I. Judgment of the ECJ
The Services Directive only allows maximum or minimum prices to be set if they are non-discriminatory, necessary and proportionate. The European Commission was of the opinion that this was not the case for the HOAI.
The Federal Republic of Germany argued that the minimum prices pursued the objectives of quality of planning services, consumer protection, construction safety, preservation of building culture and ecological construction. In addition, the maximum prices primarily served the interests of consumer protection.
The ECJ confirmed the Commission's view. The objectives cited by the Federal Republic of Germany could be necessary because they could pursue "overriding reasons in the public interest". However, the specific provisions of the HOAI were not suitable with regard to the minimum tariffs and were not proportionate with regard to the maximum tariffs.
The suitability of a regulation to promote an overriding public interest presupposes that it pursues the objective in a coherent and systematic manner. This is not guaranteed with the minimum tariff regulation: The HOAI does not ensure high planning quality and construction safety in any other way either. This is primarily due to the fact that in Germany planning services can be provided by any profession without proof of professional suitability and sufficient qualification.
Although maximum prices are generally suitable for promoting consumer protection, less drastic means are available, such as the provision of price guidelines for the various service categories of the HOAI.
II Consequences for practice
First of all, the legislator is obliged to adapt the German legal situation in line with EU law. This can be done in two ways. Firstly, it is possible to delete the provisions on maximum and minimum rates without replacement. Secondly, the legislator could create a regulation according to which the provision of planning services would in future only be reserved for professionally qualified architects and engineers.
Whether a client or architect can still rely on the tariff limits of the HOAI before a German court in a purely domestic situation - unless their validity has been expressly agreed by contract - is currently still unclear. On the one hand, the ECJ extended the scope of the Services Directive to purely domestic situations in 2018 (C-360/15 and C-31/16).
On the other hand, German case law continues to assume that Union law only takes precedence over national law and does not take precedence, i.e. that regulations contrary to Union law are only inapplicable in situations with a cross-border Union connection.
For clients, the ruling brings with it the welcome change that, in particular in the context of Europe-wide tendering procedures, offers below the previous minimum rates of the HOAI can be expected in future.
The interest groups of architects and engineers are advised to exert political pressure to ensure that in future the authorization to provide planning services is linked to a corresponding professional qualification in order to integrate the minimum rates of the HOAI into a coherent regulatory concept.
Dr. Moritz Rochow