Provisional text
JUDGMENT OF THE COURT (Second Chamber)
5 March 2026 (*)
( Reference for a preliminary ruling – Public procurement – Directive 2014/24/EU – Contract for social services without accommodation – Contract with a value below the threshold for that directive to apply – Article 67 – Award criteria of a social nature – Most economically advantageous tender – Salary increase of staff performing the contract above the salary level provided for in the sectoral collective agreement – Connection with the subject matter of the contract – Proportionality and non-discrimination – Article 28 of the Charter of Fundamental Rights of the European Union – Right to negotiate by collective agreement )
In Case C‑210/24,
REQUEST for a preliminary ruling under Article 267 TFEU from the Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi (Administrative Board of Contract Appeals of the Autonomous Community of the Basque Country, Spain), made by decision of 14 March 2024, received at the Court on the same day, in the proceedings
Asociación de Empresas de Servicios para la Dependencia (AESTE)
v
Ayuntamiento de Ortuella,
THE COURT (Second Chamber),
composed of K. Jürimäe, President of Chamber, K. Lenaerts, President of the Court, acting as a judge of the Second Chamber, F. Schalin, M. Gavalec (Rapporteur) and Z. Csehi, Judges,
Advocate General: A. Biondi,
Registrar: R. Stefanova-Kamisheva, Administrator,
having regard to the written procedure and further to the hearing on 9 April 2025,
after considering the observations submitted on behalf of:
– the Spanish Government, by S. Núñez Silva, acting as Agent,
– the European Commission, by B.-R. Killmann, L. Malferrari, E. Sanfrutos Cano and G. Wils, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 3 July 2025,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 67(1) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ 2014 L 94, p. 65), 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 (OJ 1997 L 18, p. 1), Article 56 TFEU, and Article 28 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between the Asociación de Empresas de Servicios para la Dependencia (AESTE) and the Ayuntamiento de Ortuella (Municipal Authority of Ortuella, Spain) concerning the lawfulness of an award criterion set out in the tender specifications for a contract for services procured by that authority.
Legal context
European Union law
3 Recitals 89, 90, 92, 97, 98 and 114 of Directive 2014/24 state:
‘(89) The notion of award criteria is central to this Directive. It is therefore important that the relevant provisions be presented in as simple and streamlined a way as possible. This can be obtained by using the terminology “most economically advantageous tender” as the overriding concept, since all winning tenders should finally be chosen in accordance with what the individual contracting authority considers to be the economically best solution among those offered. …
(90) Contracts should be awarded on the basis of objective criteria that ensure compliance with the principles of transparency, non-discrimination and equal treatment, with a view to ensuring an objective comparison of the relative value of the tenders in order to determine, in conditions of effective competition, which tender is the most economically advantageous tender. It should be set out explicitly that the most economically advantageous tender should be assessed on the basis of the best price-quality ratio, which should always include a price or cost element. It should equally be clarified that such assessment of the most economically advantageous tender could also be carried out on the basis of either price or cost effectiveness only. It is furthermore appropriate to recall that contracting authorities are free to set adequate quality standards by using technical specifications or contract performance conditions.
In order to encourage a greater quality orientation of public procurement, Member States should be permitted to prohibit or restrict use of price only or cost only to assess the most economically advantageous tender where they deem this appropriate.
To ensure compliance with the principle of equal treatment in the award of contracts, contracting authorities should be obliged to create the necessary transparency to enable all tenderers to be reasonably informed of the criteria and arrangements which will be applied in the contract award decision. Contracting authorities should therefore be obliged to indicate the contract award criteria and the relative weighting given to each of those criteria. …
…
(92) When assessing the best price-quality ratio contracting authorities should determine the economic and qualitative criteria linked to the subject matter of the contract that they will use for that purpose. Those criteria should thus allow for a comparative assessment of the level of performance offered by each tender to be assessed in the light of the subject matter of the contract, as defined in the technical specifications. In the context of the best price-quality ratio, a non-exhaustive list of possible award criteria which include environmental and social aspects is set out in this Directive. Contracting authorities should be encouraged to choose award criteria that allow them to obtain high-quality works, supplies and services that are optimally suited to their needs.
The chosen award criteria should not confer an unrestricted freedom of choice on the contracting authority and they should ensure the possibility of effective and fair competition and be accompanied by arrangements that allow the information provided by the tenderers to be effectively verified.
To identify the most economically advantageous tender, the contract award decision should not be based on non-cost criteria only. Qualitative criteria should therefore be accompanied by a cost criterion that could, at the choice of the contracting authority, be either the price or a cost-effectiveness approach such as life-cycle costing. However, the award criteria should not affect the application of national provisions determining the remuneration of certain services or setting out fixed prices for certain supplies.
…
(97) Furthermore, with a view to the better integration of social and environmental considerations in the procurement procedures, contracting authorities should be allowed to use award criteria or contract performance conditions relating to the works, supplies or services to be provided under the public contract in any respect and at any stage of their life cycles from extraction of raw materials for the product to the stage of disposal of the product, including factors involved in the specific process of production, provision or trading and its conditions of those works, supplies or services or a specific process during a later stage of their life cycle, even where such factors do not form part of their material substance. …
However, the condition of a link with the subject matter of the contract excludes criteria and conditions relating to general corporate policy, which cannot be considered as a factor characterising the specific process of production or provision of the purchased works, supplies or services. Contracting authorities should hence not be allowed to require tenderers to have a certain corporate social or environmental responsibility policy in place.
