Provisional text
OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 3 July 2025 (1)
Case C‑210/24
Asociación de Empresas de Servicios para la Dependencia (AESTE)
v
Ayuntamiento de Ortuella
(Request for a preliminary ruling from 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))
( Reference for a preliminary ruling – Public procurement – Directive 2014/24/EU – Procurement of social services to the person – Procurement below threshold – Article 67 – Most economically advantageous tender – Social award criterion – Salary increases for staff providing services – Link to the subject matter of the public contract – Principles of proportionality and of non-discrimination – Article 28 – Right of collective bargaining )
I.      Introduction
1.        This case provides the Court with an opportunity to address the issue of the use of public procurement for the pursuit of horizontal objectives of public interest, in particular for the promotion of social objectives. Public procurement, which accounts for a significant proportion of the European Union’s gross domestic product (GDP), (2) is increasingly recognised as a strategic tool that can be used not only simply to purchase goods or services at the best price but also to achieve broader policy objectives, particularly those of a social nature (socially responsible public procurement). (3)
2.        Various provisions of Directive 2014/24, (4) which is the subject of the request for interpretation in this preliminary ruling, have strengthened the possibility of using procurement to achieve social objectives. This case specifically concerns a right that is already recognised in case-law and is now codified in Article 67(2) of Directive 2014/24, namely the right of contracting authorities to use criteria relating to social aspects in the award of public contracts.
3.        The request for a preliminary ruling was made in proceedings concerning an award criterion (‘the contested award criterion’) laid down in the specifications for a procurement procedure launched by the Ayuntamiento de Ortuella (Municipality of Ortuella, Spain) for home care services for families and/or persons in need. (5)
4.        The contested award criterion, referred to as the ‘increase in the total payroll cost’, provides that, taking as a reference the rates of pay established in the collective agreement for the sector, higher rates of pay that the tenderer proposes to apply to the individuals performing the contract will be taken into account for the award of the contract. (6) The maximum number of points to be awarded under the contested award criterion to tenders proposing a percentage increase in the rate of pay to be applied to the abovementioned persons is 40
points. Tenders that do not propose any increase will receive a score of 0
points. (7)
5.        That criterion also stipulates that at a point no later than one month after the procurement contract has been formalised, following negotiations with the workers’ representatives, the precise form that that pay increase is to take must be specified, and that the successful tenderer is also to seek to formalise an agreement (collective agreement of the Ortuella home help service) governing the working conditions of the staff assigned to the contract.
6.        The Asociación de Empresas de Servicios para la Dependencia (Association of Care Service Providers; ‘AESTE’) brought a challenge 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’), the referring court, seeking in particular the annulment of the contested award criterion.
7.        Having doubts as to the compatibility of that criterion with various provisions of EU law, the OARC decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
‘Is a criterion for awarding a contract for services, such as that [at issue], 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? [(8)]
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?’
II.    Analysis
8.        Before addressing each of the questions raised in the three parts of the preliminary ruling, a few preliminary observations should be made concerning the applicability of the provisions of EU law referred to in that question and the jurisdiction of the Court.
A.      Preliminary observations
9.        First, as regards the status of the OARC as a court or tribunal within the meaning of Article 267 TFEU, which was the subject of debate at the hearing before the Court, I would note briefly that this has already been recognised by the Court in its judgment of 20 September 2018, Montte (C‑546/16, EU:C:2018:752). (9)
10.      Second, with regard to the applicability of Directive 2014/24 to a contract such as that at issue in the main proceedings, it should be noted, first of all, that, as is clear from point 3, that contract is for the provision of the social services referred to in Annex XIV to Directive 2014/24. (10) It follows, on the one hand, that that directive is applicable only if the value of that contract is at least equal to the threshold of EUR 750 000 laid down in Article 4(d) of that directive and, on the other hand, that, if that threshold is exceeded, the contract in question is subject to the ‘light regime’ (11) provided for in Articles 74 to 77 of that directive.
11.      On that point, it is clear from the order for reference that the contract at issue has an estimated value of EUR 166 250, which is below the relevant threshold. It follows that Directive 2014/24 is not applicable to that contract.
12.      The referring court, which has sole jurisdiction to interpret national law within the framework of the system of judicial cooperation established by Article 267 TFEU, notes, however, that, although the value of the contract is below the threshold referred to above, the provisions of Directive 2014/24 have been made directly and unconditionally applicable by national law to situations that – like that of the contract at issue – do not usually fall within the scope of that directive.
