Information;Judgment — ECLI:EU:C:2022:843
Date: 2022-10-27
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Right of establishment;Provisions governing the Institutions;Internal market - Principles;Principles, objectives and tasks of the Treaties;Freedom to provide services
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Germany

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
31 August 2021 
Referring court: 
Landgericht Mainz (Germany) 
Date of the decision to refer: 
9 August 2021 
Applicant: 
ID 
Defendant: 
Stadt Mainz 
  
Subject matter of the main proceedings 
Architect’s contract – Minimum rates for architects’ fees under the 
Honorarordnung für Architekten und Ingenieure (Decree on fees for services 
provided by architects and engineers (‘the HOAI’)) – Directive 2006/123/EC of 
the European Parliament and of the Council of 12 December 2006 on services in 
the internal market (the Services Directive) – Conclusion of the architect’s 
contract prior to the adoption of the Services Directive – Freedom of 
establishment  
Subject matter and legal basis of the request 
Interpretation of Article 15(1), (2)(g) and (3) of Directive 2006/123 and of 
Article 49 TFEU, in accordance with Article 267 TFEU 
EN 
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Questions referred for a preliminary ruling 
(a) 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 persons, Article 15(1), (2)(g) and (3) 
of Directive 2006/123/EC of the European Parliament and of the Council of 
12 December 2006 on services in the internal market (‘the Services Directive’) 
has direct effect in such a way that the national provisions contrary to that 
directive that are contained in Paragraph 4 of the German Verordnung über die 
Honorare für Architekten- und Ingenieurleistungen (Decree on fees for services 
provided by architects and engineers) of 1996, as amended in 2002 (‘the 2002 
HOAI’), pursuant to which the minimum rates for planning and supervision 
services provided by architects and engineers laid down in that official scale of 
fees are mandatory – save in certain exceptional cases – and any fee agreement in 
contracts with architects or engineers which falls short of the minimum rates is 
invalid, are no longer to be applied, even in the case of claims arising from an 
architect’s contract concluded in 2004, that is to say, prior to the adoption of the 
Services Directive? 
(b) If Question (a) is answered in the negative: 
(aa) Is Article 49 TFEU (ex Article 43 TEC) to be interpreted as meaning that a 
national provision such as Paragraph 4 of the 2002 HOAI, under which the 
minimum rates for planning and supervision services provided by architects and 
engineers laid down in that official scale of fees are mandatory – save in certain 
exceptional cases – and any fee agreement in contracts with architects or 
engineers which falls short of the minimum rates is invalid, is precluded by, or 
constitutes an infringement of, that article? 
(bb) If the previous question is answered in the affirmative: does it follow from 
such an infringement that the national rules on mandatory minimum rates (in this 
case: Paragraph 4 of the 2002 HOAI) are no longer to be applied in ongoing court 
proceedings between private persons? 
Provisions of EU law cited 
FEU Treaty, in particular Article 4(3), Article 49, third paragraph of Article 288 
and Article 260(1); 
Directive 2006/123/EC of the European Parliament and of the Council of 
12 December 2006 on services in the internal market (‘the Services Directive’), in 
particular Article 15(1), (2)(g) and (3) thereof 
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Provisions of national law cited 
Verordnung über die Honorare für Architekten- und Ingenieurleistungen (Decree 
on fees for services provided by architects and engineers) of 1996, as amended in 
2002 (‘the 2002 HOAI’), in particular Paragraph 4 thereof 
Succinct presentation of the facts 
1 By its action brought in August 2010, the applicant, an architecture firm having its 
registered office in Germany, seeks payment from the defendant, the Stadt Mainz 
(City of Mainz, Germany), of outstanding fees for architectural services. 
2 On 19 October 2004, the parties concluded an architect’s contract in which the 
applicant undertook to provide architectural services in accordance with the 
HOAI. Pursuant to Clause 7 of the contract, the applicant’s remuneration was to 
be determined using certain parameters from the 2002 HOAI. The scope of the 
assignment was extended on 18 May 2005 and on 27 July 2005. A further 
supplementary agreement was concluded on 22 December 2006. 
