Advice on occupational pension schemes quickly leads insurance brokers into the realm of prohibited tax and legal advice. Banks, insurance companies and their occupational pension subsidiaries are also, without exception, not licensed to provide legal or tax advice.
They sometimes try to remedy this shortcoming by employing lawyers (RA) or tax consultants (StB) as “employees” in the consultative sale of “occupational pension solutions”.
The only problem is that this doesn’t work either.
Firstly, such an in-house lawyer or auditor may not give legal advice to third parties (the occupational pension clients).
Secondly, the commercial-acquisitive activity leads to the withdrawal of the license by the professional chamber.
Third, VSH coverage is effectively unavailable for such legally prohibited activities.
And finally, this activity leads straight into the personal liability of the actors – besides their own employer.
According to consistent BGH case law (including file number IX ZR 41/04), an occupational pension consulting company itself requires its own license to provide legal or tax advice, even if the managing directors or employees are licensed as attorneys-at-law or certified public accountants.
The insurance broker may give advice to non-consumers for a fee, in his field, i.e. insurance law.
But he must also be able to do it like a lawyer, because he is just as liable for mistakes as the latter. In other areas (labour, occupational pension, company, insolvency and tax law), insurance brokers are only permitted to give advice on simple questions, the handling of which is absolutely necessary for the proper exercise of their profession.
The insurance broker must therefore ensure that the insurance business and economic issues are in the foreground, because the broker can reasonably do this without other legal and tax advice.
If, on the other hand, even a single point outside insurance law requires in-depth legal knowledge, the broker is exposed to the risk that his consulting or advisory services will not be successful. Mediation Agreement is “null and void.” It doesn’t help if you only want to have the offered products explained, but the advice actually went far beyond that.
The “occupational pension consultant” concept, which is often promoted by financial institutions, is stillborn under constitutional law: The invention of “atypical forms of activity” can never reintroduce a “legally defined profession” (e.g. StB or RA) through the back door in a different form (BVerfG decision of 18 June 1980, 1 BvR 697/77).
Anyone wishing to offer legal or tax advice in occupational pension schemes is obliged to choose a profession defined by law for this purpose and then also to have a licence to do so.
by Dr. Johannes Fiala
by courtesy of
www.procontra-online.de (published in Procontra, issue 08-09/2010)
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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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