AEON NEPREMICNINE and Others (Freedom of establishment – Services in the internal market - Fixed maximum tariff - Judgment) [2025] EUECJ C-674/23 (27 February 2025)
( Reference for a preliminary ruling – Freedom of establishment – Services in the internal market – Directive 2006/123/EC – Article 15(2) and (3) – Fixed maximum tariffs – Provider of property intermediation services – National legislation laying down a maximum limit on the commission charged for intermediation services relating to the sale or rental of immovable property by a natural person – Proportionality – Articles 16 and 38 of the Charter of Fundamental Rights of the European Union – Freedom to conduct a business – Consumer protection )
In Case C‑674/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the Ustavno sodišče (Constitutional Court, Slovenia), made by decision of 26 October 2023, received at the Court on 13 November 2023, in the proceedings
AEON NEPREMIČNINE d.o.o. and Others,
STAN nepremičnine d.o.o.,
Državni svet Republike Slovenije,
interested party:
Državni zbor Republike Slovenije,
THE COURT (Third Chamber),
composed of C. Lycourgos (Rapporteur), President of the Chamber, S. Rodin, N. Piçarra, O. Spineanu-Matei and N. Fenger, Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after considering the observations submitted on behalf of:
– AEON NEPREMIČNINE d.o.o. and Others, by B. Sedmak, odvetnik,
– STAN nepremičnine d.o.o., by B. Mrva, odvetnik,
– the Netherlands Government, by M.K. Bulterman and J.M. Hoogveld, acting as Agents,
– the European Commission, by M. Mataija, G. Meessen and B. Rous Demiri, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of 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 (OJ 2006 L 376, p. 36) and of Articles 7, 16 and 38 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in two sets of proceedings for the review of constitutionality, initiated by property companies, including AEON NEPREMIČNINE d.o.o and Others and STAN nepremičnine d.o.o., and by the Državni svet Republike Slovenije (National Council of the Republic of Slovenia), concerning national legislation relating to property intermediation services, which provides for a cap on the commission charged for those services in the event of a purchase, sale or rental of immovable property.
Legal context
European Union law
3 Recitals 5 to 7, 33, 40 and 64 of Directive 2006/123 state:
‘(5) It is therefore necessary to remove barriers to the freedom of establishment for providers in Member States and barriers to the free movement of services as between Member States and to guarantee recipients and providers the legal certainty necessary for the exercise in practice of those two fundamental freedoms of the [FEU] Treaty. …
(6) [Barriers to the freedom of establishment for providers in Member States and barriers to the free movement of services as between Member States] cannot be removed solely by relying on direct application of Articles [49] and [56 TFEU], since, on the one hand, addressing them on a case-by-case basis through infringement procedures against the Member States concerned would, especially following enlargement, be extremely complicated for national and [EU] institutions, and, on the other hand, the lifting of many barriers requires prior coordination of national legal schemes, including the setting up of administrative cooperation. As the European Parliament and the Council [of the European Union] have recognised, [an EU] legislative instrument makes it possible to achieve a genuine internal market for services.
(7) This Directive establishes a general legal framework which benefits a wide variety of services while taking into account the distinctive features of each type of activity or profession and its system of regulation. That framework is based on a dynamic and selective approach consisting in the removal, as a matter of priority, of barriers which may be dismantled quickly and, for the others, the launching of a process of evaluation, consultation and complementary harmonisation of specific issues, which will make possible the progressive and coordinated modernisation of national regulatory systems for service activities which is vital in order to achieve a genuine internal market for services by 2010. … That coordination of national legislative regimes should ensure a high degree of [EU] legal integration and a high level of protection of general interest objectives, especially protection of consumers, which is vital in order to establish trust between Member States. …
…
(33) … The services covered are also services provided both to businesses and to consumers, such as legal or fiscal advice; real estate services such as estate agencies …
…
(40) The concept of “overriding reasons relating to the public interest” to which reference is made in certain provisions of this Directive has been developed by the Court of Justice in its case-law in relation to Articles [49] and [56 TFEU] and may continue to evolve. The notion as recognised in the case-law of the Court of Justice covers at least the following grounds: … social policy objectives; the protection of the recipients of services; consumer protection …
…
(64) In order to establish a genuine internal market for services, it is necessary to abolish any restrictions on the freedom of establishment and the free movement of services which are still enshrined in the laws of certain Member States and which are incompatible with Articles [49] and [56 TFEU] respectively. The restrictions to be prohibited particularly affect the internal market for services and should be systematically dismantled as soon as possible.’
