96/71/EC, such as minimum rates of pay, should remain at the level set 
by national legislation or by collective agreements applied in accordance with 
Union law in the context of that Directive.’ 
Recital 99 
‘Measures aiming at the protection of health of the staff involved in the 
production process, the favouring of social integration of disadvantaged persons 
or members of vulnerable groups amongst the persons assigned to performing the 
contract or training in the skills needed for the contract in question can also be the 
subject of award criteria or contract performance conditions provided that they 
relate to the works, supplies or services to be provided under the contract. For 
instance, such criteria or conditions might refer, amongst other things, to the 
employment of long-term job-seekers, the implementation of training measures 
for the unemployed or young persons in the course of the performance of the 
contract to be awarded. In technical specifications contracting authorities can 
provide such social requirements which directly characterise the product or 
service in question, such as accessibility for persons with disabilities or design for 
all users.’ 
Article 18(1) – Principles of procurement 
‘1. Contracting authorities shall treat economic operators equally and without 
discrimination and shall act in a transparent and proportionate manner. 
The design of the procurement shall not be made with the intention of excluding it 
from the scope of this Directive or of artificially narrowing competition. 
Competition shall be considered to be artificially narrowed where the design of 
the procurement is made with the intention of unduly favouring or disadvantaging 
certain economic operators.’ 
Article 67 – Contract award criteria 
‘1. Without prejudice to national laws, regulations or administrative provisions 
concerning the price of certain supplies or the remuneration of certain services, 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-210/24 
 
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contracting authorities shall base the award of public contracts on the most 
economically advantageous tender. 
2. The most economically advantageous tender from the point of view of the 
contracting authority shall be identified on the basis of the price or cost, using a 
cost-effectiveness approach, such as life-cycle costing in accordance with 
Article 68, and may include the best price-quality ratio, which shall be assessed on 
the basis of criteria, including qualitative, environmental and/or social aspects, 
linked to the subject matter of the public contract in question. Such criteria may 
comprise, for instance: 
(a) quality, including technical merit, aesthetic and functional characteristics, 
accessibility, design for all users, social, environmental and innovative 
characteristics and trading and its conditions; 
(b) organisation, qualification and experience of staff assigned to performing the 
contract, where the quality of the staff assigned can have a significant impact on 
the level of performance of the contract; or 
(c) after-sales service and technical assistance, delivery conditions such as 
delivery date, delivery process and delivery period or period of completion. 
The cost element may also take the form of a fixed price or cost on the basis of 
which economic operators will compete on quality criteria only. 
Member States may provide that contracting authorities may not use price only or 
cost only as the sole award criterion or restrict their use to certain categories of 
contracting authorities or certain types of contracts. 
[…] 
4. Award criteria shall not have the effect of conferring an unrestricted 
freedom of choice on the contracting authority. They shall ensure the possibility 
of effective competition and shall be accompanied by specifications that allow the 
information provided by the tenderers to be effectively verified in order to assess 
how well the tenders meet the award criteria. In case of doubt, contracting 
authorities shall verify effectively the accuracy of the information and proof 
provided by the tenderers. 
[…].’ 
Article 76 – Principles of awarding contracts 
‘1. Member States shall put in place national rules for the award of contracts 
subject to this Chapter in order to ensure contracting authorities comply with the 
principles of transparency and equal treatment of economic operators. Member 
States are free to determine the procedural rules applicable as long as such rules 
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allow contracting authorities to take into account the specificities of the services in 
question. 
2. Member States shall ensure that contracting authorities may take into 
account the need to ensure quality, continuity, accessibility, affordability, 
availability and comprehensiveness of the services, the specific needs of different 
categories of users, including disadvantaged and vulnerable groups, the 
involvement and empowerment of users and innovation. Member States may also 
provide that the choice of the service provider shall be made on the basis of the 
tender presenting the best price-quality ratio, taking into account quality and 
sustainability criteria for social services.’ 
Council Directive 89/665/EEC of 21 December 1989 on the coordination of the 
laws, regulations and administrative provisions relating to the application of 
review procedures to the award of public supply and public works contracts 
Judgment in Case C-346/06, Rüffert; judgment in Case C-583/10, Nolan; 
judgment in Case C-313/12, Romeo; judgment in Case C-115/14, RegioPost; 
judgment in Case C-234/14, Ostas celtnieks; judgment in Case C-546/16, Montte; 
judgment in Case C-462/19, Anesco and Others; judgment in Case C-376/21, 
Obshtina Razlog. 
Provisions of national law relied on 
Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público (Law 9/2017 of 
8 November 2017 on Public Sector Contracts; ‘the LCSP’), Articles 1, 48 and 145 
and Annex IV. 
‘Article 1. Object and purpose. 