(98) It is essential that award criteria or contract performance conditions concerning social aspects of the production process relate to the works, supplies or services to be provided under the contract. In addition, they should be applied in accordance with Directive [96/71], as interpreted by the Court of Justice of the European Union and should not be chosen or applied in a way that discriminates directly or indirectly against economic operators from other Member States or from third countries parties to the [World Trade Organization Government Procurement Agreement (GPA)] or to Free Trade Agreements to which the [European] Union is party. Thus, requirements concerning the basic working conditions regulated in Directive [96/71], such as minimum rates of pay, should remain at the level set by national legislation or by collective agreements applied in accordance with Union law in the context of that Directive.
…
(114) Certain categories of services continue by their very nature to have a limited cross-border dimension, namely such services that are known as services to the person, such as certain social, health and educational services. Those services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A specific regime should therefore be established for public contracts for those services, with a higher threshold than that which applies to other services.
Services to the person with values below that threshold will typically not be of interest to providers from other Member States, unless there are concrete indications to the contrary, such as Union financing for cross-border projects.
Contracts for services to the person above that threshold should be subject to Union-wide transparency. Given the importance of the cultural context and the sensitivity of those services, Member States should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate. The rules of this Directive take account of that imperative, imposing only the observance of basic principles of transparency and equal treatment and making sure that contracting authorities are able to apply specific quality criteria for the choice of service providers, such as the criteria set out in the voluntary European Quality Framework for Social Services, published by the Social Protection Committee. …’
4 Article 4 of Directive 2014/24, entitled ‘Threshold amounts’, is worded as follows:
‘This Directive shall apply to procurements with a value net of value-added tax (VAT) estimated to be equal to or greater than the following thresholds:
…
(d) EUR 750 000 for public service contracts for social and other specific services listed in Annex XIV.’
5 Chapter II of that directive, entitled ‘General rules’, includes Article 18 thereof, itself entitled ‘Principles of procurement’, which provides in paragraph 1:
‘Contracting authorities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner.
The design of the procurement shall not be made with the intention of excluding it from the scope of this Directive or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.’
6 Article 67 of that directive, entitled ‘Contract award criteria’, provides:
‘1. Without prejudice to national laws, regulations or administrative provisions concerning the price of certain supplies or the remuneration of certain services, contracting authorities shall base the award of public contracts on the most economically advantageous tender.
2. The most economically advantageous tender from the point of view of the contracting authority shall be identified on the basis of the price or cost, using a cost-effectiveness approach, such as life-cycle costing in accordance with Article 68, and may include the best price-quality ratio, which shall be assessed on the basis of criteria, including qualitative, environmental and/or social aspects, linked to the subject matter of the public contract in question. Such criteria may comprise, for instance:
(a) quality, including technical merit, aesthetic and functional characteristics, accessibility, design for all users, social, environmental and innovative characteristics and trading and its conditions;
(b) organisation, qualification and experience of staff assigned to performing the contract, where the quality of the staff assigned can have a significant impact on the level of performance of the contract; or
(c) after-sales service and technical assistance, delivery conditions such as delivery date, delivery process and delivery period or period of completion.
The cost element may also take the form of a fixed price or cost on the basis of which economic operators will compete on quality criteria only.
Member States may provide that contracting authorities may not use price only or cost only as the sole award criterion or restrict their use to certain categories of contracting authorities or certain types of contracts.
3. Award criteria shall be considered to be linked to the subject matter of the public contract where they relate to the works, supplies or services to be provided under that contract in any respect and at any stage of their life cycle, including factors involved in:
(a) the specific process of production, provision or trading of those works, supplies or services; or
(b) a specific process for another stage of their life cycle,
even where such factors do not form part of their material substance.
4. Award criteria shall not have the effect of conferring an unrestricted freedom of choice on the contracting authority. They shall ensure the possibility of effective competition and shall be accompanied by specifications that allow the information provided by the tenderers to be effectively verified in order to assess how well the tenders meet the award criteria. In case of doubt, contracting authorities shall verify effectively the accuracy of the information and proof provided by the tenderers.
5. The contracting authority shall specify, in the procurement documents, the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender, except where this is identified on the basis of price alone.
Those weightings may be expressed by providing for a range with an appropriate maximum spread.
If weighting is not possible for objective reasons, the contracting authority must indicate the criteria in decreasing order of importance.’
7 Article 74 of Directive 2014/24, entitled ‘Award of contracts for social and other specific services’, provides:
‘Public contracts for social and other specific services listed in Annex XIV shall be awarded in accordance with this Chapter, where the value of the contracts is equal to or greater than the threshold indicated in point (d) of Article 4.’
8 Article 76 of Directive 2014/24, headed ‘Principles of awarding contracts’, provides:
‘1. Member States shall put in place national rules for the award of contracts subject to this Chapter in order to ensure contracting authorities comply with the principles of transparency and equal treatment of economic operators. Member States are free to determine the procedural rules applicable as long as such rules allow contracting authorities to take into account the specificities of the services in question.
