At this point, attorney-at-law Dr.
Johannes Fiala, https://www.fiala.de, your questions.
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“How much protection does the new compulsory pecuniary loss liability insurance offer for financial investment intermediaries licensed in future under Section 34 f GewO?”
This field initially contains three areas, namely (a) open-ended investment funds, (b) closed-end (KG) funds, and (c) other financial assets (e.g. profit participation rights, silent partnerships, registered bonds).
An intermediary does not have to apply for a licence for all areas and then only has to take out insurance for the areas applied for. Without prior confirmation of the VSH insurer, no admission will be granted. If the VSH insurance lapses, the insurer will notify the registration authority.
Failure to obtain new cover from another insurer in good time will result in the withdrawal of the licence.
Already according to the VVG no insurer has to pay in case of intentional breach of duty. The legislator allows the insurers to exclude the area of “knowing breach of duty” from the coverage of the professional VSH compulsory insurances, which is also provided for in (almost) every domestic VSH tariff in its GCI.
This refers to the deviation from the mandate given, from laws and other basic regulations for the exercise of the profession.
For example, if one of the basic professional duties of a financial intermediary is to advise on products and to document that advice, then only losses to the client resulting from that conduct or omission should not be insured.
VSH compulsory cover therefore does not mean comprehensive protection. Further details on this, as well as on other “coverage gaps in the liability for property damage”, can be found in the book of the same name published by C.H.Beck.
As a rule, however, it will be the case that, in addition to “knowing breaches of duty”, other consultancy errors are also present, for which VSH cover will nevertheless exist in the same case.
Until now, many VSH cover policies have stipulated that there is no VSH cover without advice and/or documentation.
If an insurer were to continue to provide this in the case of compulsory VSH cover, this could be ineffective, because according to the law and case law, an intermediary (as opposed to an advisor) only owes the investor information (and precisely no advice).
It should be just as ineffective if “legal and tax advice” is completely excluded from VSH coverage in the insurance broker VSH, because insofar as it is simple legal advice as an “ancillary service” in the sense of the RDG, this is completely legal and must therefore also be covered by the VSH compulsory insurance.
If the VSH does not cover a gross professional or deliberate error, and the private assets of the financial investment intermediary do not provide any compensation, the customer is effectively left to bear the loss – he then bears the insolvency risk of the financial investment intermediary.
The VSH compulsory insurance can therefore not really be called comprehensive consumer protection.
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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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