EU law allows the exclusion of a tenderer who refuses to pay the minimum wage from the procedure for the award of a public services contract.  So ruled the ECJ on 17 November 2015 in Case C-115/14, Regis Post GmbH v Stadt Landau, a case concerned with postal services in the German municipality of Landau.  The public sector procurement Directive, 2004/18, does not prevent legislation that requires tenderers and their subcontractors to undertake, by means of a written declaration enclosed with their tender, to pay staff called upon to perform the services a predetermined minimum wage.  That obligation constitutes a special condition in principle acceptable under Article 26 of the Directive, since it relates to the performance of the contract and concerns social considerations.  That special condition was set out in the contract notice and in the specifications, so that the procedural condition as to transparency was satisfied.  Moreover, the special condition was neither directly, nor indirectly, discriminatory.  The minimum wage in question was part of the level of protection that must be guaranteed by undertakings established in other Member States to workers “posted” for the purposes of performing the public contract.  The Court distinguishes the case in Rüffert (C-346/06).

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