CJEU Case C-210/24 / Opinion

Asociación de Empresas de Servicios para la Dependencia (AESTE) v Ayuntamiento de Ortuella
Deciding body type
Court of Justice of the European Union
Deciding body
Opinion of Advocate General Biondi
Type
Opinion
Decision date
03/07/2025
ECLI (European case law identifier)
ECLI:EU:C:2025:529

Title IV: Solidarity

Article 28 - Right of collective bargaining and action

Title VII: General provisions

Article 51 - Field of application

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  • CJEU Case C-210/24 / Opinion

    Key facts of the case:

    Request for a preliminary ruling from the Órgano Administrativo de Recursos Contractuales de la Comunidad Autónoma de Euskadi.
    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.

    Outcome of the case:

    In the light of the above analysis, I propose that the Court answer the question referred by 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) for a preliminary ruling as follows:

    Article 67 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, in the case of a contract for social services to the person, where the value of that contract is below the threshold laid down in that directive for such services, but where the Member State has made the provisions of that article directly and unconditionally applicable to that contract in national law, that article does not preclude an award criterion applied for the purpose of determining the ‘most economically advantageous tender’, within the meaning of that provision, which establishes that consideration must be given to the pay increases that the tenderer proposes to apply to the persons performing the contract, compared to the rates of pay established by the collective agreement for the sector, provided that that criterion complies with the principles of proportionality, equal treatment and non-discrimination, which is for the referring court to determine.

    Article 28 of the Charter of Fundamental Rights of the European Union does not preclude an award criterion for a services contract which establishes that consideration must be given to the pay increases that the tenderer proposes to apply to the persons performing the contract, compared to the rates of pay established by the collective agreement for the sector, and which requires that – following collective bargaining with the workers’ representatives – the successful tenderer define the elements constituting the pay increase and endeavour to conclude a collective agreement applicable to the workers assigned to the contract.

  • Paragraphs referring to EU Charter

    21. Fourth and lastly, it is necessary to verify whether Article 28 of the Charter applies to the present case.

    22. On that point, Article 51(1) of the Charter clarifies that its provisions are addressed to the Member States only when they are implementing EU law. According to the case-law, the concept of ‘implementing Union law’, as referred to in Article 51 of the Charter, ‘assumes a degree of connection between an EU legal measure 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’. (20)

    23. It follows from the case-law that such a connection exists where, as in the present case, the provisions of an EU act are made applicable, directly and unconditionally, by a reference made by national law, which effectively extends the scope of EU law to situations that do not directly come within its scope. In several such cases, the Court has interpreted EU law in the light of the provisions of the Charter, (21) considering that, even in such a situation, the Member State was implementing EU law. It follows that Article 28 of the Charter is applicable in the present case.

    24. In conclusion, it follows from the above considerations that only the first and third parts of the question referred for a preliminary ruling, concerning the interpretation of Directive 2014/24 and Article 28 of the Charter, respectively, need to be answered.

    ...

    65. In the third part of its question referred for a preliminary ruling, the referring court is asking the Court of Justice whether an infringement of the right to collective bargaining recognised in Article 28 of the Charter exists in relation to an award criterion for a service contract which establishes that consideration must be given to the pay increases that the tenderer proposes to apply to the persons performing the contract, compared to the rates of pay established by the collective agreement for the sector, and which requires that – following collective bargaining with the workers’ representatives – the successful tenderer define the elements constituting the pay increase and endeavour to conclude a collective agreement applicable to the staff assigned to the contract.

    66. The referring court is asking whether the contested award criterion constitutes interference with the right to collective bargaining recognised by Article 28 of the Charter in that it could result in staff responsible for the performance of the contract being excluded from the scope of an existing agreement, which could create pay inequalities between workers of the same company who perform the same tasks, solely on the basis of the client for which they carry them out.

    67. Under Article 28 of the Charter of Fundamental Rights, workers and employers, or their respective organisations, have the right in accordance with EU law and national laws and practices to negotiate and conclude collective agreements at the appropriate levels.

    ...

    71. In terms of the fact that the contested award criterion may entail pay inequalities by excluding certain workers from the scope of the collective agreement for the sector, in so far as the conditions laid down in the specific agreement with the Municipality of Ortuella are more favourable than those of the collective agreement for the sector, I see no basis to assert an infringement of Article 28 of the Charter. The contested award criterion, which uses the collective agreement for the sector as a minimum benchmark, enhances the scope of that agreement.

    72. I therefore take the view that Article 28 of the Charter does not preclude an award criterion such as the one at issue.

  • Paragraphs referring to EU Charter (original language)