{"id":15970,"date":"2020-09-22T11:12:35","date_gmt":"2020-09-22T09:12:35","guid":{"rendered":"https:\/\/abante.de\/news-on-the-hoai-draft-of-the-hoai-amendment-ordinance-change-in-the-vat-rate-on-architectural-and-engineering-services\/"},"modified":"2023-06-12T15:11:18","modified_gmt":"2023-06-12T13:11:18","slug":"news-on-the-hoai-draft-of-the-hoai-amendment-ordinance-change-in-the-vat-rate-on-architectural-and-engineering-services","status":"publish","type":"post","link":"https:\/\/abante.de\/en\/news-on-the-hoai-draft-of-the-hoai-amendment-ordinance-change-in-the-vat-rate-on-architectural-and-engineering-services\/","title":{"rendered":"News on the HOAI \u2014 draft of the HOAI amend\u00adment ordi\u00adnance; change in the VAT rate on archi\u00adtec\u00adtur\u00adal and engi\u00adneer\u00ading ser\u00advices*"},"content":{"rendered":"

There are two leg\u00adisla\u00adtive devel\u00adop\u00adments in the field of archi\u00adtec\u00adtur\u00adal and engi\u00adneer\u00ading ser\u00advices to which pub\u00adlic clients, but also con\u00adtrac\u00adtors and bid\u00adders, should cur\u00adrent\u00adly pay par\u00adtic\u00adu\u00adlar atten\u00adtion. The first is the new ver\u00adsion of the HOAI. Accord\u00ading to this, a new HOAI is to be expect\u00aded as of Jan\u00adu\u00adary 1, 2021. Sec\u00adond\u00adly, the effects of the tem\u00adpo\u00adrary change in the VAT rate; this is par\u00adtic\u00adu\u00adlar\u00adly the case because a high\u00ader VAT rate gen\u00ader\u00adal\u00adly leads to a high\u00ader defin\u00adi\u00adtive eco\u00adnom\u00adic bur\u00adden for the pub\u00adlic sec\u00adtor. <\/p>\n

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New autho\u00adriza\u00adtion basis for the enact\u00adment of the HOAI<\/h4>\n

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Ini\u00adti\u00adat\u00aded by the ECJ rul\u00ading of July 4, 2019 (Case C\u2011377\/17), the Ger\u00adman leg\u00adis\u00adla\u00adture is cur\u00adrent\u00adly in the process of rewrit\u00ading the enabling basis for an amend\u00adment to the HOAI. This is also nec\u00ades\u00adsary. The HOAI is a statu\u00adto\u00adry ordi\u00adnance, and statu\u00adto\u00adry ordi\u00adnances require a for\u00admal statu\u00adto\u00adry autho\u00adriza\u00adtion basis that reg\u00adu\u00adlates the con\u00adtent, pur\u00adpose and extent of the statu\u00adto\u00adry ordi\u00adnance to be issued, cf. Art. 80 (1) sen\u00adtence 2 GG. In the mean\u00adtime, a \u201cdraft law amend\u00ading the law reg\u00adu\u00adlat\u00ading engi\u00adneer\u00ading and archi\u00adtec\u00adtur\u00adal ser\u00advices and oth\u00ader laws\u201d has been pre\u00adsent\u00aded by the Fed\u00ader\u00adal Gov\u00adern\u00adment; it has even already been passed by the Ger\u00adman Bun\u00addestag (BT-Drucks. 19\/21982). An essen\u00adtial com\u00adpo\u00adnent of this new ver\u00adsion of the enabling leg\u00adis\u00adla\u00adtion is the elim\u00adi\u00adna\u00adtion of bind\u00ading min\u00adi\u00admum and max\u00adi\u00admum rates. On the one hand, the future HOAI is intend\u00aded to pro\u00advide ori\u00aden\u00adta\u00adtion for the amount of the fee in indi\u00advid\u00adual cas\u00ades; on the oth\u00ader hand, it is still intend\u00aded to serve as a basis for cal\u00adcu\u00adlat\u00ading the fee, which can then be changed by means of addi\u00adtions or deduc\u00adtions. How strict the guide\u00adline char\u00adac\u00adter of the HOAI fee is to be is still unclear. The Fed\u00ader\u00adal Coun\u00adcil, to which the draft has also already been sub\u00admit\u00adted, seems to want a detailed reg\u00adu\u00adla\u00adtion of the appro\u00adpri\u00adate\u00adness require\u00adments. It takes the view that an \u201cexplic\u00adit appro\u00adpri\u00adate\u00adness pro\u00advi\u00adsion in the statu\u00adto\u00adry enabling statute itself\u201d could \u201cfacil\u00adi\u00adtate the judi\u00adcial review of fee claims and help to avoid pro\u00adtract\u00aded dis\u00adputes\u201d (state\u00adment of Sep\u00adtem\u00adber 18, 2020, BR-Drucks. 445\/20). So it remains to be seen how strict the guid\u00ading reg\u00adu\u00adla\u00adtions will ulti\u00admate\u00adly turn out to be. <\/p>\n

