The road to the reform
By judgment of 4 July 2019 the Court of Justice of the European Union held that the binding minimum and maximum rates of the HOAI infringed the Services Directive. The judgment concerned the rates themselves and not the rest of the ordinance.
The legislator consequently revised both the underlying enabling act and the HOAI itself. The amended version entered into force on 1 January 2021 and applies to contracts concluded from that date.
A second judgment of the Court, of 18 January 2022, addressed what effect the incompatibility with EU law has in disputes between private parties. That question was central to the so-called top-up claims, by which designers who had agreed a fee below the then minimum rates sued for the difference, relying on the invalidity of that agreement.
What fell away
| What has gone | What takes its place |
|---|---|
| The binding price framework | fees are freely negotiable; there is neither a floor rendering a divergent agreement invalid nor a ceiling |
| The top-up claim in its previous form | it rested on an agreement below the minimum rate being invalid; for contracts from 2021 that anchor is absent |
| Written form at the time of commissioning | text form now suffices, and the agreement may be concluded at any time |
What remained
| What has remained | In what function |
|---|---|
| The fee tables | they persist, but as values for orientation; § 2a paragraph 1 states this expressly |
| The calculation quantities | chargeable costs, fee zones, percentage weightings and interpolation apply unchanged; they are why the HOAI continues to be applied almost universally |
| The base fee rate as a fallback | the former minimum rate in amount, but with a different function: it applies absent an agreement in text form |
| The service profiles | they assign basic services to phases; their significance has grown, since they are now the only normed measure of what is owed |
The practical difference is smaller than expected
A widespread misconception holds that the HOAI is now irrelevant. That is not so, for three reasons, each of which operates independently of the others.
| Reason | Effect in practice |
|---|---|
| The base fee rate acts as a de facto floor where parties are careless | failing to make an agreement in text form lands you there; for the designer a risk, for the client a safeguard |
| The system remains the market standard | clients generally expect a calculation following the HOAI system, because it is comparable and traceable; public sector clients in any event |
| The service profiles define the scope | even with a freely agreed lump sum fee, what is owed is frequently determined through the work phases |
What has actually changed is negotiability in both directions. A fee above the former maximum rate is now permissible, which matters on demanding work in existing buildings or where coordination effort is high. Conversely, a fee below the base rate is valid, provided it was agreed in text form.
Contracts predating the reform
For contracts concluded before 1 January 2021, the earlier version of the HOAI applies. The legal position on those older cases was contested for years and the subject of several proceedings up to the Court of Justice.
Since limitation periods for fee claims have now largely expired, the question has lost practical significance. It remains relevant for pending proceedings and for long-running contractual relationships concluded earlier, and should then be assessed with legal advice.
What replaced the price law
Where an ordinance no longer binds, other measures take its place. Three have replaced the former price law, and they act differently.
| Measure | How it acts |
|---|---|
| The market | negotiability downwards has intensified price competition; that is the most tangible consequence of the reform and the reason the professional bodies press for the table values to be updated |
| General contract law | it applied before and continues unchanged; the HOAI was never a law of obligations but a law of prices |
| Public procurement law | for public clients it determines what role price may play; the end of binding rates has elevated it as an award criterion |
The second point is covered in the article on what the HOAI does not govern. It was the real measure of what is owed even before the reform.
For a design practice it follows that the case for a fee must now be argued differently from before 2021. Reference to a binding floor is no longer available; in its place comes a traceable derivation of one's own effort.
Why so much material is out of date
This is the real reason the subject deserves attention. A substantial share of the articles, templates and checklists available online predates 2021 or was never updated.
Typical markers of an out-of-date treatment can be read from six statements. The first four were correct before 2021 and are no longer.
| Statement | Status |
|---|---|
| The minimum rates may not be undercut | out of date |
| The fee agreement must be in writing at commissioning | out of date |
| The fee tables are binding | out of date |
| A fee above the maximum rate is impermissible | out of date |
| The fee tables are values for orientation | correct |
| Without an agreement in text form the base rate applies | correct |
A simple check rule follows: every source on this subject should first be checked for its date, and every contract template predating 2021 should be revised. A template providing for written form at commissioning is not wrong, but it fails to use today's freedom of arrangement and can lead to needless dispute.
What to do now
Three adjustments follow for a design practice. They concern the template, the documentation and the negotiation.
| Adjustment | What to do concretely |
|---|---|
| Update the proposal template | allow the agreement to be made in text form and, for consumers, carry the notice under § 7 paragraph 2 so that it demonstrably reaches them before the binding contractual declaration |
| Record how the fee was derived | since the table no longer binds, the traceability of your own calculation has become more important rather than less |
| Reassess your negotiating position | the removal of the ceiling opens room on tasks whose effort exceeds what the table reflects |
The reform may change the third point further, as the article on the HOAI reform shows. Until then, the derivation remains the only argument that carries.
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.