[…] 
3. Social and environmental criteria shall, on a universal and mandatory basis, 
be included in all public procurement, provided that it is relevant to the subject 
matter of the contract, in the belief that the inclusion thereof improves the price-
quality ratio of the contractual performance, as well as providing greater and 
improved efficiency in the use of public funds. Small and medium-sized 
enterprises and social enterprises shall also be given access to public 
procurement.’ 
‘Article 145. Requirements and classes of contract award criteria. 
1. Contracts shall be awarded using a number of award criteria on the basis of 
the best price-quality ratio. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-210/24 
 
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Where justified in the procurement documents, contracts may be awarded 
according to criteria based on a cost-effectiveness approach, on the basis of the 
price or cost, such as life cycle costing in accordance with Article 148. 
2. The best price-quality ratio shall be evaluated on the basis of financial and 
qualitative criteria. 
The qualitative criteria established by the contracting authority in order to 
evaluate the best price-quality ratio may include environmental or social aspects, 
linked to the subject matter of the contract as laid down in paragraph 6 of this 
article, which may include the following: 
(1) Quality, including technical merit, aesthetic and functional characteristics, 
accessibility, universal design or design for all users, social, environmental and 
innovative characteristics and trading and its conditions; 
[…] 
The social characteristics of the contract shall relate, inter alia, to the following 
aims: promoting the social integration of persons with disabilities, disadvantaged 
persons or members of vulnerable groups among the persons assigned to the 
performance of the contract and, in general, the social integration and employment 
of persons with disabilities or who are at risk of social exclusion; subcontracting 
with special employment centres or companies providing employment; the 
application of gender equality plans in the performance of the contract and, in 
general, equality between women and men; promoting the employment of women; 
the reconciliation of work, personal and family life; improving working and pay 
conditions; stable employment; the employment of a greater number of people to 
perform the contract; training and the protection of health and safety at work; the 
application of ethical and social responsibility criteria to the contractual 
performance; and criteria relating to the supply or use of fair trade products in the 
course of the performance of the contract. 
(2) The organisation, qualification and experience of the staff assigned to the 
performance of the contract, provided that the quality of that staff may have a 
significant impact on the level of performance of the contract. 
[…].’ 
‘Forty-seventh additional provision. Principles applicable to the concession 
contracts included in Annex IV and to the contracts for social, healthcare or 
educational services included in Annex IV. 
Without prejudice to the application of the provisions of this law and, inter alia, 
those relating to the establishment of the technical prescriptions, the minimum 
requirements with regard to standing, the award criteria and the special conditions 
relating to the performance of the contract, in procurement procedures for 
concession contracts appearing in Annex IV and social, healthcare or educational 
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contracts also appearing in Annex IV, the contracting authorities shall, at every 
stage of those procedures, safeguard the need to ensure the quality, continuity, 
accessibility, affordability, availability and comprehensiveness of the services, the 
specific needs of different categories of users, including disadvantaged and 
vulnerable groups, the involvement of users of the services and innovation in the 
provision of the service. 
Moreover, when establishing the criteria for awarding the contracts referred to in 
this additional provision, the contracting authority may relate them to aspects such 
as: experience of the staff assigned to the contract to provide services aimed at 
especially disadvantaged groups or to provide services of a similar nature as laid 
down in Article 145; the reinvestment of the profits obtained in improving the 
services provided; the establishment of mechanisms for user participation and for 
the information and guidance of users.’ 
Annex IV of the LCSP corresponds to Annex XIV of Directive 2014/24. The 
contract to which the contested award criterion relates is included in Annex IV of 
LCSP. 
Article 119(3) of Ley 39/2015, del Procedimiento Administrativo Común de las 
Administraciones Públicas (Law 39/2015 on the Common Administrative 
Procedure for Public Sector Bodies). 
Succinct presentation of the facts and procedure in the main proceedings 
1 The Ayuntamiento de Ortuella (Municipality of Ortuella; ‘the Council’) has 
announced a public procurement procedure for the ‘Municipality of Ortuella home 
help service’, in its capacity as a ‘sub-central contracting authority’, being a local 
authority (Article 2(1)(1) and (3) of Directive 2014/24). The service in question 
forms part of ‘Social work services without accommodation’ (CPV – 85312000-9) 
and has been defined by that municipality as ‘a community social service which, 
using qualified, trained and supervised staff, carries out preventative, educational 
and care work [for the benefit of] families and/or individuals who have difficulties 
in maintaining or preserving their physical, social and/or emotional well-being, 
and aims to allow users to continue living in their home and/or environment for as 
long as is possible and advisable.’ 
