Under investment advice is understood in the banking system , a consultancy that the bank customers about the risks and opportunities of the various financial products to clear up taking into account the personal and financial circumstances of the customer.
Investment advice is a legal term that is only associated with advice on financial investments in banking and is therefore limited to the deposit business and custody business of credit institutions . In the specialist literature there are numerous terms used as a synonym for investment advice, such as financial advice or asset advice , whereby financial advice often occurs as a generic term for all advisory services. Investment advice at credit institutions or other financial service providers is usually a free service that is cross-subsidized through the sale of banking products .
Investors have different levels of knowledge about the characteristics and risk content of their investments and capital investments and, given the large number of financial products, often cannot decide which type of investment is the right one without the help of the credit institutions . This decision should be brought about with the help of investment advice. According to the rulings of the BGH, advice from credit institutions must be “appropriate for the investor” and “appropriate for the property”. Then they have to research the level of knowledge of the customer about investment transactions of the intended type and his risk attitude as part of the “investor-friendly” advice ; the investment property recommended by banks must take these criteria into account (“property-specific” advice). The “investor-friendly” advice corresponds to a long tradition of case law of the BGH. As early as November 1961, he demanded that banks should orientate themselves on whether the intended investment business is intended to serve as a safe investment or is of a speculative nature (see risk class ). With this objective in mind, the recommended investment must be tailored to the client's personal circumstances, ie be “investor-friendly”. These obligations for correct and complete investment advice result from the advice contract concluded.
Investment advice is defined differently under banking supervisory law and civil law. In terms of banking supervisory law, investment advice is the express or implied recommendation of certain financial instruments to prospective investors on the basis of an expert assessment and the submission of a specific investment recommendation with the aim of enabling the investor to make an appropriate investment decision. Investment advice is the making of personal recommendations to clients relating to transactions with certain financial instruments. From this, (8) No. 10 of the WpHG derives a legal definition , according to which investment advice is the making of personal recommendations to customers relating to transactions in certain financial instruments, provided the recommendation is based on an examination of the investor's personal circumstances. Investment advice has been an independent securities service within the meaning of the Securities Trading Act since November 2007 . However, this does not result in an obligation to provide investment advice, it only arises from an advisory contract. Under civil law, the customer must also be informed about the general and special opportunities and risks of an investment.
Depending on the content and liability, a distinction is made between information, clarification and advice. Information is the requested disclosure of facts . Clarification is the communication of facts that are necessary for someone to be able to assess a situation . Advice is clarification plus expert evaluation and assessment of a form of investment and the making of a recommendation.
Investment advice is limited to the deposit business and the custody business of credit institutions, while financial advice also includes credit transactions , financial management , debt advice , financial planning and the elimination of financial risks . While the financial advice - except for the portion of the investment advice - is usually not subject to authorization, investment advice is a by the BaFin requiring a license banking business . In the case of investment and financial advice, the decision is made by the client ; in the case of asset management , the decision is made by the asset manager himself. A distinction is also made between investment brokerage and investment advice. The role of an investment intermediary is to bring the investor and a particular financial product together; advice is not associated with this.
Pursuant to KWG , “making personal recommendations to customers or their representatives relating to transactions with certain financial instruments, provided the recommendation is based on an examination of the investor's personal circumstances or is presented as suitable for him and is not announced exclusively via information distribution channels or for the public "only possible with the permission of the Federal Financial Supervisory Authority (BaFin) according to KWG. Financial service providers regulated in this way may recommend and broker all financial instruments within the meaning of Section 1 (11) KWG as part of investment advice. BaFin maintains a registration and complaint register of all investment advisors on its website. An investment advisor can, however, make use of the exception regulated in (6) No. 8 KWG, according to which investment advice may also be provided on the basis of a permit under the Trade Regulations, provided it is limited to open-ended investment funds and closed-end investment funds . The legislature then speaks of a "financial investment broker", supervision is no longer performed by BaFin, but by the local regulatory office . A financial investment broker must be entered in the public broker register of the Chamber of Commerce and Industry (IHK). There is no register of complaints for financial investment brokers.(1a) no. 1a
Only knowledgeable and reliable persons may be used for investment advice . Expertise can be proven to BaFin through in-house and external training and further education, as long as they meet the requirements of the Securities Trading Act-Employee Notification Ordinance (WpHG-MaAnzV). A financial investment broker must demonstrate the necessary expertise by examining the Chamber of Commerce and Industry or by having completed suitable specialist training ( e.g. banking specialist ) or a university degree (e.g. business administration specializing in banking, insurance or financial services).
The 2013 law reform brought some changes. Until July 22, 2013, the Asset Investment Act (VermAnlG) was essential for investment advice from banks, insurance companies and independent brokers. This has been replaced by the Capital Investment Code (KAGB). Many regulations were adopted and supplemented from the previous reform. The aim of the legal reform was to strengthen the protection of small investors through reorganization, risk classification and supervision of the providers of capital investments.
