On September 18, 2014, the European Court of Justice issued a preliminary judgment in case C-549/13, which concerns a subcontractor whose registered office is in a different EU member state and whose employees exclusively perform their relevant work in the subcontractor’s country of origin. This authority, which was based in Germany, stated in its tender documents that potential subcontractors must provide their employees with the minimum salary binding in the authority’s jurisdiction; this requirement applied even if the subcontractor’s registered office was in another member state and its services fulfilling the tender would be provided in that other EU member state. 

Responding to this issue, the Court of Justice found that if a tenderer wishes to fulfil a public contract with the exclusive help of the employees of a subcontractor whose registered office is in another member state, then Art. 56 of the Treaty on the Functioning of the European Union (“TFEU”) precludes the application of any law of the contracting authority’s member state which requires these employees to receive the minimum salary under its provisions. 

In its reasoning, the court considered this minimum salary requirement in light of the domestic law of potentialsubcontractors which have their registered office in another EU member state where the statutory minimum salary is lower. In the court’s opinion, this requirement would create an additional economic burden making service provisions impossible or less desirable for the state. In considering the scope of this conclusion, the court relied on its earlier judgment C-346/06 in the Rüffert case. 


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