13.      That court pointed out that, as also noted by the Spanish Government, in general, and with few exceptions, the Spanish law on public sector contracts (‘the LCSP’) (12) opts to impose on contracts not falling within the scope of Directive 2014/24 by reason of their estimated value the same legal rules as applicable to contracts subject to that directive. In particular, Article 145 of the LCSP, which concerns the requirements and types of award criteria for public contracts in general and transposes into Spanish law Article 67(1) and (2) of Directive 2014/24, is applicable to social services contracts (referred to in Annex XIV to Directive 2014/24) with the specific features laid down in the forty-seventh additional provision of the LCSP (which transposes Article 76 of Directive 2014/24 contained in the provisions concerning the abovementioned ‘light regime’).
14.      On that point, it is clear from the Court’s settled case-law that where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt, directly and unconditionally, the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that provisions taken from that measure should be interpreted uniformly. That will forestall future differences of interpretation and ensure that such situations are treated in the same way as those falling within the scope of those provisions. (13)
15.      In the present case, it can be deduced from points 12 and 13 above that it is appropriate to take the view that, in accordance with that case-law, the Union certainly has an interest in the Court ruling on the request for a preliminary ruling concerning the interpretation of Directive 2014/24.
16.      Third, there is a need to verify whether Article 56 TFEU and Directive 96/71 apply to the contract at issue in the main proceedings.
17.      With regard to the award of a contract that, in view of its value, does not fall within the scope of Directive 2014/24, it is clear from the case-law that the Court may take into account the fundamental rules and general principles of the TFEU, in particular Article 56, provided that the contract in question is of certain cross-border interest. (14)
18.      According to the case-law, the objective criteria that may indicate certain cross-border interest include, in particular, the fact that the contract in question is for a significant amount, in conjunction with the place where the work is to be carried out or the specific characteristics of the products or services concerned. (15)
19.      In the case referred to in the main proceedings, the estimated value of the contract is clearly below the threshold required by Article 4(d) of Directive 2014/24. Furthermore, the contract is for social services to the person, which by their very nature have a limited cross-border dimension. (16) Services to the person
with values below that threshold will typically not be of interest to providers from other Member States, unless there are concrete indications to the contrary. (17) It follows that, in the absence of such indications, Article 56 TFEU is not applicable to a contract such as that at issue in the main proceedings. (18)
20.      With regard to the applicability of Directive 96/71, the referring court does not provide any information that would allow the Court to conclude that, in view of the subject matter of the contract and, in particular, in the light of the considerations set out in the previous point, there could be, even potentially, a situation in the main proceedings falling within one of the transnational measures referred to in Article 1(3) of that directive that would justify its application. (19) It follows, in my view, that Directive 96/71 is also not applicable to the case in the main proceedings.
21.      Fourth and lastly, it is necessary to verify whether Article 28 of the Charter applies to the present case.
22.      On that point, Article 51(1) of the Charter clarifies that its provisions are addressed to the Member States only when they are implementing EU law. According to the case-law, the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, ‘assumes a degree of connection between an EU legal measure and the national measure in question, above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other’. (20)
23.      It follows from the case-law that such a connection exists where, as in the present case, the provisions of an EU act are made applicable, directly and unconditionally, by a reference made by national law, which effectively extends the scope of EU law to situations that do not directly come within its scope. In several such cases, the Court has interpreted EU law in the light of the provisions of the Charter, (21) considering that, even in such a situation, the Member State was implementing EU law. It follows that Article 28 of the Charter is applicable in the present case.
24.      In conclusion, it follows from the above considerations that only the first and third parts of the question referred for a preliminary ruling, concerning the interpretation of Directive 2014/24 and Article 28 of the Charter, respectively, need to be answered.
B.      Interpretation of Directive 2014/24
25.      In the first part of its question referred for a preliminary ruling, the referring court is asking the Court to interpret Article 67(1) of Directive 2014/24. That court is asking whether an award criterion constitutes a suitable criterion for determining the ‘most economically advantageous tender’ within the meaning of that provision, in the case of a contract for the provision of social services to the person, where that criterion establishes that consideration must be given to the increase in the total payroll cost that the tenderer proposes to apply to the individuals performing the contract, compared to that determined by the collective agreement applicable to the sector.
26.      Article 67(1) of Directive 2014/24 provides that contracting authorities are to base the award of public contracts on the ‘most economically advantageous tender’. Paragraph 2 of that article clarifies that 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, … 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’.