2. Member States shall ensure that contracting authorities may take into account the need to ensure quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantaged and vulnerable groups, the involvement and empowerment of users and innovation. Member States may also provide that the choice of the service provider shall be made on the basis of the tender presenting the best price-quality ratio, taking into account quality and sustainability criteria for social services.’
9 Annex XIV to that directive comprises a table, entitled ‘Services referred to in Article 74’, and refers to the CPV code 85312000-9.
Spanish law
10 Article 1 of Ley 9/2017 de Contratos del Sector Público, por la que se transponen al ordenamiento jurídico español las Directivas del Parlamento Europeo y del Consejo 2014/23/UE y 2014/24/UE, de 26 de febrero de 2014 (Law 9/2017 on public sector contracts, transposing into Spanish law Directives 2014/23/EU and [2014/24] of the European Parliament and of the Council of 26 February 2014), of 8 November 2017 (BOE No 272 of 9 November 2017; ‘the LCSP’) entitled ‘Object and purpose’, provides, in paragraph 3 thereof:
‘Social and environmental criteria shall, on a universal and mandatory basis, be included in all public procurements, provided that they are relevant to the subject matter of the contract, since the inclusion thereof improves the price-quality ratio of the contractual performance, as well as providing greater and improved efficiency in the use of public funds. Access to public procurement by small and medium-sized enterprises and social enterprises shall also be facilitated.’
11 Article 145 of that law, entitled ‘Requirements and classes of contract award criteria’, provides:
‘1. Contracts shall be awarded using a number of award criteria on the basis of the best price-quality ratio.
Where justified in the procurement documents, contracts may be awarded according to criteria based on a cost-effectiveness approach, on the basis of the price or cost, such as life cycle costing in accordance with Article 148.
2. The best price-quality ratio shall be evaluated on the basis of financial and qualitative criteria.
The qualitative criteria established by the contracting authority in order to evaluate the best price-quality ratio may include environmental or social aspects, linked to the subject matter of the contract as laid down in paragraph 6 of this article, which may include the following:
1.º quality, including technical merit, aesthetic and functional characteristics, accessibility, universal design or design for all users, social, environmental and innovative characteristics and trading and its conditions;
…
The social characteristics of the contract shall relate, inter alia, to the following aims: promoting the social integration of persons with disabilities, disadvantaged persons or members of vulnerable groups among the persons assigned to the performance of the contract and, in general, the social integration and employment of persons with disabilities or who are at risk of social exclusion; subcontracting with special employment centres or companies providing employment; the application of gender equality plans in the performance of the contract and, in general, equality between women and men; promoting the employment of women; the reconciliation of work, personal and family life; improving working and pay conditions; stable employment; the employment of a greater number of people to perform the contract; training and the protection of health and safety at work; the application of ethical and social responsibility criteria to the contractual performance; and criteria relating to the supply or use of fair trade products in the course of the performance of the contract.
2.º. The organisation, qualification and experience of the staff assigned to the performance of the contract, provided that the quality of that staff may have a significant impact on the level of performance of the contract.
…’
12 The forty-seventh additional provision to that law, entitled ‘Principles applicable to the concession contracts included in Annex IV and to the contracts for social, healthcare or educational services included in Annex IV’, provides:
‘Without prejudice to the application of the provisions of this law and, inter alia, those relating to the drawing up of the technical specifications, the minimum solvency requirements, the award criteria and the special conditions relating to the performance of the contract, in procurement procedures for concession contracts appearing in Annex IV and social, healthcare or educational contracts also appearing in Annex IV, the contracting authorities shall, at every stage of those procedures, safeguard the need to ensure the quality, continuity, accessibility, affordability, availability and comprehensiveness of the services, the specific needs of different categories of users, including disadvantaged and vulnerable groups, the involvement of users of the services and innovation in the provision of the service.
Moreover, when establishing the criteria for awarding the contracts referred to in this additional provision, the contracting authority may relate them to aspects such as: experience of the staff assigned to the contract to provide services aimed at especially disadvantaged groups or to provide services of a similar nature as laid down in Article 145; the reinvestment of the profits obtained in improving the services provided; the establishment of mechanisms for user participation and for the information and guidance of users.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
13 On 13 June 2023, the AESTE brought a special action against the procurement documents for the contract proposed by the municipality before the Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi (Administrative Board of Contract Appeals of the Autonomous Community of the Basque Country, Spain), which is the referring court, challenging the tender specifications of the public contract of ‘Municipality of Ortuella home help service’ procured by that municipality (‘the contract at issue’).
14 The subject matter of the contract at issue was ‘the implementation of the Municipality of Ortuella’s home help service in order to provide a community social service which, using qualified, trained and supervised staff, carries out preventative, educational and care work for the benefit of families and/or individuals who have difficulties in maintaining or preserving their physical, social and/or emotional well-being, and aims to allow users to continue living in their home and/or environment for as long as is possible and appropriate’. According to the referring court, that contract relates to ‘social services without accommodation’ (CPV 85312000-9), within the meaning of Annex IV to the LCSP, which corresponds to Annex XIV to Directive 2014/24.