3 In its intermediate invoice of 5 September 2009, the applicant invoiced the 
services which it had provided, not in accordance with the parameters agreed in 
Clause 7 of the contract, but on the basis of the minimum rates provided for in the 
2002 HOAI, thereby arriving at an outstanding fee amount of EUR 761 177.28. 
4 Following further correspondence between the parties concerning the amount of 
the fee, the applicant, by its action, now seeks payment of an outstanding balance 
of EUR 714 891.61. 
5 The applicant relies on Paragraph 4(1) of the 2002 HOAI, which – save in 
exceptional cases that are not germane to the present case – allows a fee 
agreement only within the framework of the minimum and maximum rates set by 
the 2002 HOAI, with the result that any fee agreement which falls short of those 
minimum rates is invalid, and, in accordance with Paragraph 4(4) of the 2002 
HOAI, the relevant minimum rates are then deemed to be agreed. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
6 The decision on the dispute hinges on whether the provisions of Paragraph 4 of 
the 2002 HOAI are applicable or whether they are not to be applied on the ground 
that they conflict with overriding EU law. There is no exceptional case under 
Paragraph 4(2) of the 2002 HOAI. 
7 In the event that Paragraph 4(1) and (4) of the 2002 HOAI is applicable, the 
applicant would be successful with its line of argument, as the agreed 
remuneration would lead to a shortfall in relation to the minimum rates of the 
HOAI and, therefore, remuneration would be owed on the basis of those minimum 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-544/21 
 
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rates. If, on the other hand, the provisions in Paragraph 4 of the 2002 HOAI are 
not applicable on the ground that they conflict with overriding EU law, the 
applicant would have to adhere to the contractual agreements and could only 
demand a lower amount of remuneration. 
8 An interpretation of Paragraph 4 of the 2002 HOAI in conformity with the 
directive and/or EU law to the effect that the provisions in that paragraph do not 
apply is not possible under German law. The Bundesgerichtshof (Federal Court of 
Justice; ‘the BGH’) has already referred questions to the Court of Justice of the 
European Union, in a request for a preliminary ruling of 14 May 2020, which is 
based on similar facts. The referring court makes extensive reference to the 
statements of the BGH in that case. 
9 According to those statements, an interpretation in conformity with the directive 
cannot serve as the basis for an interpretation of national law that is contra legem 
(see judgments of the Court of Justice of 8 May 2019, Praxair MRC, C-486/18, 
EU:C:2019:379, paragraph 38, and of 7 August 2018, Smith, C-122/17, 
EU:C:2018:631, paragraph 40). The interpretation of national law cannot lead to a 
situation in which a provision which is clear in terms of its wording and meaning 
is given a different meaning, or the normative content of the provision is 
fundamentally altered. An interpretation in conformity with the relevant directive 
is therefore possible only if a provision in fact allows for various possible 
interpretations in line with the legislative purpose and objective.  
10 The national legislature has expressed clearly that – subject to certain exceptions – 
a fee agreement for services of architects and engineers which falls short of the 
mandatory minimum rates is invalid and that the amount of the fee in such a case 
is to be determined on the basis of the minimum rates. This follows not only from 
the clear wording of Paragraph 4 of the HOAI, but also from the spirit and 
purpose of that provision, which seeks to guarantee the comprehensiveness and 
quality of services of architects and engineers by way of minimum tariffs and to 
avoid unbridled price competition. 