4 Article 4(5) and (8) of Directive 2006/123 provides the following definitions:
‘(5) “establishment” means the actual pursuit of an economic activity, as referred to in Article [49 TFEU], by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out;
…
(8) “overriding reasons relating to the public interest” means reasons recognised as such in the case-law of the Court of Justice, including the following grounds: … the protection of consumers, recipients of services and workers …’.
5 Article 15 of that directive, entitled ‘Requirements to be evaluated’, provides:
‘…
2. Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:
…
(g) fixed minimum and/or maximum tariffs with which the provider must comply;
…
3. Member States shall verify that the requirements referred to in paragraph 2 satisfy the following conditions:
(a) non-discrimination: requirements must be neither directly nor indirectly discriminatory according to nationality nor, with regard to companies, according to the location of the registered office;
(b) necessity: requirements must be justified by an overriding reason relating to the public interest;
(c) proportionality: requirements must be suitable for securing the attainment of the objective pursued; they must not go beyond what is necessary to attain that objective and it must not be possible to replace those requirements with other, less restrictive measures which attain the same result.’
Slovenian law
6 Article 5 of the Zakon o nepremičninskem posredovanju – ZNPosr (Uradni list RS, No 72/06 – consolidated version, 49/11 and 47/19) (Law on property intermediation), in the version applicable to the disputes in the main proceedings (‘the Law on property intermediation’), provides:
‘(1) The maximum permitted intermediation fee in the case of a purchase or sale of the same property may not exceed 4% of the contract price, but that limit does not apply where the contract value of the immovable property is less than EUR 10 000.
(2) The maximum permitted intermediation fee in the case of a tenancy agreement for the same property may not exceed 4% of the contract value, and, in any event, may not exceed the amount of one month’s rent or be less than EUR 150. The contract value referred to in the previous sentence is the product of multiplying the monthly rent by the number of months for which the property is let.
(3) A property company may charge an intermediation fee solely to the principal on the basis of a property intermediation agreement.
(4) An intermediation agreement that is contrary to paragraphs 1, 2 or 3 of this article shall be null and void.
(5) A clause in a purchase, tenancy, lease or other type of agreement (“the agreement”) that is contrary to paragraphs 1, 2 or 3 of this article shall be null and void.
(6) The minister responsible for housing may, by means of a regulation, and in agreement with the minister responsible for the economy, lay down criteria for setting the property intermediation fees within the limits of the maximum permitted intermediation fees referred to in paragraph 1 of this article.
(7) The provisions of paragraph 2 of this article do not apply to property intermediation agreements concluded between economic entities.’
7 In accordance with Article 13(1) of the Law on property intermediation:
‘By a property intermediation agreement made in writing, a property company shall undertake to make every effort to find and put in contact with the principal a third party to negotiate with that principal the conclusion of a specific agreement, the subject matter of which is immovable property, and the principal shall undertake to pay a fee to the property company for the intermediation if the agreement is concluded.’
‘(1) When providing property intermediation services, a property company must ensure in equal measure that the interests of the principal and of the third party with which it has put the principal in contact are protected and must act impartially in doing so, unless, by express agreement with the principal, it represents only the principal’s interests.
(2) Where a property company, on the basis of an agreement with a principal or investor, exclusively represents the principal’s interests in the intermediation, it must clearly and in writing inform the third party with whom it has put the principal in contact that it is acting as an agent and not as an intermediary.’
‘(1) A property company shall acquire the right to be paid a fee for intermediation services when the agreement for which it served as an intermediary is concluded.
(2) A property company cannot claim payment, even in part, of an intermediation fee prior to the conclusion of the transaction that is the subject of the intermediation.
(3) The property company shall also be entitled to an intermediation fee if the contracting parties subsequently withdraw from the agreement concluded.
(4) A property company shall be entitled to an intermediation fee where the principal or a member of his or her close family concludes an agreement relating to the immovable property that was the subject of the intermediation with a third party with whom the principal was put in contact by the property intermediary and this agreement is concluded within six months of the termination of the intermediation agreement.
(5) Notwithstanding paragraph 1 of this article, the property company and the principal may agree that the property company is entitled to payment of the intermediation fee in accordance with the conditions set out in Article 25a of this Law, even if the principal himself or herself finds a third party with whom to conclude the agreement that was the subject of the intermediation.
…’.
10 In accordance with Article 2(2) of the Stanovanjski zakon (Law on Housing) (Uradni list RS, No 69/03, 57/08, 87/11, 27/17, 59/19 and 90/21), in the version applicable to the disputes in the main proceedings, single-family dwellings are, inter alia, detached single-family houses, villas, atrium houses, terraced houses and holiday homes.
