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

24By its first question, the referring court asks, in essence, whether EU law is to be interpreted as meaning that a national court, when hearing a dispute which is exclusively between private individuals, is required to disapply a piece of national legislation which, in breach of Article15(1), (2)(g) and (3) of Directive 2006/123, sets minimum rates for fees for services provided by architects and engineers and which renders invalid agreements derogating from that legislation.

25In order to answer the first question, it should be borne in mind, in the first place, that the principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States and requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (judgment of 24June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs53 and 54 and the case-law cited).

26That principle requires, inter alia, national courts, in order to ensure the effectiveness of all provisions of EU law, to interpret, to the greatest extent possible, their national law in conformity with EU law and to afford individuals the possibility of obtaining redress where their rights have been impaired by a breach of EU law attributable to a Member State (judgment of 24June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph57).

27More specifically, the Court has repeatedly held that a national court, when hearing a dispute which is exclusively between private individuals, is required, when applying the provisions of domestic law adopted for the purpose of transposing obligations laid down by a directive, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by that directive (judgments of 15January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph38 and the case-law cited, and of 4June 2015, Faber, C‑497/13, EU:C:2015:357, paragraph33).

28However, the principle that national law must be interpreted in conformity with EU law has certain limits. Thus, the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for a contra legem interpretation of national law (see, to that effect, judgments of 15January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph39 and the case-law cited, and of 13December 2018, Hein, C‑385/17, EU:C:2018:1018, paragraph51).

29In the present case, as has been noted in paragraph17 above, the referring court considers that an interpretation of the national legislation at issue in the main proceedings resulting from Paragraph7 of the HOAI in accordance with the requirements of Article15(1), (2)(g) and (3) of Directive 2006/123 would be contra legem.

30It is necessary, in the second place, to note that, where the national court which is called upon within the exercise of its jurisdiction to apply provisions of EU law is unable to interpret national legislation in accordance with the requirements of EU law, the principle of the primacy of EU law requires that national court to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for that court to request or await the prior setting aside of such provision by legislative or other constitutional means (see, to that effect, judgment of 24June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph58 and the case-law cited).

31That said, account should also be taken of the other essential characteristics of EU law and, in particular, of the nature and legal effects of directives (see, to that effect, judgment of 24June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph59).

32Thus, a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against that individual before a national court. In accordance with the third paragraph of Article288 TFEU, the binding nature of a directive, which constitutes the basis for the possibility of relying on it, exists only in relation to ‘each Member State to which it is addressed’; the European Union has the power to enact, in a general and abstract manner, obligations for individuals with immediate effect only where it is empowered to adopt regulations. Therefore, even a clear, precise and unconditional provision of a directive does not allow a national court to disapply a provision of its national law which conflicts with it if, were that court to do so, an additional obligation would be imposed on an individual (judgment of 24June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraphs65 to 67 and the case-law cited).

33Accordingly, a national court is not required, solely on the basis of EU law, to disapply a provision of its national law which is contrary to a provision of EU law if the latter provision does not have direct effect (judgment of 24June 2019, Popławski, C‑573/17, EU:C:2019:530, paragraph68), without prejudice, however, to the possibility, for that court, or for any competent national administrative authority, to disapply, on the basis of domestic law, any provision of national law which is contrary to a provision of EU law that does not have such effect.

34In the present case, it is true that the Court has already held that paragraph1 of Article15 of Directive 2006/123 is capable of having direct effect in so far as the second sentence of that paragraph imposes on the Member States an unconditional and sufficiently precise obligation to adapt their laws, regulations or administrative provisions so as to make them compatible with the conditions laid down in paragraph3 of that article (see, to that effect, judgment of 30January 2018, X and Visser, C‑360/15 and C‑31/16, EU:C:2018:44, paragraph130).

35However, that provision is being relied on, in the present case, as such in a dispute between private individuals for the purpose of disapplying a piece of national legislation which is contrary to that provision.

36If Article15(1), (2)(g) and (3) of Directive 2006/123 were to be applied in the dispute in the main proceedings, MN would, under that provision, be deprived of his right, based on Paragraph7 of the HOAI, to claim the rates referred to therein and would, consequently, be obliged to accept the amount set in the contract at issue in the main proceedings. However, the case-law recalled in paragraphs32 and 33 above excludes that provision from being recognised as having such effect solely on the basis of EU law.

