On 5 March 2026, the Court of Justice issued a judgment on a Spanish case concerning the awarding of a municipal public procurement contract for home help services.
One candidate disputed two social clauses in the invitation to tender – one linked to the rates of pay for employees performing this service and the other to the tenderer’s undertaking to negotiate a collective agreement. The judgment is being closely scrutinised as it comes at a time when the European Commission is due to draw up reforms of the rules governing public procurement contracts: the trade unions are demanding that invitations to tender should be allowed to include a clause requiring tenderers to apply a collective agreement.
In the case in point, the municipality of Ortuella had firstly required candidates to apply rates of pay higher than the sectoral collective agreement in force, and secondly, to commit to opening a collective bargaining negotiation within one month after securing the contract, covering the pay and working conditions of employees assigned to the home help service.
The municipality’s intention in inserting this clause is to ensure that the services will be performed by “qualified, trained and supervised staff”. It therefore believes that these staff should receive higher rates of pay than those provided for in the collective agreement.
The Court of Justice upholds such a clause, arguing that “in a contract of such a nature, it is not unreasonable to consider that an award criterion which takes into consideration a more favourable remuneration [...] than that provided for by the sectoral collective agreement in force may contribute to that objective by improving the quality [...] since more favourable remuneration would have the effect of retaining the staff performing the contract and allowing the recruitment of more qualified staff.” Article 67, paragraph 1 of directive 2014/24, stipulates that contracting authorities shall base the award of public contracts primarily on the most economically advantageous tender.
Is this article compatible with a clause that automatically increases the cost for the municipality? Yes, says the Court of Justice: the “increase [...] in the total payroll that the tenderer proposes to apply to persons performing the contract, allows the contracting authority to identify the most economically advantageous tender, within the meaning of that provision”.
The Court also accepts the obligation to open a negotiation with the employees assigned to this contract. Such a requirement seeks to “facilitate dialogue between the social partners and, therefore, encourages the exercise of that right by requiring merely that the successful tenderer endeavour to conclude a collective agreement with the representatives of the staff assigned to perform the contract, without encroaching on the latter’s right to participate in the determination of the elements of the salary increase and working conditions.”
This judgment has been welcomed by the European Trade Union Confederation, which calls on the Commission “to use its revision of the public procurement directives to consolidate this ruling, making sure that companies whose workers are covered by collective agreement are given an advantage in the awarding of public contracts.” (see press release).
(Published in IR Notes 270 - 25 March 2026)
