Binding fees of the HOAI in violation of EU law

With judgment of the 04.07.2019 (http://curia.europa.eu/juris/document/document.jsf;jsessionid=8BEB50AA32C2454D2D5E0B3E5D5EA969?text=&docid=215785&pageIndex=0&doclang=DE&mode=lst&dir=&occ=first&part=1&cid=1319211)The ECJ has now ruled "that the Federal Republic of Germany has thereby breached its obligations under Art. 15 Abs.1, Abs.2 g. and Abs. 3 of the 2006 / 123 Directive by providing binding fees for the planning services of architects and engineers. "

The binding minimum rates laid down in the HOAI were deemed by the ECJ to be unsuitable for ensuring the high quality of planning services pursued by the Federal Republic of Germany and for ensuring consumer protection. This is especially because "in Germany, planning services can (also) be provided by service providers who have not demonstrated their respective professional aptitude."

On the other hand, the ECJ's binding maximum rates, which contribute to consumer protection, as claimed by the Federal Republic of Germany, were disproportionate because the Federal Republic of Germany did not explain why "the measures proposed by the Commission as less intrusive, are customer price orientations for the various categories of services mentioned by the HOAI would not be sufficient to adequately

A review of the HOAI on the basis of Art. 49 TFEU (freedom of establishment), on the other hand, the ECJ expressly - contrary to some media coverage - made.

From an economic point of view, the ruling should further exacerbate the already tense competitive situation in the planning industry. In particular, for small planning offices it will be more difficult to compete with larger competitors in the price wars.

Whether and, if so, which legal consequences arise for an already existing architect or engineer contract is - as so often - a question of the individual case and can not be answered on a flat-rate basis. However, it is clear that the planner in particular can no longer easily rely on the minimum rates of the HOAI. For future architects 'and engineers' contracts, care should therefore be taken to settle the question of remuneration autonomously.

If you have any questions about the architect or engineer remuneration in your case, please do not hesitate to contact our office by phone, email or arrange a personal meeting at our offices in Regensburg or Landshut.