27.      As a preliminary point, I note that the interpretation of Article 67 of Directive 2014/24 in the present case must take into account the specific legal context in which the contract at issue is concluded. On the one hand, as noted, due to its subject matter (social services to the person) and its sub-threshold value, that contract would not, in principle, be subject to the general rules on procurement laid down in Directive 2014/24. The application of the criterion of the ‘most economically advantageous tender’ to that contract depends solely on the choice of the Spanish legislature to extend that general rule to cover that particular type of contract. On the other hand, for contracts for social services, Directive 2014/24 provides – precisely because of their subject matter – for the special ‘light’ regime laid down in Articles 74 to 77. That regime imposes on Member States ‘only the observance of basic principles of transparency and equal treatment’ and explicitly leaves them ‘wide discretion’, granting them the right ‘to apply specific quality criteria for the choice of service providers’ and freedom in establishing procedures for the procurement of such services. (22)
28.      In that context, although the abovementioned requirement of uniform interpretation of provisions of EU law (23) requires that the interpretation of the concept of ‘most economically advantageous tender’ cannot differ from that which would apply to a contract falling within the scope of Directive 2014/24, it is nevertheless necessary for the interpretation of that concept in the present case to take into account the specific characteristics of the social services covered by the contract and the wide discretion left to Member States in relation to contracts for such services. It is also clear from Directive 2014/24 that those factors must be taken into account even if the Member State decides to apply the criterion of the most economically advantageous tender to those types of contracts. (24)
29.      Second, I note that in the present case, not only does the contract relate to social services, but the criterion at issue is also a criterion relating to ‘social aspects’ within the meaning of Article 67(2) of Directive 2014/24.
30.      On that point, compared to previous directives on procurement, Directive 2014/24 has strengthened the possibilities for using public procurement strategically to achieve objectives of public interest, in particular those of a social nature. (25) That is also in line with the provisions introduced by the Treaty of Lisbon, as set out in Article 3(3) TEU and Article 9 TFEU. (26)
31.      To that end, Directive 2014/24 lays down several possibilities for integrating the social dimension into public procurement and, in particular, enforcing or promoting labour standards and social inclusion. In addition to the abovementioned ‘light’ regime for contracts for social services and the explicit consideration of ‘social aspects’ in the context of the award criteria pursuant to Article 67(2) of Directive 2014/24, (27) the provision in Article 18(2) is particularly noteworthy, in that it requires economic operators to comply with applicable legal obligations, specifically social and labour law, when performing contracts. The Court recognised that requirement as a ‘cardinal value’ in the general scheme of the directive, establishing it as a principle on the same footing as the other principles set out in paragraph 1 of the same article, (28) namely the principles of equal treatment, non-discrimination, transparency and proportionality. That cardinal value should therefore guide the interpretation of the entire directive.
32.      It is in the light of the above considerations that the question referred by the referring court for a preliminary ruling on the interpretation of Article 67 of Directive 2014/24 should be answered. This question essentially raises four points, which I will discuss below: (i)
the suitability of the contested award criterion for identifying the most economically advantageous tender; (ii)
whether that criterion is ‘linked’ to the subject matter of the contract; (iii)
the proportionate nature of that criterion; and (iv)
whether it is discriminatory.
1.      The suitability of the contested award criterion for identifying the most economically advantageous tender
33.      As noted above, Article 67(2) of Directive 2014/24 – which was made applicable to a social services contract such as that at issue in the main proceedings by Article 145 of the LCSP – expressly allows contracting authorities to include criteria relating to social aspects linked to the subject matter of the contract in question when determining the most economically advantageous tender, identified on the basis of the best price-quality ratio.
34.      The case-law had previously recognised that the discretion enjoyed by contracting authorities in determining award criteria (29) included the possibility of considering social aspects when identifying the most economically advantageous tender. Thus, in the so-called Nord-Pas-de-Calais judgment, the Court held that contracting authorities were not precluded from using a criterion such as the condition linked to the campaign against unemployment. (30) Subsequently, in the so-called Fair Trade judgment, the Court explicitly stated, in general terms, that contracting authorities ‘are also authorised to choose the award criteria based on considerations of a social nature’. (31)
35.      The case-law of the Court and the provisions of Directive 2014/24 make it possible to define the boundaries for the option available to contracting authorities to take considerations of a social nature into account when identifying the most economically advantageous tender.
36.      On that point, the concept of ‘social aspects’ typically includes both factors linked to the production process or the provision of the service (such as factors relating to working conditions, respect for human rights in the supply chain or the responsible sourcing of raw materials) and factors relevant to end users (such as factors relating to the accessibility of the service or the design of the service in terms of reaching vulnerable users, or even employment opportunities). (32)
37.      The Court has also clarified that award criteria based on considerations of a social nature may concern not only the persons using or receiving the works, supplies or services which are the object of the contract, but also other persons, (33) such as the workers performing the contract. (34)
38.      It follows from Directive 2014/24 and the relevant case-law that a contracting authority may consider criteria relating to social aspects, provided that those criteria: first, are linked to the subject matter of the contract; (35) second, do not confer an unrestricted freedom of choice on that authority; (36) third, comply with the requirements of transparency and, therefore, on the one hand, are expressly mentioned in the contract documents or the tender notice, (37) with their weighting (38) and any sub-criteria, and, on the other hand, are sufficiently clear to ensure that all reasonably informed and normally diligent tenderers can understand them; (39) and, fourth, comply with the fundamental principles of EU law, in particular the principle of non-discrimination. (40)
39.      The directive also stipulates that the most economically advantageous tender on the basis of the best price-quality ratio should always include a price or cost element, (41) and the determination of that tender cannot thus be based solely on qualitative and/or social criteria. Furthermore, not all the award criteria adopted by the contracting authority in order to identify the most economically advantageous tender are necessarily required to be of a purely economic nature. Indeed, it cannot be excluded that factors which are not purely economic could influence the value of a tender from the point of view of the contracting authority. (42)
40.      In the present case, it is clear from point 4 above that the contested award criterion concerns the increase in the rate of pay, compared to the level determined by the collective agreement applicable to the sector, that the tenderer proposes to apply to the individuals performing the contract.
