Preliminary question regarding the imperative exclusion of the offer in the procedure for the award of a public contract. UPDATE: ECJ’s ruling

November 19, 2014: the Court hereby rules:

1.      Article 26 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Commission Regulation (EU) No 1251/2011 of 30 November 2011, must be interpreted as not precluding legislation of a regional entity of a Member State, such as that at issue in the main proceedings, which requires tenderers and their subcontractors to undertake, by means of a written declaration to be enclosed with their tender, to pay staff who are called upon to perform the services covered by the public contract in question a minimum wage laid down in that legislation.

2.      Article 26 of Directive 2004/18, as amended by Regulation No 1251/2011, must be interpreted as not precluding legislation of a regional entity of a Member State, such as that at issue in the main proceedings, which provides for the exclusion from participation in a procedure for the award of a public contract of tenderers and their subcontractors who refuse to undertake, by means of a written declaration to be enclosed with their tender, to pay staff who are called upon to perform the services covered by the public contract in question a minimum wage laid down in that legislation.

For the entire judgement, see here.

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June 4, 2015: The German judge is sending a preliminary ruling regarding the imperative exclusion of the offer in the procedure for the award of a public contract (Case C-115/14).

Facts:

1. a national provision which makes it mandatory for a contracting authority to award contracts only to undertakings which undertake and whose subcontractors undertake in writing, at the time of submitting the tender, to pay their employees who perform the contract a minimum wage fixed by the State for public contracts only but not for private ones, where there is neither a general statutory minimum wage nor a universally binding collective agreement that binds potential contractors and possible subcontractors

2. the mandatory exclusion of a tender if an economic operator does not, already when submitting the tender, undertake in a separate declaration to do something which he would be contractually obliged to do if awarded the contract even without making that declaration

Relevant provisions:

1. European:

1.1. Article 56(1) of the Treaty on the Functioning of the European Union in conjunction with Article 3(1) of 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

1.2. Article 26 of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts

2. National: Paragraph 3(1) of the [Rhineland-Palatinate Land Law on guaranteeing compliance with collective agreements and minimum wages in public contract awards (LTTG)

:: The Source: JURIDICE.ro

Ana-Maria Udriște

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