37The referring court is therefore not required, solely on the basis of EU law, to disapply Paragraph7 of the HOAI, even if that provision is contrary to Article15(1), (2)(g) and (3) of Directive 2006/123.

38Those findings are not affected by the judgment of 4July 2019, Commission v Germany (C‑377/17, EU:C:2019:562), whereby the Court held that, by maintaining the fixed tariffs for the planning services of architects and engineers laid down in Paragraph7 of the HOAI, the Federal Republic of Germany had failed to fulfil its obligations under Article15(1), (2)(g) and (3) of Directive 2006/123.

39It is true that, under Article260(1) TFEU, if the Court finds that a Member State has failed to fulfil an obligation under the Treaties, that Member State is required to take the necessary measures to comply with the judgment of the Court. In addition, it follows from settled case-law that the competent national courts and administrative authorities are required to take all appropriate measures to enable EU law to be fully applied and are thus required to disapply, if the circumstances so require, a provision of national law which is contrary to EU law (see, to that effect, judgments of 13July 1972, Commission v Italy, 48/71, EU:C:1972:65, paragraph7, and of 16December 2010, Seydaland Vereinigte Agrarbetriebe, C‑239/09, EU:C:2010:778, paragraphs52 and 53 and the case-law cited).

40However, the Court has previously held that the purpose of judgments delivered under Articles258 to 260 TFEU is, first and foremost, to lay down the duties of Member States when they fail to fulfil their obligations, and not to confer rights on individuals, it being understood that those rights derive not from those judgments but from the very provisions of EU law (see, to that effect, judgment of 14December 1982, Waterkeyn and Others, 314/81 to 316/81 and 83/82, EU:C:1982:430, paragraphs15 and 16). It follows that the competent national courts and administrative authorities are not required, solely on the basis of such judgments, to disapply in a dispute between private individuals a piece of national legislation which is contrary to a provision of a directive.

41That having been noted, it should be borne in mind, in the third place, that a party which has been harmed as a result of national law not being in conformity with EU law could rely on the case-law derived from the judgment of 19November 1991, Francovich and Others (C‑6/90 and C‑9/90, EU:C:1991:428), in order to obtain, if appropriate, compensation for the loss or damage sustained (see, to that effect, judgment of 15January 2014, Association de médiation sociale, C‑176/12, EU:C:2014:2, paragraph50 and the case-law cited).

42In that regard, it should be noted that, according to settled case-law, the principle of State liability for loss and damage caused to individuals as a result of breaches of EU law for which the State can be held responsible is inherent in the system of the treaties on which the European Union is based (judgment of 4October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph92 and the case-law cited).

43Thus, it is for each Member State to ensure that individuals obtain reparation for loss and damage caused to them by non-compliance with EU law, whichever public authority is responsible for the breach and whichever public authority is in principle, under the law of the Member State concerned, responsible for making reparation (judgment of 4October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph93 and the case-law cited).

44In addition, the Court has repeatedly held, concerning the conditions for incurring the non-contractual liability of the State to make reparation for loss and damage caused to individuals as a result of breaches of EU law for which it is responsible, that individuals who have been harmed have a right to reparation if three conditions are met: the rule of EU law infringed must be intended to confer rights on them; the breach of that rule must be sufficiently serious; and there must be a direct causal link between that breach and the loss or damage sustained by the individuals (judgment of 4October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph94 and the case-law cited).

45It also follows from settled case-law that it is, in principle, for the national courts to apply the criteria for establishing the liability of Member States for damage caused to individuals by breaches of EU law, in accordance with the guidelines laid down by the Court for the application of those criteria (judgment of 4October 2018, Kantarev, C‑571/16, EU:C:2018:807, paragraph95 and the case-law cited).

