Despite the fact that the Court of Justice of the EU has previously held that the German legislation setting minimum rates for fees for services provided by architects and engineers (the HOAI) is contrary to the Services Directive, a national court, when hearing a dispute between private individuals, is not required, solely on the basis of EU law, to disapply that German legislation: a judgment to that effect was handed down by the Court of Justice on Tuesday 18 January (Case C-261/20).
The Court “rules” 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 Article 15(1), (2)(g) and (3) of the Services Directive (2006/123/CE), sets minimum rates for fees for services provided by architects and engineers and which renders invalid agreements derogating from that legislation.
However, a national court is not obliged, solely on the basis of Union law, to disapply a provision of its national law which is contrary to a provision of Union law if the latter provision does not have direct effect.
This is, however, without prejudice 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 Union law that does not have such effect.
The Court emphasises in that regard that, having previously held that the national legislation at issue in the main proceedings is not compatible with EU law, and that maintaining that legislation thus constitutes a failure to fulfil obligations on the part of the Federal Republic of Germany, that breach of EU law must be regarded as sufficiently serious for the purposes of its case-law relating to the incurring of the non- contractual liability of a Member State for breach of EU law.
Link to the judgment: https://bit.ly/32deRRY (Original version in French by Lionel Changeur)