Opinion of the Advocate General — ECLI:EU:C:2015:566
Date: 2015-09-09
Language of the case: German
Subject matter: Right of establishment;Provisions governing the Institutions;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 17 November 2015 1. Questions referred for a preliminary ruling — Jurisdiction of the Court — Question raised concerning a dispute confined within a single Member State — Question concerning a public contract falling within the scope of European Union legislation — Included in the light of the contract’s certain cross-border interest (Art. 267 TFEU; European Parliament and Council Directive 2004/18) 2. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts (European Parliament and Council Directives 96/71, Art. 3(1), first subpara., point (c), and 2004/18, as amended by Regulation No 1251/2011, Art. 26) 3. Freedom to provide services — Restrictions — Procedures for the award of public service contracts — National legislation requiring tenderers to undertake to pay a minimum wage to persons performing the services — Lawfulness (Art. 56 TFEU; European Parliament and Council Directives 96/71, Art. 3(1), first subpara., point (c), and 2004/18, as amended by Regulation No 1251/2011, Art. 26) 4. Approximation of laws — Procedures for the award of public works contracts, public supply contracts and public service contracts — Directive 2004/18 — Award of contracts — Grounds for exclusion from participation in a tender procedure — Refusal by a tenderer to undertake to pay a minimum wage to staff called upon to perform the services — Lawfulness (European Parliament and Council Directives 96/71, Art. 3(1), first subpara., point (c), and 2004/18, as amended by Regulation No 1251/2011, Art. 26) 1. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not preclude the Court from providing the national court with all the elements of interpretation that may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. It is, in this context, for the Court to extract from all the information provided by the national court, in particular from the grounds in the order for reference, the points of EU law that require interpretation, regard being had to the subject-matter of the dispute. As regards a question of interpretation relating to one of the provisions of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, such a question is admissible, even though it is raised in the context of a dispute all the elements of which are confined within a single Member State, since the value of the contract concerned clearly exceeds the relevant threshold for the application of Directive 2004/18 and that contract has a certain cross-border interest. (see paras 46, 49, 51) 2. Article 26 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1251/2011, must be interpreted as not precluding legislation of a regional entity of a Member State, which requires tenderers and their subcontractors to undertake, by means of a written declaration to be enclosed with their tender, to pay staff who are called upon to perform the services covered by the public contract in question a minimum wage laid down in that legislation. Article 26 of Directive 2004/18, read in conjunction with Directive 96/71 concerning the posting of workers in the framework of the provision of services, permits the host Member State to lay down, in the context of the award of a public contract, a mandatory rule for minimum protection referred to in point (c) of the first subparagraph of Article 3(1) of Directive 96/71, which requires undertakings established in other Member States to comply with an obligation in respect of a minimum rate of pay for the benefit of their workers posted to the territory of the host Member State in order to perform that public contract. Such a rule is part of the level of protection which must be guaranteed to those workers. (see paras 66, 77, operative part 1) 3. The imposition, under national legislation, of a minimum wage on tenderers and their subcontractors, if any, established in a Member State other than that of the contracting authority and in which minimum rates of pay are lower constitutes an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host Member State. Consequently, such a measure is capable of constituting a restriction within the meaning of Article 56 TFEU. However, it may, in principle, be justified by the objective of protecting workers. That is so in the case of a minimum rate of pay laid down in a legislative provision, which, as a mandatory rule for minimum protection, in principle applies generally to the award of any public contract in the Member State concerned irrespective of the sector concerned, and which confers a minimum social protection, since no other national legislation imposes a lower minimum wage for the sector in question. (see paras 69, 70, 75, 76) 4. Article 26 of Directive 2004/18 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Regulation No 1251/2011, must be interpreted as not precluding legislation of a regional entity of a Member State, which provides for the exclusion from participation in a procedure for the award of a public contract of tenderers and their subcontractors who refuse to undertake, by means of a written declaration to be enclosed with their tender, to pay staff who are called upon to perform the services covered by the public contract in question a minimum wage laid down in that legislation. Exclusion from participation in the contract cannot be regarded as a penalty. It is merely the consequence of the failure to meet a requirement in the contract notice intended to emphasise, from the outset, the importance of compliance with a mandatory rule for minimum protection expressly authorised by Article 26 of Directive 2004/18. Such exclusion is appropriate and proportionate, since it can be applied only where, after having been invited to supplement its tender by adding the undertaking, the operator concerned refuses to comply. (see paras 83, 87, 88, operative part 2)