41.      Since it concerns remuneration and, therefore, working conditions, it is an award criterion relating to ‘social aspects’ within the meaning of Article 67(2) of Directive 2014/24, which, in accordance with the case-law referred to in point 37, concerns workers performing the contract. Furthermore, apart from the questions relating to its link with the subject matter of the contract and compliance with the principles of proportionality and non-discrimination, discussed below, there does not appear to be any dispute that that award criterion meets the requirements indicated in point 38. In that regard, it can be inferred from the order for reference that the contract in question also includes a criterion relating to price in accordance with the requirement indicated in point 39.
42.      It should also be noted that, with regard specifically to contracts for social services, on the one hand, it follows from Article 76(2) of Directive 2014/24 that contracting authorities are authorised, in view of the specific nature of such services, to place greater emphasis on aspects relating to ‘quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, [and] the specific needs of different categories of users’. On the other hand, as already noted above, Member States enjoy wide discretion (43) in relation to those types of contracts, in particular with regard to the determination of award criteria. Those considerations, which apply to social services contracts coming within the scope of Directive 2014/24, apply a fortiori to contracts, such as the one at issue, which do not even come within the scope of Directive 2014/24, but to which that directive applies merely because of a voluntary choice by the Member State concerned. For those types of contracts, the discretion referred to above will be even greater. (44)
43.      In that particular context, I therefore take the view that – without prejudice to the considerations set out below concerning the link with the subject matter of the contract and compliance with the principles of proportionality and non-discrimination – Directive 2014/24 does not limit the broad discretion of the Member State in question and does not preclude a contracting authority from taking into account, in the context of a social services contract below the thresholds and therefore outside the scope of Directive 2014/24, to which that directive is voluntarily applied by the Member State, a criterion relating to social aspects, such as the contested award criterion, when determining the most economically advantageous tender.
2.      The link between the contested award criterion and the subject matter of the contract
44.      That being said, it follows from Article 67(2) of Directive 2014/24 that the award criterion is required to be linked to the subject matter of the contract. Paragraph 3 of that article clarifies that ‘award criteria shall be considered to be linked to the subject matter of the public contract where they relate to … services to be provided under that contract in any respect and at any stage of their life cycle, including factors … that … do not form part of their material substance’.
45.      It is specifically the link between the contested award criterion and the subject matter of the contract at issue that is one of the aspects about which the referring court harbours doubts. That court takes the view that the link between the increase in rates of pay and the improvement in service performance seems too hypothetical to identify an advantageous aspect that could determine how the contract is awarded.
46.      The contract in question concerns social services to the person. Those services are typically provided on a person-to-person basis and require the performance of labour-intensive activities. (45) Since it concerns the remuneration that the operator performing the service receives for providing that service, the contested award criterion ultimately concerns the remuneration for the service itself, namely the economic consideration for the service in question (46) and, therefore, an element clearly linked to the service.
47.      In that regard, the case-law shows that it is not necessary for the award criterion to relate to an intrinsic characteristic of the service, (47) as confirmed by the final sentence of Article 67(3) – and recital 97 – of Directive 2014/24. As indicated in point 44 above, that text provides that factors which do not form part of the ‘material substance’ of the service itself may be taken into account for the purposes of determining the link between the criterion and the service. Furthermore, as noted in point 39, the criterion does not necessarily have to confer a purely economic advantage.
48.      Moreover, with regard to that type of service, in which the personal element plays a predominant role, it does not seem unreasonable to consider that, in general, there could be a positive correlation between the job satisfaction of social services providers, which is also influenced by remuneration, and the quality of the services provided.
49.      Lastly, it is clear from the file before the Court that the contracting authority used the contested award criterion because of the need to provide a solution to conflicts in the field of employment, including those relating to rates of pay, which had given rise to a lengthy period of protests by the persons assigned to providing the service. The use of that criterion was intended to ensure that a continuous and adequate service was maintained.
50.      On that point, apart from the necessary factual checks to be carried out by the referring court, I believe that such assessments by the contracting authority are legitimate considerations that may justify the adoption of a specific award criterion, in particular in a context such as that of the present case. Indeed, as noted in point 42, on the one hand, because of the specific nature of the services covered by the contract, considerations relating to the continuity and availability of the service play a primary role and, on the other hand, Member States enjoy a wide margin of discretion, and that is particularly the case for contracts below the threshold.
