ACE issues declaration in support of Germany on tariffs

In June 2015, the European Commission launched an infringement procedure against Germany on the grounds that the German minimum compulsory tariffs for architects and engineers (Honorarordnung für Architekten und Ingenieure – HOAI) would allegedly violate the Services Directive by preventing professionals from other Member States from establishing and providing their services freely in Germany.

On 28 February 2019, the Advocate General of the European Court of Justice (ECJ), Maciej Szpunar, released his opinion which considered the minimum and maximum tariffs as unlawful. The tariffs were said to hinder cross border activities, because engineering and architecture firms could not enter the market and establish their own prices. Furthermore, he claimed that Germany had not proved that the independent statutory fee-scales for architects and engineers were suitable and necessary for quality assurance and consumer protection. Therefore, he proposed that the Court uphold the Commission’s decision.

The leading German associations of architects and engineers, together with the Federal Government, strongly advocated maintaining the minimum and maximum tariffs and commissioned several advisory opinions. All studies commissioned in this context proved that there is no evidence to suggest that cross border activities are negatively affected by the presence of fee-scales. On the contrary, quality cannot be guaranteed where there is price dumping of architectural and engineering services. Moreover, the most economically advantageous tender, rather than cheapest price, has been recognised as a principle of the latest version of the Public Procurement Directive. Therefore, ACE finds it incomprehensible that the Advocate General did not follow the conclusive arguments given by the German government. ACE is strongly convinced that the minimum and maximum tariffs serve the common interest by:

  • Protecting customer’s rights through transparency of fees and related services for everyone, certainty of design costs, competition based on quality rather than price, higher quality and more positive results along with lower risks of dispute, amongst other benefits.
  • Supporting cross-border activities by providing helpful descriptions of services and guidelines for providing these services. Insufficient language skills and knowledge of building regulations or relocation issues are the main reasons for not moving to another country.
  • Continuing to ensure that courts have a basis on which to make awards during litigation, while public bodies have reference points that can be used when drawing up budgets for public works.

ACE still maintains that the HOAI does not constitute an obstacle to cross-border establishment and provision of architectural and engineering services in Europe, nor has the abolition of compulsory fee-scales in other Member States led to an increase in cross-border establishment in the past.

The Kamra tal-Periti is a member of the Architects’ Council of Europe.


ACE welcomes Public Procurement Package; reiterates need for quality-based public procurement

While the European Parliament is currently preparing an own-initiative report on the Public Procurement Strategy package that the Commission adopted in October 2017, the Architects’ Council of Europe (ACE) reiterates its recommendations for quality-based public procurement.

The ACE underlines the lack of quality-based decisions in the planning sector. Decisions concerning the procurement of architectural services have far reaching consequences in success of the project e.g. concerning buildability, equivalence for users’ needs and economic result of the project. A successful procurement phase forms basis for good design, creating value for all of the stakeholders throughout the whole life cycle of building.

The planning process has a minor financial impact on the total costs of a building: 6 to 12 % of the costs, and even less if considering the whole life cycle of a building. It is not a good strategy to save on design costs, as any investment at this stage improves the overall quality of the project, and reduces both execution and life cycle costs. Having this in mind, it is obvious that the procurement of architectural services should be based on quality only. A further step towards quality-based selection is represented by the architectural design contest (ADC), as the awarding criteria is not based on past works (references), but on the concrete project, i.e. looking to the future. In this sense, the ACE advocates strongly for using the design contest as the primary method of achieving quality-based and project-orientated selection for architectural services.

As showed by the ACE Sector Study, the architectural market is highly fragmented. More than 90% of offices are small or, in economical terms, even micro enterprises. Yet, they are still able and competent to execute large-scale works and create jobs. Fragmentation is a healthy factor, as it includes regionalism, ability to move cross border, to adapt structures on growing demands and needs, and to be innovative. The actual habit of requiring onerous eligibility criteria is mostly hindering this 90% share of offices from entering the market. A clear regulation to reduce inadequate eligibility criteria, going much beyond the existing rule, is urgently needed.

As recalled by the recent Davos Declaration endorsed by Ministers of Culture, Baukultur is of growing importance. The building sector is not a business like others, it has a huge impact on our built environment, our cities, public spaces, and the spaces in which we work and live. It is not only a question of culture, but also a question of the quality of life of the European citizens and an immense social question, including the collateral costs of all wrong decisions. Baukultur is a driving force of European identity, as the model of the European city represents a unique quality. It is a best practice example, but can only keep this role if the quality of its development is commensurate with the quality of the existing urbanities. High-quality Baukultur needs quality-based decisions.

The ACE shares the view of the Commission that there is a lack of professionalism in the field of public procurement. We want to draw the attention to the fact, that many of the ACE Member Organisations have a significant expertise in organising architectural design contests, as this procedure has a long tradition, constantly adapted and updated by the profession. Regional competition committees and professionally experts are constantly working on this field and we would appreciate a reference to this work in future recommendations concerning quality-based selection procedures.

For more information on the ACE position on Public Procurement, read the ACE Manifesto on Quality-based Public Procurement


The Kamra tal-Periti is an affiliate member of the Architects’ Council of Europe

EC publishes new guidelines on public procurement

The European Commission has published new guidelines on public procurement on how to avoid errors frequently seen in public procurement for projects co-financed by the European Structural and Investment Funds. It is intended to facilitate the implementation of operational programmes and to encourage good practice. It is not legally binding but aims to provide general recommendations and to reflect best practice.

The aim is to support public procurement officials in Europe’s Member States, regions and cities, taking them step-by-step through the process, highlighting areas where mistakes are typically made and showing how to avoid them.

Efficient, effective, transparent and professional public procurement is essential for strengthening the Single Market and stimulating investment in the European Union. It is also a key instrument to deliver the benefits of the Cohesion Policy to the European citizen and businesses.

This updated guidance was prepared by the Commission services involved in public procurement, as well as in consultation with the public procurement experts in the Member States. It is one of the building blocks of the Commission’s ambitious Action Plan on Public Procurement and contributes to the objectives of the recently adopted EU public procurement package.