The disputes in the main proceedings and the questions referred for a preliminary ruling
11 AEON NEPREMIČNINE and Others and STAN nepremičnine, which provide property intermediation services, and the National Council of the Republic of Slovenia submitted to the Ustavno sodišče (Constitutional Court, Slovenia) – the referring court – two applications and one request, respectively, seeking the initiation of proceedings reviewing the constitutionality of the Law on property intermediation, which provides for a cap on the commission charged for intermediation services in the event of a purchase, sale or rental of immovable property.
12 More specifically, those constitutionality review proceedings concern paragraphs 1 and 2 of Article 5 of that law, which provide for such a cap, and paragraphs 4 and 5 of Article 5, which provide that the intermediation agreement or the relevant clauses of any other agreement are to be null and void in the event of infringement of paragraphs 1 and 2 of that article.
13 The Ustavno sodišče (Constitutional Court) states that the cap on the commission charged for property intermediation services relating to a purchase or sale amounting to 4% of the contract price was introduced in 2003 with the adoption of the Law on property intermediation. The cap in respect of tenancy agreements has been in force since 10 August 2019.
14 The referring court states that it must examine the compatibility of the Law on property intermediation with Article 15 of Directive 2006/123 and with Articles 7, 16 and 38 of the Charter.
15 As a preliminary point, first, the referring court states that the condition of non-discrimination, laid down in Article 15(3)(a) of that directive, is satisfied, since the cap on commissions laid down by the Law on property intermediation applies irrespective of the nationality or the location of the registered office of the provider of property services. Second, that court points out that, by adopting that law, the national legislature pursued objectives recognised as constituting overriding reasons relating to the public interest, within the meaning of Article 15(3)(b) of that directive and the case-law of the Court of Justice. The adoption of that law is intended to address the lack of accessible housing, in particular for vulnerable persons, namely young people, and more specifically students, as well as for the elderly, and to protect consumers having regard to price transparency and the lack of available housing.
16 Furthermore, the referring court considers that a number of fundamental rights deriving from the Charter are relevant in the present case, namely, first, the freedom to conduct a business, laid down in Article 16 of the Charter, and second, the right to housing as well as consumer protection, guaranteed in Article 7 and Article 38 of the Charter, respectively. In that regard, the referring court notes that, in the context of the examination of the compatibility with EU law of the Law on property intermediation, it is necessary to ensure a fair balance between those various rights.
17 As regards the requirement of proportionality deriving from Article 15(3)(c) of Directive 2006/123, the referring court is uncertain whether that law makes it possible to achieve the objectives relied on by the national legislature.
18 In that regard, the referring court states that the cap on commissions charged for property intermediation services does not directly affect prices on the property market. It states, however, that, because of tensions on the property markets, where market power is concentrated on the supply side, it may reasonably be considered that the amount of the commission charged for intermediation will be passed on to the persons who are seeking housing.
19 Furthermore, the referring court states that, in the light of the lack of details provided by the national legislature, it cannot be concluded that the cap on the amount of the commission charged for property intermediation services is making a decisive contribution to housing being accessible. That said, the referring court acknowledges that that measure can, in combination with other measures, contribute to the attainment of the objectives pursued. Thus, it considers that the Law on property intermediation makes it possible to achieve the objectives referred to by the national legislature, even though, in the absence of an analysis on the part of that legislature, it is not possible to conclude that that law makes a significant contribution towards those objectives, for the purposes of the case-law of the Court of Justice. The referring court states that the assessment of the effectiveness of any measures that might be adopted as part of housing policy is extremely complex.
20 According to the referring court, maximum tariffs, since they do not hinder price competition, are less restrictive than minimum tariffs.
21 The referring court states that it is not possible to conclude with certainty that the national legislature had at its disposal another equivalent measure which could affect to a lesser extent the rights conferred by the Charter.
22 Moreover, the fact that that measure is not limited to particularly vulnerable persons does not necessarily mean, according to that court, that it is disproportionate.
23 The referring court is also uncertain whether the fact that some property companies have ceased pursuing or are at risk of ceasing to pursue intermediation activities as regards natural persons renting immovable property, in particular in the case of short-term rentals that allow only small amounts to be charged by way of a commission, has an impact on the proportionality of the cap on commissions charged for property intermediation services.
24 In that regard, in view of the fact that that measure does not adversely affect the other activities of property companies in relation to intermediation services and that the commission charged for intermediation services relating to tenancy agreements ranged, prior to the new legislation, from one and a half months’ to two months’ rent, which, taking into account the other expenditure that is usually associated with renting, such as that relating to the security deposit, moving expenses and equipment, is not a negligible cost, that court considers that the cap on that commission satisfies the conditions of proportionality laid down in Article 15(3)(c) of Directive 2006/123.
