HOAI: Oral Hearing before the ECJ in November 2018

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As is well known, the EU Commission had announced on 16 November 2016 that it would take the Federal Republic of Germany to the European Court of Justice (ECJ) over the maintenance of the binding Fee Structure for Architects and Engineers (HOAI).

The action of the EU Commission was filed with the ECJ on 23.6.2017 and the application was served on the Federal Government on 28.6.2017. The oral hearing before the first chamber of the ECJ, which is composed of five judges, will now take place on 7 November 2018. However, a decision by the ECJ is not expected until the first quarter of 2019 at the earliest, and more likely the second quarter.

The case is being brought under the case number Commission v Germany C- 37717. With the infringement proceedings initiated in 2015 regarding the HOAI, the Commission had claimed to also be responsible for the purely domestic freedom of establishment.

From the Commission's point of view, the Fee Regulation impedes the freedom of establishment through its mandatory minimum rates: If the minimum rates did not exist, so the EU argumentation, more foreign and domestic offices would establish themselves in Germany - this would benefit the economy and competition. Chambers and associations had used a comprehensive argumentation to convince the Federal Government of the importance of the binding fee schedule, especially for quality and thus consumer protection.

Barbara Ettinger-Brinckmann, President of the Federal Chamber of Architects, pointed out that the number of architectural practices in Germany had risen from 35,021 (2008) to over 41,117 (2014). This proves that the HOAI is not an obstacle to settling here - neither for nationals nor for foreigners. Price competition for planning services misses the goal of good planning, because cheaper planning generally means less and poorer planning quality. Those who save on planning will later pay avoidable higher costs during construction and operation of the building. "We will continue to fight for the preservation of the fee schedule with good arguments," said Ettinger-Brinckmann on the current development.


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