2 The award criterion set out in paragraph 19 B of Annex I (Table of characteristics) 
to the Schedule of Specific Administrative Specifications proposed by the 
municipality in the context of this procurement procedure (‘the contested award 
criterion’) states: 
‘Increase in the total payroll cost: 40 points 
Taking as a reference the rates of pay established in the collective agreement for 
the sector, higher rates of pay (increases on the total payroll cost) which the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-210/24 
 
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tenderer proposes to apply to the individuals performing the contract shall be 
taken into account. 
The percentage increase in the rate of pay, taking into account the basic rate of 
pay and the standard agreed bonus for all of the workers to be subrogated, shall be 
considered, applying the following formula: Points = P X A / B. 
‘Points’ is the total number of points awarded to the proposal. 
P = the maximum number of points to be awarded, that is, 40 points. 
A = the highest percentage of all the tenders submitted. 
B = the percentage of the tender being assessed. 
Tenders proposing a percentage increase to be applied to the individuals 
performing the contract shall be considered. Tenders which do not propose any 
increase shall receive a score of 0 points. 
No later than one month after the contract has been formalised, following 
negotiations with the workers’ representatives, the precise form which that pay 
increase is to take shall be specified. The successful tenderer shall also seek to 
formalise an agreement (collective agreement of the Ortuella home help service) 
regulating the working conditions of the staff assigned to the contract.’ 
3 On 13 June 2023, the Asociación de Empresas de Servicios para la Dependencia 
(Association of Care Service Providers; ‘AESTE’) brought a special challenge 
against the procurement documents for the contract proposed by the municipality 
before the Órgano Administrativo de Recursos Contractuales de la Comunidad 
Autónoma de Euskadi (Administrative Board of Contract Appeals of the 
Autonomous Community of the Basque Country, Spain; ‘the OARC’). In 
particular, it sought the annulment of the contested award criterion. 
The essential arguments of the parties in the main proceedings 
4 AESTE maintains, first of all, that the contested award criterion infringes the right 
to access the procurement procedure on equal terms, since it hinders free 
competition between economic operators and participation in the procurement 
procedure. Second, it argues that the criterion in question is not linked to the 
subject matter of the contract, in so far as it is neither viable to correlate a higher 
rate of pay with a better service provided, nor reasonable to create pay inequalities 
between employees of the successful tenderer on the basis of the client which they 
have to attend to (that is, according to whether or not they are assigned to the 
‘Municipality of Ortuella home help service’). Third, the award criterion does not 
establish a maximum amount which the tenderer must propose in order to obtain 
the maximum score, which means, in AESTE’s view, that quantities could 
ultimately be proposed which are disproportionate and in no way linked to the 
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correct performance of the contract. Fourth and finally, the obligation to formalise 
the pay increase in a collective bargaining agreement relating to the staff assigned 
to the contract implies ceasing to apply the current collective agreement to those 
workers, which is beyond the powers of the municipality as a contracting 
authority. 
5 The Municipality of Ortuella opposes the annulment sought by AESTE on the 
grounds that the inclusion of the contested award criterion is justified given the 
social and labour market context and its link to the subject matter of the contract, 
and also with a view to the correct performance of the contract. With regard to the 
context, it contends that it is necessary to resolve industrial disputes in the sector, 
motivated in part the loss of purchasing power on the part of workers, which 
affects the provision of a sensitive service. Regarding the subject matter of the 
contract, it maintains that the award criterion is linked to the guarantee in respect 
of the quality and continuity of the service and that it is valid, provided that it is 
formulated in an objective and proportionate manner. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The OARC was created, as a permanent body, by means of the Eighth Additional 
Provision of Ley 5/2010, de 23 de diciembre, por la que se aprueban los 
Presupuestos Generales de la Comunidad Autónoma de Euskadi para el ejercicio 
2011 (Law 5/2010 of 23 December 2010 approving the Budget of the 
Autonomous Community of the Basque Country for the 2011 financial year). Its 
function is to rule on the claims and special actions brought before it in relation to 
contracts, in accordance with Article 44 et seq of the LCSP. 
7 The OARC satisfies the requirements to be regarded as a ‘court or tribunal’ for the 
purposes of Article 267 TFEU, as the Court of Justice has established, in 
particular in its judgment of 20 September 2018 (C-546/16, Montte, 
EU:C:2018:752, paragraphs 20 to 25). 
