European Court of Justice gives out a judgement on public contracts & minimum wages

C- 115/14

This fresh case from the European Court of Justice had to do with the public procurement procedure of postal services in Landau, Germany. A tenderer RegioPost was excluded from the participation on the grounds that the company had not declared to undertake to pay minimum wage to staff that it would call upon to perform the services that were the subject of the procurement procedure. The requirement of making the minimum wage related declaration had been set out in an appropriate manner in the contract notice and RegioPost had been also personally reminded to do it later. The minimum wage requirement was based directly on applicable legislation, the Law of the Rhineland-Palatinate. RegioPost argued that the entire minimum wage declaration requirement was against EU legislation on public procurement procedure.

The European Court of Justice stated that the obligation in question related to the performance of the public contract and concerned social considerations. The obligation was set out in a transparent and non-discriminative manner and was content-wise compatible with other relevant union legislation, such as EU Directive 96/71 on the posting of workers. The requirement in procurement procedure to declare minimum wage for workers may restrict the freedom to provide services, but this restriction is justified by the acceptable objective of protecting workers and their right to acceptable pay. The EU public procurement directive 2004/18 does not preclude a written undertaking to comply with minimum wage requirements and also permits the exclusion of a tenderer who refuses to give such undertaking in procurement procedure.