International Law

This case concerned the Law of Land Niedersachsen on the award of public contracts (the ?Landesvergabegesetz?), which required that following a public tender, the contract awarded should contain a declaration regarding compliance with the collective agreements and, more specifically, with that regarding payment to employees employed on the building site of at least the minimum wage in force at the place where those services were to be performed pursuant to the ?Buildings and public works? collective agreement.

The national court essentially asked whether Art. 49 EC precluded an authority of a Member State from adopting a legislative measure requiring the contracting authority to designate as contractors for public works contracts only contractors which, when submitting their tenders, agreed in writing to pay their employees, in return for performance of the services concerned, at least the wage provided for in the collective agreement in force at the place where those services were performed (the so-called ?Buildings and public works? collective agreement).

The Court first of all held that it followed from C-60/03 Wolff & Müller and Case C-275/06 Promusicae that compliance with Directive 96/71 should also be examined. The fact that the objective of the Landesvergabegesetz, was not to govern the posting of workers did not have the effect of precluding a situation such as that in the main proceedings from coming within the scope of Directive 96/71.

Reiterating much of its important Laval judgment of last year, the Court held that the level of protection which must be guaranteed to workers posted to the territory of the host Member State was limited, in principle, to that provided for in Art. 3(1)(1) (a) to (g), of Directive 96/71, unless, pursuant to the law or collective agreements in the Member State of origin, those workers already enjoyed more favourable terms and conditions of employment as regards the matters referred to in that provision.

A Member State was therefore not entitled to impose, pursuant to Directive 96/71, on undertakings established in other Member States, by a measure such as that at issue in the main proceedings, a rate of pay such as that provided for by the ?Buildings and public works? collective agreement.

That interpretation of Directive 96/71 was confirmed by reading it in the light of Art. 49 EC, since that directive sought in particular to bring about the freedom to provide services, which was one of the fundamental freedoms guaranteed by the Treaty.

This infringement could, according to the Court, not be justified by the objective of ensuring the protection of workers or the by the objective of ensuring protection for independence in the organisation of working life by trade unions.

Text of judgment

Full post as published by ECJBlog.com on May 22, 2008 (boomark / email).