23 November 2006 ? Today, the new intermediary law is to pass the Bundestag. This brings new insights for the impact on the work of all intermediaries in the insurance and financial services sector.
In the future, the insurance intermediaries will be subject to the so-called information, consulting and documentation obligations. We are however the conviction that also the Finanzdienstleister must become accustomed to this standard ?, say in addition the insurance broker specialized in fortune damage liability (VSH) Ralf W. Barth (photo), which presides also over the combination for the protection for plant and insurance mediators registered association. (www.vsav.de) presides. At the latest after the iurisdiction took over the new standards, it is to be assumed according to its estimate that the lawyers and courts will hardly make a distinction between insurance and plant switching. This is a situation that intermediaries of all product types should prepare for at an early stage.
Barth points out that quasi newly emerging sources of danger and pitfalls could be not insignificant here. This starts right at the beginning of the customer meetings. This is because, for example, anyone who complies with their information duties after the implementation of the EU Insurance Mediation Directive has to think very carefully about the information that is provided.
Those who, for example, use a bit of advertising in the presentation of the services which they intend to provide to the customer should do so in coordination with the scope of the pecuniary loss liability policy which they intend to conclude or have concluded.
Ralf Barth clarifies this: ‘Many intermediaries currently only apply for the compulsory insurance cover (insurance mediation) in their VSH policy. Sometimes this is done for cost reasons, sometimes because agents still think that nothing can happen to them due to their ‘clean’ work. nothing can happen to them. For this reason, other product areas such as investment funds, closed-end funds, special occupational pension schemes and services such as fee-based consulting are not insured.
Ralf Barth directs to specialist lawyer Dr. Johannes Fiala (photo) in addition concretely the question: ?Which dangers do you see for someone, who has a VSH policy limited to the insurance switching and its prospective customers and customers an information sheet hands out, on which the products and services, which it furnishes, are listed completely, without a reference to the limited VSH cover? The Munich attorney Fiala (www.fiala.de) stresses that in any case first the orders must be clarified. Decisive for the question of the responsibility and adhesion of the Finanzdienstleisters is the clarification of the orders opposite the customer. What is included and / or excluded?
It is essential to delegate concretely: Who cannot afford or does not want a tax or legal advice, should agree with the customer which consultant ? with name ? this done. This documents which questions the financial services provider does not handle.?
In the next step, VSH protection must be ensured: ‘Deceiving the customer about the existence of VSH protection can be anti-competitive and thus lead to a warning. It is equally crucial to check the minimum insurance sum p.a., as this is often insufficient. This requires active controlling by an independent VSH broker.
Self-imposed liability agreements and other business documents often turn into the opposite in court: Thus, in the area of cardinal or core obligations, an exclusion of liability is simply ineffective according to BGH case law?
Product suitability examine: Dr. Johannes Fiala: ?Numerous higher regional courts judged that for example closed participation and Akteinfonds are unsuitable for the structure of a age precaution. Nevertheless such products are actively recommended by training and sales managers: Such experts get then into a hardly insurable adhesion after ? 826 BGB ?because of deliberate immoral damage ? (Higher regional court OLG Celle, judgement 15.12.2005, Az. 11 U 107/05). ?
Mastering documentation: According to Dr. Fiala, there have been rulings for decades on the question of how to create optimal documentation. This is often decisive for the liability process. This must by no means be confused with checklists, such as those published by some software or expert groups. Because documentation shows what, when, where and how advice was given – a checklist does not?
Recognise advisory duties: According to Dr. Fiala, the EU Insurance Mediation Directive (VRL) does not create any new advisory duties, neither for the investment advisor who brokers an endowment life insurance policy nor for the insurance broker. The fact that a VSH policy will now be compulsory will arouse customers’ desires and is likely to lead to an increase in liability suits. If less than half of the concluded CLI contracts are held out to the end, can this be a liability potential due to incorrect advice? On advisor liability and on the subject of reverse insurance, the book by U. Mauntel published by VVW would be worth reading?
Use liability brakes: “There are numerous approaches to making liability more manageable,” says Dr. Fiala. This starts with legally effective contracts for the customer relationship instead of self-knitted patterns. The use of corporations can also be helpful. Real documentation has always been a matter of course for professionals. Proper VSH protection is also necessary outside the realm of compulsory insurance to ensure that residual risk is covered.?
From the point of view of the VSH broker it is important to act promptly now”, adds Ralf Barth and gives practical tips for new VSH risks to be covered: Identify product and activity areas with a comprehensive risk assessment sheet. Use support of an experienced VSH broker (?Consider that VSH contracts with which the risk was not determined, carry the danger of missing, but urgently needed cover, which will usually entail a refusal?). Conclude the existentially needed VSH coverage according to the existing risk and not solely according to the price. Support during the current contract by an experienced VSH broker who does this automatically, so that if the risk changes, the VSH contract is also adjusted. In the event of a claim, it is advantageous to be additionally looked after by an independent VSH broker and not to have to trust only the responsible persons at one insurer. Now promptly apply for the necessary insurance protection, because the prices will hardly change, but the rush by the quantity of the so far uninsured brokers can lead to substantial delays with the Policierungen. Ralf W. Barth and the Association for the Protection of Investment and Insurance Intermediaries (Vereinigung zum Schutz für Anlage- und Versicherungsvermittler e. V.) want to continue to actively point out possible sources of error, pitfalls and suitable solutions to intermediaries. Attorney Dr. Johannes Fiala from Munich, who among other things is also active as a mediator, wants to activate his commitment to this topic likewise further. Attention Copyright: The contents of bocquel-news.de are protected according to the copyright for journalistic texts. The articles are intended exclusively for personal reading and information. Reprints and further use – for example for commercial use on another homepage/website or printed matter – are only permitted after personal consultation with the editorial office (info@bocquel-news.de).
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About the author
Dr. Johannes FialaPhD, MBA, MM
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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