Architectural firms would hire a civil engineer

“Architecture” only with an architect

From Sinah Marx

Last but not least, the European Court of Justice has shown it in the justification of its decision on the illegality of European law that the HOAI fee rates are binding: In the field of architecture - apart from the areas for which building submission authorization is required - there is no exclusive right to practice a profession. In Germany everyone can offer and provide planning services. This differs from other liberal professions, such as lawyers or medical professionals, whose activities are only allowed to be carried out by them. Not everyone is allowed to provide legal services or offer medical treatment. In a nutshell: the doctor is allowed to design buildings, but the architect is not allowed to perform operations.

For the quality of the built environment, this is regrettable, for the planners profession and also for the client side, it means that professional designation law is of great importance. After all, not everyone is allowed to call themselves “architect”, “landscape architect”, “interior designer” or “city planner”. These job titles as well as similar terms and word combinations with them, such as “architecture”, also in a foreign language translation, are exclusively available to those who are entered in the list of architects of the relevant Chamber of Architects. For example, a planning doctor may not call himself an “architect”, to stick to the example, and an architect may not call himself an urban planner, interior designer or landscape architect, as long as he is not entered accordingly. This protects the respective professional title including the owner, but also the client, who, because of the chamber membership of an architect, can trust that his qualification has been checked by the chamber and is subject to special obligations, for example to obtain adequate liability insurance.

"Architecture" as advertising

In a current case, the Hamm Higher Regional Court ruled quite correctly in the second instance and in accordance with the first that the advertising of a construction company with the designation "architecture" is misleading, i.e. inadmissible, if at least one person does not work for the company, the architect is, i.e. is entered in the list of architects of the competent Chamber of Architects (decision of August 27, 2019, Az .: I-4 U 39/18; lower court: LG Arnsberg, judgment of January 31, 2019, Az .: I-8 O 95/18).

Because the law on unfair competition prohibits misleading advertising, the construction company must refrain from advertising with the term “architecture” in the future - or hire an architect. Potential clients should also be able to expect an architect from a company that advertises with "architecture" and are protected in this expectation.

The plaintiff specifically criticized the following presentation: “Architecture / structural planning / statics / building physics - our approach (...) corresponds to the holistic view of a building (...). The advantage for the client (...) is (...) that he has a contact person who can answer all questions competently and holistically in questions of architecture, planning, structural planning, structural engineering, building physics and construction management. Misunderstandings and discrepancies between architect and structural engineer and thus costly rescheduling (...) are therefore excluded. "

From these statements it becomes clear that the construction company also offers planning services for third-party construction projects. Potential clients are therefore likely to mistakenly assume that these services are carried out by a “real” architect. That shouldn't be. Anyone who offers “architecture” must also be an architect or at least employ one. The decision would have been even more stringent and convincing if the court had not focused on any employee but on the owner of the company. After all, an individual employee does not become a contractual partner of the client and can all too easily leave the company.

Job title law and competition law

The protection of professional titles is a legal task of the chambers of architects. You can punish violations by imposing fines as administrative offenses. Anyone who improperly uses a protected designation is not only acting properly, but also anticompetitive. In this case, the plaintiff was neither a chamber of architects nor an architect competing with the construction company. Rather, the Central Office for Combating Unfair Competition sued - in agreement and in cooperation with the competent chamber - for an omission. The competition center is an association, the purpose of which can be read off from its name, and to which, as an institution of business with legal powers, is entitled to a statutory injunction. But also every competitor, i.e. architect, could have acted and warned the construction company and sued. The chambers of architects offer their members advice and support on professional designation law and, if necessary, take action themselves.

Dipl.-Ing. Architecture only as a member of the chamber

The Hanseatic Higher Regional Court in Hamburg has decided on the term “architecture” in connection with the academic degree in a very similar way as the court in Hamm now (judgment of October 13, 1994, Az .: 3 U 141/94): “Dipl.-Ing. "With the addition of" architecture "can only be named by those who are also registered in the chamber. The abbreviation "Arch." As an addition should not be judged differently. This jurisprudence can be applied one to one to the new degrees “Bachelor” and “Master”. Graduates should use their bare academic degree and consult with the Chamber as to whether an addition to the course in the specific description is considered permissible. For example, the Hamburg Chamber of Architects tolerates the brackets “(subject of architecture)” and “(architecture course)”. Office owners should also pay attention to this when presenting their employees.

For example, the terms “lighting architecture”, “architecture office” and “architect contract” are taboo for non-architects and are exclusively available to registered persons and companies. The same applies to entries in business directories under the heading "Architecture".

However, because the professional designation law is a matter for the federal states and the requirements vary in nuances, it is always necessary to take a look at the respective architects or building chamber law and to consult the respective chamber. As is so often the case, it depends on the individual case, even if the principles outlined above apply nationwide.

Sinah Marx is the deputy managing director and deputy legal advisor of the Hamburg Chamber of Architects