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

9On 2June 2016, Thelen, a real estate company, and MN, an engineer, concluded a service contract pursuant to which MN undertook to perform certain services covered by the HOAI with a view to the completion of a scheduled construction project in Berlin (Germany) in return for payment of a flat-rate fee, the amount of which was EUR55025.

10After terminating that contract by letter of 2June 2017, MN invoiced Thelen for the services performed by way of a final fee invoice drawn up in July 2017 on the basis of the minimum rates referred to in Paragraph7 of the HOAI. To that end, taking into account the amount of the payments already made by Thelen, he brought a claim before the Landgericht Essen (Regional Court, Essen, Germany) for payment of the remaining amount due– EUR102934.59– together with interest and procedural costs.

11By judgment of 28December 2017, that court ordered Thelen to pay the sum of EUR100108.34, together with interest.

12Thelen brought an appeal against that judgment before the Oberlandesgericht Hamm (Higher Regional Court, Hamm, Germany), which, by a judgment of 23July 2019, partly varied that judgment, ordering Thelen to pay the sum of EUR96768.03, together with interest.

13Thelen brought an appeal on a point of law (Revision) against that judgment before the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court in the present case, requesting that MN’s claim be dismissed in its entirety.

14The referring court recalls that the Court held in the judgment of 4July 2019, Commission v Germany (C‑377/17, EU:C:2019:562), and confirmed in the order of 6February 2020, hapeg dresden (C‑137/18, not published, EU:C:2020:84), that the HOAI is incompatible with Article15(1), (2)(g) and (3) of Directive 2006/123 without, however, giving a ruling on the compatibility of the HOAI with Article49 TFEU.

15According to the referring court, the outcome of the appeal on a point of law depends on whether Article15(1), (2)(g) and (3) of Directive 2006/123 has direct effect in a dispute which is exclusively between private individuals, so that Paragraph7 of the HOAI should be disapplied for the purpose of deciding that dispute.

16The referring court emphasises, first, that it follows from Article4(3) TEU and the third paragraph of Article288 TFEU that the Member States are required to achieve the result sought by a directive and, second, that that obligation is incumbent on all the authorities of the Member States, including the judicial authorities, with that obligation meaning, inter alia, that the judicial authorities are required, so far as possible, to interpret their domestic law in conformity with EU law. However, that court specifies that the principle that national law must be interpreted in conformity with EU law cannot serve as a basis for a contra legem interpretation of national law.

17In that regard, the referring court notes that an interpretation of the HOAI in conformity with Directive 2006/123 is not possible in the present case. In its view, Paragraph7 of the HOAI cannot be interpreted as not applying to a fee agreement setting fees in an amount lower than the minimum rates laid down by the HOAI. It is apparent from the HOAI that such an agreement is invalid, except in a few exceptional cases which do not correspond to the situation at issue in the main proceedings. Thus, the referring court considers that an interpretation of the HOAI according to which it would be permissible to derogate from the minimum rates laid down by that piece of legislation would be a contra legem interpretation of national law.

18That court specifies that the drafters of the most recent version of the HOAI were aware of the potential incompatibility of the scales laid down therein with Directive 2006/123, but that they considered– wrongly– that they could rectify this by restricting, in Paragraph1 of the HOAI, the scope of that piece of legislation to purely domestic situations.

19The referring court therefore considers that the outcome of the appeal on a point of law depends, in essence, on the question whether Article15(1), (2)(g) and (3) of Directive 2006/123 has direct effect in a dispute which is exclusively between private individuals, inasmuch as, if the Court were to answer that question in the affirmative, Paragraph7 of the HOAI would have to be disapplied and the appeal on a point of law would have to be upheld. The referring court observes that that question was expressly left open in the order of 6February 2020, hapeg dresden (C‑137/18, not published, EU:C:2020:84), so that a reference for a preliminary ruling is necessary.

20The referring court indicates that, although it has already been held by the Court that Article15 of Directive 2006/123 has direct effect and applies even in purely domestic situations, there are nonetheless still doubts as to whether Article15 of Directive 2006/123 has direct effect in a dispute which is exclusively between private individuals. In that regard, the referring court cites the case-law of the Court according to which the provisions of a directive cannot be relied on between private individuals, even where Member States, such as, in the present case, the Federal Republic of Germany, have failed to transpose that directive or have done so incorrectly. However, in the case in the main proceedings, the two parties to the dispute are precisely private individuals.

21The referring court considers that it is apparent from the case-law of the Court that a directive cannot give rise to obligations on the part of private individuals, so that it cannot, in principle, be relied on in a dispute which is exclusively between private individuals for the purpose of disapplying legislation of a Member State which is contrary to that directive. According to the referring court, it can make no difference whether a directive is capable of imposing direct obligations on private individuals or directly depriving them of subjective rights conferred on them by national law, such as, in the present case, the act of depriving an engineer or an architect of the minimum rates laid down by national law. In addition, the referring court considers that the case in the main proceedings is not one of the exceptional cases in which the Court has acknowledged that directives have direct effect in disputes which are exclusively between private individuals.

22Moreover, the referring court considers that, even if the HOAI concerns only purely domestic situations, the question whether that piece of legislation infringes Article49 TFEU, which has not been decided by the Court, may prove to be relevant for resolving the dispute in the main proceedings. In that regard, that court recalls that, under the principle of the primacy of EU law, the directly applicable provisions of the Treaties and the acts of the institutions have the effect of rendering any contrary provision of national law automatically inapplicable, even in a dispute which is exclusively between private individuals.

23In 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 Article4(3) TEU, the third paragraph of Article288 TFEU and Article260(1) TFEU, that, in the context of ongoing court proceedings between private persons, Article15(1), (2)(g) and (3) of [Directive 2006/123] has direct effect in such a way that the national provisions contrary to that directive that are contained in Paragraph7 of [the HOAI], pursuant to which the minimum rates for planning and supervision services provided by architects and engineers laid down in [the scale set out in that paragraph] are mandatory– save in certain exceptional cases– and any [agreement concluded with architects or engineers setting fees lower than those minimum rates] is invalid, are no longer to be applied?

(2)If Question1 is to be answered in the negative:

(a)Does the Federal Republic of Germany’s scheme of mandatory minimum rates for planning and supervision services provided by architects and engineers in Paragraph7 of the HOAI constitute an infringement of the freedom of establishment under Article49 TFEU or of other general principles of EU law?

(b)If Question2(a) is to be answered in the affirmative: Does it follow from such an infringement that the national rules on mandatory minimum rates (in [the present] case: Paragraph7 of the HOAI) are no longer to be applied in ongoing court proceedings between private persons?’