European Court – 4th of July 2019
December 2019 – Putzier – Attorneys-at-law Partnerschaftsgesellschaft mbB
In Germany architects and engineers as well as their business partners are bound by the regula-tions of the fee agreement of architects and engineers (HOAI – “Honorarordnung für Archi-tekten und Ingenieure”). The European Court ruled with its decision of July 4th 2019 that Ger-many has broken its contractual obligation of article 15 I, II g and III of the Directive on Ser-vices 2006/123/EG with its minimum and maximum fees within the HOAI for planning ser-vices.
As a reaction to that the Awarding Chamber of the Federal Government of Germany (“Vergabekammer des Bundes”) has ruled, that between private entities and government agen-cies the European Directive on Services must be applied directly. The binding fee regulations of the HOAI in its current version have to be abolished. In conclusion, if one party is a government agency the fee regulations are not to be applied.
If both parties are private entities it is disputed between the Highest Regional Courts whether the civil courts of Germany shall apply the minimum prices of the HOAI or not. Some courts have ruled that the minimum prices shall not be considered applicable because of its illegality in re-gard to European law (OLG Celle; OLG Dresden). In contrast, other German courts have de-cided that neither the decision of the European Court nor the judgement of the HOAI in light of European law allow the conclusion that the minimum fee agreements of the HOAI are not be applied in legal disputes regarding architectural law between two private entities (OLG Hamm; KG (Berlin); OLG München).
The decisions of the different Highest Regional Courts are therefore partially contrary to each other. The Federal Supreme Court of Germany has not decided on that matter which results in a high contractual uncertainty regarding the applicability of the fee regulations of the HOAI.
For more information on the above or in other matters, please contact Dr. Eckart Putzier or Katharina Götting (firstname.lastname@example.org).