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 |  Axel Kötteritzsch

New Compensation Law for archtitects and engineers

In its decision of 4 July 2019, the European Court of Justice (hereinafter referred to as "ECJ") declared the binding minimum and maximum fee rates of the Fee Structure for Architects and Engineers (hereinafter referred to as "HOAI") to be illegal. As a result of this ruling, the Federal Republic of Germany is now obliged to adapt the fee law to the requirements of the ECJ. It is intended to bring the necessary changes in the HOAI into force at the beginning of 2021. A draft law on this has already been submitted.


From our point of view, it seems sensible - if possible in practice - to wait until the beginning of 2021 for the new fee law to come into force when concluding a planning contract with an architect or engineer. According to the draft law, the amendments will at least eliminate some legal and factual difficulties of the HOAI which have been in force up to now. We would like to briefly present some of the changes planned by the legislator in the following:

The most important change is that in future the fee will be based on the agreement reached by both parties in text form. The requirement that such an agreement had to be made in writing when the order was placed in order to effectively exceed the minimum rates will be waived in future. The parties will thus be free to conclude any fee agreements within the framework of legal limits (such as immorality and usury). If the contract is not concluded in text form, a so-called basic fee rate is to be set as agreed, which, however, is only to represent a refutable assumption.


The system of fee determination and fee evaluation already known (and practiced) up to now will, however, remain in place in the future, provided that the parties intend to orient themselves to the modified HOAI. The previous parameters, such as the determination of chargeable costs, the fee zone and the fee rate will continue to be applied in determining the fee. And the percentage rates also continue to apply.



And consumer protection, which is on everyone's lips, will also be included in the future law on fees. If the planner wants to conclude a fee agreement with a consumer in the future, he must also inform the consumer, together with the submission of his written offer, that a higher or lower fee than that provided for in the HOAI can be agreed. Unfortunately, the legislator does not (yet) provide in its draft for the legal consequences that would arise if the planner did not give the consumer the information described above. It can be assumed that the planned contract will become effective. However, the concrete legal consequences are not regulated.


Finally, existing provisions on the due date of instalments and claims are deleted from the final invoice. For these cases, the law on contracts for work and services of the German Civil Code (BGB) offers sufficient regulations, so that this can be waived in the HOAI.


Overall, the planned amendment to the HOAI is certainly not (yet) free of defects. It will also not be able to eliminate all problems of the previous fee law so easily. However, it should certainly provide clarity and security in some central points that have led to disputes between clients and planners over years or decades. Of course, certainty can only be obtained in the future by applying the modified HOAI in practice and having it reviewed by the courts. However, it is certainly worth waiting for the planned change, if possible.


However, until the draft law comes into force as planned at the beginning of 2021, clients and planners will have to live with the current legal uncertainty resulting from the above-mentioned ruling of the European Court of Justice.


Rechtsanwalt Axel Kötteritzsch

Düsseldorf, 02 October 2020

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