11 The main objective of the minimum tariff rules in the HOAI is to ensure that the 
services of architects and engineers are of a high standard of quality (judgment of 
the Court of Justice of 4 July 2019, Commission v Germany, C-377/17, 
EU:C:2019:562, paragraph 42). In introducing the 2009 and 2013 HOAI, the 
national legislature’s intention was to transpose the Services Directive correctly 
and to take account of the requirements of EU law. In the context of that revision 
of the HOAI, it deliberately decided to maintain mandatory minimum rates, 
despite the fact that it was aware of the problem of the permissibility of a 
mandatory tariff framework in the light of the Services Directive. The problem 
was to be taken into account by limiting the scope of the HOAI to domestic 
situations in Paragraph 1 thereof. 
12 In its judgment of 4 July 2019, Commission v Germany (C-377/17, 
EU:C:2019:562), the Court of Justice held, in infringement proceedings 
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concerning Paragraph 7 of the 2013 HOAI, which corresponds to Paragraph 4 of 
the 2002 HOAI, that, by maintaining fixed tariffs for the planning services of 
architects, the Federal Republic of Germany had failed to fulfil its obligations 
under Article 15(1), (2)(g) and (3) of Directive 2006/123. 
13 Following that judgment, however, it is unclear whether Article 15(1), (2)(g) and 
(3) of the Services Directive also has direct effect in the context of ongoing court 
proceedings between private persons in such a way that a national rule on 
mandatory minimum rates such as that laid down in Paragraph 4 of the 2002 
HOAI is no longer to be applied. Opinions differ on this point in the national case-
law and legal literature. 
14 The Court of Justice expressly left that question open in its order of 6 February 
2020, hapeg dresden (C-137/18, not published, EU:C:2020:84). The correct 
application of EU law is also not so clear from the outset (‘acte clair’), nor 
clarified by case-law to such an extent (‘acte éclairé’), as to leave no scope for 
reasonable doubt (judgment of the Court of Justice of 4 October 2018, 
Commission v France, C-416/17, EU:C:2018:811; paragraph 110). 
15 According to one view, the provisions on minimum rates in the HOAI are no 
longer to be applied by the German courts in ongoing court proceedings between 
private persons. That view is predominantly justified on the ground that 
application of the rules of the HOAI which have been found to be contrary to EU 
law by the Court in a final and binding manner would run counter to the primacy 
of application of EU law. The conditions for the direct effect of the directive are 
met. The non-applicability of the minimum rates does not deprive the affected 
party in the court proceedings of a subjective right, since the negative burden does 
not result directly from the directive as a basis for a claim, but arises from the 
remaining national provisions. In that respect, account should also be taken of the 
fact that the Services Directive serves to remove obstacles to the freedom of 
establishment of service providers. 
16 According to another view, the minimum rates of the HOAI continue to apply in 
ongoing court proceedings between private persons until the national legislature 
and regulatory body abolishes the mandatory tariff framework. Even if it were 
assumed, in principle, that the Services Directive does have direct effect, it 
follows from the third paragraph of Article 288 TFEU that that directive can be 
binding only on State bodies as regards their legal relationships and cannot 
produce a direct effect as between private persons. A ‘horizontal direct effect’ is 
ruled out, as this would give rise to rights and obligations for individuals and, if 
the directive were directly applicable, it would take away from one private person 
what it would give to another. 
17 In the request for a preliminary ruling underlying Case C-261/20, the BGH was 
inclined to share the latter view and not to proceed on the assumption that 
Article 15(1), (2)(g) and (3) of the Services Directive has direct effect in such a 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-544/21 
 
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way that the national rules in the HOAI which run counter to that directive can no 
longer be applied in ongoing court proceedings between private persons. 
18 However, the Court of Justice has ruled that Article 15 of the Services Directive is 
also applicable to purely internal situations (judgments of 4 July 2019, 
Commission v Germany, C-377/17, EU:C:2019:562, paragraphs 57 and 58, and of 
30 January 2018, X and Visser, C-360/15 and C-31/16, EU:C:2018:44, 
paragraph 98 et seq.). 
