If a construction project is significantly delayed and the architect is not at fault, this ruling allows the architect to bill for the actual additional costs incurred—based on the personnel costs actually incurred, not the originally agreed-upon hourly rates. The Berlin Regional Court awarded a planning consortium responsible for the major renovation of the Pergamon Museum an additional €332,565.63 in compensation for the extended construction period. The decisive factor was that the delays were due to circumstances beyond the architects’ control.
What was the case about?
In 2009, a planning consortium (the plaintiff) consisting of two architectural firms entered into an architectural contract with the Pergamon Museum for service phases 5 through 9 (detailed design through project management). The contractually agreed-upon framework schedule provided for a construction period of 104 months, with construction beginning on July 2, 2012, and scheduled to end on February 26, 2021. In fact, the construction project had not been completed by that date—nor even by October 31, 2021; work continued while the lawsuit was pending.
For the period from August 27, 2021, to October 31, 2021, the plaintiff issued two interim invoices (Nos. 74 and 75) for additional compensation due to the extension of the construction period. The client paid only a partial amount based on a pro-rata adjustment of the contractual compensation for Service Phase 8. The plaintiff also demanded reimbursement for its actual additional expenses, calculated based on hourly records from the time-tracking system.
What did the contract regarding the extension of the construction period stipulate?
Section 6.3 of the architect’s contract read: “If the construction period is significantly delayed due to circumstances beyond the contractor’s control, additional compensation shall be agreed upon for the demonstrably necessary additional expenses. An extension of up to 20 percent of the specified construction period, but not exceeding six months, is covered by the fee.” The clause thus presupposes two things: a significant delay beyond the tolerance threshold and that the architect is not at fault.
The court clarified that, despite the wording “additional compensation must be agreed upon,” the architect is not required to first reach an agreement with the client before filing a lawsuit. The architect may immediately file a lawsuit seeking payment of reasonable compensation (citing the Federal Court of Justice, judgment of May 10, 2007 – VII ZR 288/05).
When is a construction delay considered “significant”?
The materiality threshold in this case was 20% of the construction period or a maximum of six months. Once this threshold had been reached—specifically as of August 27, 2021—any further delay was, in principle, subject to compensation, provided the architect was not responsible for it. In this regard, the court relied on the original framework schedule, not on a general schedule later optimized by the plaintiff, since the plaintiff herself had ultimately based her claim on the framework schedule.
Which defects did the court find were not attributable to the plaintiff?
The court found that, with respect to four causes of disruption, there was a sufficiently substantiated delay in the construction schedule that extended at least through October 31, 2021, and well beyond that date:
First, the delayed MEP planning for an installation shaft (component MM/MMV), which was not fully completed until 2019 and resulted in the inability to continue plastering and finishing work. Second, the client’s termination of the TGA planner in August 2020, which meant that the affected trades had to be put out to bid again and were not re-awarded until May 2021. Third, subsequent usage requirements from the Museum of Islamic Art. Fourth, a retrofit of the Wi-Fi system throughout the entire building that was ordered after the fact.
In reaching this conclusion, the court relied on an expert opinion submitted by one of the parties, which examined the cause of each disruption using the so-called “critical path” method—that is, by determining whether a delay had an impact up to the planned end of the construction period and beyond. In addition, a witness named by the plaintiff—a senior employee—was questioned; he provided a clear explanation of the connections between the delayed planning of building services and the revised historic preservation requirements.
Which of the client's counterarguments were unsuccessful?
Conversely, the client argued that the plaintiff itself had caused delays—for example, through an incomplete scope of work regarding the building site, breaches of duty in scheduling and monitoring, and inadequate execution planning for the structural work. The court rejected these objections: The client had failed to provide a clear explanation of what specific errors had occurred and how these had causally contributed to the project’s completion date being pushed back to 2021.
In this regard, the court emphasized an important allocation of the burden of proof: As a general rule, the architect must prove that he is not responsible for the causes of delay he has cited. If, however, the client asserts—conversely—that other circumstances—attributable to the architect—were the cause, the client bears the burden of proof and the burden of presentation.
How was the additional compensation for the construction delay calculated?
The plaintiff substantiated its additional expenses using timesheets from the time-tracking system, which listed the names and positions of the employees as well as the component in question. The witness who testified credibly explained that the timesheets were reviewed and approved by two people in each instance. For the period in dispute, the total expenses amounted to €462,208.17; after deducting the €112,139.09 already paid, the remaining amount was €350,069.08.
Important for practice: The court did not base its calculations on the hourly rates contractually agreed upon in 2009 (€90.00 / €65.00 / €47.00 depending on the type of employee), but rather on the actual costs—that is, salaries plus the employer’s share of social security contributions, as well as a surcharge for general business expenses. In addition, the court expressly recognized that no distinction should be made between time-dependent services (e.g., site supervision) and time-independent services (e.g., construction planning): Planning services for Service Phase 5 that were provided later due to delays also count as additional expenses.
Since the plaintiff asserted its claim as an interim payment, the court reduced the amount to 95 percent of the proven compensation in accordance with Section 7.1 of the General Terms and Conditions. This resulted in the award of €332,565.63.
What does the ruling mean in practice?
For architects with similar clauses regarding construction time extensions, the ruling shows that a specific, construction-process-based description of the causes of the delay—for example, through an analysis of the critical path—may be sufficient, without the need to meticulously prove for each individual trade that expediting the work was impossible. At the same time, the ruling makes it clear that such additional compensation exists independently of a possible fee increase due to rising construction costs (in this case: an adjustment following the determination of costs)—these are two distinct claims with different legal bases.
For clients, the ruling shows that blanket allegations of planning errors on the part of the architect are not sufficient to attribute a construction delay to the architect. A specific explanation is required detailing which breach of duty caused which delay and what its impact was in terms of time.
Source: Berlin Regional Court, Judgment of June 26, 2025, Case No.: 12 O 74/22
Jochen Mittenzwey
Attorney
Certified Specialist in Construction and Architectural Law
mittenzwey@mo45.de