25 Lastly, the referring court states that it is limiting the request for a preliminary ruling to situations where the property intermediation services concern a single-family dwelling, a flat or a residential unit, and where the purchaser or tenant is a natural person.
26 In those circumstances, the Ustavno sodišče (Constitutional Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:
‘(1) Are Articles 7, 16 and 38 of [the Charter], read in conjunction with Article 15 of [Directive 2006/123], to be interpreted as precluding [national] legislation […] 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 [dwelling, a flat or a residential unit] purchased by [a natural person]?
(2) Are Articles 7, 16 and 38 of [the Charter], read in conjunction with Article 15 of [Directive 2006/123], to be interpreted as precluding [national] legislation […] 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 [dwelling, a flat or a residential unit] rented by [a natural person]?’
The jurisdiction of the Court
27 STAN nepremičnine disputes the jurisdiction of the Court of Justice to rule on the request for a preliminary ruling. It submits that only the Ustavno sodišče (Constitutional Court) is in a position to rule on the cases in the main proceedings on the basis of Slovenian law, in particular Article 74 of the Ustava Republike Slovenije (Constitution of the Republic of Slovenia), which guarantees the freedom to conduct a business. Moreover, even following an answer by the Court of Justice to that request, the question of the unconstitutional nature of the national legislation at issue in the main proceedings would not be settled. STAN nepremičnine submits that the proceedings before the Court of Justice would merely prolong an unlawful legal situation, whereas there is an urgent need for the Ustavno sodišče (Constitutional Court) to give a ruling as soon as possible.
28 In that regard, it must, first, be recalled that the system of cooperation established by Article 267 TFEU is based on a clear division of responsibilities between the national courts and the Court of Justice. In proceedings brought on the basis of that article, the interpretation of provisions of national law is a matter for the courts of the Member States, not for the Court of Justice, and the Court has no jurisdiction to rule on the compatibility of rules of national law with EU law. On the other hand, the Court does have jurisdiction to provide the national court with all the guidance as to the interpretation of EU law necessary to enable that court to rule on the compatibility of national rules with EU law (judgment of 13 June 2024, DG de la Función Pública, Generalitat de Catalunya and Departamento de Justicia de la Generalitat de Catalunya, C‑331/22 and C‑332/22, EU:C:2024:496, paragraph 33 and the case-law cited).
29 It is important to state that the request for a preliminary ruling concerns the interpretation of EU law, Article 15 of Directive 2006/123 in particular, which clearly falls within the jurisdiction of the Court (see, to that effect, judgment of 29 July 2024, CU and ND (Social assistance – Indirect discrimination), C‑112/22 and C‑223/22, EU:C:2024:636, paragraph 26 and the case-law cited).
30 First, it must be borne in mind that, in the context of cooperation between the Court and the national courts, established by Article 267 TFEU, it is for the national courts alone to assess, in view of the special features of each case, both the need for a preliminary ruling in order to enable them to give their judgment and the relevance of the questions which they put to the Court. Consequently, where questions submitted by national courts concern the interpretation of a provision of EU law, the Court is, in principle, obliged to give a ruling (judgment of 29 July 2024, LivaNova, C‑713/22, EU:C:2024:642, paragraph 41 and the case-law cited).
31 It follows that the fact that, following the present judgment, the referring court will have to rule in the proceedings for the review of the constitutionality of the Law on property intermediation, or the fact, supposing it were established, that the referring court is required to rule as soon as possible, cannot have any bearing whatsoever on the jurisdiction of the Court to answer the request for a preliminary ruling.
32 It follows from the foregoing considerations that the Court has jurisdiction to rule on the request for a preliminary ruling.
Consideration of the questions referred
33 Since, by the questions referred, the referring court seeks an interpretation of Articles 7, 16 and 38 of the Charter and of Article 15 of Directive 2006/123, it is important, in order to give a useful answer to those questions, to ascertain whether those articles are applicable to the disputes in the main proceedings.
34 As regards, in the first place, Article 15 of Directive 2006/123, Member States must, in accordance with paragraph 1 of that article, first of all, examine whether their legal system lays down any of the requirements referred to in paragraph 2 of that article; if that is the case, next, ensure that that requirement is compatible with the conditions referred to in paragraph 3 of that article; and lastly, as the case may be, adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions.
35 In that regard, it should be noted that Article 15(2)(g) of Directive 2006/123 provides, among the ‘requirements’ of national legal systems whose compatibility with the conditions set out in Article 15(3) must be verified, ‘fixed minimum and/or maximum tariffs with which the provider must comply’.