15 The estimated value of the contract is EUR 166 250.
16 By its action, the AESTE seeks the annulment of the award criterion which appears in the Schedule of Specific Administrative Specifications of the contract at issue and which provides for the award of a maximum number of 40 points in the case of an increase on the total payroll cost of the tenderer (‘the criterion at issue’). That criterion reads as follows:
‘Taking as a reference the rates of pay established in the collective agreement for the sector, higher rates of pay (increases on the total payroll cost) which the tenderer proposes to apply to the individuals performing the contract shall be taken into account.
The percentage increase in the rate of pay, taking into account the basic rate of pay and the standard agreed bonus provided for by the collective agreement for all of the workers to be subrogated, shall be considered, applying the following formula: Points = P×A/B.
“Points” is the total number of points awarded to the proposal.
P is the maximum number of points to be awarded, that is, 40 points.
A is the highest percentage of all the tenders submitted.
B is the percentage of the tender being assessed.
Tenders proposing a percentage increase to be applied to the individuals performing the contract shall be considered. Tenders which do not propose any increase shall receive a score of 0 points.
No later than one month after the contract has been formalised, following negotiations with the workers’ representatives, the precise form which that pay increase is to take shall be specified. The successful tenderer shall also seek to formalise an agreement (collective agreement of the Ortuella home help service) regulating the working conditions of the staff assigned to the contract.’
17 The referring court is uncertain whether the criterion at issue complies with EU law.
18 First, the referring court is uncertain whether that criterion makes it possible to identify ‘the most economically advantageous tender’, within the meaning of Article 67(1) of Directive 2014/24. In that respect, whilst the contracting authority alleges that that criterion aims to increase the remuneration of the staff performing the service which is the subject matter of the contract and, therefore, improve the stability and continuity of provision of that service, that court appears to consider that the link between such a salary increase and the improvement of the service is too hypothetical to be able to determine the award of that contract.
19 Secondly, that court emphasises that recital 98 of Directive 2014/24 states that the social criteria selected for the award of contracts must be applied in accordance with Directive 96/71. The criterion at issue could be discriminatory in that it obliges an undertaking, which wishes to increase its chances of obtaining the contract at issue, to pay higher salaries to workers performing that contract than they received, which could be an additional economic burden likely to prevent the submission of a tender.
20 Thirdly, the criterion at issue could be disproportionate and discriminatory for the economic operators that did not have sufficient capacity to pay increased salaries, even though those operators could formulate competitive tenders with a good price-quality ratio owing to the lower salary costs.
21 Fourthly, that court wonders whether the criterion at issue infringes the right to collective bargaining recognised by Article 28 of the Charter, since the collective negotiation launched after the award of the contract at issue could lead to the staff performing that contract being excluded from the scope of a collective agreement in force. Such a negotiation could also lead to the creation of salary inequalities between the workers of a single undertaking, who carry out identical tasks, but whose remuneration varies depending on the identity of the beneficiary of those tasks.
22 Fifthly, the criterion at issue could also be disproportionate having regard to the purpose that it pursues, because the new collective agreement, negotiated after the award of the contract at issue, could have the effect of consolidating the salary increase beyond that contract’s scope of performance, resulting in the loss of a link with its subject matter, referred to in Article 67(3) of Directive 2014/24.
23 In those circumstances, the Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi (Administrative Board of Contract Appeals of the Autonomous Community of the Basque Country) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘[(1)] Is a criterion for awarding a contract for services, such as that described, which:
– [attaches particular importance to the] increase in the total payroll cost above that determined by the collective agreement applicable to the sector, which the tenderer proposes to apply to the individuals performing the contract,
and
– obliges the successful tenderer, following collective bargaining with [staff] representatives, to specify the precise form that the pay increase is to take, and to seek to formalise a collective agreement applicable to the staff assigned to the contract,
suitable for identifying the most economically advantageous tender, as required by Article 67(1) of Directive [2014/24]?
[(2)] Does such an award criterion conflict with the freedom to provide services or restrict free competition, contrary to Article 56 of the Treaty on the Functioning of the European Union and Directives [2014/24] and [96/71]?
[(3)] Does such an award criterion infringe the right of collective bargaining recognised in Article 28 of the [Charter]?’
Admissibility of the request for a preliminary ruling
24 As a preliminary matter, it is necessary to examine whether the Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi (Administrative Board of Contract Appeals of the Autonomous Community of the Basque Country) meets the criteria to be regarded as a national court or tribunal for the purposes of Article 267 TFEU.
25 In that regard, it should be borne in mind that, in accordance with settled case-law, in order to assess whether a body making a reference is a ‘court or tribunal’, which is a question governed by EU law alone, the Court will take 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 (judgment of 20 September 2018 Montte, C‑546/16, EU:C:2018:752, paragraph 21 and the case-law cited).
26 In the present case, first, it is clear from the order for reference that the Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi (Administrative Board of Contract Appeals of the Autonomous Community of the Basque Country) is a permanent and independent body established by law, and which adopts its decisions on the basis of purely legal criteria at the end of an inter partes procedure. Regarding, more specifically, that body’s independence, that order explains that that body, inasmuch as it is not subject to any hierarchical constraint and does not receive instructions from third parties, carries out its functions objectively, impartially and entirely autonomously.
