Informations- und Beratungspflichten des Versicherers nach der VVG-Reform

The insurer’s duty to enable the customer to come to an appropriate decision, providing advice and information, is a central topic of the reform of the German insurance contract law. The obligations of intermediaries given by the Directive 2002/92/EC on insurance mediation are transferred to insurers and thereby enlarged in some aspects. The duty to give advice in §6 I 1 VVG depends on the objective circumstances of each individual case depending upon either the complexity of the insurance contract and problems in understanding its terms, or the characteristics and situation of the customer. Therewith, the regulation both refers to former jurisdiction and exceeds it by implementing a duty for the insurer to ask for the demands and the needs of the customer. Without reason in the special case the customer has to disclose his need for advice to obtain it. During the term of the contract the insurer is only obliged to give advice if he knows or — acting diligently — could know the needs of the policy-holder. On a European level further duties to inform and advise could help to achieve an effective internal insurance market.     

Die Deckungsvorsorge der Versicherungsvermittler nach der EU-Versicherungsvermittlungs-Richtlinie

Insurance intermediaries being obliged to be registrated in Germany due to the directive have to comply with severe provisions concerning cover provisions (i. e. Deckungsvorsorge). A third-party liability insurance is virtually compulsory for insurance brokers and insurance agents charged by several insurance companies (i. e. Mehrfach-Agent), other kinds of equal alternatives for them do not exist practically. Concerning exclusively charged insurance agents (i. e. Ausschließlichkeits-Agenten), as well as in a side job, an indemnity clause of their insurance company giving the third party full rights may be a an alternative complying with the directive. The minimum covering funds being prescribed by the directive of € 1 million per event of damage and the minimum annual covering sum of € 1.5 million are appropriate to third party liability risks of an average insurance broker on the German market, for almost all of the insurance agents on this market without a permitted covering provisions, with regard to their very little third party liability risks, they are too high. Nevertheless, the German legislator is not entitled to deviate from them to lower sums for lack of an authorization rule in the directive. German legislator should transform the rules of the directive into national ones as soon as possible in favour of the interests of the consumers worthy of protection, using the existing national regulations on lawyers, notary publics, tax consultants and accountants concerning minimum contents of compulsory cover provisions and agreed exclusive clauses.     

Die Gruppenaufsicht nach dem Entwurf der Solvency II Rahmenrichtlinie

The draft framework directive for Solvency II (“Draft”) in general and the section on group supervision in particular is an impressive step towards a modern supervisory system, which is aligned with the economical reality of the insurance groups. It is to be hoped that the Draft will be implemented with only few changes.The Draft distinguishes a general and a special (group support regime) group supervision. The general group supervision constitutes a much more modern concept than the current Insurance Groups Directive, since it partly modifies the solo supervision (internal model to be approved by the group supervisor) and introduces a group based solvency requirement, the calculation of which allows for diversification effects on a group level.The group support regime, which applies only if an application has been approved by the group supervisor, allows to recognise such diversification effects by allowing the parent undertaking to replace paid-up own funds in a subsidiary undertaking by a group support declaration. Conditions for group support are in particular that the respective subsidiary is subject to an integrated risk management and internal control system, that the group solvency requirement is covered with own funds, and that the parent undertaking commits to promptly transfer own funds to the subsidiary where necessary, up to the limit of the group support declaration.     

Das Anspruchserhebungsprinzip — ein Deckungskonzept in der Haftpflichtversicherung mit Zukunft?

The claims made principle is one possibility to define the trigger of an insurance contract. Until now, the question whether the claims made principle is valid pursuant to German law has never been reviewed. Sec. 149 of the German Act on Insurance Contracts acknowledges the claims made principle.Particularly for long tail risks, the claims made principle has substantial advantages compared to traditional policy concepts.     

Die Qualifikation der Aufsichtsratsmitglieder von Versicherungsunternehmen nach VAG und Solvency II

Since 2009, the German insurance regulatory law has provided internal qualification standards for the supervisory board members of insurance companies. In accordance with Paragraph 7a sec. 4 clause 1 VAG, the members of supervisory boards are required to be competent at fulfilling their task and supervisory function in line with their expertise. This new stipulated requirement covers the previous standards of the German corporate law, which has been established by the German Federal Court of Justice (BGH) in its “Hertie”-jurisdiction. As such, this jurisdiction will also serve as a basis to interpret the expertise requirements in German insurance regulatory law. Consequently, each of the supervisory board members is obliged to have a certain minimum level of general competencies, whereby the special expertise and advance knowledge have to be safeguarded within the board. Even if the supervisory board members are not “persons with key functions” as per framework directive of Solvency II, nevertheless the imminent transformation of the existing guidelines into the national law itself will indirectly have an impact on the qualification requirements of the supervisory board members in the insurance company industry.     

