*by Johannes Fiala, Lawyer (Munich), M.B.A. (Univ.Wales), M.M. (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Banker (www.fiala.de)
bAV-für-Profis: Occupational pension brokerage is becoming increasingly dangerous; it is only an alternative for professionals. Intermediaries who want to provide occupational pension advice in the future are on the right track. However, those who simply “go for it” will most likely get caught in the legal pitfalls. Unlike the supposedly simple brokerage, which can be started with just a few product and sales skills, occupational pension consulting requires comprehensive expertise that cannot simply be presented with digital knowledge (can/can’t), as ?simple? brokers would like to have it. intermediaries would like to have.
Duty of examination at the time of conclusion: The contractual requirements alone must be prepared in detail. The advisory limits as to what may be carried out by the client and which services must be obtained from third parties must also be clarified precisely from the outset. Crucially, in practice this is a team effort anyway, as at least the tax adviser will be consulted.
VSH protection at the insurance broker: A few weeks ago, an insurance broker writes to his VSH in the sense of ‘May I give legal advice to my client, in particular on the insolvency protection of the pension commitment? The insurer answers: ‘First of all we would like to point out that we are not allowed to give legal advice by the legal advice law. ? Insofar as the advice you have given does not involve a breach of the Legal Advice Act, insurance cover exists under the terms of the insurance contract concluded. The answer of the Pfefferminzia is naturally a nonsensical circular argument without substance. Insurance brokers and bAV trainers, such as Tutor-Consult-GmbH, warn: “In any case, there is the problem with some VSH providers that bAV consulting by employees as a vicarious activity for the employer/client/broker pool is not automatically co-insured. Depending on the size of the occupational pension distribution, this can present itself as a ‘difficult-to-insure cluster risk’.
Duty to inform: Of course, the insurance broker has to inform his client without being asked. He also has to document in a legally secure manner that the customer has understood him, especially with regard to the holey insolvency protection in the pension commitment. In the case of adhesion each judge will ask, ?yes why did then the customer despite your instruction, the lump risk in buy took? No normal entrepreneur sets everything on a map ? in order to stand at the end with empty hands there ? After the insurance broker carries the burden of proof in the doubt, he must protect himself here particularly well. Duty to give legal advice to the insurance broker: As a fiduciary trustee (BGH judgement of 22.05.1985, IVa ZR 190/83), the insurance broker has to keep an eye on the interests of the client alone. He must observe and examine the risk ? this duty is also directed towards the future and concerns above all his own portfolio, i.e. the managed contracts of his customers. Every intermediary can give legal advice when concluding a contract. The main business is the mediation ? the subordinate auxiliary business is the legal advice ? the decisive factor is whether this activity is necessary for the reasonable exercise of the profession according to the specific professional profile or legal model applicable to it ? In the case of (genuine !) insurance brokers, there is even more to it: ?It certainly belongs to the professional image of an insurance broker that he not only mediates insurance contracts, but also constantly looks after and administers the contracts brought about by him, ? (OLG Düsseldorf, judgement of 18.9.90, Az. 20 U 4/90). The border lies with the insurance broker only there, where the affair goes before court. The (genuine) insurance broker may of course also provide insurance advice ?as an insurance broker? without further ado (OLG Stuttgart, judgement of 28.12.1990, file no. 2 U 121/90).
Advisory teams are in demand: For every intermediary, i.e. agent and broker alike, legal and tax advice must also be correct. Anyone who tries to solve the customer’s individual problems with half-knowledge, pretty forms and checklists risks being taken to court later. Insurance agents and insurance brokers are above all not insured if it concerns a ?knowing breach of duty? ? who may not believe that, may read it up in its AVB, thus the own insurance conditions or ask a VSH insurance broker. At the world-wide tax literature the German tax law possesses a portion of approximately 70%. Which mediator knows already the 300 tax laws with over 70,000 tax regulations. The professional restructuring of the pension commitment means in practice mostly a team task in the implementation.
Intermediaries need solid occupational pension expertise: Good training and practical experience pay off. The professionals in the bAV fee consultancy work so well that they have their additional work paid for by the tax advisor ? the tax advisor then sends a total invoice to the client. The bAV-trainer Tutor warns: If a total invoice is made, it can come with the national promotion of a management consultation by the trained bAV-expert later to problems. Who plans subsidies, should also clarify in advance whether the teamwork of bAV experts and honorary professionals next to each other is more favorable. With simple intermediaries, it is not uncommon for part of the commission to flow in exactly the other direction. Turor sees the future of the bAV advisors in the role of high-quality experts, on the same eye level with honorary professionals, after the slogan ?also with the customer the trained bAV expert is better regarded, than a mediator with half knowledge ? It makes sense for law and tax consulting firms to have their own staff to advise and support BAV clients. This saves the cooperation with any intermediaries and also improves the own advisory business situation. However, the honorary professional must also insure this additional work, § 13 AVB. This can be done either by internal staff of the law firm or by an own outsourced consulting company in freelance work, which deals especially with the topic of bAV. Often there is only the misunderstanding that the topic of occupational pension schemes is only a product mediation topic. The opposite is the case. Currently, there is a considerable need for consulting and structuring due to the underfunding of pension reinsurance, but also due to changed tax requirements: The core topics are: – Tax audit and design – Legal update of commitment and pledge – Gaps in insolvency protection – Change of implementation channels – The advantage of cooperation with occupational pension experts for law firms is obvious: In contrast to financial or insurance brokers, who have to struggle to find new customers with insufficient “weapons” of mediation, tax advisors already have the necessary business contacts, which only need to be expanded as an extended consulting activity. From the point of view of the intermediary, on the other hand, it makes sense to cooperate with RA and StB law firms. This is however expressly more success-oriented, if one presents oneself not as the classical product mediator but rather as bAV enterprise advisor (classical shyness of the consulting guild opposite mediators. Tutor boss Pedersen knows from the practice: ?In extreme cases the danger exists for the simple mediator evenly the competition to the wife, over which the contracts run otherwise ). The real bAV expert should specifically ensure the operationally necessary development and reorganization.”
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About the author
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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