Judgment;Summary — ECLI:EU:C:2025:113
Date: 2025-02-27
Language of the case: Slovenian
Court formation: Third Chamber
Subject matter: Right of establishment;Freedom to provide services;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Summary C-674/23 – 1 
Case C-674/23 
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:  
13 November 2023 
Referring court:  
Ustavno sodišče Republike Slovenije (Slovenia) 
Date of the decision to refer:  
26 October 2023 
Applicants and intervener:  
AEON NEPREMIČNINE, d.o.o. 
AGENCIA d.o.o. 
AGENCIJA KATJA d.o.o. 
and others 
STAN nepremičnine d.o.o. 
Državni svet Republike Slovenije 
Other party to the proceedings:  
Državni zbor Republike Slovenije 
  
Subject matter of the main proceedings 
Application from private parties and request from the Državni svet (Council of 
State, Slovenia) to initiate proceedings for a constitutional review of the Zakon o 
nepremičninskem posredovanju (Real Estate Agencies Act; ‘the ZNPosr’), which 
limits the maximum fee permitted for brokerage activities in the context of the 
purchase or sale or rental of property; Charter of Fundamental Rights of the 
European Union; respect for private life and family life, freedom of economic 
initiative, consumer protection; Directive 2006/123, minimum and/or maximum 
rates that the service provider may charge. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-674/23 
 
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Subject matter and legal basis of the request  
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling  
1. Are Articles 7, 16 and 38 of the Charter of Fundamental Rights of the 
European Union, read in conjunction with Article 15 of Directive 2006/123/EC of 
the European Parliament and of the Council of 12 December 2006 on services in 
the internal market, to be interpreted as precluding legislation of a Member State 
of the European Union under which the maximum fee permitted for property 
brokerage in the context of the purchase or sale of the same property may not 
exceed 4% of the contractual price, in the case of brokerage in the context of the 
purchase or sale of a single-family residence, an apartment or a dwelling 
purchased by an individual? 
2. Are Articles 7, 16 and 38 of the Charter of Fundamental Rights of the 
European Union, read in conjunction with Article 15 of Directive 2006/123/EC of 
the European Parliament and of the Council of 12 December 2006 on services in 
the internal market, to be interpreted as precluding legislation of a Member State 
of the European Union under which the maximum permitted brokerage fee in the 
context of a lease for the same property may not be more than 4% of the amount 
resulting from the multiplication of the amount of monthly rent by the number of 
months for which the property is let, and in any event may not exceed the amount 
of one month’s rent, in the case of brokerage in the context of the rental of a 
single-family residence, apartment or dwelling rented by an individual? 
Provisions of European Union law relied on  
Articles 7, 16 and 38 of the Charter of Fundamental Rights of the European Union 
(‘the Charter’)  
Article 15 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’) 
Provisions of national law relied on  
Constitution of the Slovenian Republic (‘the Constitution’) 
Article 74 states, inter alia, that free economic initiative shall be guaranteed. 
Article 78 of the Constitution provides that the State shall create opportunities for 
citizens to obtain proper housing. 
Zakon o nepremičninskem posredovanju (Real Estate Agencies Act) (ZNPosr) 
AEON NEPREMIČNINE AND OTHERS 
 
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Article 5 of the ZNPosr, entitled ‘maximum permitted brokerage fee’, provides as 
follows:  
‘1. In the case of a purchase or sale, the maximum permitted brokerage fee may 
not amount, for the same property, to more than 4% of the contractual price. That 
limitation does not apply when the contractual value of the property is less than 
EUR 10 000. 
2. In the case of a lease, the maximum permitted brokerage fee may not 
amount, for the same property, to more than 4% of the contractual value. The fee 
may not exceed the amount of one month’s rent, nor be less than EUR 150. The 
contractual value referred to in the previous sentence shall correspond to the 
amount resulting from the multiplication of the amount of monthly rent by the 
number of months for which the property is let. 
3. The property company may only invoice the client for the brokerage fee on 
the basis of a property brokerage contract. 
4. Any brokerage contract that is contrary to paragraphs 1, 2 and 3 of this 
article shall be null and void. 
5. Any provision of a contract of sale, purchase or rental or of any other 
contract […] in relation to a specific property which is contrary to paragraphs 1, 2 
and 3 of this article shall be null and void. 
[…]’. 
Succinct presentation of the facts and procedure in the main proceedings  
1 Two applications from private parties and a request from the Council of State 
were lodged with the Ustavno sodišče (Constitutional Court, Slovenia) to initiate 
proceedings for a constitutional review of the ZNPosr, which, so far as relevant to 
this reference for a preliminary ruling, sets a limit on the maximum permitted 
brokerage fee in the context of the purchase or sale or rental of a property. In the 
proceedings initiated at the request of the parties, the Constitutional Court 
performed an abstract assessment of that law. 
The essential arguments of the parties in the main proceedings  
2 Several real estate companies or sole traders, whose business consists of providing 
property brokerage services (‘the applicants’), have applied for a constitutional 
review. The applicants submit that the ZNPosr is contrary to the Slovenian 
Constitution, to Article 1 of Protocol 1 to the European Convention for the 
Protection of Human Rights and Fundamental Freedoms, to Article 16 of the 
Charter and to the Services Directive. They contend that the legislature has not 
demonstrated the existence of a public interest that has a genuine substantive link 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-674/23 
 
