Federal Supreme Court prohibits insurance consultants from charging contingency fees for changing tariffs in private health insurance

– How the insurance consultant with a second job may do exactly this and more nevertheless –

 

Insurance brokers as well as insurance consultants are allowed to offer policyholders (VN) in private health insurance (PKV) at the change of tariff according to the new tariff. § Section 204 of the German Insurance Contract Act (VVG), we can advise you on more suitable or less expensive private health insurance tariffs with the same insurer.

 

Tariff change advice by insurance consultants: No contingency fee

Insurance brokers are allowed to give advice on a change of tariff in return for a contingency fee, because this is an insurance agency (BGH, ruling of 28.06.2018, Az. I ZR 77/17). Insurance consultants are also allowed to advise on the change of tariff in the private health insurance – this is then a legal service, i.e. the core business of insurance consultants, § 2 I RDG. The Federal Court of Justice (BGH, ruling of 06.06.2019, file no. I ZR 67/18) decided that a contingency fee is (regularly) prohibited for this profession; §§ 49b II 1 BRAO, 4 II 2 Hs.1 RDGEG.

 

The insurance consultant cannot avoid this prohibition simply by concluding an insurance brokerage contract for the purpose of tariff change advice – because both professions are mutually exclusive (Higher Administrative Court Berlin Brandenburg, judgement of 31.03.2017, Az. OVG I N 41.15), just like that of the doctor and funeral director. According to the OVG ruling, the insurance broker is not guaranteed complete independence from the insurer, which the insurance advisor must demand.

 

If the insurance consultant violates the ban on contingency fees, he can be warned by professional chambers and competitors for a fee. On the other hand, the UN can claim back a paid performance fee, and this up to the limit of the statute of limitations, often for up to 10 years.

 

Tariff change advice by insurance brokers: Only with contingency fee

The BGH decided that the tariff change advice by insurance brokers is to be classified as insurance mediation according to § 59 III VVG, i.e. it is also part of the main business there. The associated legal advice is permitted to the insurance broker as a so-called ancillary service, § 5 RDG (BGH, NJW 2018, 3715).

 

Compared with private UN agencies, no other remuneration would be permitted anyway (even if only consulting services were provided). This is because the legal services authorisation under § 34d GewO only allows insurance brokers to provide legal advice to third parties who are not consumers, for a separate fee, in connection with agreements, amendments or reviews. The decisive factor here (OLG Karlsruhe, judgement of 03.08.2018, Az. 6 U 122/17) is that § 34d GewO only prohibits the insurance broker from providing legal advice to consumers if it is not connected with a concrete brokerage activity. In the case of tariff optimisation or tariff change advice in accordance with § 204 VVG, this connection exists (in the case of the consultancy objective) with an insurance contract agency, which means that this legal service is permitted in accordance with § 5 RDG.

 

No double approval – or does the egg-legendary woolly milk sow with double coating exist after all?

In Northern Germany there is a married couple who work with separate offices in the same apartment – first you visit the insurance consultant for a consulting fee, then you are sent to the specialist broker one room further – for a performance-related fee.

 

In southern Germany, a consultant for occupational pension schemes (bAV) inadvertently obtained the licences both as an insurance broker and as an insurance consultant – a competitor then successfully engaged a court president who was in charge of supervising the RDG register.

 

After the failure of the dual registration, the next creative idea followed: Take an insurance broker GmbH and employ insurance consultants or lawyers there. The BGH (judgement of 22.02.2005, Az. XI ZR 41/04) also cashed this model, because “a GmbH, which becomes legally advisory active, requires a permission according to the legal advice law, even if its managing director is admitted as a lawyer”.

It goes without saying that the GmbH clients did not owe any remuneration for legal services provided without the corresponding authorisation; for example, “design of pension schemes” in the occupational pension scheme and for time accounts, or trust models and “social insurance status determination”. Nevertheless, the “wrong” advisors are liable for damages – not only in the case of incorrect advice.

 

Second job of the insurance consultant can be (almost) anything

Second occupation of the insurance consultant can – unlike the lawyer – be almost any other occupation – except as an explicitly forbidden double admission of the insurance broker and insurance agent.

 

This means that it is also permitted to work as an intermediary for health support funds (KUK), for example, without a licence. Since a KUK is not an insurance company, its mediation is not subject to the regulation as an insurance brokerage/consultancy. In this field – as in all others – the insurance advisor may, on the basis of success, broker KUK products that complement the statutory health insurance and private health insurance products. In order to convey suitable KUK products as they are offered on the market, however, he also has to provide advice as a supplementary service on which private health insurance products are suitable, if necessary even after a recommended change of tariff. In his second profession as a KUK broker, he may also take a contingency fee, measured, for example, by the total savings of the reduced private health insurance plus KUK compared to the previously more expensive private health insurance tariff. And he may also receive from the KUK a regular commission or support remuneration, because this is precisely to prevent him from becoming dependent on insurance companies, which is prohibited for him.

 

by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm

 

by courtesy of

www.experten.de (published on 15.11.2019)

Link: https://www.experten.de/2019/11/15/bgh-verbietet-versicherungsberatern-erfolgshonorare-fuer-tarifwechsel-in-der-pkv/?utm_source=newsletter&utm_medium=email&utm_campaign=20191115+experts+report+-+weekly

and

www.experten.de (published in the ExpertenReport 11/2019, page 20-21 under the heading: How the insurance consultant with a second job may do exactly this and more nevertheless))

Link: https://kiosk.experten.de/de/profiles/e3596a099c43-experten-report/editions/experten-report-11-19/pages/page/12

 

 

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

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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