27 Secondly, as regards the compulsory nature of its jurisdiction, within the meaning of the Court’s case-law on Article 267 TFEU, the Court has already held that the decisions of the administrative boards of contract appeals of autonomous communities, whose jurisdiction does not depend on the parties’ agreement, are binding for those parties, even if the bringing of an action is optional (see, to that effect, judgment of 20 September 2018 Montte, C‑546/16, EU:C:2018:752, paragraphs 23 and 24 and the case-law cited).
28 Those considerations are not called into question by the Court’s case-law resulting from the judgment of 21 January 2020, Banco de Santander (C‑274/14, EU:C:2020:17), to the extent that, as the Spanish Government observes in its written observations, the members of that board benefit from a guarantee of irremovability, which is established by the national legislation, exceptions to which are permitted only on the grounds expressly set out by that legislation.
29 It follows that the Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi (Administrative Board of Contract Appeals of the Autonomous Community of the Basque Country) fulfils the necessary criteria to be regarded as a national court or tribunal for the purposes of Article 267 TFEU, and the questions referred to the Court are admissible.
Consideration of the questions referred
The first question
30 At the outset, it should be observed that, as stated in paragraph 14 of the present judgment, the subject matter of the contract at issue is ‘Social services without accommodation’ (CPV code 85312000-9), listed in Annex IV to the LCSP, which, according to the referring court, corresponds to Annex XIV to Directive 2014/24.
31 In accordance with Article 4(d) of that directive, the latter only applies to contracts listed in that Annex XIV if the value of those contracts is equal to or greater than the threshold of EUR 750 000 laid down in that provision.
32 In the present case, it is clear from the order for reference that the contract at issue has an estimated value of EUR 166 250, which is thus lower than that threshold. However, according to that decision, and as confirmed by the Spanish government at the hearing, the Spanish legislature intended to make the provisions of Directive 2014/24 applicable, directly and unconditionally, to contracts whose value was lower than that threshold. More specifically, that legislature decided, when adopting Article 145 of the LCSP, read in conjunction with the forty-seventh additional provision to that law, which transposes Article 67 of Directive 2014/24 relating to award criteria, to extend the application of that latter provision to contracts whose value was lower than that threshold.
33 As is clear from the Court’s settled case-law, where, in regulating situations outside the scope of an act of EU law, national legislation seeks to adopt, directly and unconditionally, the same solutions as those adopted in that act, it is clearly in the interest of the European Union that provisions taken from that EU law be given a uniform interpretation. That means that future differences of interpretation can be forestalled and identical treatment of internal situations and situations falling within the scope of those provisions can be ensured (judgments of 18 October 1990, Dzodzi, C‑297/88 and C‑197/89, EU:C:1990:360, paragraphs 36 and 37, and of 16 June 2022, Obshtina Razlog, C‑376/21, EU:C:2022:472, paragraph 55 and the case-law cited).
34 It follows that, even if the value of the contract at issue is lower than that laid down in Article 4(d) of Directive 2014/24, there is a clear interest in the Court ruling on the first question referred.
35 By that question, the referring court asks, in essence, whether Article 67(1) of Directive 2014/24 must be interpreted as meaning that a criterion for the award of a public contract for social services without accommodation which takes into consideration an increase, above the level resulting from the application of the sectoral collective agreement in force, in the total payroll that the tenderer proposes to apply to the staff performing the contract, allows the contracting authority to identify the most economically advantageous tender, within the meaning of that provision.
36 In the first place, Article 67(1) of Directive 2014/24, read in conjunction with recital 89 thereof, provides that contracting authorities are to base their decision primarily on the criterion of the most economically advantageous tender for the award of public contracts.
37 According to Article 67(2), that criterion must be assessed from the point of view of the contracting authority on the basis of price or cost, using a cost-effectiveness approach, and may take into account the best price-quality ratio, which is to be assessed on the basis of criteria including qualitative, environmental and/or social aspects linked to the subject matter of the public contract concerned. Read in conjunction with recitals 90 and 92 of Directive 2014/24, that provision sets out, in points (a) to (c), a non-exhaustive list of award criteria that may be used, including, inter alia, social aspects.
38 It follows that, in the absence of an exhaustive list of award criteria, Article 67(2) of that directive allows the contracting authority to establish award criteria that include social aspects provided that the criteria relating to those aspects are linked to the subject matter of the public contract concerned.
39 In that regard, it should be recalled that the Court has held that contracting authorities are entitled to choose award criteria based on considerations of a social nature, which may concern the persons using or receiving the services which are the object of the contract, but also other persons (see, to that effect, judgment of 10 May 2012, Commission v Netherlands, C‑368/10, EU:C:2012:284, paragraph 85).
40 It is therefore necessary to determine whether an award criterion which, like the criterion at issue, takes into consideration an increase in the total payroll for staff performing a public contract above the level resulting from the application of the sectoral collective agreement in force, may be regarded as one of the ‘social aspects linked to the subject matter of the public contract concerned’.