36 National legislation, such as that at issue in the main proceedings, which limits the maximum permitted commission charged for property intermediation services in the context of a purchase, sale or rental of immovable property, where the purchaser or tenant is a natural person, makes the pursuit of the activity of property intermediation services subject to a requirement of the type referred to in Article 15(2)(g) of that directive and must, consequently, satisfy the conditions laid down in Article 15(3) thereof.
37 It follows that Article 15 of Directive 2006/123 is applicable to the disputes in the main proceedings.
38 As regards, in the second place, the applicability of the articles of the Charter set out in the questions referred for a preliminary ruling, and, as the case may be, the extent to which the Court must take account of those articles in interpreting Article 15 of Directive 2006/123, it follows from the Court’s case-law that, where a Member State argues that a measure of which it is the author and which restricts a fundamental freedom guaranteed by the FEU Treaty, as given specific expression in Article 15 of that directive, is justified by an overriding reason in the public interest recognised by EU law, that measure must be regarded as implementing EU law within the meaning of Article 51(1) of the Charter, such that it must comply with the fundamental rights enshrined in the Charter (see, to that effect, judgment of 6 October 2020, Commission v Hungary (Higher education), C‑66/18, EU:C:2020:792, paragraph 214).
39 As regards, first, Article 7 of the Charter, it guarantees everyone the right to respect for his or her private and family life, home and communications.
40 In that regard, the Court has held that the right to accommodation is a fundamental right guaranteed under Article 7 (judgments of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 65, and of 9 November 2023, Všeobecná úverová banka, C‑598/21, EU:C:2023:845, paragraph 85).
41 It is important to note that the cases which gave rise to those judgments concerned situations in which the persons in question were faced with the loss of their family home. In the present case, the legislation at issue in the main proceedings concerns a situation in which a natural person might purchase or rent his or her future home. In such a situation, there can be no question of ‘respect for the home’ for the purposes of Article 7.
42 It should be borne in mind, furthermore, that, in accordance with Article 52(3) of the Charter, which is intended to ensure the necessary consistency between the rights enshrined in the Charter and the corresponding rights guaranteed in the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, without adversely affecting the autonomy of EU law, the Court must take into account, when interpreting the rights guaranteed by Article 7 of the Charter, the corresponding rights guaranteed by Article 8(1) of that convention, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (see, to that effect, judgment of 8 December 2022, Orde van Vlaamse Balies and Others, C‑694/20, EU:C:2022:963, paragraph 26 and the case-law cited).
43 In that regard, it is apparent from the case-law of the European Court of Human Rights that Article 8 of that convention does not in terms recognise a right to be provided with a home (ECtHR, 18 January 2001, Chapman v. the United Kingdom, CE:ECHR:2001:0118JUD002723895, § 99).
44 It follows that there is no need to answer the request for a preliminary ruling in the light of Article 7 of the Charter.
45 Second, as regards a possible assessment of the national legislation at issue in the main proceedings in the light of Article 16 of the Charter, the Court has held that examination of the restriction brought about by national legislation from the point of view of Article 49 TFEU also covers possible limitations of the exercise of the rights and freedoms laid down in Articles 15 to 17 of the Charter, with the result that a separate examination of the freedom to conduct a business enshrined in Article 16 of the Charter is not necessary (judgment of 7 September 2022, Cilevičs and Others, C‑391/20, EU:C:2022:638, paragraph 56 and the case-law cited).
46 As is apparent from recitals 5 to 7 and 64 of Directive 2006/123, that directive gives effect to the freedom of establishment enshrined in Article 49 TFEU (see, to that effect, judgment of 16 June 2015, Rina Services and Others, C‑593/13, EU:C:2015:399, paragraph 40).
47 It follows that, where a national measure is examined in the light of Article 15 of Directive 2006/123, a separate examination of the freedom to conduct a business enshrined in Article 16 of the Charter is not necessary.
48 Nevertheless, Article 15 of Directive 2006/123 must, in any event, be interpreted in the light of Article 16 of the Charter.
49 Similarly, third, Article 38 of the Charter, which requires that Union policies ensure a high level of consumer protection, must be taken into account in interpreting Article 15(3) of Directive 2006/123.
50 It thus follows from the foregoing considerations that, by its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 15(3) of Directive 2006/123, read in the light of Articles 16 and 38 of the Charter, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which, as regards a purchase or rental by a natural person of a single-family dwelling, a flat or a residential unit, provides for a cap on the commission charged for property intermediation services:
– in the case of a purchase or sale of immovable property the contract value of which exceeds or is equal to EUR 10 000, amounting to 4% of the price stipulated in the contract, and
– in the case of rental, amounting to 4% of the product of multiplying the monthly rent by the number of months for which the property is let, it being understood that that commission cannot exceed one month’s rent.
