Occupational pension schemes: Advice protocols and products put to the test

*by Peter F. Then, insurance broker (Veitshöchheim), lawyer (www.then-finanz.de) and Johannes Fiala, lawyer (Munich), banker (www.fiala.de )
The information problem: An agent writes ‘I personally have no problem with broker liability. I am largely responsible for my own actions. Only that I should take over the liability for the mistakes of my suppliers does not make sense to me. Figuratively speaking, this situation is like a car manufacturer who builds his cars to please the customer, but does not have to adhere to any requirements during production. If the steering knuckles are too thin and the ESP only exists as a sticker on the dashboard, if white cuddly cushions fall out of the steering wheel instead of airbags, who cares – the car dealer is liable, after all….and not the manufacturer. ? Where is the TüV or the KBA for insurance products. A body that checks whether the product can be marketed with liability for a specific area of application? The agent is aware that he is the first to be shaved’.
Question: Which Pepperminzia? Which product for which company for which employees, questions over questions. Unfortunately, some answers already result of professional qualification. Who ?only? direct insurance will try to solve all problems of company pension schemes with direct insurance. If you only have Pepperminzia in your portfolio, you can only offer Pepperminzia. If Pepperminzia is a big company with good products and good training and control, if there is also that, it might still be okay. But what if a lump-sum U-cash was necessary to be able to meet the employer’s situation and ideas? Or in a company with high fluctuation, a pension fund is sold, zillmerized of course, because Pfefferminzia offers nothing else. On the form for the salary conversion it says at the bottom that in the first years the Zillmerung takes effect. It speaks of a high ethical attitude, if in such a way one sells, because from advised can be spoken in this connection probably no more. But it becomes so understandable that there is a profession which is mentioned in the reputation just behind the politicians. We do not need to complain. Creditworthiness check: Product providers bear a high responsibility ? especially when it comes to sales training. For false statements the product giver is responsible (BGH judgement of 28.02.2005, Az. II ZR 13/03), not rarely also the training leader. All the more important it is to inform oneself about the transparency of the contracting partner (see the expert check) and its creditworthiness in advance ? also the professionals in other industries get themselves a credit report on all shareholders and managing directors, also for the private sector. This has absolutely nothing to do with the fact that even renowned product providers continue to propagate extremely liability-prone concepts. VSH-Check (property damage liability): With regard to both the products and the contents of the advice, an experienced VSH broker should be on hand; for by no means is every product and every activity insured everywhere. Occasionally he will also know about claims, and can bring his experience to bear when evaluating products. Above all, he will be able to point out which insurance gaps remain for the intermediary in the case of permissible fee-based advice, as well as permissible legal and tax advice. On average, an intermediary has to complain about a claim every three years: Here, too, the involvement of one’s own VSH broker in the settlement is often a relief that can literally pay off. The VSH broker is also a trustee, with all the obligations of this type.
