What the reform changed
The basis is the judgment of the Court of Justice of the European Union of 4 July 2019, holding that the binding minimum and maximum rates infringed the Services Directive. The legislator consequently revised both the enabling act and the HOAI itself. The revision entered into force on 1 January 2021.
| Until end of 2020 | Since 2021 |
|---|---|
| Binding price framework | Free negotiation |
| Minimum and maximum rates | Fee tables as values for orientation |
| Minimum rate as a mandatory floor | Basishonorarsatz as a fallback |
| Written form at the time of commission | Text form, at any time |
The last row is frequently overlooked and matters in practice. First, Textform now suffices, meaning an email, with no signatures required. Second, the agreement is no longer tied to the moment of commissioning but can be concluded at any time.
What survived from the old regime and what did not is covered in the article on the end of binding minimum rates. That article also sets out how to handle contracts predating the reform.
Text form governs the level
The governing sentence sits in § 7 paragraph 1: the fee follows the agreement the parties make in text form. Where no agreement on the level of the fee has been made in text form, the applicable Basishonorarsatz, base fee rate, applies to basic services.
Three points matter here. The first is what makes the agreement indispensable.
| Point | What it means |
|---|---|
| The consequence is a legal fiction and cannot be rebutted | later evidence that a higher fee was intended does not help |
| It concerns basic services only | for additional services, absent a valid agreement, the customary remuneration under the general law of works contracts applies |
| The base fee rate is the lower figure in the fee table | identical in level to the former minimum rate, but in function a fallback rule rather than a floor |
The additional duty towards consumers
Where the client is a consumer, a second requirement arises. Under § 7 paragraph 2 the designer must inform them, in text form and before they make their binding contractual declaration, that a higher or lower fee than the figures in the fee tables may be agreed.
If that notice is omitted or given late, the base fee rate applies in place of a higher fee. The timing is therefore as decisive as the content.
The consequence must be read precisely: the fee agreement does not become invalid. It is merely capped at the base fee rate. In a dispute the designer bears the burden of showing that the fee agreed does not exceed that rate.
Note too that the duty to inform applies to every kind of remuneration agreement with a consumer, including hourly and lump sum fees. It is not confined to agreements based on the fee tables. The alternatives are covered in the article on hourly rates and lump sum fees.
Two routes lead to the base fee rate
The two mechanisms are frequently conflated although they work differently. One replaces a missing agreement, the other caps an existing one.
| § 7 paragraph 1 | § 7 paragraph 2 | |
|---|---|---|
| Trigger | no agreement on the level in text form | notice to a consumer missing or late |
| Applies towards | all clients | consumers only |
| Effect | base fee rate applies as agreed | a higher fee is capped at the base rate |
| Agreement remains valid | there is none | yes, only capped in amount |
A simple sequence follows for practice: with a consumer, first the notice in text form, then the agreement in text form, and both before their binding contractual declaration. Making it good after the contract does not cure the missing notice.
What still applies
The reform removed the price law, not the system. The principles and measures of the HOAI may be drawn on by the parties to determine the fee, and in practice they almost invariably are. It happens because no other method is available.
The calculation quantities are therefore unchanged: chargeable costs as the fee basis, the fee zone as a measure of difficulty, the percentage weighting of the work phases, and interpolation between table values. The branch on calculating fees covers them in detail.
The catalogue was also extended: the services of Annex 1, such as building physics, geotechnics and engineering surveying, were placed on the same footing as the other basic services. The fallback of the base fee rate therefore applies to them as well.
What belongs in the agreement
Three points govern later enforceability and appear surprisingly rarely in contracts. They cost nothing to prepare and cannot be made good later.
| Point | What must be settled |
|---|---|
| The level and its derivation | a percentage of the table values, a lump sum or an hourly rate is free; what must be recorded is what the amount rests on |
| The scope of services | which work phases and which additional services are transferred also determines what may be invoiced |
| The handling of changes | without a provision, dispute arises as soon as the scope changes |
The system of partial commissioning is covered in the article on partial commissioning. The handling of changes is covered in the article on fee adjustment.
Related articles
This article reflects the position of the rules and case law at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.