19 Moreover, it is recognised in the case-law of the Court of Justice that a directive 
may in certain cases be relied on directly by individuals against the Member State 
where the directive has not been implemented in domestic law by the end of the 
period prescribed or where it has not been implemented correctly and the 
provision of the directive appears, so far as its subject matter is concerned, to be 
unconditional and sufficiently precise (see judgments of 26 February 1986, 
Marshall, 152/84, EU:C:1986:84, paragraph 46 et seq.; of 19 January 1982, 
Becker, 8/81, EU:C:1982:7, paragraph 21 et seq.; and of 4 December 1974, van 
Duyn, 41/74, EU:C:1974:133, paragraph 12). 
20 Those requirements are satisfied as regards Article 15(1), (2)(g) and (3) of the 
Services Directive. This is because, first, according to the judgment of the Court 
of Justice of 4 July 2019, Commission v Germany (C-377/17, EU:C:2019:562), 
the Federal Republic of Germany did not correctly transpose the requirements of 
that provision concerning minimum and maximum tariffs by the end of the period 
prescribed in that regard (see also order of 6 February 2020, hapeg dresden, 
C-137/18, not published, EU:C:2020:84). Second, the provision also appears, so 
far as its subject matter is concerned, to be unconditional and sufficiently precise – 
as the Court of Justice has already held. Accordingly, in that regard, Article 15 of 
the Services Directive has direct effect, since, in the second sentence of 
Article 15(1), it 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 Article 15(3) 
(judgment of 30 January 2018, X and Visser, C-360/15 and C-31/16, 
EU:C:2018:44, paragraph 130). 
21 In the request for a preliminary ruling underlying Case C-261/20, the BGH took 
the view that those principles do not mean that Article 15(1), (2)(g) and (3) of the 
Services Directive results in the disapplication of the national rules in the HOAI 
on the mandatory nature of the minimum rates, even in ongoing court proceedings 
exclusively between private persons. 
22 According to the settled case-law of the Court of Justice, a directive cannot, in 
principle, of itself impose obligations on an individual and cannot therefore be 
relied upon as such against an individual. If the possibility of relying on a 
provision of a directive that has not been transposed or that has been incorrectly 
transposed were to be extended to the sphere of relations between individuals, that 
would amount to recognising a power on the part of the European Union to enact 
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obligations for individuals with immediate effect, whereas it has competence to do 
so only where it is empowered to adopt regulations (judgments of 22 January 
2019, Cresco Investigation, C-193/17, EU:C:2019:43, paragraph 72; of 7 August 
2018, Smith, C-122/17, EU:C:2018:631, paragraph 42; of 5 October 2004, Pfeiffer 
and Others, C-397/01 to C-403/01, EU:C:2004:584, paragraph 108; and of 
14 July 1994, Faccini Dori, C-91/92, EU:C:1994:292, paragraph 24).  
23 Accordingly, a directive cannot in principle be relied on in a dispute between 
individuals for the purpose of setting aside legislation of a Member State that is 
contrary to that directive (judgments of 22 January 2019, Cresco Investigation, 
C-193/17, EU:C:2019:43, paragraph 73; of 7 August 2018, Smith, C-122/17, 
EU:C:2018:631, paragraph 44; and of 27 February 2014, OSA, C-351/12, 
EU:C:2014:110, paragraph 48). 
24 In the request for a preliminary ruling underlying Case C-261/20, the BGH takes 
the view that, in accordance with that case-law, direct effect on the part of 
Article 15(1), (2)(g) and (3) of the Services Directive is precluded in ongoing 
court proceedings between private persons and, therefore, that provision does not 
have primacy of application in that regard over the national rules in the HOAI on 
the mandatory nature of the minimum rates. According to the BGH, it is irrelevant 
in that respect that Article 15(1), (2)(g) and (3) of the Services Directive does not 
create obligations for individuals. This is because it should make no difference 
whether a directive imposes direct obligations on individuals or whether it could 
directly deprive them of subjective rights that exist under national law. The latter 
would be the case if it is assumed that Article 15(1), (2)(g) and (3) of the Services 
Directive has direct effect in ongoing court proceedings between private persons. 