41 As the Advocate General observed, in essence, in points 36 and 37 of his Opinion, since the award criterion relates to the increase in the total payroll that the tenderer proposes to apply to persons performing the contract compared with the level of salaries resulting from the application of the sectoral collective agreement, it must be considered that that criterion relates, given its very nature, to one of the ‘social aspects’ within the meaning of Article 67(2) of Directive 2014/24, which is a concept that must be interpreted broadly.
42 In the second place, in order for a contracting authority to be able to identify the most economically advantageous tender by means of an award criterion relating to a ‘social aspect’, it must be pointed out that such a criterion must still comply with the other conditions laid down in Article 67(2) to (5) of that directive, read in conjunction with recitals 90 and 92 thereof, namely, in particular, to be linked to the subject matter of the contract and not to confer on the contracting authority an unrestricted freedom of choice.
43 In that regard, it should be noted that the referring court has doubts only as to, first, whether there is a link between the subject matter of the contract and the criterion at issue, which may be too general to allow the contract at issue to be awarded and, second, the possible infringement of the principle of equal treatment between tenderers resulting from that criterion.
44 In that context, as regards, first, the condition relating to the link between the criterion at issue and the subject matter of the contract, it is apparent from Article 67(3) of Directive 2014/24, read in conjunction with recital 97 thereof, that the award criteria are deemed to be linked to the subject matter of the public contract where they relate to the services to be provided under the contract in any respect and at any stage of their life cycle, including the factors involved in the specific process of providing those services and even where those factors do not form part of their material content.
45 The broad wording of that provision does not therefore preclude, in a given situation, a contracting authority from taking into consideration, by means of a criterion for the award of a contract for social services without accommodation, the increase in the total payroll that the tenderer proposes to apply to the staff performing the contract compared with the level of salaries resulting from the application of the sectoral collective agreement.
46 It is apparent from paragraph 44 of the present judgment that the existence of a link between the criterion at issue and the subject matter of the contract at issue must therefore be assessed taking into account the specific features of the service which is the subject matter of the contract. In the present case, although it is for the referring court to assess whether there is such a link, it should be noted that that contract is characterised, on the one hand, by the high intensity of labour which it requires and, on the other hand, by the difficulty encountered by the contracting authority in offering a continuous and high-quality service to persons to whom that service is provided, namely persons who are disadvantaged and in a vulnerable situation.
47 As the Advocate General observed in points 46 to 48 of his Opinion, it must be considered that (i) the remuneration received by the successful tenderer to supply the service it provides is largely determined by the cost of the salaries of the staff performing the service, with the result that the criterion at issue is linked to the subject matter of the contract; and that (ii) in a contract of such a nature, it is not unreasonable to consider that an award criterion which takes into consideration a more favourable remuneration of the staff performing the contract than that provided for by the sectoral collective agreement in force may contribute to that objective by improving the quality, accessibility and continuity of the service for persons receiving that service, namely persons who are disadvantaged and in a vulnerable situation, since more favourable remuneration would have the effect of retaining the staff performing the contract and allowing the recruitment of more qualified staff.
48 Moreover, that interpretation is supported by Article 76(2) of Directive 2014/24, which, as regards the social services listed in Annex XIV to that directive, provides that contracting authorities may take into account the need to ensure the quality, continuity, accessibility and availability of services, as well as the specific needs of different categories of users, including disadvantaged and vulnerable categories.
49 Thus, by taking into consideration an increase, above the level resulting from the application of the sectoral collective agreement in force, in the total payroll that the tenderer proposes to apply to the staff performing the contract, the contracting authority is capable of promoting the increased quality, continuity and availability of social services without accommodation, which is the subject matter of the contract at issue.
50 Secondly, as regards the referring court’s concerns as to the possible infringement of the principle of equal treatment between tenderers that the criterion at issue might cause, in that it would place at a disadvantage those tenderers who have less capacity to pay wages higher than the sectoral collective agreement in force requires, such as small and medium-sized undertakings, which could nevertheless submit competitive bids on account of their lower wage costs, the following should be recalled.
51 In accordance with Article 67(4) of Directive 2014/24, read in the light of recital 90 of that directive, the award criteria do not have the effect of conferring an unrestricted freedom of choice on the contracting authority. They must ensure compliance with the principles of transparency, non-discrimination and equal treatment when awarding contracts, in order to enable an objective comparison of the relative value of the tenders to be made.
52 In accordance with the first subparagraph of Article 18(1) of Directive 2014/24, contracting authorities are to treat economic operators equally and without discrimination. The purpose of the principles of equal treatment and non-discrimination is to encourage the development of healthy and effective competition between tenderers participating in a public procurement procedure. In accordance with those principles, tenderers must be on an equal footing both when they formulate their tenders and when those tenders are being assessed by the contracting authority (see, to that effect, judgment of 13 June 2024, BibMedia, C‑737/22, EU:C:2024:495, paragraph 30). Those principles require comparable situations not to be treated differently and different situations not to be treated alike, unless such treatment is objectively justified (judgment of 6 October 2021, Conacee, C‑598/19, EU:C:2021:810, paragraph 36).
53 The second subparagraph of Article 18(1) of that directive also provides that the contracting authority may not adopt award criteria which unduly favour or disadvantage certain economic operators because of its own characteristics or creates artificial barriers for certain operators.
