Client Information July 2008

*by Dr. Johannes Fiala, Attorney at Law (Munich), MBA Financial Services (Univ.), MM (Univ.), Certified Financial and Investment Advisor (A.F.A.), Banker (www.fiala.de), ehem. Member of the examination board of the Munich Chamber of Industry and Commerce for the expert examination of financial advisors for financial services and financial services specialists, lecturer for civil law and insurance law (BA-Heidenheim, Univ.),

Dieter Olejar, Chairman of the Board of `Die Versicherungs- und Rentenberater AG ́, law firm for insurance and social security law (www. dvrag .de), insurance consultant (LG), risk manager (ONR), expert in the BMWi economic committee, lecturer (BA-Heidenheim, Univ.), Chairman of the examination board of the Stuttgart Chamber of Industry and Commerce for the expert examination of insurance brokers and insurance consultants.

Graduate mathematician Peter A. Schramm, Actuary DAV (Diethardt), actuarial expert (www.pkv-gutachter.de)

The most recent investigations by the public prosecutor against insurance sales in connection with the bAV-IVECO affair weigh heavily: an insurance broker was able to bribe a confessed works council with six figures from lavish commissions presumably amounting to millions.
http://www.portfolio-institutionell.de/nachrichten/aktuelles/aktuelles- details/browse/2/article/dgbav-chief-josef-bader-faces-corruption-accusations//179/

The insurance industry denies any involvement – but with an effective dissociation from the insurance intermediary concerned, they apparently have a hard time?

No relief for the Management Board without an early risk detection system

Obligation for risk management according to § 91 II AktG

The annual general meeting had refused to discharge a management board – and rightly so, as the Munich Regional Court I ruled in its judgment of 5 April 2007 (Case No. 5 HK O 15964/06): The company in question did not have a functioning risk management system, there was no comprehensible written documentation and thus no functional and system audit could be carried out by the auditor.

The law already forces the management of a medium-sized GmbH to comply with its responsibility to safeguard the company’s existence. In the event of violations, there is not only the threat of damages from shareholders and partners, § 92 AktG. In this case, no D&O insurance will regularly intervene, because even in the case of conditionally intentional conduct, no cover is provided here. Rather, due to a withdrawal of the license by BaFin, the sales director risks not only liability with his private assets but also the loss of the retirement pension from the insurer as employer.

Insurance companies must not only monitor the reliability of their intermediaries, but also report irregularities and complaints to the supervisory authority, §§ 80 ff. VAG: Since 22.05.2007, some board members have been acting contrary to the EU Insurance Mediation Directive by acting as the managing director of an intermediary’s office on the side or by approvingly allowing their own intermediaries to act as both broker and agent.

In Circular 9/2007, BaFin reminded insurers of their duty to manage risks in sales, i.e. the duty to have suitable control instruments at their disposal that enable risk to be identified at an early stage: This is because cooperation with intermediaries is associated with not inconsiderable risks for insurance companies. But how then can it be explained that insurance companies only deny their own direct “involvement in corruption in occupational pension insurance mediation” instead of recognising it at an early stage, preventing it and actively distancing themselves from it?

The enormous commissions and brokerage fees that insurers offer in the field of occupational pension schemes are a lucrative source of income for distributors, as the advice given to individual employees can be provided very efficiently. The only thing that needs to be done is to first win over the employer who is to insure his employees. In the case of deferred compensation, this costs the employer nothing, but he or the works council or the head of personnel are of course aware of the high commission sums. It would be naïve of an insurer not to expect parts of the commission to be passed on to those responsible in the company. Finally, with the cost transparency from 01.07.2008, the insurers also assume that the customers want to participate in the now disclosed commission. This means that contracts can be brokered which would otherwise not be considered due to their high acquisition costs. It is helpful that the acquisition costs do not have to be disclosed to the employee. After all, he is not a policyholder and the process of his “persuasion” is not insurance mediation.