46In the present case, it should be borne in mind that the Court has previously held that, by maintaining the fixed tariffs for the planning services of architects and engineers laid down by Paragraph7 of the HOAI, the Federal Republic of Germany failed to fulfil its obligations under Article15(1), (2)(g) and (3) of Directive 2006/123 (see, to that effect, judgment of 4July 2019, Commission v Germany, C‑377/17, EU:C:2019:562), and that that provision of EU law precludes such national legislation, inasmuch as the latter prohibits agreements, in contracts concluded with architects or engineers, on rates lower than the minimum rates determined according to those tariffs (see, to that effect, order of 6February 2020, hapeg dresden, C‑137/18, not published, EU:C:2020:84, paragraph21).

47It follows from the settled case-law of the Court that a breach of EU law will clearly be sufficiently serious if it has persisted despite a judgment finding the breach in question to be established, or despite a preliminary ruling or settled case-law of the Court on the matter from which it is clear that the conduct in question constituted a breach (judgments of 5March 1996, Brasserie du pêcheur and Factortame, C‑46/93 and C‑48/93, EU:C:1996:79, paragraph57, and of 30May 2017, Safa Nicu Sepahan v Council, C‑45/15P, EU:C:2017:402, paragraph31).

48Having regard to all the foregoing considerations, the answer to the first question is that EU law must be interpreted as meaning that a national court, when hearing a dispute which is exclusively between private individuals, is not required, solely on the basis of EU law, to disapply a piece of national legislation which, in breach of Article15(1), (2)(g) and (3) of Directive 2006/123, sets minimum rates for fees for services provided by architects and engineers and which renders invalid agreements derogating from that legislation, without prejudice, however, to, first, the possibility for that court to disapply that legislation on the basis of domestic law in the context of such a dispute, and, second, the right of a party which has been harmed as a result of national law not being in conformity with EU law to claim compensation for the ensuing loss or damage sustained by that party.

The second question

49By its second question, the referring court asks, in essence, whether Article49 TFEU is to be interpreted as precluding national legislation which sets minimum rates for services provided by architects and engineers and which renders invalid agreements which derogate from that legislation.

50In that regard, it should be borne in mind that the provisions of the FEU Treaty on the freedom of establishment, the freedom to provide services and the free movement of capital do not, in principle, apply to a situation which is confined in all respects within a single Member State (judgment of 15November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph47 and the case-law cited).

51As can be seen from the order for reference, the dispute in the main proceedings is characterised by factors that are all confined within the Federal Republic of Germany. There is nothing in the case file before the Court to indicate that one of the parties to the main proceedings is established outside the territory of the Federal Republic of Germany or that the services at issue in the main proceedings were performed outside that territory.

52In that regard, it should be noted that the Court, on a question being referred to it by a national court in connection with a situation which is confined in all respects within a single Member State, cannot, where the referring court gives no indication to that effect, consider that a request for a preliminary ruling concerning the interpretation of the provisions of the FEU Treaty relating to the fundamental freedoms is necessary for the purpose of resolving the dispute pending before that court. The specific factors that allow a link to be established between the subject matter or circumstances of a dispute which is confined in all respects within the Member State concerned, on the one hand, and Article49, 56 or 63 TFEU, on the other, must be apparent from the order for reference (see, to that effect, judgment of 15November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph54).

53Consequently, in a situation such as that at issue in the main proceedings, it is for the referring court to indicate to the Court, in accordance with the requirements of Article94 of the Rules of Procedure of the Court of Justice, in what way the dispute pending before it, despite its purely domestic character, has a connecting factor with the provisions of EU law relating to the fundamental freedoms that makes the requested preliminary ruling concerning the interpretation of those provisions necessary for the purpose of resolving that dispute (see, to that effect, judgment of 15November 2016, Ullens de Schooten, C‑268/15, EU:C:2016:874, paragraph55).

54As the order for reference contains no indication to that effect, the present question cannot be regarded as admissible (see, to that effect, judgments of 20September 2018, Fremoluc, C‑343/17, EU:C:2018:754, paragraph33; of 14November 2018, Memoria and Dall’Antonia, C‑342/17, EU:C:2018:906, paragraph21; and of 24October 2019, Belgische Staat, C‑469/18 and C‑470/18, EU:C:2019:895, paragraph26).

55Having regard to all the foregoing considerations, it must be held that the second question is inadmissible.