This is because, in that case, the architect or engineer would be entitled only to the 
lower amount of remuneration agreed with the client and would therefore be 
deprived of the entitlement, existing under national law, to fees corresponding to 
the minimum rates. A private person would therefore be deprived of a subjective 
right that exists under national law. 
25 It is true that, in its previous case-law, the Court of Justice has found, in certain 
exceptional cases – where an interpretation in conformity with the directive is 
impossible – that national provisions which are contrary to EU law are to be 
disapplied in relations between private persons. However, the situation in the 
present case is not comparable to the facts in the judgments of 30 April 1996, CIA 
Security International (C-194/94, EU:C:1996:172, paragraph 54) and of 
26 September 2000, Unilever (C-443/98, EU:C:2000:496, paragraph 49 et seq.). 
The Court of Justice itself referred to this as a ‘particular situation’ (judgment of 
7 August 2018, Smith, C-122/17, EU:C:2018:631, paragraph 52). 
26 In other cases, the Court of Justice has based the disapplication of national 
provisions in a dispute between private persons on the fact that those provisions 
did not comply with general principles of EU law, but not on a direct application 
of the directive that gave concrete expression to those principles (judgments of 
7 August 2018, Smith, C-122/17, EU:C:2018:631, paragraph 46;of 19 April 2016, 
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Dansk Industri, C-441/14, EU:C:2016:278, paragraph 21 et seq.; and of 
19 January 2010, Kücükdeveci, C-555/07, EU:C:2010:21, paragraphs 21 and 50). 
27 However, unlike the dispute underlying Case C-261/20, the present dispute does 
not relate to a contract concluded after the adoption of the Services Directive. It 
might therefore be argued that the Services Directive is not applicable to that 
contract from the outset. 
28 However, the referring court takes the view that it is by no means clear whether it 
is the time of the conclusion of the contract or the time of the last hearing before 
the adjudicating court that is decisive for the purpose of establishing, in ongoing 
court proceedings, the direct effect of the Services Directive or the resulting non-
applicability of Paragraph 4 of the 2002 HOAI in the context of a contract 
concluded between two private persons. The courts are obliged to disapply 
provisions which are inapplicable under EU law. 
29 Question (a) in the present case also covers disputes pending before a national 
court concerning architects’ contracts concluded before the adoption of the 
Services Directive. 
30 In the event that Question (a) is answered in the negative, the decision to be given 
in the dispute will turn on the answer to Question (b). 
31 In relation to that issue also, the referring court makes reference to the statements 
of the BGH in its request for a preliminary ruling of 14 May 2020 (Case 
C-261/20). 
32 According to those statements, if non-application of the national rules on 
mandatory minimum rates in the HOAI does not already result from the direct 
application of Article 15(1), (2)(g) and (3) of the Services Directive, the question 
as to whether the national regulation of mandatory minimum rates for planning 
services of architects and engineers in the HOAI constitutes an infringement of the 
freedom of establishment pursuant to Article 49 TFEU or of other general 
principles of EU law, and whether it further follows from such an infringement 
that the national rules in the HOAI on mandatory minimum rates are no longer to 
be applied in ongoing court proceedings between private persons, becomes 
material to the decision to be given. 
33 The Court of Justice has expressly left open the question as to whether the 
regulation of mandatory minimum rates for planning services provided by 
architects and engineers infringes the freedom of establishment (judgment of 
4 July 2019, C-377/17, Commission v Germany, EU:C:2019:562, paragraph 97). 
That case-law relates to the 2013 HOAI, however. Paragraph 1 of the 2013 HOAI 
expressly defines the scope of application of that decree by providing that it 
governs only the calculation of fees for the basic services of architects and 
engineers established in Germany, provided that those basic services are covered 
by that decree and are provided from Germany. By contrast, the 2002 HOAI, 
unlike the later version of 2013, does not limit its scope of application to purely 
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internal situations and is therefore also applicable to situations which have a cross-
border element. 