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HOAI Amend\u00adment Reg\u00adu\u00adla\u00adtion<\/h4>\n

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In the mean\u00adtime, a draft of an \u201cOrdi\u00adnance amend\u00ading the Fee Reg\u00adu\u00adla\u00adtions for Archi\u00adtects and Engi\u00adneers (HOAI Amend\u00adment Ordi\u00adnance)\u201d (here\u00adinafter: HOAI\u2011E) dat\u00aded August 7, 2020 by the Fed\u00ader\u00adal Min\u00adistry for Eco\u00adnom\u00adic Affairs and Ener\u00adgy is also avail\u00adable. Inter\u00adest\u00ading is already the future \u00a7 1 HOAI\u2011E, accord\u00ading to which the reg\u00adu\u00adla\u00adtions of the HOAI \u201ccan\u201d be tak\u00aden as a basis \u2014 thus not \u201cmust\u201d. This pro\u00advi\u00adsion is there\u00adfore along the same lines as the enabling leg\u00adis\u00adla\u00adtion cur\u00adrent\u00adly going through the par\u00adlia\u00admen\u00adtary pro\u00adce\u00addure. Sec\u00adtion 2 (12) HOAI\u2011E is also along the same lines. The pro\u00advi\u00adsion stip\u00adu\u00adlates that the fee scales shall show \u201cori\u00aden\u00adta\u00adtion val\u00adues\u201d that are \u201cgeared to the type and scope of the task as well as to the ser\u00advice.\u201d Fur\u00adther\u00admore, the \u201cbasic fee rate\u201d is men\u00adtioned, which, accord\u00ading to Sec\u00adtion 2 (13) HOAI\u2011E, is \u201cthe respec\u00adtive low\u00ader fee rate con\u00adtained in the fee tables of this ordi\u00adnance.\u201d Fur\u00adther\u00admore, among oth\u00ader things, \u00a7 7 HOAI\u2011E replaces the writ\u00adten form with the text form and pro\u00advides in para\u00adgraph 1 that in the absence of an \u201cagree\u00adment on the amount of remu\u00adner\u00ada\u00adtion in text form\u201d, the base fee rate is deemed to be agreed. Sec\u00adtion 7(2) HOAI\u2011E is also inter\u00adest\u00ading, as it states that the con\u00adtrac\u00adtor must \u201cinform the client, if he is a con\u00adsumer, in text form at the lat\u00adest when sub\u00admit\u00adting an offer\u201d that \u201ca high\u00ader or low\u00ader fee may be agreed than the val\u00adues con\u00adtained in the fee tables of this Reg\u00adu\u00adla\u00adtion.\u201d For the inclined read\u00ader, the fol\u00adlow\u00ading thought may be instruc\u00adtive in this con\u00adtext: con\u00adsumer pro\u00adtec\u00adtion can be ensured through infor\u00adma\u00adtion or through author\u00adi\u00adta\u00adtive rule\u00admak\u00ading. One can speak sim\u00adplis\u00adti\u00adcal\u00adly of the infor\u00adma\u00adtion mod\u00adel on the one hand and the social mod\u00adel on the oth\u00ader. While the infor\u00adma\u00adtion mod\u00adel assumes that con\u00adsumers are mature and capa\u00adble of being informed, and there\u00adfore want to be informed, the social mod\u00adel assumes that con\u00adsumers are less will\u00ading to be informed and need to pro\u00adtect them\u00adselves. Accord\u00ading\u00adly, the infor\u00adma\u00adtion mod\u00adel works with infor\u00adma\u00adtion, label\u00ading and edu\u00adca\u00adtion oblig\u00ada\u00adtions, where\u00adas the social mod\u00adel works with the law on gen\u00ader\u00adal terms and con\u00addi\u00adtions, the order\u00ading of the manda\u00adto\u00adry or semi-manda\u00adto\u00adry valid\u00adi\u00adty of legal norms and close-meshed judi\u00adcial con\u00adtrol pow\u00aders. As men\u00adtioned above, the Bun\u00addesrat \u2014 and not only the Bun\u00addesrat \u2014 would like to see guide\u00adlines on the appro\u00adpri\u00adate\u00adness of fees; from the point of view of con\u00adsumer pro\u00adtec\u00adtion, this is an approach that is more in line with the social mod\u00adel. The leg\u00adis\u00adla\u00adtor of the ordi\u00adnance, on the oth\u00ader hand, appar\u00adent\u00adly relies more on the infor\u00adma\u00adtion mod\u00adel, where\u00adby the cur\u00adrent word\u00ading is very reduced. The leg\u00adis\u00adla\u00adtor also has some\u00adthing to gain from the social mod\u00adel when it speaks of \u201cori\u00aden\u00adta\u00adtion val\u00adues\u201d in Sec\u00adtion 2 (12) HOAI\u2011E, but does not explic\u00adit\u00adly lim\u00adit this ori\u00aden\u00adta\u00adtion func\u00adtion to con\u00adsumer pro\u00adtec\u00adtion \u2014 at least in the text of the draft, but not in the expla\u00adna\u00adtions on this. Ulti\u00admate\u00adly, care must be tak\u00aden to ensure that the social mod\u00adel is not mis\u00adused for the sake of argu\u00adment to pro\u00adtect estab\u00adlished mar\u00adket par\u00adtic\u00adi\u00adpants \u2014 and pre\u00adcise\u00adly not con\u00adsumers \u2014 from a sup\u00adposed drop in prices. Par\u00adtic\u00adu\u00adlar\u00adly when the text of the reg\u00adu\u00adla\u00adtion seems to opt rather for the infor\u00adma\u00adtion mod\u00adel. <\/p>\n

