Scoring higher wages: what C‑210/24 allows

Insights · Evaluation & award · Published 10 October 2026. This analysis was generated with the help of an AI system. Its legal references were checked against the official EU texts listed under Sources on 10 October 2026. It describes the law as it stood on that date. Not legal advice.

Short answer. In C‑210/24 (5 March 2026) the Court accepted an award criterion that gave up to 40 points for a commitment to raise the total payroll of the staff performing the contract above the sectoral collective agreement. The contract was for home help, a social service without accommodation. The Court found the criterion was a social aspect linked to the subject-matter, given how labour-intensive the service was and how much its continuity depended on keeping staff. It left the national court to check whether the criterion discriminated in practice, for example against smaller firms. If you meet a criterion like this, price the commitment, read the formula literally, and ask about anything unclear before the deadline.

EU law · The facts

A Basque municipality tendered its home help service, estimated at €166,250 (paragraphs 14–15). The award criterion gave up to 40 points for “higher rates of pay (increases on the total payroll cost)” compared with the sectoral collective agreement. Bidders offering no increase got zero. After the award, the winner had to agree the form of the increase with the workers’ representatives within a month and seek a collective agreement for the service (paragraph 16). A business association challenged the criterion.

The contract was below the €750,000 threshold for social services (Article 4(d)). The Court answered anyway, because Spanish law applies Article 67 of the Directive to such contracts directly and unconditionally (paragraphs 31–34).

EU law · What the Court decided

A social aspect linked to the subject-matter. Article 67(2) allows award criteria that include social aspects, a concept to be “interpreted broadly”, if they are linked to the subject-matter (paragraphs 38, 41). That link is assessed against the features of the service. Here the service was labour-intensive, and the buyer struggled to provide continuous, high-quality care to vulnerable people. Better pay could help keep staff and recruit more qualified people, so the criterion was linked to the subject-matter (paragraphs 46–47). Article 76(2), which lets buyers of social services consider quality, continuity, accessibility and availability, supports that reading (paragraph 48).

Discrimination left for the national court. The referring court worried that the criterion would disadvantage firms, such as SMEs, that couldn’t afford higher wages but could otherwise bid competitively. The Court said it had no information to decide that (paragraph 54). The national court must examine it in the light of what the buyer knew when defining its needs, including any consultations with users, staff or the market (paragraph 55).

Collective bargaining. The criterion doesn’t infringe the right to collective bargaining in Article 28 of the Charter. It requires the winner to negotiate the details with staff representatives and to try to conclude an agreement. It doesn’t force the representatives to accept the offer (paragraphs 74, 76).

Not decided. The question on the Posted Workers Directive and Article 56 TFEU was inadmissible: the dispute was purely internal (paragraphs 58–64). And the effect on pay differences between staff on this contract and others was not addressed, for lack of information (paragraph 75).

Our analysis · Read the formula literally

The judgment reproduces the scoring formula as “Points = P×A/B”, where P is 40, A is “the highest percentage of all the tenders submitted” and B is “the percentage of the tender being assessed” (paragraph 16). Read literally, a bidder offering the highest increase gets 40 points, and a bidder offering half of it gets 80, more than the maximum. The judgment doesn’t say how the buyer applied it, and the Court wasn’t asked about it.

The lesson is general. Before you price against any formula, plug in two or three values and check that it behaves as the text around it says. If it doesn’t, ask a clarification question before the deadline (see clarification questions). The answer goes to every tenderer, and it fixes how the formula will be applied.

Our analysis · Cheap points, real costs

A criterion like this can be the cheapest source of points in the tender. Here is a made-up example using the three bids from how your price becomes points:

• Price is worth 40 points under the proportional formula. Bidder A is at €1,000,000 and the lowest price is €880,000, so A has 35.20 price points.
• A pay-increase criterion is worth 40 points, scored as 40 × (your increase ÷ highest increase). The highest increase offered is 10%.
• Labour is €800,000 of A’s contract cost.

If A offers one more percentage point of increase, it gains 4 points. That costs about €8,000 over the contract (1% of €800,000). Funding it by raising the price €8,000 costs A only 0.28 price points. To gain the same 4 points through price instead, A would have to cut its price to about €897,959, a cut of €102,041.

Two cautions. The scale is relative, so the bidder with the highest increase sets everyone else’s score, and a rival’s big promise can shrink your points. And the promise is real. If your price no longer covers the higher wages, a buyer may ask you to explain it as possibly abnormally low, and the explanation will be checked against the pay you committed to (see abnormally low tenders).

Practice · If your tender has a criterion like this

1. Cost the commitment over the whole contract before you decide how much to offer.
2. Test the formula with your figures and two or three plausible rival offers. Check for literal errors and ask about them.
3. Read the post-award obligations. Here the winner had to negotiate the form of the increase within a month. Make sure you can.
4. Check discrimination concerns early. If you think the criterion excludes firms like yours without good reason, raise it before the deadline. The Court left that assessment to national courts on the facts (paragraphs 54–55).
5. Keep the evidence for your price build-up and your wage assumptions. You may need it under Article 69.

What this case note doesn’t cover

National rules on wage-related criteria, which differ. The Posted Workers Directive, which the Court didn’t rule on here. Whether a similar criterion would be linked to the subject-matter in a less labour-intensive service: that depends on the features of each contract (paragraph 46).