Bundesdruckerei GmbH v Stadt Dortmund.
Date: 2014-09-18
20. At the outset, it is necessary to examine whether the Vergabekammer bei der Bezirksregierung Arnsberg is a ‘court or tribunal’ within the meaning of Article 267 TFEU and, therefore, whether the request for a preliminary ruling is admissible.
21. According to settled case-law of the Court of Justice, in order to determine whether a body making a reference is a ‘court or tribunal’ within the meaning of Article 267 TFEU, which is a question governed by EU law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes , whether it applies rules of law and whether it is independent (judgments in HI , C‑92/00, EU:C:2002:379, paragraph 25, and in Forposta (formerly Praxis) and ABC Direct Contact , EU:C:2012:801, paragraph 17).
22. In this regard, it is clear from Paragraphs 104 and 105 of the GWB, provisions which govern review proceedings concerning procedures for the award of public contracts before the Vergabekammern, that those bodies, which are granted exclusive jurisdiction to hear and determine at first instance disputes between economic operators and contracting authorities, satisfy, when called upon to exercise that power, the criteria referred to in paragraph 21 of the present judgment (see, by analogy, with regard to public procurement review bodies, the judgments in HI , EU:C:2002:379, paragraphs 26 and 27, and in Forposta (formerly Praxis) and ABC Direct Contact , EU:C:2012:801, paragraph 18).
23. It follows that the Vergabekammer bei der Bezirksregierung Arnsberg must be classified as a ‘court or tribunal’ within the meaning of Article 267 TFEU, with the result that its request for a preliminary ruling is admissible.
Substance
28. In addition, although, as the European Commission maintains, the public contract at issue in the main proceedings appears, in the light of its objective and the amount of the contract, to come within the scope of application of Directive 2004/18, and assuming that the requirements relating to the minimum wage laid down in Paragraph 4(3) of the TVgG-NRW can be classified as ‘special conditions relating to the performance of a contract’, in particular ‘social … considerations’, which are ‘indicated in the contract notice or in the specifications’, within the meaning of Article 26 of that directive, the fact remains that, in accordance with that latter provision, such requirements may be imposed only to the extent to which they are ‘compatible with Community law’.
30. In this regard, it is apparent from the Court’s case-law that the imposition, under national legislation, of a minimum wage on subcontractors of a tenderer which are established in a Member State other than that to which the contracting authority belongs 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, a measure such as that at issue in the main proceedings is capable of constituting a restriction within the meaning of Article 56 TFEU (see, to that effect, the judgment in Rüffert , EU:C:2008:189, paragraph 37).
31. Such a national measure may in principle be justified by the objective of protecting employees expressly referred to by the legislature of the Land  of North Rhine-Westphalia in the draft legislation which culminated in the adoption of the TVgG-NRW, namely that of ensuring that employees are paid a reasonable wage in order to avoid both ‘social dumping’ and the penalisation of competing undertakings which grant a reasonable wage to their employees.
32. However, the Court has already held that, in so far as it applies solely to public contracts, such a national measure is not appropriate for achieving that objective if there is no information to suggest that employees working in the private sector are not in need of the same wage protection as those working in the context of public contracts (see, to that effect, the judgment in Rüffert , EU:C:2008:189, paragraphs 38 to 40).
35. The wage protection measure at issue in the main proceedings also cannot be justified in the light of the objective of stability of social security systems. It has not been claimed, and also does not appear tenable to assert, that the application of that measure to the Polish employees concerned is necessary in order to avoid a risk of seriously undermining the balance of the German social security system (see, by analogy, the judgment in Rüffert , EU:C:2008:189, paragraph 42). If those employees did not receive a reasonable wage and were consequently forced to have recourse to social security in order to ensure a minimum level of purchasing power, it would be to Polish social assistance that they would have a right. Such a consequence would clearly not affect the German social security system.