Reports and Statements

It had already suggested itself: The ECJ regards the minimum and maximum fees in the German Honorarordnung für Architekten und Ingenieure (HOAI) as a violation of Union law. In doing so, he agrees with the demands of the EU Commission and the ECJ Attorney General, but makes important statements about the quality assurance of minimum fees and the distri­bution of the burden of proof. In the legal profession, the proceedings were closely followed because the German Lawyers' Fees Act (Rechtsan­waltsvergü­tungs­gesetz - RVG) still provides for minimum fees, at least for judicial represen­tation.

It has been contro­versial for some time whether the minimum and maximum fees for architects meet the requirements of European law. In particular, the Commission saw a violation of the Services Directive 2006/123/EC and the freedom of establishment in the binding fee rates of the HOAI. With the judgment of the European Court of Justice of 4 July 2019 (Case C-377/17), the infringement proceedings against Germany initiated by the EU Commission since 2015 have come to an expected end: The binding minimum and maximum fees for planning services by architects and engineers constitute a violation of the Services Directive. As a result, the Court of Justice has joined the vote of the Advocate General of the European Court of Justice. How the Advocate General justified his vote and more on the background to the infringement proceedings in the Anwaltsblatt.

In particular, the Polish ECJ Advocate General Szpunar had argued that Germany had already failed to prove that a system without minimum prices could lead to a market failure in which high-quality services would be replaced by those of lower quality. The Court, on the other hand, chooses a differ­en­tiated reasoning: First of all, the ECJ's clarifi­cation that minimum rates can in principle contribute to ensuring a high quality of planning services is remarkable. The EU commission could not refute from view of the EuGH that the market for planning achievements in the building industry in Germany is charac­terized by a strong information asymmetry between architects as well as engineers and consumers. Minimum fees could limit the danger in so far that services are offered at cheap prices, which cannot ensure the quality of these achievements in the long term.

While the Advocate General had criticised the insufficient evidence for Germany's reasoning, the ECJ accepts the studies submitted by the Federal Government to confirm its arguments. It also rejects the argument of the EU Commission that the price as such is not an indication of the quality of a service. Finally, the Court also makes important statements on the burden of proof: it is not Germany's respon­si­bility to prove that the abolition of minimum prices leads to a reduction in the quality of services. The Court also confirmed that the Member State concerned did not have to prove positively that - transferred to the specific case - the objective of quality assurance could not be achieved by any measure other than minimum charges.

HOAI does not protect service quality in a coherent manner

The stumbling block to the minimum fees in the HOAI was ultimately that it does not reserve access to planning services in the construction industry to certain professions that are subject to profes­sional or chamber supervision. The ECJ accuses Germany of not pursuing the justifi­cation objective of quality assurance of services in a coherent manner. The incoherence is shown by the fact that, on the one hand, the aim of quality assurance of planning services is to be pursued by the minimum rates, but, on the other hand, the planning services can be provided by service providers who have not proven their profes­sional suitability.

The ECJ dedicates signif­i­cantly shorter remarks to the maximum prices: With regard to the regulations on maximum prices, the Court acknowledges that these could contribute to consumer protection through increased price transparency. However, binding maximum prices prove to be dispro­por­tionate to mere price orientations for consumers.

Conclusions for the legal profession and conclusion

With regard to the minimum and maximum fees under the HOAI, the German legislator now has several options: It can abolish them or reserve the provision of planning services to certain regulated professions.

The ruling of the European Court of Justice is clearly tailored to the requirements of the HOAI, so that initially there are no direct effects on the minimum fees for judicial represen­tation under the RVG and § 49b (1) sentence 1 BRAO.