8 The OARC considers that the decision on the matter before it depends on the 
interpretation of various provisions of EU law. Even if, in view of its subject 
matter and its value, the contract to which the contested award criterion relates 
does not fall within the scope of Directive 2014/24, the OARC considers 
applicable the settled case-law of the Court of Justice which establishes that 
where, in regulating situations outside the scope of an EU measure, national 
legislation seeks to adopt the same solutions as those adopted in that measure, it is 
clearly in the interest of the European Union that, in order to forestall future 
differences of interpretation, provisions taken from that measure should be 
interpreted uniformly. Thus, an interpretation of provisions of an EU measure in 
situations outside its scope is justified where those provisions have been made 
applicable to such situations by national law in a direct and unconditional way, in 
order to ensure that those situations and situations within the scope of that 
measure are treated in the same way (see, to that effect, the judgments of the 
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Court of Justice of 18 October 2012, Nolan, C-583/10, EU:C:2012:638, 
paragraphs 46 and 47; of 7 November 2013, Romeo, C-313/12, EU:C:2013:718, 
paragraphs 22 and 23; of 14 January 2016, Ostas celtnieks, C-234/14, 
EU:C:2016:6, paragraphs 17 to 20; and of 16 June 2022, Obshtina Razlog, 
C-376/21, EU:C:2022:472, paragraphs 52 to 55). 
9 As the referring body states, except in a few cases, the LCSP, which is the 
legislation transposing Directive 2014/24 into Spanish law, opts to impose the 
same legal rules on contracts which are not subject to that directive by reason of 
their value as it establishes for contracts which are subject to it. That is the case 
here, since Article 145 of the LCSP is applicable to the contracts for services 
specified in Annex IV to that law. 
10 Article 145(2)(1) of the LCSP provides that award criteria relating to the social 
characteristics of the contract are, amongst other objectives, to relate to improving 
the pay conditions of the staff who perform the contract. However, the scope and 
application of that criterion, its relationship with competition and the freedom to 
provide services and its compatibility with Directive 2014/24 are, in Spain, the 
subject of debate among legal scholars and of conflicting decisions by the bodies 
responsible for ruling on special actions relating to public procurement. 
11 In the opinion of the OARC, it is doubtful whether the contested criterion serves 
to identify the most economically advantageous tender (Article 67(1) of 
Directive 2014/24/EU), since the relationship between the pay increase and the 
improvement in the provision of the service seems too hypothetical as to identify 
an advantageous aspect which could decide how the contract is awarded. 
Furthermore, the loss of purchasing power referred to by the municipality in 
support of the contested award criterion is not specific to that social group, but 
rather is typical of broad swathes of the population working as employees, and the 
group concerned does not appear to be particularly disadvantaged or at risk of 
exclusion. 
12 At the same time, an award criterion such as that at issue in the main proceedings 
could require a company to pay the workers who are going to provide the service 
higher rates of pay than those which they had been receiving (even if the latter 
were entirely legal and in compliance with the rules on collective agreements and 
the statutory minimum wage), in order to increase their chances of being awarded 
the contract. In the opinion of the OARC, that implies an additional financial 
burden which could prevent or hinder the submission of a tender in the public 
procurement procedure, or make doing so less attractive. 
13 Moreover, the contested award criterion could disproportionately and unfairly 
harm operators with less financial capacity to pay high rates of pay (for example, 
SMEs), while, on the other hand, those same operators may submit competitive 
tenders in part because they have lower wage costs. 
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14 According to the specifications proposed by the municipality, the company 
awarded the contract for the service must, following collective bargaining, specify 
the precise form which that pay increase is to take and also seek to formalise a 
collective agreement applicable to the staff assigned to the contract. According to 
the OARC, that could constitute interference with the right of collective 
bargaining conferred by Article 28 of the Charter of Fundamental Rights of the 
European Union. 
15 Moreover, removing the staff who perform the contract in question from the scope 
of a current collective agreement could create pay inequalities between workers of 
the same company who perform the same tasks, solely on the basis of the client 
for which they carry them out. 
16 Recital 98 of Directive 2014/24 states, in short, that social criteria should be 
applied in accordance with Directive 96/71/EC, as interpreted by the Court of 
Justice of the European Union, and should not be chosen or applied in a way that 
discriminates. In particular, the minimum rate of pay must remain at the level 
established by the national legislation and the collective agreements applied in 
accordance with EU law, according to Directive 96/71. Irrespective of the legal 
value which that recital has in itself, the fact is that it refers to a legally binding 
rule of EU law and to the case-law interpreting it (see, for example, the judgments 
of the Court of Justice of 3 April 2008, Rüffert, C-346/06, EU:C:2008:189, and of 
17 November 2015, RegioPost, C-115/14, EU:C:2015:760). 
17 With regard to the stated aim, in the opinion of the OARC, the contested award 
criterion could be a disproportionate measure, since the collective agreement 
resulting from its application could imply the consolidation of the pay 
improvement beyond the performance of the contract itself, leading to the loss of 
the link with its subject matter required by Article 67(3) of Directive 2014/24,. In 
that regard, however, the referring body observes that, under national case-law, 
improvements in working conditions imposed by a public contract are not, in 
principle, a ‘more beneficial condition’ that is consolidated as a workers’ right 
beyond the scope of that contract.