54 In the present case, however, it must be stated that the Court does not have before it information making it possible to determine whether the criterion at issue is capable of creating such a discriminatory effect against certain operators, such as small and medium-sized undertakings.
55 However, while it is for the referring court to carry out that examination, it must be borne in mind that that examination must be carried out in the light of the documentation available to the contracting authority when determining its needs, as well as in the light of any consultations with users or beneficiaries of the service and the staff performing that service which it may have carried out in advance, as well as any consultations prior to the contract which it may have carried out or any other document which would substantiate the existence of an exclusionary effect brought about by such an award criterion.
56 Having regard to the foregoing considerations, the answer to the first question referred is that Article 67(1) of Directive 2014/24 must be interpreted as meaning that a criterion for the award of a public contract for social services without accommodation which takes into consideration an increase, above the level resulting from the application of the sectoral collective agreement in force, in the total payroll that the tenderer proposes to apply to the staff performing the contract, allows the contracting authority to identify the most economically advantageous tender, within the meaning of that provision.
The second question
57 By its second question, the referring court asks, in essence, whether Directive 96/71 and Article 56 TFEU must be interpreted as precluding a criterion for the award of a public contract for social services without accommodation which takes into consideration an increase, above the level resulting from the application of the sectoral collective agreement in force, in the total payroll that the tenderer proposes to apply to the staff performing that contract.
58 The Spanish Government and the European Commission contend that that question is inadmissible on the ground that the dispute in the main proceedings does not have a cross-border element, which is necessary for the interpretation of both Article 56 TFEU and Directive 96/71. First, no tenderer established in the territory of a Member State other than that to which the contracting authority belongs participated in the procedure for the award of the contract at issue, second, the provision of services which is the subject of that contract is not a transnational provision of services involving the posting of workers and, third, the nature of the contract and its low value do not have a cross-border element.
59 In that regard, it should be noted that, as is apparent from paragraphs 14 and 15 of the present judgment, the contract at issue is a contract for social services without accommodation, the value of which, amounting to EUR 166 250, does not exceed the threshold laid down in Article 4(d) of Directive 2014/24. As is apparent from recital 114 of that directive, services of that nature have a limited transnational dimension since they are provided within a particular context that varies widely amongst Member States, due to different cultural traditions which differ to the point that they are generally not of interest to providers from other Member States, unless there is concrete indication to the contrary, such as EU financing for cross-border projects.
60 It must be recalled, in that regard, that a conclusion that there is certain cross-border interest cannot be inferred hypothetically from certain factors which, considered in the abstract, could constitute evidence to that effect, but must be the positive outcome of a specific assessment of the circumstances of the contract at issue. More specifically, the referring court may not merely submit to the Court evidence showing that certain cross-border interest cannot be ruled out but must, on the contrary, provide information capable of proving that it exists (judgment of 6 October 2016, Tecnoedi Costruzioni, C‑318/15, EU:C:2016:747, paragraph 22).
61 However, the referring court does not provide any specific information in the order for reference establishing a cross-border element.
62 Moreover, it is for the referring court to indicate to the Court, in accordance with the requirements of Article 94 of the Rules of Procedure of the Court of Justice, in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with the provisions of EU law relating to the fundamental freedoms that makes the requested preliminary ruling concerning the interpretation of those provisions necessary for the purpose of resolving that dispute (judgments of 15 November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph 55, and of 14 July 2022, ASADE, C‑436/20, EU:C:2022:559, paragraph 47).
63 It must be stated that the referring court does not explain why, despite the purely internal nature of the dispute pending before it, it is necessary to interpret Article 56 TFEU. More specifically, that court does not expressly state that it is in one of the situations referred to in paragraphs 50 to 53 of the judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874).
64 The second question referred for a preliminary ruling is therefore inadmissible.
The third question
65 By its third question, the referring court asks, in essence, whether Article 28 of the Charter must be interpreted as precluding a criterion for the award of a public contract for social services without accommodation which, first, takes into consideration an increase, above the level resulting from the application of the sectoral collective agreement in force, in the total payroll that the tenderer proposes to apply to the staff performing the contract and, second, requires that tenderer to specify, after a collective negotiation with the representatives of that staff, the elements of remuneration covered by that salary increase and to endeavour to conclude a collective agreement applying to that staff.
66 As a preliminary point, it should be noted that, in accordance with Article 51(1) of the Charter, the provisions of the Charter are addressed to the Member States only when they are implementing EU law. The concept of ‘implementing Union law’ presupposes a degree of connection between an act of EU law and the national measure in question, above and beyond the matters covered being closely related or one of those matters having an indirect impact on the other (judgment of 28 November 2024, PT (Agreement concluded between the prosecutor and the perpetrator of an offence), C‑432/22, EU:C:2024:987, paragraph 35 and the case-law cited).
