The issue of minimum wage laws has been recently the subject of a lively debate between some Member States and the European Commission (EC). As a consequence, in May 2015, the EC launched an infringement procedure against Germany, concerning the application of the minimum wage law to the transport sector. In the view of the EC, the German regulation restricts the freedom to provide services and the free movement of goods.
There is also an interaction between national minimum wage and public procurement rules.
A year ago, the Court of Justice (Court) held in Bundesdruckerei case that the imposition of a national 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 restricts the freedom to provide services. The Court had no doubt about the incompatibility of the minimum wage requirement, even if such requirement could be deemed a "special conditions relating to the performance of a contract" under a public procurement directive.
However, in the recent RegioPost case, Advocate General Mengozzi did not refer to the rules on free movement and proposed that the Court hold in a judgment that a public procurement directive does not preclude a national provision which requires from a contracting authority to award contracts only to undertakings which undertake (and whose subcontractors undertake) to pay their employees who perform the contract a minimum wage fixed by the State. The case has not yet been resolved by the Court.
The paper contributes to this debate and considers, more specifically, whether there is room for minimum wage requirements in public procurement law.