Consultation protocols: Again and again, distributors or product providers advertise with the allegedly liability-free distribution of capital investments (here is an example). Of course, this is pure nonsense, because the ?investor- and object-appropriate? advice is the answer to the question ?does the product fit the customer? Consultation answers in particular the question ?fits the product to the customer? ? and this can replace no still so cleanly knitted folder. similarly applies with the private and operational old age pension for the product selection. There is currently no legal obligation for documentation to be in writing (cf. BGH ruling of 24.1.2006, XI ZR 320/04). Clarify orders: At the beginning, every advisor has to analyse the client’s needs and ideas in order to prevent misunderstandings right from the start. All the more importantly it is to the minimization of the adhesion risk from the outset as mediators two things to undertake: 1. to the customer clearly say, on which the consultation extends, thus clearly make, which is advised. And 2. to make clear which issues (e.g. tax issues) are not covered by the advice. In order to make this also clear, the consulting protocol ? and still better, also the order form should make clear, of which person (by name) these not taken over consulting subjects are to be worked on then (e.g. ?Mr. StB XY will advise the investor fiscally ?). If the mediator advises legally or fiscally (as auxiliary business), he must be able to answer for this also. A tax advisor has the OLG Cologne by its judgement (Az. 8 U 66/04 of 27.01.2005) again once in the master book written that there is an obligation to the delegation. For the financial service provider, failure to delegate always means gross negligence ? and unfortunately liability for this cannot be excluded by means of a contract form. Consultation process and customer reaction: Already a view into the sample protocols of many an association and ?moral guardian? or initiator reveals gross deficiencies. These market participants risk negligently the existence of your mediators. To recognize this can help to save bad surprises also in the later course ? it is (only?) in theory actually completely simple! What do the courts expect when the client claims that he was not informed about a risk. First of all, the protocol must be structured in such a way that a course of the conversation can be described in detail. The documentation must be so arranged that within the adhesion time of the mediator (up to 10 years) this can be described at any time concretely. But this alone is not enough. There must be enough space in the protocol to record the reaction of the customer. The ?GAU? would be it, if the complaining investor in the process says, ?yes, over it was spoken ? however I did not understand it until today ? So it must result from the reaction of the customer that the customer understood e.g. the total loss risk, for example with the words ?you know, I operate a Trading besides and know the situation, if the entire employment of my inheritance is away? By that yardstick, a lot of great protocol patterns fall through the cracks. For example, in the case of occupational pensions: with regard to advice given to employees of the employer, the intermediary acts mostly as a vicarious agent. So if the employee is given incomplete or incorrect advice, the employer can seek recourse from the intermediary. Many a nimble salesman should let this melt on the tip of his tongue.
Course of conversation and risk of consulting software: For the distribution not only of insurance products the judgement of the OLG Schleswig (Az. 5 U 28/02 of 05.12.2002) is just as explosive, as worth reading: In it the court chalks up the use of a ?form-like visit report? without prospectus-supplementing provable (!) risk clarification to the mediator. Also with the employment of consulting software a court or an expert can arrive later at the conviction that the customer was steered consciously to a completely certain investment or insurance decision. This can lead to the accusation that the client was deliberately steered towards a certain product (e.g. insurance) or a certain initiator (e.g. for closed investments). Ticking off advisory forms (e.g. with pre-formulated yes/no answers) is no substitute for documenting the course of the conversation or the customer’s reactions. For this a judgement of the LG Stuttgart of 14.12.2004: click here Hardly to eradicate is the tendency of some software solution not to represent the results transparently in a long version ? thus the computation and decision way: Who uses a ?black box?, does not need to be surprised, if he has later problems to make the exact function understandable to a judge. First the mediator delivers himself to a product giver and/or the EDP ? and later a judicially ordered expert. Who works as a mediator in such a way, leads itself ?to the slaughter? Exploration asked: Also the picture of the investor must be documented, thus for example the investment experience, the investment knowledge, the investment goals, the risk readiness and ?ability, the economic conditions. The forms of the credit institutes for the Depoteröffnung after § 31 WpHG supply here surely valuable suggestions for the own conversion. The most important thing for the insurance broker in the bAV consultation is the inquiry of the emphasis of the employer for the bAV (e.g. no balance sheet contact, money remains in the own house, no adhesion because of Zillmerung, uncertainty with the insolvency protection, etc.). For this, see a judgement of the OLG Koblenz of 21.10.2005: click here Central obligations: To a small extent, terms and conditions can help further. In most cases, the exclusions of liability proposed in practice go too far, and are thus ineffective overall. The insurance broker cannot simply completely exclude his central duties according to the Sachwalterurteil, especially not for the case of gross negligence. The BGH’s Sachwalterurteil forces the broker to investigate the risk as well as the product brokered for it in the past, and to continue to review it regularly as long as the brokerage contract exists. From it the obligation follows to submit possible change suggestions unasked. Constantly, immediately and without being asked, the insurance broker has to inform his client: Otherwise, the client will write to his lawyer, in view of a coverage gap in the bAV or an undetected insolvency protection risk ?that can only be a case of broker liability?

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Dr. Johannes Fiala
PhD, 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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