Opinion of the Advocate General — ECLI:EU:C:2021:620
Date: 2021-07-15
Language of the case: German
Subject matter: Right of establishment;Internal market - Principles;Principles, objectives and tasks of the Treaties;Freedom to provide services
Procedure: Reference for a preliminary ruling
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: 
15 June 2020 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
14 May 2020 
Appellant in the appeal on a point of law: 
Thelen Technopark Berlin GmbH 
Respondent in the appeal on a point of law: 
MN 
  
Subject matter of the main proceedings 
Compatibility with higher-ranking EU law, including the Services Directive, of 
national legislation on minimum rates for the fees of architects and engineers; 
direct effect of EU law as between private persons 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU, in particular 
Directive 2006/123/EC of the European Parliament and of the Council of 
12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) (‘the 
Services Directive’) 
Questions referred for a preliminary ruling 
1. 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 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-261/20 
 
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context of ongoing court proceedings between private persons, Article 15(1), 
(2)(g) and (3) of Directive 2006/123 on services in the internal market has 
direct effect in such a way that the national provisions contrary to that 
directive that are contained in Paragraph 7 of the German Verordnung über 
die Honorare für Architekten- und Ingenieurleistungen (Decree on fees for 
services provided by architects and engineers (‘the 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? 
2. If Question 1 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 Paragraph 7 of the HOAI constitute an 
infringement of the freedom of establishment under Article 49 TFEU 
or of other general principles of EU law? 
(b) If Question 2(a) is to be answered in the affirmative: Does it follow 
from such an infringement that the national rules on mandatory 
minimum rates (in this case: Paragraph 7 of the HOAI) are no longer 
to be applied in ongoing court proceedings between private persons? 
Provisions of EU law cited 
The Services Directive, in particular Article 15(1), Article 15(2)(g) and 
Article 15(3) 
Article 49 TFEU (freedom of establishment) 
Provisions of national law cited 
Bürgerliches Gesetzbuch (German Civil Code; BGB) 
Gesetz zur Regelung von Ingenieur- und Architektenleistungen (Law regulating 
the services of engineers and architects) in the version of 12 November 1984 
(BGBl. I p. 1337) 
Verordnung über die Honorare für Architekten- und Ingenieurleistungen 
(Honorarordnung für Architekten und Ingenieure) (Decree on fees for services 
provided by architects and engineers (Official scale of fees for services provided 
by architects and engineers)) in the version of 10 July 2013 (BGBl. I p. 2276) 
(‘the HOAI’) 
THELEN TECHNOPARK BERLIN 
 
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Brief summary of the facts and procedure 
1 On 2 June 2016, the parties entered into an engineering contract, in which the 
applicant, who operates an engineering firm, undertook to provide services for a 
construction project in Berlin. For those services, to which the HOAI is 
applicable, a flat-rate fee was agreed.  
2 After the applicant had terminated the engineering contract, he invoiced, in July 
2017, the services that he had provided on the basis of the minimum rates laid 
down under the HOAI. The resulting fee was significantly higher than the 
contractually agreed flat-rate fee. The defendant did not pay the invoiced fee in 
full. By his action, the applicant claims the outstanding balance together with 
interest and pre-litigation legal fees. 
3 The applicant was largely successful before both the Landgericht (Regional Court) 
and the appeal court. By the appeal on a point of law, for which leave was granted 
by the appeal court, the defendant continues to seek to have the action dismissed 
in its entirety. 
Brief summary of the basis for the reference 
4 The success of the defendant’s appeal on a point of law turns on a decision of the 
Court of Justice of the European Union (‘the Court’) on the interpretation of the 
Treaties. 
First question referred 
5 The dispute turns on whether it follows from the interpretation of EU law, namely 
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 the Services Directive has direct 
effect in such a way that the national provisions of the HOAI that are contrary to 
that directive are no longer to be applied to the contract between the parties. 
6 In application of those national provisions, the minimum rates of the HOAI for 
engineering services are, in principle, mandatory, and a flat-rate fee agreement 
between the parties that falls short of the minimum rates in contracts with 
engineers is ineffective. This would mean that the applicant would be entitled to 
payment of the claimed amount on the basis of the minimum rates of the HOAI. 
Accordingly, the defendant’s appeal on a point of law would be unsuccessful. 
7 In its judgment of 4 July 2019, Commission v Germany, C-377/17, 
EU:C:2019:562, the Court held that, by maintaining fixed tariffs for the planning 
services of architects and engineers, the Federal Republic of Germany had failed 
to fulfil its obligations under Article 15(1), (2)(g) and (3) of the Services 
Directive. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-261/20 
 
