Opinion in the HOAI infringement proceedings available

In the action before the European Court of Justice (ECJ), Advocate General Szpunar expressed in his opinion published on 28 February 2019 that he considers the binding nature of the minimum and maximum rates of the HOAI to be incompatible with EU law. In his view, they inadmissibly impede the freedom of establishment because they do not give architects and engineers the opportunity to establish themselves in the market by means of low prices.

The ECJ's final judgment is expected in the second or third quarter of 2019.

It is of course extremely regrettable that the Advocate General did not want to follow our conclusive arguments in the proceedings against the minimum and maximum rates of the HOAI. The planners' organisations, above all the BAK, BIngK and AHO, together with the Federal Government, have done everything to refute the EU Commission's thesis that the minimum and maximum rates of the HOAI are not compatible with EU law.

Even if the last word has not yet been spoken in the proceedings - in a comparable important case (C-94/04; "Cipolla") the ECJ did not follow the vote of the Advocate General - the consequences of a possible negative ruling by the ECJ must now be dealt with in a timely manner. It is important to provide planners in Germany with a reliable and manageable solution in coordination with the responsible departments of the Federal Government. The background is

• that even the EU Commission has not expressed any reservations about the HOAI regulations as such,
• that the Bundestag has expressly declared its support for the HOAI in two resolutions,
• that the Federal Government is committed to the preservation of the HOAI in the coalition agreement.

In terms of content, the Federal Government has spoken out in favour of retaining binding minimum and maximum rates. Should these now not be compatible with EU law in the view of the European Court of Justice, it would have to assume responsibility for the continuity of the application of the law as a consequence of the principle of the rule of law pursuant to Article 20 of the Basic Law and pursue a path of the least possible deviation from the current legal situation.

The service specifications of the HOAI have also established themselves over decades as a valuable framework and guideline for planning and building in Germany. They are a reliable framework and guide for planning and building in Germany for clients and contractors as well as for building owners, planners and building contractors. The HOAI also offers legal certainty, as case law and practice have dealt with the individual service specifications down to the smallest detail. The binding nature of the minimum and maximum rates would have to be relaxed if the worst came to the worst. What could be considered instead - analogous to the regulation for other liberal professions - is a kind of statutory regulatory framework from which deviations could be made by explicit agreement. However, these deviating agreements would be subject to an express reservation of appropriateness with regard to performance, responsibility and liability risk.

Pending the final conclusion of the proceedings:

• The binding minimum and maximum rates of the HOAI are currently applicable law.
• The current court proceedings have no direct legal effect on this until they are concluded.
• All existing contracts, including the agreed fee rates of the HOAI, remain valid as before.

Only on the basis of a favourable judgment in the infringement proceedings would the Federal Government be obliged to immediately abolish the obligation to observe binding minimum and maximum rates (Section 7 (1) HOAI) as a whole. Further requirements of the ECJ are not to be expected.

The indirect consequences for existing fee agreements would be limited from a legal point of view:

In the case of minimum rate underruns or maximum rate overruns, it would no longer be possible to demand a fee adjustment on a regular basis. The existence of HOAI-compliant agreements, on the other hand, is generally not at risk.

Source: Federal Chamber of Architects - BAK
Berlin Office, Askanischer Platz 4, 10963 Berlin,
T 49 -30-263944-0, e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it., www.bak.de

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