3.      The proportionate nature of the contested award criterion
51.      In its observations, the Commission expresses doubts about the compatibility of the contested award criterion with the principle of proportionality. The Commission has doubts in particular as to the proportionality of the weighting of that criterion in relation to the other criteria set out in the contract specifications. The file before the Court does not permit a complete understanding of the weighting of the various criteria in the context of the contract at issue. (48) It is for the referring court to determine in concrete terms what the actual weighting of the contested award criterion is in order to assess whether it is proportionate.
52.      In that regard, the principle of proportionality ensures that the measures adopted by contracting authorities are appropriate to achieve the legitimate objectives pursued by the procurement rules and that those measures do not go beyond what is necessary to achieve them. The analysis of the proportionality between the award criteria laid down for a specific contract should be carried out on a case-by-case basis and depends on various factors, including, of course, the subject matter of the contract.
53.      In terms of the weighting of award criteria relating to social aspects, it does not appear possible to determine in abstract terms a maximum or minimum percentage that would be proportionate. For contracts where the social risks (such as human rights violations) or, as in the case of the contract in question, the potential social benefits (for example, improvements in the well-being of a vulnerable group) are high, it could make sense to have social award criteria with a high weighting. (49) The assessment of proportionality must also take into account the specific context indicated in point 42 concerning contracts for social services, in particular where they are below the threshold.
54.      With regard to the weighting of the price criterion, apart from the requirement stated in point 39, Directive 2014/24 does not seem to impose specific requirements for determining the proportionality of that criterion, which will depend on various factors relating to the type of contract.
55.      Furthermore, it is clear from the case-law that the Court has accepted that a contracting authority may assign a weighting of 45% to an award criterion based on environmental aspects (50) and has not objected to qualitative criteria accounting, in total, for 60% of the points available for the evaluation of a tender. (51)
56.      Lastly, it is not clear from the file before the Court whether there is an
upper limit on the pay increases that the tenderer could propose to apply to the persons performing the contract, for the purposes of applying the contested award criterion in the context of the various provisions of the tender specifications. If it were possible to propose pay increases that are clearly disproportionate to the value of the service, this could raise issues of non-compliance with the principle of proportionality.
57.      In conclusion, it is for the referring court to assess, in the light of the above considerations and on the basis of the factual findings that it is called upon to make, whether a criterion such as that at issue here is consistent with the principle of proportionality, in the case of a contract for social services such as that at issue in the main proceedings, in the particular context referred to in point 42.
4.      The discriminatory nature of the contested award criterion
58.      The referring court also questions whether the contested award criterion might discriminate against operators with less financial capacity to pay high rates of pay, such as small and medium-sized enterprises (SMEs), which could submit competitive bids specifically because of their lower wage costs.
59.      On that point, Article 18(1) of Directive 2014/24 establishes that contracting authorities are required to treat economic operators equally and without discrimination. According to the case-law, the objective of the principles of equal treatment and non-discrimination enshrined in that provision is to encourage the development of healthy and effective competition between undertakings taking part in a public procurement procedure, and that lies at the very heart of the EU rules on public procurement procedures. In accordance with those principles, tenderers must be on an equal footing both when they formulate their tenders and when those tenders are being assessed by the contracting authority. (52) Those principles mean that comparable situations are not to be treated differently and different situations are not to be treated alike unless such treatment is objectively justified. (53)
60.      In particular, in the field of EU law on public procurement, as is clear from the second subparagraph of Article 18(1) of Directive 2014/24, non-discrimination means that contracting authorities may not adopt criteria or rules that unduly favour or disadvantage certain economic operators on the basis of their own characteristics or that create artificial barriers for certain types of operators, such as SMEs.
61.      One of the stated objectives of Directive 2014/24 is to facilitate the participation of SMEs in public procurement. (54) The application of overly demanding award requirements or criteria that are not related and proportionate to the subject matter of the contract could constitute an unjustified obstacle to the involvement of SMEs in public procurement. (55) On the other hand, one of the main objectives of EU law in the field of public procurement is to ensure maximum openness to competition, so as to guarantee the widest possible participation of tenderers in a call for tenders.
62.      In the present case, we cannot rule out the possibility that, in theory, a criterion such as the one at issue, depending on the specific circumstances of the case, could have a discriminatory effect on operators with more limited economic capacity to pay high rates of pay, especially if, as noted in point 56, the applicable requirements do not provide for an upper limit on the pay increases that could theoretically be proposed.
63.      However, I believe that the Court does not have sufficient information in the present case to determine whether such a discriminatory effect exists. Nevertheless, in view of the specific subject matter of the contract and its limited value, it seems unlikely that companies that are not SMEs and could therefore benefit from that criterion to the detriment of healthy and effective competition between the companies participating in the procurement procedure would actually participate in the procurement procedure for that contract. It will be for the referring court to make the relevant findings of fact in that regard.
