Advisory protocol (investment advice)

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The advice protocol was part of the investment advice for private investors , which was intended to protect investors and improve the quality of advice. It was replaced by the suitability statement in January 2018 .

History of origin

On July 3, 2009, the German Bundestag passed the law to reorganize the legal relationships for bonds from total issues and to improve the enforceability of claims by investors from incorrect advice . One of the aims of the amendment to the law was to strengthen the position of investors in legal disputes due to legal proceedings relating to incorrect advice in securities transactions by introducing a mandatory advisory protocol. The Federal Council approved the law on July 10, 2009. The law came into force at the beginning of 2010.

Scope of the protocol requirement

§ 34 , para. 2 Securities Trading Act (WpHG) provided that security services companies had to make a written record of all investment advice with a private customers. The protocol had to besignedby the investment advisor and given to the client. The record requirement only extended to securities transactions , not to the brokerage of other forms of investment such as overnight money or fixed-term deposits . Since the introduction of the KAGB, closed participation models have also been subject to mandatory logging.

Content of the minutes of the consultation

According to Section 14 (6 ) of the Ordinance on the Conduct of the Investment Services and Organization (WpDVerOV), the advisory protocol had to contain complete information on the following points:

  • the reason for the investment advice,
  • the duration of the consultation,
  • the information relevant to the consultation about the personal situation of the customer,
  • Information about the financial instruments and services that are the subject of advice,
  • the main concerns of the customer and their weighting,
  • the recommendations made in the conversation and the main reasons for these recommendations.

With the new version of § 14 WpDVerOV, this provision has been in force since January 2018.

Right of withdrawal for telephone investment advice

According to § 34 WpHG, the banks had to grant their customers a right of withdrawal if the customer had chosen means of communication for investment advice "which do not allow the minutes to be sent before the transaction was concluded." In this case, the banks had to send the minutes to the customer immediately after the transaction was concluded . After receipt of the protocol, the customer had a one-week right of withdrawal if the protocol was incorrect or incomplete.

Criticism of the consultation protocol

Just a few weeks after the introduction of mandatory minutes in investment advice, criticism of the implementation of the legal regulation by the banks arose. A study by the North Rhine-Westphalia consumer center confirmed that many of the protocol templates used by the banks are not consumer-friendly. Above all, the consumer advice center criticized the fact that in some protocols the possibility to weight the investment goals of the clients was missing, although this weighting was prescribed by the WpDVerOV. Some banks also asked their customers to sign the protocol. This criticized the consumer advocates because the signature is not required by law and it worsens the legal position of the customers. Another point of criticism was the inadequate justification of the banks' investment recommendations.

After a market survey at the beginning of May 2010, the Federal Financial Supervisory Authority (BaFin) also expressed criticism of the advisory protocols used by the banks. Many only contained pre-formulated possible answers. Existing free text fields were often not used. Like the consumer advice center in North Rhine-Westphalia, BaFin criticized the request of individual banks for customer signatures under the protocol.

New regulation

The previous consultation protocol has been dropped and will be replaced by the declaration of suitability . Since January 2018, section 64 (4) of the WpHG has required a declaration of suitability instead of the advisory protocol. It is a declaration in which the investment advice provided is presented and explained to the private investor and takes into account how the advice was tailored to the preferences , investment goals and other characteristics of the investor. The wording of Section 64 (4) WpHG requires this declaration to be made available before a securities order is concluded.

See also

literature

  • Nico C. Klein, The obligation to take minutes of advice in the system of investor protection determined by European law, Mohr Siebeck, 2015, 614 pages, ISBN 978-3-16-153983-1
  • Commentary on the Securities Trading Act (WpHG) and the Securities Service Conduct and Organization Ordinance (WpDVerOV)
  • Arne Maier, The mandatory advisory protocol: Investor protection with pitfalls , consumers and law (VuR) 2011, 3 (PDF file) [1] (PDF; 202 kB)

Web links

Individual evidence

  1. ↑ Text, amendments and justifications to the law on the new regulation of the legal relationships for bonds from total issues and for the improved enforceability of claims by investors from incorrect advice
  2. ↑ Press release of the Federal Ministry of Justice on the Bundestag resolution ( Memento of the original from July 12, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bmj.de
  3. ↑ BaFin press release ( Memento of the original dated May 29, 2010 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.bafin.de
  4. ↑ Hans Nickel, Investment Advice am Finanzplatz Deutschland , 2018, p. 131