67 In that regard, it should be noted that it is apparent from the order for reference that the LCSP, which is applicable to the dispute in the main proceedings, is the legislative act that transposes Directive 2014/24 into national law. Furthermore, as is apparent from paragraphs 30 to 34 of the present judgment, where the value of the contract at issue is below the threshold laid down in Article 4(d) of Directive 2014/24, it is provided in Article 145 of the LCSP, read in conjunction with the forty-seventh additional provision of that law, and as the Spanish Government confirmed at the hearing, that the national legislation is to comply, directly and unconditionally, with that directive for solutions that it provides in situations not covered by that directive. It therefore follows that, as the Advocate General observed in point 23 of his Opinion, Article 28 of the Charter is applicable.
68 It should be recalled that, under that provision, workers and employers, or their respective organisations, have, in accordance with EU law and national laws and practices, in particular the right to negotiate and conclude collective agreements at the appropriate levels.
69 Having regard to the EU acquis in this area and, in particular, to the first paragraph of Article 152 TFEU, which provides that the European Union ‘recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems’ and that it ‘facilitate[s] dialogue between the social partners, [while] respecting their autonomy’, it should be noted that Article 28 of the Charter presupposes that those partners are autonomous. That autonomy means that, during the negotiation stage of an agreement by the social partners, which exclusively involves the latter, they may engage in dialogue and act freely without receiving any order or instruction from whomsoever and, in particular, not from the Member States or the EU institutions (see, to that effect, judgment of 15 December 2022, TimePartner Personalmanagement, C‑311/21, EU:C:2022:983, paragraph 72 and the case-law cited).
70 It follows that the social partners enjoy broad discretion not only in their choice to pursue a particular aim in the field of social and employment policy, but also in the definition of measures capable of achieving it (judgment of 15 December 2022, TimePartner Personalmanagement, C‑312/21, EU:C:2022:983, paragraph 73 and the case-law cited).
71 Where the right of collective bargaining is covered by provisions of EU law, it must, within the scope of that law, be exercised in compliance with it. While the social partners thus enjoy broad discretion in the negotiation and conclusion of collective agreements, that discretion is circumscribed by the obligation to ensure compliance with EU law (judgment of 15 December 2022, TimePartner Personalmanagement, C‑312/21, EU:C:2022:983, paragraphs 74 and 75 and the case-law cited).
72 In the present case, it is apparent from the order for reference that the criterion at issue is limited to requiring, first, the tenderer to specify, within a maximum period of one month from the conclusion of the contract, and after negotiation with the staff representatives, the elements of remuneration to which the salary increase applies and, second, the successful tenderer to endeavour to conclude an agreement governing the working conditions of the staff assigned to the contract.
73 Neither of the two aspects of that criterion appears to undermine the autonomy of the social partners in the negotiation of a collective agreement.
74 As the Advocate General observed in point 70 of his Opinion, rather than undermining the right to collective bargaining of the employer awarded the contract, on the one hand, and the representatives of the staff responsible for performing the contract, on the other hand, the criterion at issue seeks to facilitate dialogue between the social partners and, therefore, encourages the exercise of that right by requiring merely that the successful tenderer endeavour to conclude a collective agreement with the representatives of the staff assigned to perform the contract, without encroaching on the latter’s right to participate in the determination of the elements of the salary increase and working conditions. The requirement under the award criterion that the successful tenderer negotiate the elements of the salary increase with the representatives of the staff assigned to perform a public contract pursuant to an undertaking made in its tender cannot a priori compel those representatives to accept all the proposals contained in the tenderer’s offer within the period prescribed by the award criterion, which is, however, a matter for the referring court to verify.
75 Lastly, as regards the referring court’s question concerning the fact that the conclusion of such a collective agreement may lead to the creation of a difference in remuneration between the staff responsible for performing the contract at issue and those assigned to perform another comparable contract, in so far as the former will benefit from more favourable remuneration, it must be held that the order for reference does not contain any information as to the actual effects of the criterion at issue on the remuneration of staff within the undertaking to which that contract is awarded. Consequently, the Court is not in a position to address in a sufficiently informed manner that aspect of the referring court’s questions.
76 Having regard to the foregoing considerations, Article 28 of the Charter must be interpreted as not precluding a criterion for the award of a public contract for social services without accommodation which, first, takes into consideration an increase, above the level resulting from the application of the sectoral collective agreement in force, in the total payroll that the tenderer proposes to apply to the staff performing the contract and, second, requires that tenderer to specify, after collective negotiation with the representatives of that staff, the elements of remuneration covered by that salary increase and to endeavour to conclude a collective agreement applying to that staff.
Costs
77 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1. Article 67(1) of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC
must be interpreted as meaning that a criterion for the award of a public contract for social services without accommodation which takes into consideration an increase, above the level resulting from the application of the sectoral collective agreement in force, in the total payroll that the tenderer proposes to apply to the staff performing the contract, allows the contracting authority to identify the most economically advantageous tender, within the meaning of that provision.
2. Article 28 of the Charter of Fundamental Rights of the European Union must be interpreted as not precluding a criterion for the award of a public contract for social services without accommodation which, first, takes into consideration an increase, above the level resulting from the application of the sectoral collective agreement in force, in the total payroll that the tenderer proposes to apply to the staff performing the contract and, second, requires that tenderer to specify, after collective negotiation with the representatives of that staff, the elements of remuneration covered by that salary increase and to endeavour to conclude a collective agreement applying to that staff.
[Signatures]