5.      Conclusion on Directive 2014/24
64.      In view of the above considerations, in the situation of the present case, when interpreting Article 67 of Directive 2014/24 it is appropriate to take into account the fact that the contract at issue concerns social services to the person and that, although its value is below the threshold laid down in that directive for services of that type, the Member State has made the provisions of that article directly and unconditionally applicable in national law. In that context, those provisions must be interpreted as meaning that they do not preclude an award criterion such as the one at issue, for the purpose of determining the ‘most economically advantageous tender’, provided that it complies with the principles of proportionality, equal treatment and non-discrimination, which is for the referring court to determine.
C.      Article 28 of the Charter
65.      In the third part of its question referred for a preliminary ruling, the referring court is asking the Court of Justice whether an infringement of the right to collective bargaining recognised in Article 28 of the Charter exists in relation to an award criterion for a service contract which establishes that consideration must be given to the pay increases that the tenderer proposes to apply to the persons performing the contract, compared to the rates of pay established by the collective agreement for the sector, and which requires that – following collective bargaining with the workers’ representatives – the successful tenderer define the elements constituting the pay increase and endeavour to conclude a collective agreement applicable to the staff assigned to the contract.
66.      The referring court is asking whether the contested award criterion constitutes interference with the right to collective bargaining recognised by Article 28 of the Charter in that it could result in staff responsible for the performance of the contract being excluded from the scope of an existing agreement, which 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.
67.      Under Article 28 of the Charter of Fundamental Rights, workers and employers, or their respective organisations, have the right in accordance with EU law and national laws and practices to negotiate and conclude collective agreements at the appropriate levels.
68.      It follows from the case-law that that provision, interpreted in the light of the first paragraph of Article 152 TFEU, presupposes an autonomy on the part of the social partners which means that, during the negotiation stage of an agreement among those partners, which ‘exclusively involves’ the latter, they may engage in dialogue and act freely without receiving any order or instruction from whomsoever and, in particular, not from the Member States or the EU institutions. (56)
69.      In the present case, the contested award criterion provides for two stages. First, within a maximum period of one month following the conclusion of the contract, the tenderer must establish the elements of the pay increase that it proposes to apply to the persons performing the contract, compared to the rate of pay established by the collective agreement for the sector, following negotiation with the workers’ representatives. Second, the successful tenderer must endeavour to conclude a specific collective agreement governing the working conditions of the staff assigned to the contract.
70.      In that regard, I believe that rather than undermining the right to collective bargaining, the contested award criterion actually encourages that mechanism. On the one hand, it requires the company that has won the contract to negotiate the elements of the pay increase in question with the workers’ representatives. It therefore does not leave it to the company to determine those elements at its discretion. On the other hand, that criterion merely requires that the successful tenderer ‘endeavour’ to conclude a collective agreement for the service in question. However, it does not impose any obligation to achieve a specific result and does not appear to affect in any way the autonomy of the social partners concerned.
71.      In terms of the fact that the contested award criterion may entail pay inequalities by excluding certain workers from the scope of the collective agreement for the sector, in so far as the conditions laid down in the specific agreement with the Municipality of Ortuella are more favourable than those of the collective agreement for the sector, I see no basis to assert an infringement of Article 28 of the Charter. The contested award criterion, which uses the collective agreement for the sector as a minimum benchmark, enhances
the scope of that agreement.
72.      I therefore take the view that Article 28 of the Charter does not preclude an award criterion such as the one at issue.
III. Conclusion
73.      In the light of the above analysis, I propose that the Court answer the question referred by 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) for a preliminary ruling as follows:
Article 67 of 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
must be interpreted as meaning that, in the case of a contract for social services to the person, where the value of that contract is below the threshold laid down in that directive for such services, but where the Member State has made the provisions of that article directly and unconditionally applicable to that contract in national law, that article does not preclude an award criterion applied for the purpose of determining the ‘most economically advantageous tender’, within the meaning of that provision, which establishes that consideration must be given to the pay increases that the tenderer proposes to apply to the persons performing the contract, compared to the rates of pay established by the collective agreement for the sector, provided that that criterion complies with the principles of proportionality, equal treatment and non-discrimination, which is for the referring court to determine.
Article 28 of the Charter of Fundamental Rights of the European Union does not preclude an award criterion for a services contract which establishes that consideration must be given to the pay increases that the tenderer proposes to apply to the persons performing the contract, compared to the rates of pay established by the collective agreement for the sector, and which requires that – following collective bargaining with the workers’ representatives – the successful tenderer define the elements constituting the pay increase and endeavour to conclude a collective agreement applicable to the workers assigned to the contract.