34 According to the case-law of the Court of Justice, an infringement of the freedom 
of establishment or of other general principles of EU law may, in principle, result 
in a private person also being able to rely on the failure of national legislation to 
comply with EU law in ongoing court proceedings against another private person. 
In accordance with the principle of the precedence of EU law, provisions of the 
Treaties and directly applicable measures of the institutions have the effect, in 
their relations with the internal law of the Member States, merely by entering into 
force, of rendering automatically inapplicable any conflicting provision of 
national law (judgments of 4 February 2016, Ince, C-336/14, EU:C:2016:72, 
paragraph 52, and of 8 September 2010, Winner Wetten, C-409/06, 
EU:C:2010:503, paragraph 53).  
35 It is therefore conceivable that national legislation may be disapplied in the event 
of an infringement of European primary law – even in cases involving a legal 
dispute between private persons (judgments of the Court of Justice of 7 August 
2018, Smith, C-122/17, EU:C:2018:631, paragraph 46; of 19 January 2010, 
Kücükdeveci, C-555/07, EU:C:2010:21, paragraph 51; and of 11 December 2007, 
International Transport Workers’ Federation and Finnish Seamen’s Union, 
C-438/05, EU:C:2007:772, paragraph 61). However, the extent to which the 
purpose of the freedom of establishment requires, in legal relationships between 
private individuals, that the national rules in the HOAI on the mandatory nature of 
minimum rates are not to be applied to a contract might be of significance. 
36 The considerations of the BGH and the Court of Justice in relation to the 
conclusion of a contract after the adoption of the Services Directive are directly 
transferable to the present case, in which a contract was concluded prior to the 
adoption of the Services Directive, as the question does not concern the 
compatibility of Paragraph 4 of the 2002 HOAI with the Services Directive, but 
rather the possibility of it being incompatible with the freedom of establishment. 
However, at the time of the conclusion of the contract in 2004, the provision of 
Article 49 TFEU which is relevant in that respect already existed as the identically 
worded Article 43 TEC, and the relevant passages of Paragraph 4 of the 2002 
HOAI, which is at issue in the present proceedings, are identical to Paragraph 7 of 
the 2013 HOAI, which is the subject matter of the abovementioned decision of the 
BGH. 
37 The referring court take the view that it is necessary to submit its own request for 
a preliminary ruling. The question referred by the BGH in Case C-261/20 in 
relation to the possible non-applicability of Paragraph 7 of the 2013 HOAI (or 
Paragraph 4 of the 2002 HOAI) on account of the Services Directive relates to a 
situation involving a contract concluded after the adoption of the Services 
Directive. In addition, the question referred by the BGH in that same case in 
relation to a possible infringement of the freedom of establishment is asked only 
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in the event that the Court of Justice should consider that Paragraph 7 of the 2013 
HOAI (or Paragraph 4 of the 2002 HOAI) is applicable. 
38 If, in Case C-261/20, the Court of Justice were to find that Paragraph 7 of the 
2013 HOAI (or Paragraph 4 of the 2002 HOAI) is not to be applied to architects’ 
contracts concluded after the adoption of the Services Directive owing to an 
infringement of that directive, it would therefore not take any position whatsoever 
on the question concerning the freedom of establishment. Consequently, the only 
way to avoid such uncertainty is for the referring court to submit its own request 
for a preliminary ruling with the questions tailored to the specific dispute to be 
resolved in the present case. 
39 The present Chamber accordingly refers the above questions to the Court of 
Justice of the European Union for a preliminary ruling pursuant to point (a) of the 
first paragraph and the second paragraph of Article 267 TFEU and stays the 
proceedings pending the conclusion of the preliminary-ruling procedure.