The advisory contract is a free-form banking contract that is regularly concluded when a counseling interview is started. The advice includes both a self-assessment of the type of investment and - with regard to the investor's personal circumstances - a recommendation that leads to a buy, sell or hold recommendation. Holding is also investment advice because the customer is advised not to sell. The buy, sell or hold recommendation triggers a declaration of suitability , which must be handed over to the private investor in writing before the securities order is submitted .
Liability for advice
The primary purpose of investment advice is to protect the investor / customer / consumer. This protection is guaranteed by the obligation to provide information, advice, recommendations and, if necessary, warnings. The provisions of the WpHG are not an independent basis for a claim against the bank by the customer in the event of their violation by the advisor. The provisions of public law supervisory law ( order ( BGB) or agency agreement ( para. 1 BGB). According to Section 675 (2) of the German Civil Code (BGB), wrong advice only obliges you to pay damages if it violates a contractual or pre-contractual obligation or if it represents an illegal act . If the duty to provide advice is violated, the customer is entitled to a claim for damages based on (1) sentence 1 of the German Civil Code (BGB) for violation of duty. Thereafter, the injured party is to be presented as if he had received correct information. If the bank cannot conclusively assess the risks, it must not pretend that it is in the know, but must point out the lack of specialist knowledge.WpHG) are therefore not of any independent significance in terms of compensation law beyond the civil law disclosure and advisory obligations. However, they specify performance and consideration obligations according to Paragraph 1 and 2 BGB. The directory assistance or counseling is compulsory for contractual duty in
In Austria , investment advice according to Section 3 (1) of the Securities Supervision Act (WAG 2007) can be provided by various service providers active on the capital market , and according to Section 1 (3) of the Banking Act (BWG), credit institutions may also provide investment advice to their customers with regard to financial instruments. Section 4 of the WAG stipulates that the business activities of investment services companies are limited to investment advice in relation to financial instruments (Section 3 (2) No. 1 WAG) and the acceptance and transmission of orders for financial instruments (Section 3 (2) No. 3 WAG) . In Switzerland , which does not have to implement the EU MiFID directive , independent asset managers and investment advisors do not need a license from the Swiss Financial Market Supervisory Authority FINMA.
According to German, Swiss and US law, there are no ongoing monitoring and advisory obligations with regard to the securities acquired by the customer , especially not in the event of rating changes .
- Joint information sheet from the Federal Financial Supervisory Authority and the Deutsche Bundesbank on the new offense of investment advice (PDF; 211 kB). July 2014.
- Andreas Hackethal , Roman Inderst and others: Measurement of customer benefits from investment advice - Scientific study on behalf of the Federal Ministry of Food, Agriculture and Consumer Protection (BMELV) (PDF; 2.9 MB). December 15, 2011.
- Advisory and financing models in investment advice (Switzerland) (PDF file; 476 kB)
- Katrin Severidt, consulting fees in banks , 1997, p 5
- Jörg Lange, Financial Advice for Private Households , 1995, p. 34
- Bernd Hochberger, Financial Planning , 2003, p. 180
- BGH, judgment of July 6, 1993, Az. XI ZR 12/93 = BGHZ 123, 126: "Bond judgment"
- BGH, judgment of November 25, 1961, Az .: IVa ZR 286/80 = NJW 1982, 1095, 1096
- Robert Eberius, Regulation of investment advice and behavioral finance , 2013, p. 5
- Art. 4 Paragraph 1 No. 4 of Directive 2004/39 / EC
- Siegfried Kümpel: Banking and Capital Market Law . 2004, marginal no. 16,534.
- Mark Lenenbach: capital market and stock exchange law . 2002, para. 8.10.
- Sebastian Capek: Investor protection in Germany . 2010, p. 27.
- Gerhard Lippe / Jörn Esemann / Thomas Tänzer (eds.), Qualified financial advice in banks and savings banks , 2004, p. 60 ff.
- BaFin employee and complaint register
- Financial assets intermediary register of the Chamber of Industry and Commerce ( Memento of the original from June 3, 2014 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- Text and amendments to the AIFM Implementation Act - AIFM-UmsG of July 4, 2013
- Investment advice in Germany after the 2013 legal reform. Accessed on September 11, 2017 .
- Marc-Philippe Weller , The Dogmatics of the Investment Advisory Contract, in: ZBB 3/11, 2011, p. 193
- Lukas Feiler (ed.), Innovation and international legal practice , 2009, p. 800
- Peter Derleder (Ed.), Handbook on German and European Banking Law , 2009, p. 1410
- BGH, judgment of December 19, 2006, Rn. 18 mwN
- BGH NJW 2007, 1874
- BGH NJW 1998, 2675
- Lukas Feiler, Innovation and international legal practice , 2009, p. 774 f. FN 14
- BGH WM 2006, 851, 852
- Federal Supreme Court, judgment of February 3, 2012, Az .: 4A 525/2011
- Ulrich G. Schroeter, Ratings , 2014, p. 442