1      Original language: Italian.
2      According to Special Report No 28/2023 of the Court of Auditors, approximately EUR 2 trillion is spent on public procurement each year, equivalent to 14% of the EU’s GDP (see page 4).
3      See, in that regard, the European Parliament study entitled ‘The social impact of public procurement, can the EU do more?’, published in October 2023, Commission Notice C(2021) 3573 final of 26 May 2021, ‘Buying Social – a guide to taking account of social considerations in public procurement (2nd edition)’ (OJ 2021 C 237, p. 1), and the European Commission publication entitled ‘Making socially responsible public procurement work’ (2020).
4      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 (OJ 2014 L 94, p. 65).
5      The service in question, called the ‘Municipality of Ortuella home help service’, forms part of ‘Social work services without accommodation’ (CPV – 85312000-9). For further details, see the request for a preliminary ruling, paragraph 6.
6      The percentage increase in the rate of pay is assessed by applying a specific formula (see paragraph 7 of the order for reference for more information).
7      On the weighting of the various award criteria, see point 51 and footnote 48 below.
8      Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ 1997 L 18, p. 1).
9      See paragraphs 20 to 25. I take the view that the subsequent case-law of the Court does not provide grounds for calling that assessment into question.
10      The CPV code – 85312000-9, mentioned in footnote 5 above, is included in the codes listed in that annex.
11      See recital 28 of Directive 2014/24.
12      Ley 9/2017, de 8 de noviembre, de Contratos del Sector Público (Law No 9 of 8 November 2017 on public service contracts).
13      See, to that effect, judgments of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 36 and 37) and of 16 June 2022, Obshtina Razlog (C‑376/21, EU:C:2022:472, paragraph 55 and the case-law cited).
14      Judgment of 4 April 2019, Allianz Vorsorgekasse (C‑699/17, EU:C:2019:290, paragraph 50 and the case-law cited), and order of 5 July 2024, EUROCASH1 (C‑788/23, EU:C:2024:589, paragraph 23 and the case-law cited).
15      Judgment of 6 October 2016, Tecnoedi Costruzioni (C‑318/15, EU:C:2016:747, paragraph 20 and the case-law cited), and order of 5 July 2024, EUROCASH1 (C‑788/23, EU:C:2024:589, paragraph 20 and the case-law cited).
16      See recital 114 of Directive 2014/24. Those services are provided within a particular context that varies widely amongst Member States due to different cultural traditions. See judgment of 14 July 2022, ASADE (C‑436/20, EU:C:2022:559, paragraph 75; ‘the judgment in ASADE’).
17      Ibidem.
18      In the absence of such indications, the mere fact that the services covered by that contract are to be provided in the municipality of Ortuella, located approximately 130 km from the French border, is not sufficient in itself to demonstrate the existence of a certain cross-border interest. See, to that effect, order of 5 July 2024, EUROCASH1 (C‑788/23, EU:C:2024:589, paragraph 26).
19      The transnational measures are listed in points (a) to (c) of that provision and concern, in essence, the posting of a worker to the territory of another Member State on the basis of a contract concluded between the undertaking making the posting and the party for whom the services are intended (point (a)), the posting of a worker to an establishment or undertaking owned by the group in the territory of a Member State (point (b)), and the posting of a worker by a temporary employment agency (point (c)).
20      See judgment of 28 November 2024, PT (Agreement between the public prosecutor and the perpetrator of an offence) (C‑432/22, EU:C:2024:987, paragraph 35 and the case-law cited).
21      See, to that effect, judgments of 13 March 2019, E. (C‑635/17, EU:C:2019:192, paragraphs 35 to 39 and 53); of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraphs 22 to 29, 41 and 137); and of 11 June 2020, JI (C‑634/18, EU:C:2020:455, paragraphs 24 to 30 and 43). More generally, on that issue, see the Opinion of Advocate General Sharpston in the case Prokuratura Rejonowa w
Słupsku (C‑634/18, EU:C:2020:29, points 34 to 44).
22      See recital 114 of Directive 2014/24. On that regime, see the judgment in ASADE, paragraphs 73 et seq.
23      See the case-law referred to in footnote 13 above.
24      It follows from the final sentence of Article 76(1) of Directive 2014/24 that, with regard to social services contracts, ‘Member States are free to determine the procedural rules applicable as long as such rules allow contracting authorities to take into account the specificities of the [social] services in question’. The last sentence of paragraph 2 of the same article stipulates that ‘Member States may … 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’ (my emphasis). On that point, see the judgment in ASADE, paragraphs 84 and 85.
25      In that regard, it is clear from recital 2 that one of the objectives of the revision of the procurement rules was specifically to enable contracting authorities to make better use of public procurement ‘in support of common societal goals’. See also the European Parliament study (page 10) and the Commission Notice C(2021) 3573 final (Chapter 1.1), cited in footnote 3.