If unsuitable insurance contracts for occupational pension schemes are advertised to employees and employers, the accusation of advertising non-existent profit opportunities can be made later. This is then not only due to zillmerisation, but also affects those occupational pension tariffs where the employee receives no or hardly any “value” instead of the promised supplementary old-age pension. Employers who are liable for such differences are also harmed. Then it is only a small step to the deliberate immoral damage, § 826 BGB (LG Tübingen, 08.07.1998, Az. 7 O 1996/97). In the case of occupational pension corruption, prima facie evidence already suggests that unsuitable tariffs were selected for the pension scheme.

The Federal Court of Justice is therefore increasingly holding intermediaries personally liable – even if they act through a limited liability company, for example. In addition, in the case of yield deception by agents, liability of the product provider for vicarious agents also comes into question, § 823 BGB (OLG Cologne, judgement of 05.04.2005, Az. 15 U 153/04).

But also sales directors and their training managers can easily be held personally liable as “assistants”, § 830 BGB. This presupposes neither a communicative agreement with the adviser/intermediary on a plan of action nor participation in the execution of the wrong advice. Contributory causation of the result of the offence is not required either – any deliberate promotion of the immoral damage is already sufficient (BGH judgement of 26.10.2004, file no. XI ZR 279/03).

In its ruling of 8 July 2004 (Ref. 1 E 7363/03), the VG Frankfurt/Main confirmed the BaFin decision on the withdrawal of the licence of an insurance director due to unsuitability, § 87 VAG. BaFin demanded that the Supervisory Board dismiss the Management Board: here, too, there was a lack of an early risk detection and monitoring system !

An employer had recommended that its employees take out a direct insurance policy (pension insurance) with salary conversion in order to improve their pension provision, according to the main argument. The employer arranged for the consultation through a brokerage firm. The following facts emerged in the follow-up to the consultations:

1.) The employees were not informed that the background of the company pension scheme is the provision of the insured person and not the provision of the surviving dependants.

2.) It was not pointed out that full inheritability of the benefits from the insurance contract is not given, but in the event that the insured person should die before the start of the pension or during the duration of the pension guarantee period, only the surviving dependants entitled to benefits can receive the benefits from the surviving dependants’ pension in accordance with the contractual agreements of the insurance contract. This includes the spouse and dependent children (up to a maximum age of 27).

3.) It was not pointed out that, in principle, the same requirements for survivors’ pensions apply to occupational pensions as apply to widows’ and orphans’ pensions under the statutory pension scheme. In the event that the employee entitled to pension benefits were to die before his wife and before the start of the pension or before the end of the pension guarantee period, the children over the age of 27 would only receive a death benefit of currently a maximum of EUR 1,000,000, irrespective of the amount paid into this contract. approx. € 8,000, as they no longer count as surviving dependants entitled to a pension. Original quote from an insurer: “The difference goes to the insured community.” – How nice for the children !

4.) Furthermore, it was not pointed out that due to the exemption from social security and tax for the contributions used, this salary component is not taken into account for statutory pension insurance and unemployment insurance (thus reducing the vested rights in the GRV and unemployment insurance) and the bAV pension withdrawal is taxable and subject to social security contributions. Thus, the employee pays back the upstream subsidy, the burden of the occupational pension with taxes and social security contributions as well as reduced social pensions often in such an amount that even a private pension financed from the taxed net income and taxed only with the share of earnings would have brought him more.

5.) Reference was also not made to the fact that, in the event of prolonged illness, the sickness benefit is calculated on the basis of the amount reduced by the salary conversion.

6.) And the fact that the relevant income decreases due to the deferred compensation and the employee remains below the compulsory insurance limit in the statutory health insurance for a longer period of time was also taken into account. not pointed out – consequence is the payment obligation for maximum contributions in the GKV with long-standing impossibility to change earlier into the clearly cheaper private health insurance.

Most employers do not realise that they have a seat at the table with the intermediary or insurer during their employee’s occupational pension consultations. Even if the benefits under such an insurance contract are “assigned” to the employee, the employer’s status as policyholder gives rise to a special duty of care with regard to the terms of the contract, premiums, rates and brokerage fees. When entering into a framework agreement with intermediaries or insurers, very few employers think of expressly releasing themselves from liability towards their employees. However, it is often suggested to them – as a mere non-binding opinion – by the sales department that they are not liable if the sales department advises the employees.

gez. Dr. J. Fiala, D. Olejar, P.Schramm