European Commission v Federal Republic of Germany.
Date: 2010-07-15
37. In that regard, it should be noted, first, that the right to bargain collectively, which the signatories of the TV-EUmw/VKA have exercised in the present case, is recognised both by the provisions of various international instruments which the Member States have cooperated in or signed, such as Article 6 of the European Social Charter, signed at Turin on 18 October 1961 and revised at Strasbourg on 3 May 1996, and by the provisions of instruments drawn up by the Member States at Community level or in the context of the European Union, such as Article 12 of the Community Charter of the Fundamental Social Rights of Workers adopted at the meeting of the European Council held in Strasbourg on 9 December 1989, and Article 28 of the Charter of Fundamental Rights of the European Union (‘the Charter’), an instrument to which Article 6 TEU accords the same legal value as the Treaties.
41. However, the fact that the right to bargain collectively is a fundamental right, and the TV-EUmw/VKA’s social objective perceived as a whole, cannot, in themselves, mean that local authority employers are automatically excluded from the obligation to comply with the requirements stemming from Directives 92/50 and 2004/18, which implement freedom of establishment and the freedom to provide services in the field of public procurement.
42. The Court has already held that the terms of collective agreements are not excluded from the scope of the provisions on freedom of movement for persons (see Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union , ‘ Viking Line ’, [2007] ECR I-10779, paragraph 54 and the case-law cited).
43. Furthermore, exercise of a fundamental right such as the right to bargain collectively may be subject to certain restrictions (see, to this effect, Viking Line , paragraph 44, and Case C-341/05 Laval un Partneri  [2007] ECR I-11767, paragraph 91). In particular, while it is true that the right to bargain collectively enjoys in Germany the constitutional protection conferred, generally, by Article 9(3) of the German Basic Law upon the right to form associations to safeguard and promote working and economic conditions, the fact remains that, as provided in Article 28 of the Charter, that right must be exercised in accordance with European Union law.
44. Exercise of the fundamental right to bargain collectively must therefore be reconciled with the requirements stemming from the freedoms protected by the FEU Treaty, which in the present instance Directives 92/50 and 2004/18 are intended to implement, and be in accordance with the principle of proportionality (see, to this effect, Viking Line , paragraph 46, and Laval un Partneri , paragraph 94).
47. In that regard, it cannot be considered that it is inherent in the very exercise of the freedom of management and labour and of the right to bargain collectively that the directives which implement freedom of establishment and the freedom to provide services in the field of public procurement will be prejudiced (see, to this effect, Viking Line , paragraph 52).
50. In light of the foregoing, the fact that the contract awards at issue follow from the application of a collective agreement does not, in itself, result in the present instance being excluded from the scope of Directives 92/50 and 2004/18.
52. Answering this question entails verification, in the light of the material in the file, as to whether, when establishing the content of Paragraph 6 of TV-EUmw/VKA, which is referred to by the Commission in its action inasmuch as that paragraph served as the basis for the contract awards at issue, a fair balance was struck in the account taken of the respective interests involved, namely enhancement of the level of the retirement pensions of the workers concerned, on the one hand, and attainment of freedom of establishment and of the freedom to provide services, and opening-up to competition at European Union level, on the other (see, by analogy, Case C-112/00 Schmidberger  [2003] ECR I-5659, paragraphs 81 and 82).
62. Institutions for occupational retirement provision are subject to rules of the same kind by virtue of Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (OJ 2003 L 235, p. 10). These rules, coordinated at European Union level, are designed to ensure a high degree of security for future pensioners who are to enjoy the benefits of those institutions (see, to this effect, Case C-343/08 Commission  v Czech Republic  [2010] ECR I‑0000, paragraph 45).
73. As to those submissions, first of all, neither Article 1(b) of Directive 92/50 nor Article 1(9) of Directive 2004/18 makes a distinction between public contracts awarded by a contracting authority for the purposes of fulfilling its task of meeting needs in the general interest and those which are unrelated to that task. The fact that no such distinction is made is explained by the aim of those directives to avoid the risk of preference being given to national tenderers or applicants whenever a contract is awarded by the contracting authorities (see, by analogy, Case C-44/96 Mannesmann Anlagenbau Austria and Others  [1998] ECR I-73, paragraphs 32 and 33).
75. Finally, the condition requiring the contracts at issue to be for pecuniary interest entails determining whether those contracts are of direct economic benefit to the local authority employers which conclude them (see, by analogy, Case C-451/08 Helmut Müller  [2010] ECR I-0000, paragraphs 48 and 49).
97. It should be stated first of all that the subject-matter of the present dispute may be extended to contract awards at issue that occurred after the date upon which the time-limit set in the reasoned opinion expired, namely 4 September 2006, given that those awards stem from conduct of the same kind as the awards referred to in the reasoned opinion (see, to this effect, Case 42/82 Commission  v France  [1983] ECR 1013, paragraph 20; Case 113/86 Commission  v Italy  [1988] ECR 607, paragraph 11; and Case C-236/05 Commission  v United Kingdom  [2006] ECR I‑10819, paragraph 12).