On 16 September 2020, the Federal Government adopted an amendment to the Fee Structure for Architects and Engineers (HOAI). On 8 October 2020, the Bundestag also passed the corresponding necessary amendment to the legal basis of the HOAI, the Act on the Regulation of Engineering and Architectural Services (Gesetz zur Regelung von Ingenieur- und Architektenleistungen, AchLG), on 8 October 2020. These amendments implement the adaptation of the HOAI to the EU Services Directive, which became necessary as a result of the ECJ ruling. On 6 November 2020, the Bundesrat decided not to request the mediation committee to convene due to the amendment act and approved the amendment to the HOAI This means that there is nothing to prevent it from coming into force on 1 January 2021.
For contracts concluded from 1 January 2021, the mandatory price law of the maximum and minimum rates of the HOAI is therefore history.
The current version of the law regulating engineering and architectural services stipulates that binding minimum and maximum rates for architectural and engineering services must be specified in the fee schedule. In its judgement of 4 July 2019, the ECJ found that mandatory remuneration in accordance with minimum and maximum rates is incompatible with Article 15 (1), (2) (g) and (3) of the Directive on services in the internal market, according to which Member States shall examine whether their legal system makes access to a service activity or the exercise thereof subject to non-discriminatory compliance by the service provider with fixed minimum and/or maximum prices and whether this requirement is necessary and proportionate. The ECJ sees the infringement of European law in the fact that in Germany planning services may also be provided by service providers who do not have to prove their professional suitability. Consumer protection and the objective of maintaining a high level of planning quality could, in principle, be considered as suitable reasons to justify the fixed remuneration corridor of Section 7 I HOAI. However, these objectives would not be pursued in a coherent and therefore disproportionate manner. This is because providers of planning services do not have to prove any particular professional aptitude, which speaks against the pursuit of a high level of planning and consumer protection. In this respect, the regulations, which constitute mandatory pricing law, are unsuitable for ensuring the quality of planning services. The aim of protecting the service recipient from excessively high fees also no longer requires binding maximum rates if the recipient can understand how individual prices fit into the framework of normal prices on the basis of price recommendations.
The federal government responded to this by amending the ArchLG and the HOAI, which in its new version no longer contains mandatory minimum and maximum fee rates, but only rates for fee orientation. However, the principles and standards for determining fees can also be used in the future, in particular by agreement between the parties. The previous fee tables, which the ECJ also considered to be permissible and expedient in its judgement, remain included in the HOAI for the contracting parties for price orientation, but will not be binding in future.
In future, text form will be sufficient for the conclusion of effective fee agreements. In the event that no agreement is reached between the parties on the amount of the fee, the wording of the new HOAI contains a fiction. In this case, the Basic fee rate which results from the application of the fee calculation regulations of the HOAI in individual cases and which corresponds to the previous minimum rate. From now on, the fee tables will serve as a guide. However, the familiar (and proven) system of fee calculation will essentially remain unchanged. This means that (in building construction) chargeable costs, service profile, fee zones and the fee tables (as a guide) remain decisive.
The restriction of the scope of application of the HOAI to nationals is to be abolished due to the abolition of mandatory pricing law.
At the same time, the Act to Amend the Act on the Regulation of Engineering and Architectural Services and Other Acts amends public procurement law accordingly and also resolves the controversial question of whether the provision of Section 650 c (3) BGB (so-called 80 % rule) applies accordingly to architects' and engineers' contracts with a corresponding reference in Section 650 q (2) BGB and answers it in the affirmative.