51 A measure, such as that at issue in the main proceedings, which provides for a cap on commissions charged for property intermediation services, may be permitted, in the light of the cumulative conditions laid down in Article 15(3) of Directive 2006/123, (i) if that measure is not directly or indirectly discriminatory according to the nationality of the person concerned or, with regard to companies, according to their registered office, (ii) if it is justified by an overriding reason relating to the public interest, and (iii) if it is suitable for securing the attainment of the objective pursued and does not go beyond what is necessary to attain that objective, other less restrictive measures not allowing the attainment of the same result.
52 As regards, in the first place, the condition laid down in Article 15(3)(a) of Directive 2006/123, the referring court states that the cap on commissions charged for property intermediation services is not discriminatory since that cap applies irrespective of the location of the registered office of the property company concerned.
53 As regards, in the second place, the condition laid down in Article 15(3)(b) of that directive, according to which the requirements in question must be justified by an overriding reason relating to the public interest, the referring court states that, by imposing the cap on commissions charged for property intermediation services relating to the purchase, sale and rental of immovable property, the national legislature sought, first, to promote the accessibility of adequate housing at affordable prices for vulnerable persons, namely young people, and more specifically students, as well as for the elderly, and second, to contribute to consumer protection by increasing price transparency, having regard to the lack of available housing, in particular for renting.
54 In that regard, the Court has recognised that consumer protection constitutes an overriding reason in the public interest (see, to that effect, judgments of 15 October 2015, Grupo Itevelesa and Others, C‑168/14, EU:C:2015:685, paragraph 74, and of 4 July 2019, Commission v Germany, C‑377/17, EU:C:2019:562, paragraph 70). This is, moreover, borne out by recital 40 of Directive 2006/123 and contributes to that directive meeting the requirements of Article 38 of the Charter.
55 Requirements promoting access to housing for persons who are vulnerable or have a low income can also constitute an overriding reason relating to the public interest (see, by analogy, judgments of 8 May 2013, Libert and Others, C‑197/11 and C‑203/11, EU:C:2013:288, paragraphs 50 to 52, and of 22 September 2020, Cali Apartments, C‑724/18 and C‑727/18, EU:C:2020:743, paragraph 68).
56 It follows that a measure capping commissions charged for property intermediation services such as that at issue in the main proceedings satisfies the condition laid down in Article 15(3)(b) of Directive 2006/123.
57 In the third place, the condition of proportionality, referred to in Article 15(3)(c) of that directive, presupposes that the measure in question is such as to secure the attainment of the objective pursued, that it does not go beyond what is necessary to attain that objective and that there are no measures that are less restrictive and would allow the same result to be achieved.
58 As a preliminary point, it is important to emphasise that it is ultimately for the referring court, which alone has jurisdiction to assess the facts of the disputes in the main proceedings and to interpret the national legislation, to determine whether and to what extent that legislation satisfies that condition of proportionality. To that end, that court will need to examine objectively, with the help of statistical data or by other means, the evidence submitted by the authorities of the Member State concerned (see, to that effect, judgments of 23 December 2015, Scotch Whisky Association and Others, C‑333/14, EU:C:2015:845, paragraph 56, and of 17 October 2024, FA.RO. di YK & C., C‑16/23, EU:C:2024:886, paragraph 92).
59 However, the Court of Justice, which is called on to provide answers of use to the referring court, may provide guidance based on the documents relating to the main proceedings and on the written observations which have been submitted to it, in order to enable the court in question to give judgment (judgment of 17 October 2024, FA.RO. di YK & C., C‑16/23, EU:C:2024:886, paragraph 93 and the case-law cited).
60 Furthermore, the Court has held that the Member State concerned is not required to prove, positively, that no other conceivable measure could enable the objective pursued to be attained under the same conditions. Such a requirement would amount, in practice, to depriving the Member State concerned of its regulatory competence in the field concerned (see, to that effect, judgment of 4 July 2019, Commission v Germany, C‑377/17, EU:C:2019:562, paragraph 64).
61 This applies a fortiori when a Member State has to be able to justify a ‘requirement to be evaluated’ by an overriding reason in the public interest as soon as that requirement is introduced and therefore, logically, when it does not necessarily have in its possession any empirical evidence of the results of that requirement, as compared with the results of other measures (judgment of 4 July 2019, Commission v Germany, C‑377/17, EU:C:2019:562, paragraph 65).
