From the series of newsletters of the DHBW (Baden-Wuerttemberg Cooperative State University) Heidenheim on the topic “Mediation Law in Practice”:
At this point, lawyer Dr. Johannes Fiala, https://fiala4instalive.instawp.xyz, lecturer for insurance law at the DHBW Heidenheim, will answer your questions.
Questions can be asked by emailing ott@dhbw-heidenheim.de.
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 permit for all areas and must then also only apply for the requested
Insure areas. Without prior confirmation of the VSH insurer, no admission will be granted. Does not apply to VSH insurance,
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 law allows insurers to
in the case of compulsory professional indemnity insurance, also exclude the area of “knowing breach of duty” from cover,
which is also provided for in (almost) every domestic VSH tariff in its AVB.
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 the financial intermediary is to advise on products
and to document this advice, only damages to the customer resulting from this conduct or omission should not be insured.
VSH compulsory cover therefore does not mean comprehensive protection. More details on this, as well as on other “coverage gaps in the
Vermögenschadenhaftpflicht”, 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 then a
VSH coverage 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 a mandatory VSH coverage, it could be invalid because under law or
According to 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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