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14.10.2021 | KPMG Law Insights

Advocate General at the ECJ: Minimum and maximum rates of the HOAI no longer applicable even in old cases between private parties

Advocate General at the ECJ: Minimum and maximum rates of the HOAI no longer applicable even in old cases between private parties

In his opinion of July 15, 2021, the Advocate General at the ECJ Maciej Szpunar emphasized for fee disputes under the validity of the HOAI 2013 that even in old cases between private parties the maximum and minimum rates of the HOAI 2013 no longer constitute mandatory price law. It is permissible to fall below the minimum rates and to exceed the maximum rates, provided that the parties agreed on a fee outside the price range of the HOAI 2013. This also applies to disputes between parties under private law, even if the relevant Services Directive (Directive of the European Parliament and of the Council of 12 December 2006 on services in the internal market – OJ 2006 L 376, p. 36) is not directly applicable in the horizontal relationship between private parties.

According to Advocate General Szpunar, the obligation of national courts to no longer apply the minimum and maximum rates in old cases as well results from the special character of the provisions of the Services Directive concretizing the freedom of establishment enshrined in the Treaty as well as from the required respect for the fundamental right of freedom of contract guaranteed in the Charter of Fundamental Rights of the EU.

The starting point for the proceedings before the ECJ was a question referred by the BGH as to how European law, in particular the Services Directive, was to be interpreted in the case of legal disputes between private parties under the then validity of the HOAI 2013. The BGH had to review a judgment of KG Berlin dated May 12, 2020 – 21 U 125/19. In its ruling, the KG had come to the conclusion that the Services Directive was not directly applicable to the detriment of the architect or engineer within a private legal relationship. Other higher regional courts (e.g. OLG Celle, judgment of 17.07.2019 – 14 U 188/18), on the other hand, had – now in line with the Advocate General’s opinion – left the minimum and maximum rates of HOAI 2013 unapplied due to the primacy of application of European law. KPMG Law had also reported on the state of opinion to date: https://kpmg-law.de/mandanten-information/hoai-mindestsaetze-europarechtswidrig-und-nun/

It remains to be seen how the ECJ will now rule on the question referred by the BGH, taking into account the Opinion. However, in practice, the Opinions are a fairly reliable indicator of European opinion. As a result of the ECJ’s decision, the BGH will then decide on the appeal against the judgment of the KG Berlin, taking into account the interpretation requirements from Europe.

For planner and engineer contracts concluded since January 1, 2021, the HOAI 2021 applies, which no longer provides for mandatory pricing law as a result of the ECJ ruling of July 4, 2019 (Case C-377/17): https://kpmg-law.de/newsservice/neue-hoai-2021-auswirkungen-auf-die-vertragsgestaltung-in-der-praxis/

Source: ECJ Press Release No. 140/2021 v. 15.07.2021

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