62 It must, in that regard, be borne in mind that, whilst the Member States have a broad discretion when choosing the measures capable of achieving the aims of their social policy, the fact remains, however, that that discretion may not have the effect of undermining the rights granted to individuals by the Treaty provisions in which their fundamental freedoms are enshrined (judgment of 21 December 2016, AGET Iraklis, C‑201/15, EU:C:2016:972, paragraph 81 and the case-law cited), as given effect, as regards, in particular, the freedom of establishment guaranteed in Article 49 TFEU, by Directive 2006/123.
63 In the light of those preliminary observations, it should be borne in mind, first, that, as stated in paragraph 53 above, the cap on commissions charged for property intermediation services is intended to promote the accessibility of adequate housing at affordable prices for vulnerable persons, namely young people, and more specifically students, as well as for the elderly, and, furthermore, to contribute to consumer protection by increasing price transparency.
64 Since it increases the transparency of the tariffs charged by property companies and prevents those companies from charging excessive intermediation prices, the cap on commissions for property intermediation services appears to be such as to contribute to consumer protection. The referring court states, in that regard, that such a cap can contribute to price transparency since it allows consumers to predict the amount of the commission that will be charged, in particular the proportion of the sale price or of the rent amount that it represents.
65 The referring court states that, in the light of the deterioration in the conditions of access to housing and the price trends on the property markets in Slovenia, the amount of the commission for property intermediation services is likely reflected in the sale price or the amount of rent charged in respect of immovable property.
66 If that is the case, it should be stated that the cap on that commission appears to be such as to promote the accessibility of adequate housing at affordable prices, in particular for vulnerable persons.
67 As regards, second, the limitation of the measure at issue to what is necessary to attain the objectives pursued and the absence of other less restrictive measures allowing the same result to be achieved, it must be noted, in the first place, that it is apparent from the request for a preliminary ruling that the cap on commissions charged for property intermediation services concerns not only vulnerable persons, but any natural person who purchases or rents immovable property.
68 It follows that that measure is aimed at an indeterminate and potentially large number of persons and is not designed specifically to protect only vulnerable persons, whereas that protection was one of the objectives pursued by the Slovenian legislature when it adopted that measure.
69 In addition, the referring court states that the property intermediation services to which the cap on the commissions concerned applies relate to the purchase, sale or rental of a single-family dwelling, a flat or a residential unit.
70 In accordance with Article 2(2) of the Law on Housing, in the version applicable to the disputes in the main proceedings, single-family dwellings include detached single-family houses, villas, atrium houses, terraced houses and holiday homes. It follows that, subject to the verifications to be carried out by the referring court, the cap on commissions charged for property intermediation services is, inter alia, applicable where those services concern the purchase, sale or rental of housing used for a purpose other than that of being a main residence.
71 It must, however, be noted that, although such circumstances may, in principle, be an indication that a measure goes beyond what might be necessary in order to attain the objective relating to the protection of vulnerable persons which it pursues, the fact remains that the principle of proportionality does not necessarily prevent that measure from benefiting all consumers (see, by analogy, judgments of 20 April 2010, Federutility and Others, C‑265/08, EU:C:2010:205, paragraph 40, and of 11 April 2019, Repsol Butano and DISA Gas, C‑473/17 and C‑546/17, EU:C:2019:308, paragraph 64).
72 It is nevertheless for the referring court to examine, in particular, the possibility and appropriateness of adopting measures with a more targeted focus on vulnerable consumers. Relevant factors in that regard are the feasibility and economic effects of such measures.
73 In that regard, the referring court states that the matter of the range of possible measures that the Slovenian legislature may adopt and their effectiveness as part of housing policy is extremely complex, since there are certain material restrictions, in the area of land-use planning, urban planning and public finances, which do not allow the State to intervene as it wishes in the supply of housing.
74 The applicants in the main proceedings refer, for their part, to less restrictive measures that they consider possible in the context of rentals, namely the increase in the number of social housing units intended for renting, subsidies for market rents as well as tax, zoning and other regulatory measures intended to encourage the construction of social housing. The Commission, for its part, refers to measures consisting in supporting the supply of affordable housing or in providing purchasers and tenants with useful information on the intermediation tariffs.
75 It will be for the referring court to ascertain whether there are other measures, less restrictive than the cap on commissions for property intermediation services, that are able to attain the objective pursued by that cap, which is to promote the accessibility of adequate housing at affordable prices for vulnerable persons.
76 Furthermore, as regards the level at which commissions charged for property intermediation services are capped, the referring court states that some property companies have ceased pursuing or are at risk of ceasing to pursue intermediation activities as regards natural persons renting immovable property, in particular in the case of short-term rentals that allow only small amounts to be charged by way of a commission. According to that court, the price of property intermediation services is capped at an amount which does not allow those companies to cover the costs of their services.