Das Versicherungsvermittlerrecht nach der Reform

The EC Directive on insurance mediation has been implemented into German Law two and a half years late by the Insurance Intermediary Law Revision Act of 19^th December 2006, which has been enacted on 22^nd May 2007. On the one hand, this Act contains regulations on the professional law which are provided in the Industrial Code (Gewerbeordnung — GewO). In principle according to section 34d GewO, professional insurance intermediation is an activity requiring a licence. This licence is only granted under the condition that the applicant is able to present the conclusion of a professional indemnity insurance and a certificate that the applicant has passed an examination of knowledge and ability held by the chambers of industry and commerce (IHK). In fact, the exceptions from this principle prevail. Tied insurance agents are exempted from both conditions by act of law. Product accessory intermediaries can be exempted from the examination of knowledge and ability upon application. Employees of an insurance intermediary need to prove their knowledge and ability only to their employer. On the other hand the Insurance Intermediary Law Revision Act contains besides the regulations on professional law also new obligations of information, communication and consultation for the insurance intermediary. These obligations have been implemented into a professional law ordinance and into sections 42b und 42c Insurance Contract Act (VVG). The ordinance regulates the obligations of the insurance intermediary to provide the customer with information about his status. Sec 42b (1) VVG regulates the obligation of an insurance broker to give an advice on the basis of an analysis of a sufficiently large number of insurance contracts and insurance undertakings. Sec 42b (2) VVG regulates obligations of an insurance agent to inform the customer before the conclusion of an insurance contract about the market conditions and information basis he uses for his service, if the customer has not waived this right (sec 42b (3) VVG). Sec 42c (1) VVG further provides an obligation of the insurance intermediary to ask questions depending on the situation, an obligation to give advice depending on the situation and on the price of the product including an obligation to tell the reasons for the advice and finally an obligation of documentation. Sec 42c (2) VVG gives the consumer a right to express a waiver in writing to advice and documentation. Sec 42e VVG awards the costumer damages in the event that there has been a breach of the obligations regulated in sec 42b and 42c VVG. The Insurance Contract Law Reform Bill still has to be passed by parliament. Sec 1 of this Bill contains the new Insurance Contract Act. It is planned that this new Insurance Contract Act shall be enacted on 1^st January 2008. Sec 69 to 73 new Insurance Contract Act provide a complete revision of the law of the insurance agent’s representative authority which is now regulated in sec 43 to 48 of the old Insurance Contract Act (VVG). At the moment the law of insurance agent’s representative authority established by the courts differs extremely from the written law. Therefore the new Insurance Contract Act will bring only minor changes of the actual law. For most parts, the only aim of the reform is to adapt the law in action with the law in the book.     

Die Rechtsstellung der Prämien-, Bedingungs- und Deckungsstocktreuhänder nach dem VVG und dem VAG

The legal statuses of ?trustee for premium changes“, ?trustee for condition changes“ and ?trustee for coverage fund“ are comparable. All of them act under private law. Their function is slot in ahead of the grievance control of the supervising agency. The trustees are supposed to relieve the supervising agency and to inform it about the competitive practices of the insurance companies. The legal provisions concerning the trustees for premium and condition changes as stated in the VAG rank equally with those stated in the VVG. The rights to adapt contracts stated in §§ 172 and 178 g VVG have the characteristics of a one-sided right according to § 315 BGB. These rights allow the insurance company to pass on the risk of future changes of actuarial bases. Under private law, the independence of the trustees is merely a formal condition. Their declaration of consent has to include the reasons for the consent.     

Die Nachfrage nach Gesundheitsleistungen aus ärztlicher Sicht

Health care costs originate from physician-patient-relationship. It is this unique interrelation which determines mode and extent of diagnostics and therapy, prevention and rehabilitation. The increase in health care costs closely follows increase in gross domestic product (GDP) since decades indicating a basic cost-conscious conduct of both partners. In consequence, there is no uncontrolled or even unlimited increase in health care costs as claimed in public. There is also no need to ration health care services because of economic aspects due to demographic development nor to give up solidarization within social systems. This paper resolves some of common but misguided opinions, analyses health care services from a physician’s point of view and identifies basic but unsolved problems of the German health care system. It demands definition of health by German society and professional clarification of the term medically essential, recommends priority for preventive measures as well as implementation of long standing legal regulations such as rehabilitation prior to nursing.     

Europäische Richtlinie über Versicherungsvermittlung und VVG-Reform

The directive on insurance mediation, proposed by the European Commission, is supposed to secure a minimum standard of professional competence for intermediaries to protect customers as well as to ascertain the intermediaries’ freedom of establishment and freedom to provide services in the internal market. Pursuant to the directive, only an intermediary who is registered in his / her home country’s intermediary register will be allowed to mediate insurances. The intermediary has to comply with professional requirements set by the directive in order to be registered. Yet, part-time intermediaries can be exempted from those requirements by the member states. Additionally, the intermediaries are burdened with certain information and documentation duties towards their customers, a breach of which will cause personal liability. Only these contractual duties are to be implemented in the WG (German Insurance Act), which is soon to be basically reformed.     

Die Behandlung des sogenannten Mengengeschäftes nach dem EuGH-Urteil

Zeitschrift für die gesamte Versicherungswissenschaft -     

Die Rolle der Versicherungsmathematik innerhalb der gesamten Wissenschaft und Praxis der Versicherung

Abstract

Der überraschenden ehrenvollen Einladung in den drei skandinavischen Hauptstadten im Verein der Aktuare einen Vortrag zu halten, bin ich zwar gern aber nicht ohne Bedenken gefolgt; weiss ich doch nicht, ob ich in einem solchen Kreise von Sachverstandigen der Wissenschaft und Praxis der Versicherung etwas bieten kann. Aber die so überaus liebenswürdige Schreiben Ihrer Herrn Vorsitzenden geben mil' den Mut hier zu sprechen. Ich will kein speziell versicherungsmathematisches Thema behandeln: rch will vielmehr den Rahmen weiterspannen und iiber die {iRolle der Versicherungsmathematik innerhalb del gesamten Wissenschaft und Praxis der Versicherung sprechen.