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with the infringement of their constitutional rights. The applicants submit and 
adduce evidence that the property brokerage market is highly developed, there 
being more than 990 real estate companies registered to carry on that activity. 
Furthermore, there are more than 2 100 registered property brokers and there are 
no laws restricting access to the market. At the same time, the parties point out 
that property brokerage services and property transactions are not obligatory for 
consumers. In their view, the legislature did not mention any reason for the 
decision to set a maximum permitted brokerage amount which has an actual 
substantive link with the property brokerage activity. In the applicants’ opinion, 
the argument of consumer protection put forward by the legislature is a general 
objective. It is not evident that there is a particularly close link between that 
objective and the activity carried out by the parties. 
3 Likewise, the reference made by the legislature to Article 78 of the Slovenian 
Constitution (decent housing), as well as the shortage of public housing combined 
with high market rents, also lead to the same conclusion. The applicants argue that 
the contested Article 5 of the ZNPosr will not have the effect of increasing the 
quantity of public housing available or reducing rents in the housing market. 
Indeed, it is unclear from the preparatory work for the law how those effects were 
expected to materialise or how the law would address the housing problem for 
vulnerable categories (young and older people), by improving access to housing 
and increasing the term of property lettings, both of which are objectives pursued 
by the law in question. According to the applicants, the mere fact that the fee for 
property brokerage services is a possible one-off expense linked to property 
transactions does not demonstrate a particular link with the activity they carry out. 
4 In the applicants’ opinion, the contested Article 5 of the ZNPosr does not pass the 
proportionality test. They claim that other measures have already been introduced 
into the legal system that give effect to the obligations incumbent on the State 
under Article 78 of the Constitution, which are effective for the entire term of the 
lease and are specifically aimed at vulnerable groups. In that respect, they refer to 
the possibility of accessing subsidised housing and housing benefit. They point 
out that the brokerage fee is a one-off expense when renting a property and only 
applies if the provision of (non-compulsory) property brokerage services is 
actually requested. At the same time, the contested legislation is contrary to 
Article 16 of the Charter, and specifically the right to pursue an economic activity 
and the right to conclude contracts. The maximum brokerage commission set for 
property lettings is basically less than the brokerage expenses incurred for renting 
and letting properties. The applicants also specifically allege incompatibility with 
the Services Directive. The body requesting the constitutional review also makes 
substantially identical allegations. 
5 The applicants submit that the contested legislation, in so far as it pertains to 
lettings, is contrary to the objectives pursued by the housing policy aimed at 
encouraging long-term apartment lettings. In view of the calculation of the 
maximum permitted commission, they contend that principals benefit from a 
shorter duration of the leasing of the property, since the maximum permitted 
AEON NEPREMIČNINE AND OTHERS 
 