77 It must be recalled, in that regard, that Article 16 of the Charter covers the freedom to exercise an economic or commercial activity, freedom of contract and free competition and, in particular, the freedom to determine the price charged for a service (see, to that effect, judgment of 21 December 2021, Bank Melli Iran, C‑124/20, EU:C:2021:1035, paragraph 79).
78 Nevertheless, in accordance with the Court’s case-law, the freedom to conduct a business is not absolute, but must rather be viewed in relation to its social function. That freedom may thus be subject to a broad range of interventions on the part of public authorities which may limit the exercise of economic activity in the public interest (see, to that effect, judgments of 22 January 2013, Sky Österreich, C‑283/11, EU:C:2013:28, paragraphs 45 and 46, and of 2 June 2022, Skeyes, C‑353/20, EU:C:2022:423, paragraphs 48 and 65).
79 It will be for the referring court, in that regard, to examine the specific level of fees obtained by the companies providing property intermediation services and, in particular, whether the amount resulting from the cap on commissions charged for property intermediation services at issue in the main proceedings is set at a level that is too low to cover the costs of those companies and enable them to make a reasonable profit as well as to allow price competition. In the present case, it should be noted that it is apparent from the request for a preliminary ruling that that cap does not affect other intermediation activities provided by those companies, such as intermediation between economic operators and intermediation in respect of rentals of immovable property that is not intended for residential use.
80 As regards, in the second place, the examination, in the light of the second objective of the measure at issue in the main proceedings, which consists in contributing to consumer protection by increasing price transparency, of the question whether that measure does not go beyond what is necessary, and whether there are other less restrictive measures allowing the same result to be achieved, it will be for the referring court to ascertain, in particular, whether the adoption of measures aimed at making useful information on the tariffs for intermediation services available to consumers, as purchasers and tenants, would make it possible to attain the same result as that pursued by the cap on the commissions in question. It might, in that regard, be sufficient to require property companies providing intermediation services to indicate to those purchasers and tenants, in a clear manner and sufficiently in advance, the commission amount that they will charge and whether that amount will be included in the final price stipulated in the contract concerned.
81 The information available to the Court does not, however, allow it to provide the referring court with additional information enabling it to determine whether such measures would be such as to ensure the same result, in respect of consumer protection by increasing price transparency, as that attained by the measure capping the commissions at issue in the main proceedings.
82 Lastly, it is important to note that, although the referring court considers, as it appears from the request for a preliminary ruling, that the two objectives referred to by the Slovenian legislature by way of justification for the capping of commissions charged for property intermediation services, namely, first, promoting the accessibility of adequate housing at affordable prices for vulnerable persons, and second, contributing to consumer protection by increasing price transparency, are inseparable, and that one is not secondary to the other, a finding that that measure does not go beyond what is necessary to attain one of those objectives and that, for the purpose of attaining the objective in question, there are no other less restrictive measures allowing the same result to be achieved, would mean that that measure, in its entirety, satisfies the conditions laid down in Article 15(3)(c) of Directive 2006/123.
83 It follows from all the foregoing considerations that the answer to the questions referred for a preliminary ruling is that Article 15(3) of Directive 2006/123, read in the light of Articles 16 and 38 of the Charter, must be interpreted as not precluding national legislation which, as regards a purchase or rental by a natural person of a single-family dwelling, a flat or a residential unit, provides for a cap on the commission charged for property intermediation services:
– in the case of a purchase or sale of immovable property the contract value of which exceeds or is equal to EUR 10 000, amounting to 4% of the price stipulated in the contract, and
– in the case of rental, amounting to 4% of the product of multiplying the monthly rent by the number of months for which the property is let, it being understood that that commission cannot exceed one month’s rent,
provided that that legislation does not go beyond what is necessary to attain the objectives which it pursues and that there are no other less restrictive measures allowing the same result to be achieved.
Costs
84 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Third Chamber) hereby rules:
Article 15(3) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, read in the light of Articles 16 and 38 of the Charter of Fundamental Rights of the European Union,
must be interpreted as not precluding national legislation which, as regards a purchase or rental by a natural person of a single-family dwelling, a flat or a residential unit, provides for a cap on the commission charged for property intermediation services:
– in the case of a purchase or sale of immovable property the contract value of which exceeds or is equal to EUR 10 000, amounting to 4% of the price stipulated in the contract, and
– in the case of rental, amounting to 4% of the product of multiplying the monthly rent by the number of months for which the property is let, it being understood that that commission cannot exceed one month’s rent,
provided that that legislation does not go beyond what is necessary to attain the objectives which it pursues and that there are no other less restrictive measures allowing the same result to be achieved.