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8 In keeping with that judgment, the Court also held, in a preliminary ruling 
procedure under Article 267 TFEU, that Article 15(1), (2)(g) and (3) of the 
Services Directive must be interpreted as precluding national legislation which 
prohibits the agreement in contracts with architects or engineers of a fee that is 
lower than the minimum fee resulting from the HOAI (order of 6 February 2020, 
hapeg dresden, C-137/18, not published, EU:C:2020:84). 
9 Taking account of the aforementioned judgment of the Court of 4 July 2019 
(C-377/17), Paragraph 7 of the HOAI (see first question referred) cannot be 
interpreted in conformity with the directive as meaning that the minimum rates of 
the HOAI are, in principle, no longer mandatory in relationships between private 
persons and therefore do not preclude a fee agreement which falls short of the 
minimum rates. Having regard to the legal basis for authorising the adoption of 
the HOAI, to its spirit and purpose and to the recognisable intention of the 
legislature and regulatory body, an interpretation in conformity with the directive 
in the present case would amount to an interpretation of national law contra legem 
and is therefore out of the question.  
10 The decision on the appeal on a point of law therefore depends essentially on the 
answer to the first question referred (see above). This question is material to the 
decision to be given. If it were to be answered in the affirmative, the defendant’s 
appeal on a point of law would be successful. This is because the applicant’s 
claim for fees which exists under national law on the basis of the minimum rates 
of the HOAI — and which exceeds the agreed flat-rate fee — would be unfounded 
if Paragraph 7 of the HOAI were to be disapplied by virtue of Article 15(1), (2)(g) 
and (3) of the Services Directive. 
11 The Court did not rule on this question in the aforementioned decisions, but 
expressly left it open. It is a matter of dispute in the case-law and literature, 
meaning that the correct application of EU law is not so clear from the outset 
(‘acte claire’), nor clarified by case-law to such an extent (‘acte éclairé’), as to 
leave no scope for reasonable doubt. 
12 The Chamber is inclined to share the view that 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.  
13 However, the Court has ruled that Article 15 of the Services Directive is also 
applicable to purely internal situations — such as that in the present dispute 
(judgments of the Court of 4 July 2019, Commission v Germany, C-377/17, 
EU:C:2019:562, and of 30 January 2018, X and Visser, C-360/15 and C-31/16, 
EU:C:2018:44). 
14 Moreover, according to the settled case-law of the Court, a directive may in 
certain cases be relied on directly by individuals against the Member State where 
the latter has failed to implement the directive in domestic law by the end of the 
period prescribed or where it has failed to implement the directive correctly and 
THELEN TECHNOPARK BERLIN 
 
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the provision of the directive appears, so far as its subject matter is concerned, to 
be unconditional and sufficiently precise. These requirements are satisfied as 
regards Article 15(1), (2)(g) and (3) of the Services Directive.  
15 According to the decision of the Court in the aforementioned judgment of 4 July 
2019 (C-377/17), it is clear, first, that 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 by Article 44(1) of the 
Services Directive, 28 December 2009. Second, the provision also appears, so far 
as its subject matter is concerned, to be unconditional and sufficiently precise — 
as the Court 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). 
16 This Chamber takes the view that these principles do not, however, mean that 
Article 15(1), (2)(g) and (3) of the Services Directive leads to the disapplication of 
the national rules on the mandatory nature of the minimum rates in Paragraph 7 of 
the HOAI, even in ongoing court proceedings involving only private persons. 
17 According to the Court’s settled case-law, 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 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 obligations for individuals with 
immediate effect, whereas it has competence to do so only where it is empowered 
to adopt regulations. 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 (see, inter alia, judgment of the 
Court of 22 January 2019, Cresco Investigation, C-193/17, EU:C:2019:43).  
18 This Chamber takes the view that, in accordance with that case-law, any direct 
effect of Article 15(1), (2)(g) and (3) of the Services Directive is precluded in 
ongoing court proceedings between private persons, so that, to that extent, the 
provision does not have primacy of application over the national rules on the 
mandatory nature of the minimum rates in Paragraph 7 of the HOAI.  
19 Although Article 15 of the Services Directive does not create obligations for 
individuals, if the assumption that that provision has direct effect in ongoing court 
proceedings between private persons were to be accepted, it would mean that the 
architect or engineer would only be entitled 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 of the HOAI. A 
private person would therefore be deprived of a subjective right that exists under 
national law.  
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20 This Chamber takes the view that, in so far as the Court has found in its previous 
case-law that in certain exceptional cases — where it is impossible to interpret in a 
way that is consistent with a directive — national provisions which are contrary to 
EU law are to be disapplied in relations between private persons, those cases do 
not cover the present dispute. They concern particular situations that are not 
comparable to the present case (see, inter alia, judgment of the Court of 7 August 
2018, Smith, C-122/17, EU:C:2018:631).  
Second question referred 
21 In the event that the first question referred is answered in the negative, the 
decision to be given in the dispute will turn on the answers to Questions 2(a) and 
(b) set out above. These questions become material to the decision if non-
application of the national rules on mandatory minimum rates in Paragraph 7 of 
the HOAI does not already result from the direct application of Article 15(1), 
(2)(g) and (3) of the Services Directive.  
22 This is because the defendant’s appeal on a point of law would be successful if the 
non-application of the relevant national rules in ongoing court proceedings 
between private persons could be derived from an infringement of the freedom of 
establishment under Article 49 TFEU or of other general principles of EU law. 
23 In its aforementioned judgment of 4 July 2019 (C-377/17), the Court expressly 
left open the question whether the legislation setting mandatory minimum rates 
for planning services provided by architects and engineers infringes the freedom 
of establishment. According to the case-law of the Court, 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. 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.  
24 This Chamber considers that such an infringement of the freedom of 
establishment cannot be ruled out, even if there are doubts as to whether it is 
applicable. This is because the HOAI, in the version applicable in the present 
dispute, applies only to domestic cases. The HOAI expressly defines its scope of 
application 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. 
25 The extent to which the purpose of the freedom of establishment requires, in legal 
relationships between private persons, that national rules on the mandatory nature 
of minimum rates of the HOAI for a contract such as that in the present case be 
disapplied may be of significance in the present case.