Extract
[...] Thus, the Court of Justice of the European Union was asked whether, in assessing the merits of a claim brought by one individual against another, a national court must leave unapplied the national provision on which the claim is based when that provision is contrary to a directive. In a judgment of 18 January 2022, the Court of Justice of the European Union, in a Grand Chamber judgment, held that a national court, seized of a dispute between individuals only, is not required, on the sole basis of Union law, to leave unapplied a national regulation. [...]
[...] The real estate company, having partially lost in the first and second instances, lodged an appeal on a point of law with the Bundesgerichtshof (Federal Court of Justice, Germany), which is the referring court in the present case. In the context of its preliminary reference, this court recalls that the Court of Justice has already twice found the incompatibility of this provision of the HOAI with the provision of Directive 2006/ which in substance prohibits Member States from maintaining requirements that subject the exercise of an activity to compliance by the service provider with minimum and/or maximum tariffs if these requirements do not meet the cumulative conditions of non-discrimination, necessity, and proportionality. [...]
[...] Possible applicability of a national provision contrary to a provision of Union law If a national provision contrary to a provision of Union law remains in principle inapplicable the Court specifies here that it may be applicable in the sole exception that the provision of Union law is devoid of direct effect Inapplicability in principle of a national provision contrary to a provision of Union law Applicability by exception of a national provision contrary to a provision of Union law devoid of direct effect Development The judgments establishing such breaches have primarily the object of defining the duties of Member States in the event of a breach of their obligations and not of conferring rights on individuals. [...]
[...] Court of Justice of the European Union January 2022, Thelen Technopark Berlin GMBH v MN - The implementation of State liability for grave infringement of Union law - Introduction and detailed plan The judgment delivered by the Court of Justice of the European Union on 18 January 2022 in the case of Thelen Technopark Berlin GMBH v MN has further clarified the case law on the implementation of State liability for grave infringement of Union law. In this case, a real estate company and an engineer concluded a contract for studies under which the latter had committed to performing certain services against the payment of a lump sum fee of 55,025 euros. A year later, the engineer terminated this contract and invoiced the services performed in a final invoice for fees. [...]
[...] Thus, the aforementioned jurisdictions or authorities are not required, on the sole basis of such judgments, to leave unapplied, in the context of a dispute between individuals, a national regulation contrary to a provision of a directive. II. The possibility for the injured party to request compensation for damage caused by the non-conformity of national law with Union law If the Court opens the possibility for a national jurisdiction to apply a national provision contrary to a provision of Union law, it specifies that the maintenance of the aforementioned national regulation against a breach by the State of these commitments to the Union is susceptible for the injured party to request compensation for the damage for non-conformity of national law with Union law The breach of a State by the maintenance of a national regulation incompatible with the law of the Union The action for non-conformity of national law with Union law Development: The Court notes in this regard that, having already found that the national regulation in question in the main proceedings is not compatible with the law of the Union, and that its maintenance constitutes a breach by the Federal Republic of Germany, this violation of the law of the Union must be considered as manifestly characterised in the sense of its case-law on the engagement of the extra-contractual liability of a Member State for breach of the law of the Union. [...]
