*by Johannes Fiala (Munich), Attorney at Law (www.fiala.de), and Peter A. Schramm (Diethardt), Actuarial Expert (www.pkv-gutachter.de).
Why fee-based consulting in occupational pension schemes? In occupational pension schemes, including e.g. the working time account (ZWK), the employer is subject to numerous possibilities of liability. These include, for example, the “Zillmerungshaf-tung”, the “Ausfallhaftung” as well as the obligation to protect the saved gross salary together with the employer’s social security contribution against insolvency. Often commissioned products are prohibited here, so that the bAV consultant must inevitably demand a fee for his work.
The bAV fee consultant: Here we are closer to the classic management consultant: the typical intermediary may find this difficult to accept. The best way to get started is to use the concept of a profession as defined in the Basic Law or in sociology. The question arises as to whether a fee may be charged for brokerage and/or consultancy and/or other commercial activities instead of and/or in addition to a commission/fee. The Legal Advice Act and the prohibition of commission payments under insurance supervision law will also have to be observed.
A. Professions with legal advice as their main business: Not only lawyers and tax advisors, but also pension advisors or insurance advisors work ? possibly in their limited field of law – for a (usually legally fixed) remuneration or fee. Here the legal service is in the center ? it is considered by these independent honorary professionals as ?main business? (not only ?auxiliary business?) offered. These legal services are incompatible in the sense of legal prohibitions with an intermediary activity in the same matter.
Differentiation of the main legal business from other professions: This has absolutely nothing to do with the occupational pension advice of a broker, agent or occupational pension company consultant, because in the case of these, tax and legal advice may only be provided as a so-called auxiliary business in accordance with the RBerG (Legal Advice Act): it is sufficient if the tax or legal activity does not predominate. As a rule, the aforementioned honorary professionals are also VSH-insured. The financial services provider may be advised to cooperate, as both the intermediary (broker and agent) and the (occupational) pensions adviser cannot usually obtain insurance cover for these activities, although they are of course liable.
B. Professions with legal advice as an auxiliary business, Art. 1 § 5 RBerG: In the case of permissible (e.g. insurance) legal advice within the framework of the bAV advice of a broker, agent or bAV company consultant, tax and legal advice must remain within the framework of a so-called auxiliary business according to the RBerG : In the foreground, as the main business, is then something else ? for example, product brokerage and/or economic (business) advice. This initially has absolutely nothing to do with the question of whether the remuneration follows from a provision/fee and/or a fee: It concerns here first of all the question, in which framework (evenly only as auxiliary business) legal and fiscal consultation may be given.
1. fee instead of and/or in addition to commission/courtage: this refers to intermediary activities. Of course, an insurance broker can make it clear from the outset that he will only charge a fee for advice on occupational pension schemes (brokerage with advice on insurance law as an auxiliary transaction). This can be forced by the market (so that e.g. direct insurance offers can also be included) or the liability of the employer in the occupational pension scheme (e.g. due to incorrect advice on zillmerisation). However, this fee is also only owed for the brokerage; it therefore actually represents a remuneration for brokerage (possibly in addition to a brokerage fee received). Because the insurance-legal consultation is necessary auxiliary business of the switching and the broker only in the context of the broker activity permits, for which he is entitled only to a remuneration for switching. Although the regulatory authority takes the position that such remuneration may only be demanded in the event of success (i.e. conclusion of a contract) and this also corresponds to the traditional image of the broker, a success-independent fee is also permissible for the brokerage (but not separately for the advisory) activity, as e.g. the ?Pilz? judgement of the OLG Stuttgart from 28.12.1990 ? 2 U 121/90 ? highlights. However, since § 652 (1) BGB expressly makes the obligation to pay a broker’s fee dependent on success, such a fee will be based on a reimbursement of expenses not dependent on success pursuant to § 652 (1) BGB. § 652 (2) BGB. Reimbursement of expenses means that no profit is included, i.e. also the value of one’s own labour ? the own time expenditure ? can be compensated neither explicitly nor as a lump sum.
2. only with the broker: fee agreement for legal advice as auxiliary business: For the understanding is important first of all to read through the Sachwalter judgement of the BGH, because from it results what core of the broker profession is (including the insurance-legal examinations!). The insurance broker is allowed to be additionally remunerated for these auxiliary activities, because they are part of his professional profile; he is even allowed (even if only extrajudicially) to handle claims of his clients. insofar as the contracts are in his portfolio – with the insurer. The activity of the broker is not finished with the signature of the insurance contract ? the procurement of insurance cover continues, although he often receives nothing from the insurer after the brokerage fee for the mediation. Therefore, it must also be assumed that the broker may demand remuneration for the further contract support – including the associated legal advice as an auxiliary business.
No independent fee contracts for legal advice as an auxiliary business: Separate detached contracts for (e.g. tax or insurance) legal advice, which are concluded separately (without connection to an insurance broker contract!), are also not permitted for the insurance broker. In practice, the ?Pilz? judgement (OLG Stuttgart of 28.12.1990, ref. 2 U 121/90) and the similar judgement of the LG Kiel of 19.10.1988 (ref. 14 O 192/88) are referred to time and again: Both rulings permit additional remuneration (e.g. as a fee) for brokerage including auxiliary transactions under insurance law (e.g. analyses of prices and terms and conditions, of risks and coverage concepts, negotiations with insurers, review of premium invoices or insurance documentation, insofar as these are regarded as legal advice at all and not, for example, as other auxiliary commercial transactions that are permissible anyway), because the remuneration agreements were closely linked to the insurance brokerage contract. This was the only reason why in both cases the courts did not see a violation of the RBerG. Thus, the insurance broker may not offer insurance (legal) advice as a separate service for a fee.
3. remuneration for management consulting without legal advice: pure management consulting (e.g. business management bAV analysis, sorting of files and preparation of statistics, but not e.g. the evaluation of conditions) can be concluded as a separate contract without any problems. There we are not in the core of the intermediary or broker activities. Primarily, these are activities that are also usually performed by other ?management consultants? as independent services outside of a brokerage. Here, both remuneration according to time spent and on a success basis are conceivable. This also includes the expenses for legal advice included herein as a dependent ancillary business.
4) No violation of the prohibition of commission payments, § 81 VAG: The insurance intermediary (broker and agent) is not only prohibited from giving a part of the commission/fee directly to the customer. Any indirect transfer, such as the cross-subsidisation of non-brokerage activities (i.e. e.g. genuine management consultancy) by means of a commission charge, also falls under this category.
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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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