Brussels, 17/11/2015 (Agence Europe) - Member state legislation can compel tenderers and their subcontractors who wish to participate in public procurement contracts to make a written commitment in their tenders to pay a minimum wage to staff called upon to perform the services according to the contract notice.
On Tuesday 17 November, the European Court of Justice decided (C-115/14) that this request complies with the directive on procedures for awarding public works contracts, public supply contracts and public service contracts (Directive 2004/18/EC), as well as the directive on the posting of workers (96/71/EC) and that the exclusion of companies from the public procurement contract who do not comply with this is legal.
The Court was asked by the Higher Regional Court, Koblenz, Germany to intervene in a case where the RegioPost company had been excluded from participation in a public procurement procedure for postal services (collection, transport and distribution of mail) in the city of Laundau on the basis of the municipality of Landau (Rhineland-Palatinate) law that that the undertaking had not declared to pay a minimum wage to staff called upon to perform the services. This demand, in the absence at the time of a legal minimum wage in Germany or collective agreement in the sector aimed, according to the municipality, to combat distortions of competition that may arise in the award of public contracts because of the use of cheap labour and alleviate the burdens resulting therefrom for social protection
In its decision, the Court concludes that this legislation complies with this directive, which stipulates that contracting authorities may impose special conditions relating to the performance of a contract, in particular, those that concern social considerations. The Court also decided that the obligation applied in this case because it was clearly indicated in the market recommendations and contract notice and was not discriminatory because it applied to all participants. It also complied with the directive on the posting of workers, insofar as it included a minimum wage to guarantee an adequate level of protection for posted workers by companies in other member states.
With regard to the legality of the exclusion from the public market of companies that refuse to respect the minimum wage, the Court said that as it does not oppose the legal imposition of such a written commitment and that directive 2004/18 allows for the exclusion of companies that do not meet such a commitment. (Original version in French by Francesco Gariazzo)