26      According to the first provision, the Union ‘shall combat social exclusion … and shall promote social justice and protection’. Under the second provision, ‘in defining and implementing its policies and activities, the European Union is to take into account, inter alia, requirements linked to the promotion of a high level of employment and to the guarantee of adequate social protection …’.
27      Other relevant provisions of Directive 2014/24 include the rules on reserved contracts under Article 20 and the possibility of requiring specific conditions for the performance of the contract, including social considerations, under Article 70.
28      See judgment of 30 January 2020, Tim (C‑395/18, EU:C:2020:58, paragraph 38).
29      See, in that regard, judgment of 4 December 2003, EVN and Wienstrom (C‑448/01, EU:C:2003:651, paragraph 37).
30      Judgment of 26 September 2000, Commission v France (C‑225/98, EU:C:2000:494, paragraphs 49 and 50).
31      Judgment of 10 May 2012, Commission v Netherlands (C‑368/10, EU:C:2012:284, paragraph 85).
32      By way of example, see the social objectives that contracting authorities may pursue through public contracts identified in the Commission publication entitled ‘Making socially responsible public procurement work’ referred to in footnote 3 above.
33      Judgment of 10 May 2012, Commission v Netherlands (C‑368/10, EU:C:2012:284, paragraph 85 at the end).
34      Moreover, the directive itself provides examples of criteria based on social aspects concerning the persons assigned to performing the contract in order to identify the most economically advantageous tender. See recitals 93 and 94 and Article 67(2)(b).
35      See Article 67(2) and (3) of Directive 2014/24 and, first, judgment of 17 September 2002, Concordia Bus Finland (C‑513/99, EU:C:2002:495, paragraph 64).
36      See Article 67(4) and recital 92 of Directive 2014/24 and judgment of 20 September 2018, Montte (C‑546/16, EU:C:2018:752, paragraph 31 and the case-law cited).
37      See Annex V, Part C, paragraph 18 of Directive 2014/24 and, first, judgment of 17 September 2002, Concordia Bus Finland (C‑513/99, EU:C:2002:495, paragraph 64).
38      See Article 67(5) of Directive 2014/24.
39      Judgment of 18 October 2001, SIAC Construction (C‑19/00, EU:C:2001:553, paragraph 42).
40      See Article 18 of Directive 2014/24 and, first, judgment of 17 September 2002, Concordia Bus Finland (C‑513/99, EU:C:2002:495, paragraph 64).
41      Recital 90 of Directive 2014/24.
42      See, by analogy, judgment of 17 September 2002, Concordia Bus Finland (C‑513/99, EU:C:2002:495, paragraph 64).
43      See recital 114 of Directive 2014/24 and point 27 above.
44      On that point, Article 145(2) of the LCSP identifies a series of objectives to which the social characteristics of the contract refer, including the improvement of working conditions and wages.
45      On that point, see Commission Notice
C(2021) 3573 final, cited in footnote 3 above, p. 39.
46      See the Opinion of Advocate General Medina in the ASADE case (C‑436/20, EU:C:2022:77, point 53 and the case-law cited).
47      See, by analogy, judgment of 10 May 2012, Commission v Netherlands (C‑368/10, EU:C:2012:284, paragraph 91).
48      The Commission notes that, for the contract at issue, the contested award criterion would account for 27% of the total points awarded (40 points out of 145), while the financial and technical offers would be awarded a maximum of 15 and 45 points respectively. However, analysis of Annex I to the contract specifications does not confirm that the total number of points awarded is 145. That document shows that 40 points are awarded for the contested award criterion, 45 points for the technical offer and 15 points for the financial offer, and thus a total of 100 points. However, the explanatory text (on page 45) of the financial criterion indicates that 55 points are awarded for that criterion.
49      See Commission Notice
C(2021) 3573 final, cited in footnote 3 above, p. 52.
50      Judgment of 4 December 2003, EVN and Wienstrom (C‑448/01, EU:C:2003:651, paragraphs 42 and 43).
51      Judgment of 17 November 2022, Antea Polska and Others (C‑54/21, EU:C:2022:888, paragraph 92).
52      See, to that effect, inter alia, judgment of 13 June 2024, BibMedia (C‑737/22, EU:C:2024:495, paragraph 30 and the case-law cited). For a case concerning the application of the principle of equal treatment in the context of Article 76 of Directive 2014/24, see the judgment in
ASADE, paragraphs 86 et seq.
53      Judgment of 6 October 2021, Conacee (C‑598/19, EU:C:2021:810, paragraph 36 and the case-law cited).
54      See recital 2 of Directive 2014/24.
55      See, to that effect, recital 83 of Directive 2014/24.
56      On that point, see judgment of 15 December 2022, TimePartner Personalmanagement (C‑311/21, EU:C:2022:983, paragraphs 71 to 74 and the case-law cited).