Case C‑549/13

Bundesdruckerei GmbH

v

Stadt Dortmund

(Request for a preliminary ruling from the Vergabekammer bei der Bezirksregierung Arnsberg)

‛Reference for a preliminary ruling — Article 56 TFEU — Freedom to provide services — Restrictions — Directive 96/71/EC — Procedures for the award of public service contracts — National legislation requiring tenderers and their subcontractors to undertake to pay a minimum wage to staff performing the services relating to the public contract — Subcontractor established in another Member State’

Summary — Judgment of the Court (Ninth Chamber), 18 September 2014

1. Questions referred for a preliminary ruling — Reference to the Court — National court or tribunal for the purposes of Article 267 TFEU — Concept — Body competent to hear appeals concerning the award of public contracts — Included

   (Art. 267 TFEU)

2. Freedom to provide services — Posting of workers in the framework of the provision of services — Directive 96/71 — Scope — Tenderer intending to carry out a public contract by having recourse to workers employed by a subcontractor established in a Member State other than that to which the contracting authority belongs — Workers carrying out the services covered by the contract exclusively in the subcontractor’s home country — Not included

   (European Parliament and Council Directive 96/71, Art. 1(3))

3. Freedom to provide services — Restrictions — Procedures for the award of public service contracts — Tenderer intending to carry out a public contract by having recourse to workers employed by a subcontractor established in a Member State other than that to which the contracting authority belongs — Legislation of the Member State of the contracting authority obliging that subcontractor to pay those workers a minimum salary fixed by that legislation — Unlawful

   (Art. 56 TFEU)

1.  See the text of the decision.

   (see paras 21-23)

2.  See the text of the decision.

   (see paras 25-27)

3.  In a situation in which a tenderer intends to carry out a public contract by having recourse exclusively to workers employed by a subcontractor established in a Member State other than that to which the contracting authority belongs, Article 56 TFEU precludes the application of legislation of the Member State to which that contracting authority belongs which requires that subcontractor to pay those workers a minimum wage fixed by that legislation.

   The imposition, under national legislation, of a minimum wage on subcontractors of a tenderer which are established in a Member State other than that to which the contracting authority belongs and in which minimum rates of pay are lower constitutes an additional economic burden that may prohibit, impede or render less attractive the provision of their services in the host Member State. Consequently, a measure such as that at issue in the main proceedings is capable of constituting a restriction within the meaning of Article 56 TFEU.

   (see paras 30, 36, operative part)