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brokerage fee is lower in that case. At the same time, the fact that the maximum 
brokerage expense is low encourages landlords to change tenants more frequently. 
Moreover, the contested legislative measure is not even necessary under 
Article 15(3) of the Services Directive: as an example of less restrictive measures, 
the applicants refer to the increase in the quantity of public housing available to 
let, the payment of housing benefit and taxation, planning and other regulatory 
measures which act as an incentive for the construction of (public) housing. 
6 One of the applicants submits that, due to the limit on the amount of commission 
it can earn when signing leases, it makes a loss because of the expenses it has to 
incur. This is forcing it out of business. The same applicant points out that in 
practice, commission is the only remuneration it receives for its work. 
7 The Državni zbor (Slovenian National Assembly) has not responded to the 
application or to the request for a constitutional review. The Constitutional Court 
has the right to continue assessing the application, even in the absence of a 
response from the other party. 
Succinct presentation of the reasoning in the request for a preliminary ruling  
8 The present case concerns proceedings for the constitutional review of a law, 
initiated pursuant to two applications, and proceedings initiated on the basis of a 
request from the Council of State. It is not a question of proceedings arising from 
individual proceedings brought by the applicants before the ordinary courts. 
9 The parties applying for the review and the body requesting the review also allege 
the non-compliance of the contested legislation with EU law. In the opinion of the 
referring court, the parties’ reference to EU law cannot be regarded as generic, nor 
can its significance and relevance for the purposes of the constitutional review be 
denied. In the opinion of the Constitutional Court, the interpretation of EU law is 
necessary for the referring court to adopt its decision. The referring court holds 
that, for the purpose of assessing the contested legislative framework, the 
interpretation of Articles 7, 16 and 38 of the Charter of Fundamental Rights, read 
in conjunction with Article 15 of the Services Directive, is decisive. 
10 In the event that doubts should arise in the present case regarding the existence of 
a cross-border element, the Constitutional Court observes that the case concerns 
proceedings for a constitutional review of the ZNPosr, and not an individual 
assessment. In those proceedings, the Constitutional Court assesses the 
compatibility of a law with the Slovenian Constitution, taking into account all the 
persons to whom those provisions apply. In proceedings for a constitutional 
review of a law, it is possible that the contested provisions also apply to nationals 
of other Member States and to legal persons having their registered office in other 
Member States. For that reason, in the opinion of the Constitutional Court, it is not 
possible to support the argument that all the elements of the dispute are located 
within a single Member State. On that basis, the Services Directive must also be 
taken into account in the present case. The Services Directive implements the 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-674/23 
 
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fundamental freedoms enshrined in Articles 49 and 56 TFEU and summarises in 
codified form the consolidated case-law of the Court of Justice, which has 
declared individual national requirements to be incompatible with the fundamental 
freedoms that may be relied on by economic operators. As to the assessment of 
that law, property brokerage services are undoubtedly requested (at least 
potentially) by persons in other Member States of the European Union. 
11 According to the Constitutional Court, the present case involves a complex 
intertwining of various aspects of the Charter and restrictions under the Services 
Directive (in connection with the freedom of establishment). From the applicants’ 
point of view, however, the freedom of economic initiative must still be taken into 
consideration. This includes the right to pursue an economic activity, the right to 
conclude contracts and the freedom of competition. It is clear from the case-law of 
the Court of Justice that the freedom of economic initiative (in the context of the 
freedom to conclude contracts) also includes the right to determine the price of a 
service. Nevertheless, consumer protection may be a legitimate reason to restrict 
the freedom of economic initiative.  
12 The Constitutional Court holds that legislation in the sector in question should 
seek to harmonise and strike a fair balance between the fundamental rights and 
principles enshrined in the Charter. As the Constitutional Court understands it, at 
its core, freedom of economic initiative does not guarantee the right to unlimited 
profit in every aspect of the right holder’s business. On the other hand, the 
contribution to general transparency and consumer protection in connection with 
the affordability of housing as a fundamental human right has, for the protected 
individuals, an inestimable value which, in essence, cannot be dealt with in an 
economic analysis. In its case-law, the Constitutional Court assesses in principle 
the limitations of rights (including economic and social rights), taking into 
account the importance of individual human rights within the framework of other 
constitutional values (public interests), bearing in mind that the economic 
perspective may actually be one of the starting points for the assessment, which in 
itself is not decisive. In addition, social justice is also a value which is in the 
public interest. 
13 First, in the absence of a response from the legislature, the Constitutional Court 
asks whether the assessment of the appropriateness – in so far as it must be taken 
into account in the light of the general value assumptions of the rights enshrined in 
the Charter – can have a decisive influence on the fact that the legislature 
prescribes limitations on commission in a vertical market (the property brokerage 
market) and does not intervene directly in the property market through price 
regulation. In that regard, under Article 5(3) of the ZNPosr, a real estate company 
may only invoice the client for the brokerage fee on the basis of a property 
brokerage contract. Therefore, from a legal point of view, the direct transfer of the 
economic burden corresponding to the amount of commission to the buyer or 
tenant is not permitted unless they are also the client of the property brokerage 
firm at the same time. Indeed, any other solution is null and void under 
paragraph 4 of that article. In the opinion of the Constitutional Court, taking into 
AEON NEPREMIČNINE AND OTHERS 
 