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Reduced VAT rate of 16% and the billing of archi\u00adtec\u00adtur\u00adal and engi\u00adneer\u00ading ser\u00advices<\/h4>\n

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A com\u00adplete\u00adly dif\u00adfer\u00adent, cur\u00adrent\u00adly even more impor\u00adtant top\u00adic is sales tax. As is well known, the gen\u00ader\u00adal sales tax rate has been reduced from 19% to 16% for the peri\u00adod from July 1, 2020 to Decem\u00adber 31, 2020. Some time ago, the Fed\u00ader\u00adal Min\u00adistry of Trans\u00adport and Dig\u00adi\u00adtal Infra\u00adstruc\u00adture issued a cir\u00adcu\u00adlar on the effects of the sales tax reduc\u00adtion for the fed\u00ader\u00adal trunk roads sec\u00adtor (cf. Gen\u00ader\u00adal Cir\u00adcu\u00adlar Road Con\u00adstruc\u00adtion No. 16\/2020 \u201cTem\u00adpo\u00adrary change in sales tax rates in the peri\u00adod from 01.07.2020 to 31.12.2020\u201d dat\u00aded 09.07.2020 \u2014 Ref.: StB 14\/7131.4\/026\u20133341053). The instruc\u00adtions giv\u00aden there are of inter\u00adest not only to the fed\u00ader\u00adal admin\u00adis\u00adtra\u00adtion, but also to every pub\u00adlic con\u00adtract\u00ading author\u00adi\u00adty that awards con\u00adtracts for archi\u00adtec\u00adtur\u00adal and engi\u00adneer\u00ading ser\u00advices, as well as to every archi\u00adtec\u00adtur\u00adal or engi\u00adneer\u00ading firm. We sum\u00adma\u00adrize them in key\u00adwords, how\u00adev\u00ader \u2014 if you have spe\u00adcif\u00adic ques\u00adtions \u2014 you should con\u00adsult the cir\u00adcu\u00adlar direct\u00adly, con\u00adsult appli\u00adca\u00adtion aids in your area and, of course, also seek legal assis\u00adtance in cas\u00ades of doubt: <\/p>\n

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