BAV: Legal framework of fee-based consulting

Last Updated Saturday, August 18, 2007
Why fee-based consulting in BAV?
In the company pension scheme, including e.g. the working time account (ZWK), the employer has numerous possibilities of liability. These include, for example, the “Zillmerungshaftung”, the “Ausfallhaftung” and the obligation to protect the gross salary saved together with the employer’s social security contribution against insolvency. Often commissioned products are forbidden here, so that the BAV – adviser must demand a fee for his activity inevitably.
The BAV fee consultant:
Here we are closer to the classic management consultant: the typical intermediary finds it difficult to get to grips with this. The best way to get started is to use the concept of a profession as defined in the Basic Law or in sociology. The question arises as to whether a fee may be charged for brokerage and/or consultancy and/or other commercial activities instead of and/or in addition to a commission/fee. The Legal Advice Act and the prohibition of commission payments under insurance supervision law will also have to be observed.
A. Professions with legal advice as their main business: Not only lawyers and tax advisors, but also pension advisors or insurance advisors work – possibly in their limited field of law – for a (usually legally fixed) remuneration or fee. Here, the focus is on the legal service – it is offered by these independent honorary professionals as ” main business ” ( not only ” auxiliary business ” ). These legal services are incompatible in the sense of legal prohibitions with an intermediary activity in the same matter.
Differentiation of the main legal business from other professions:
This has absolutely nothing to do with the BAV – consultation of a broker, agent or BAV – management consultant, because with these a fiscal and legal consultation may only as so-called auxiliary business after the RBerG.
( Legal Advice Act ): it is sufficient if the tax or legal activity does not predominate.
As a rule, the aforementioned honorary professionals are also VSH – insured.
A cooperation can be advised to the financial service provider, because both the intermediary ( broker and agent ) and the ( bAV ) – business consultant can usually not cover any insurance for these activities, although he is of course liable.
B. Professions providing legal advice as an ancillary activity, Article 1(5) RBerG:
In the case of permissible ( e.g. insurance ) -legal advice within the scope of the bAV-advice of a broker, agent or bAV – management consultant, tax and legal advice must remain within the scope of a so-called auxiliary business according to the RBerG: In the foreground, as the main business, is then something else – for example, the product brokerage and / or the economic ( company ) – advice.
This has first absolutely nothing to do with the question whether the remuneration follows from a commission / brokerage and / or a fee: It is here first of all about the question, in which framework ( just only as an auxiliary business ) legal and fiscal advice may be given.
1. fee instead of and / or in addition to commission / brokerage:
This refers to the intermediary activity. Of course, an insurance broker can make it clear from the outset that he will only charge a fee for advice on occupational pension schemes (brokerage with advice on insurance law as an auxiliary transaction). This can be forced by the market (so that, for example, direct insurance offers can also be included) or the liability of the employer in the occupational pension scheme (e.g. due to incorrect advice on zillmerisation).
However, this fee is also owed only for the mediation, it therefore actually represents a (possibly in addition to a received brokerage fee) remuneration for mediation. Because the insurance-legal consultation is necessary auxiliary business of the switching and the broker only in the context of the broker activity permits, for which he is entitled only to a remuneration for switching. Although the regulator’s position is,
that such remuneration may only be demanded in the event of success (i.e. conclusion of a contract) and that this also corresponds to the traditional image of the broker, a fee independent of success is also permissible for the brokerage (but not separately for the advisory) activity, as e.g. the “Pilz” judgement of the Stuttgart Higher Regional Court of 28.12.1990 – 2 U 121/90 – emphasises. However, since § 652 ( 1 ) BGB makes the obligation to pay a broker’s fee expressly dependent on success, such a fee will be based on a reimbursement of expenses not dependent on success pursuant to § 652 ( 1 ) BGB. § 652 ( 2 ) BGB must limit. Reimbursement of expenses means that no profit is included, i.e. the value of one’s own labour – one’s own time expenditure – cannot be compensated either explicitly or as a lump sum.
2. only in the case of brokers: fee agreement for legal advice as ancillary business:
For the understanding it is important first of all to read through the judgement of the BGH, because from it results what is the core of the broker profession (including the insurance-legal examinations!).
The insurance broker is allowed to be additionally remunerated for these auxiliary activities, because they are part of his professional profile; he is even allowed (even if only out of court) to settle claims of his clients – as far as the contracts are in his portfolio – with the insurer.
The broker’s activity does not end with the signing of the insurance contract – the provision of insurance cover continues, although he often receives nothing from the insurer after the brokerage fee. It must therefore also be assumed that the broker is entitled to demand remuneration for further contract management – including associated legal advice as an ancillary business.
No stand-alone fee contracts for legal advice as ancillary business:
Separate contracts for (e.g. tax or insurance) legal advice, which are concluded separately (without connection to an insurance broker contract!), are also not permitted for the insurance broker.
In practice, reference is made again and again to the “Pilz” judgement (OLG Stuttgart of 28.12.1990, Ref. 2 U 121/90) and the similar judgement of the LG Kiel of 19.10.1988 (Ref. 14 O 192/88): Both judgements allow an additional remuneration ( e.g. as a fee ) for the brokerage including auxiliary transactions under insurance law ( e.g. analyses of prices and conditions, of risks and coverage concepts, negotiations with insurers, examination of premium invoices or insurance documentation, as far as one understands these as legal advice at all and not as other auxiliary commercial transactions which are permissible anyway ), because the remuneration agreements were closely connected with the insurance brokerage contract. This was the only reason why the courts in both cases did not see this as a violation of the RBerG. The insurance broker may therefore not offer insurance ( legal ) advice as a separate service for a fee.
3. remuneration for management consultancy services without legal advice:
Pure management consultancy (e.g. business management analysis of occupational pension schemes, sorting of files and compilation of statistics, but not, for example, the valuation of conditions) can easily be concluded as a separate contract. There we are not in the core of the intermediary or broker activities. Primarily, these are activities that are also usually performed by other “management consultants” as an independent service outside of an agency. Here, both remuneration according to time spent and on a success basis are conceivable. This also includes the expenses for legal advice included herein as a dependent ancillary business.
4. no violation of the prohibition on commission payments, § 81 VAG:
Not only is the insurance intermediary ( broker and agent ) prohibited from giving a portion of the commission/fee directly to the customer. Any indirect transfer, such as the cross-subsidisation of non-brokerage activities (e.g. genuine management consultancy) by means of a commission charge, also falls under this category.
With the kind permission of the authors: Dr. Johannes Fiala (Munich), attorney (www.fiala.de), and Peter A. Schramm (Diethardt), actuarial expert (www.pkv-gutachter.de).
Ask us Duebbert und Partner insurance brokers and financial service providers about the BAV and the time value accounts, we have the right partners for your business, your companies.
(duebbert-and-partner.com)
Courtesy ofwww.duebbert-und-partner.de.

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About the author

Dr. Johannes Fiala
PhD, MBA, MM

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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