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account the deterioration in the conditions of access to housing and the 
aggravation of tensions in property markets, where the market is weighted in 
favour of supply, it is to be expected that commission (which in the absence of 
regulatory intervention could be higher still) will largely be transferred to those 
looking for accommodation. That applies to any contract concluded with the help 
of a property broker. For other contracts, it may apply indirectly owing to the 
effect on property prices. Accordingly, the amount of commission that the 
property broker earns does not depend on the behaviour of the person looking to 
buy or rent accommodation, unless they are a client of the property brokerage 
firm. In that case, the expenditure on property brokerage is not in the person’s 
interest and cannot influence the amount of the fee. In the absence of clarification 
from the legislature, the Constitutional Court may decide that it contributes to the 
achievement of the objectives pursued, but cannot (without an analysis by the 
legislature) conclude that that contribution is significant. In the light of the 
foregoing, the Constitutional Court asks whether the relevant effect in this sense 
should be understood mainly in terms of the importance of the right protected 
under the Charter, rather than simply in terms of the requirement for the 
legislature to quantify and demonstrate the impact of the measure through an 
(economic) analysis. Given the importance of the objectives pursued by the 
legislature, which are intertwined with the Charter itself – which, in the opinion of 
the Constitutional Court, forms the crux of the assessment in the present case – the 
Constitutional Court asks whether the condition relating to appropriateness is 
satisfied in the present case despite the concerns highlighted above. At the same 
time, the Constitutional Court considers that the legislation adopted may 
contribute to a better overview of prices, since, from the consumer’s perspective, 
it gives an idea of the amount of commission and the extent of any possible 
impact on the price or the amount of rent. 
14 Any Member State that, in order to justify the requirement under Article 15 of the 
Services Directive, adduces an important public interest, must demonstrate that its 
legislation is appropriate and necessary to achieve a legitimate aim. Yet that 
burden of proof cannot lead to the Member State being required to provide proof 
positive that the same objective could not, in identical circumstances, be achieved 
by any other conceivable means. In the absence of clarification from the 
legislature, the Constitutional Court cannot support the finding that the limitation 
of the amount of commission is a major factor in the affordability of housing. 
Given the importance of the objectives pursued by the legislature, which are also 
enshrined in the Charter – which the Constitutional Court considers to be the 
linchpin of the assessment in the present case – the Constitutional Court asks 
whether the condition of necessity must be deemed satisfied in the present case 
despite the concerns expressed above, in so far as it affects the assessment under 
the Charter. Indeed, the question of the various measures and their impact on 
housing policy is highly complex. Therefore, in the opinion of the Constitutional 
Court, it is also necessary to take into account certain practical limitations that 
prevent the State from interfering ad libitum with the housing supply. There is 
certainly no basis for concluding that the legislature has the option of adopting a 
different measure (including timewise) of identical value, which has less effect on 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-674/23 
 
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protected situations under the Charter. In the opinion of the Constitutional Court, 
those circumstances may also explain why the competence of the national 
legislature in the present case must be understood in a broad sense, hence the need 
for the contested legislation. 
15 Regarding the limit on the amount of commission on leases, the applicants submit 
that the legislation makes it impossible for them to remain in business, at least as 
regards short-term lettings, on which they only earn small amounts of 
commission. In the absence of a response from the legislature, the Constitutional 
Court cannot rule out that (some of) the applicants have ceased or will cease (in 
part) to provide property brokerage services in connection with leases. It cannot 
express a view on the market rate of commission in the absence of regulation 
and/or on the economic efficiency or otherwise of the individual applicants in 
terms of costs. In such circumstances, the Constitutional Court, taking into 
account the value assumptions in the Charter, asks whether the fear that real estate 
companies (or some of them) will cease (in part) to provide brokerage activities 
for properties rented by individuals is sufficient evidence that the measure at issue 
is not strictly proportionate. The Constitutional Court asks whether, in accordance 
with the value assumptions in the Charter, it is necessary in this case to consider 
that contractual autonomy is diminished to the point that the limitation in question 
affects the very essence of the right to freedom of economic initiative. 
16 Since the Court of Justice has not yet ruled on the assessment of the legislation, 
based on the assumption that a fair balance must be achieved between the 
different viewpoints of the Charter and, in that context, the relationship – with 
respect to the Services Directive – of the protected freedom of establishment (or 
freedom to provide services) in the particular circumstances of protecting the 
affordability of housing as a fundamental human right, the Constitutional Court 
has decided to refer two questions to the Court of Justice for a preliminary ruling. 
In that respect, the Constitutional Court is aware that, as the referring court, it 
must ultimately determine whether those requirements are met. It considers that 
the questions raised require a uniform interpretation of EU law, for which the 
Court of Justice has jurisdiction.