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• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2021:620
• Date: 15 July 2021
• Celex Number: 62020CC0261
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 15 July 2021 (1)

Case C‑261/20

Thelen Technopark Berlin GmbH

v

MN

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

(Reference for a preliminary ruling – Directive 2006/123/EC – Article 15 – Fees of architects and engineers for planning services – Minimum and maximum tariffs – Judgment of the Court establishing a failure of a Member State to fulfil obligations – Contrary to a directive – Whether it may be relied upon in a dispute between individuals – Freedom of establishment – Article 49 TFEU – Charter of Fundamental Rights of the European Union – Article 16 – Freedom of contract)

I. Introduction

1. In a civil action, the applicant claims payment from the defendant for a service rendered and demands an amount exceeding the amount agreed by the parties in the contract. The applicant bases his claim on a provision of national law which provides that for the service in question, the service provider is entitled to a fee at least equal to the minimum rate laid down by national law. However, that provision of national law is contrary to a directive. Does the claim have merit?

2. That was the question faced by the referring court in the present case. Its decision depends on the Court’s answer to the question whether, when assessing the merits of an action brought by an individual against another individual, the national court may disapply a provision of national law on which that action is based and which is contrary to a directive, in this case Directive 2006/123/EC. (2)

II. Legal framework

A. EU law

3. Recitals 5, 6 and 64 of Directive 2006/123 provide as follows:

‘(5) It is … necessary to remove barriers to the freedom of establishment for providers in Member States and barriers to the free movement of services as between Member States and to guarantee recipients and providers the legal certainty necessary for the exercise in practice of those two fundamental freedoms of the Treaty. …

(6) Those barriers cannot be removed solely by relying on direct application of Articles 43 and 49 of the Treaty [now Articles 49 and 56 TFEU], since, on the one hand, addressing them on a case-by-case basis through infringement procedures against the Member States concerned would, especially following enlargement, be extremely complicated for national and Community institutions, and, on the other hand, the lifting of many barriers requires prior coordination of national legal schemes, including the setting up of administrative cooperation. As the European Parliament and the Council have recognised, a Community legislative instrument makes it possible to achieve a genuine internal market for services.

…

(64) In order to establish a genuine internal market for services, it is necessary to abolish any restrictions on the freedom of establishment and the free movement of services which are still enshrined in the laws of certain Member States and which are incompatible with Articles 43 and 49 of the Treaty [now Articles 49 and 56 TFEU] respectively. The restrictions to be prohibited particularly affect the internal market for services and should be systematically dismantled as soon as possible.’

4. Article 2(1) of the directive provides:

‘This Directive shall apply to services supplied by providers established in a Member State.’

5. Article 15 of the directive provides:

‘1. Member States shall examine whether, under their legal system, any of the requirements listed in paragraph 2 are imposed and shall ensure that any such requirements are compatible with the conditions laid down in paragraph 3. Member States shall adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions.

2. Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:

…

(g) fixed minimum and/or maximum tariffs with which the provider must comply;

…

3. Member States shall verify that the requirements referred to in paragraph 2 satisfy the following conditions:

(a) non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality [citizenship] nor, with regard to companies, according to the location of the registered office;

(b) necessity: requirements must be justified by an overriding reason relating to the public interest;

(c) proportionality: requirements must be suitable for securing the attainment of the objective pursued; they must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result.

…

5. In the mutual evaluation report provided for in Article 39(1), Member States shall specify the following:

(a) the requirements that they intend to maintain and the reasons why they consider that those requirements comply with the conditions set out in paragraph 3;

(b) the requirements which have been abolished or made less stringent.

6. From 28 December 2006 Member States shall not introduce any new requirement of a kind listed in paragraph 2, unless that requirement satisfies the conditions laid down in paragraph 3.

…’

B. German law

6. During the period relevant to the dispute in the main proceedings, the fees of architects and engineers were regulated by the Verordnung über die Honorare für Architekten- und Ingenieurleistungen (Decree on fees for services provided by architects and engineers) in its wording of 10 July 2013 (3) (‘the HOAI’).

7. Paragraph 1 of the HOAI is worded as follows:

‘This regulation governs the calculation of fees for the basic services of architects and engineers (acting as agents) established in Germany, provided that those basic services are covered by this regulation and are provided from Germany.’

8. Paragraph 7 of the HOAI states:

‘1. The fee shall be based on the written agreement, adopted by the contracting parties when the mandate was granted and falling within the minimum and maximum amounts set by this regulation.

2. …

3. The minimum rates laid down in this regulation may be reduced in exceptional cases, subject to written agreement.

4. …

5. In the absence of a written agreement to the contrary executed at the time when the mandate is granted, it shall be presumed that minimum rates have been adopted in accordance with the provisions of subparagraph 1.’

9. Paragraph 7 of the HOAI was amended by the Erste Verordnung zur Änderung der Honorarordnung für Architekten und Ingenieure (First regulation amending the rules governing the fees of architects and engineers) of 2 December 2020. (4) The amendment took effect on 1 January 2021. As of that date, Paragraph 7(1) of the HOAI provides:

‘The fee shall be determined by a written agreement between the contracting parties. In the absence of a written agreement on the fee amount, the basic rates for the basic services shall be as determined in accordance with Paragraph 6.’

III. Facts, national proceedings and the questions referred for a preliminary ruling

10. On 2 June 2016, MN (the applicant), who operates an engineering firm, and Thelen Technopark Berlin GmbH (the defendant) entered into an engineering services contract whereby the applicant undertook vis-à-vis the defendant to provide services for a construction project in Berlin. The parties agreed that the applicant would receive a flat-rate fee of EUR 55 025 for the services performed. On the basis of the intermediate invoices issued by the applicant, the defendant paid the applicant a total of EUR 55 395.92 gross.

11. In July 2017, after terminating the engineering services contract by letter dated 2 June 2017, the applicant issued a final invoice for his services based on the minimum rates under the HOAI. Taking into account the transfers that had already been made and the amount retained under the warranty, he subsequently brought an action against the defendant for payment of the balance of the fees due, which amounted to EUR 102 934.59 gross, plus interest and pre-litigation costs.

12. The action was largely successful at first and second instance. By its appeal on a point of law before the Bundesgerichtshof (Federal Court of Justice, Germany), the defendant seeks to have the action dismissed in its entirety.

13. According to the referring court, the ruling on the appeal on a point of law depends on the answer to the question whether the provisions of Article 15(1), (2)(g) and (3) of Directive 2006/123 apply in a dispute between individuals in such a manner that the provision of the HOAI forming the basis of the action must be disapplied. If the answer is in the affirmative, the appeal on a point of law will have merit. The case-law of the Court lies at the root of the doubt.

14. This is because in its judgment of 4 July 2019, Commission v Germany, (5) the Court held that by maintaining the fixed tariffs for planning services provided by architects and engineers laid down in the HOAI, the Federal Republic of Germany had failed to fulfil its obligations under Article 15(1), (2)(g) and (3) of Directive 2006/123.

15. Subsequently, by its order of 6 February 2020, hapeg dresden, (6) the Court held that Article 15(1), (2)(g) and (3) of Directive 2006/123 must be interpreted as precluding national legislation which prohibits the agreement in contracts with architects or engineers of fees which are lower than the minimum rates laid down in the HOAI.

16. In those circumstances, the Bundesgerichtshof (Federal Court of Justice) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does it follow from EU law, in particular from Article 4(3) TEU, the third paragraph of Article 288 TFEU and Article 260(1) TFEU, that, in the context of ongoing court proceedings between private...