(Reference for a preliminary ruling– Freedom to provide services– Article49 TFEU– Directive 2006/123

3Recital6 of Directive 2006/123 states:

‘[Barriers to the freedom of establishment for providers in Member States and barriers to the free movement of services as between Member States] cannot be removed solely by relying on direct application of [Articles49 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 [EU] 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 [of the European Union] have recognised, [an EU] legislative instrument makes it possible to achieve a genuine internal market for services.’

4Article2(1) of that directive states:

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

5Article15 of that directive provides:

‘1.Member States shall examine whether, under their legal system, any of the requirements listed in paragraph2 are imposed and shall ensure that any such requirements are compatible with the conditions laid down in paragraph3. 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:

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

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3.Member States shall verify that the requirements referred to in paragraph2 satisfy the following conditions:

(a)non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality 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.

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German law

6Architects’ and engineers’ rates are governed by the Verordnung über die Honorare für Architekten- und Ingenieurleistungen (Honorarordnung für Architekten und Ingenieure– HOAI) (Decree on fees for services provided by architects and engineers (Official scale of fees for services provided by architects and engineers– HOAI)) of 10July 2013 (BGBl.2013I, p.2276) (‘the HOAI’).

7Paragraph1 of the HOAI is worded as follows:

‘This decree 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 decree and are provided from Germany.’

8Paragraph7(1), (3) and (5) of that piece of legislation provides:

‘1.Fees shall be based on the written agreement adopted by the contracting parties when the agency contract was awarded and shall fall within the minimum and maximum rates set by this decree.

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3.The minimum rates set in this decree may be reduced in exceptional cases, subject to written agreement.

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5.In the absence of a written agreement to the contrary executed at the time when the agency contract was awarded, it shall be irrefutably presumed that minimum rates have been agreed in accordance with the provisions of subparagraph1.

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