Consultation protocol (insurance brokerage)
The consultation protocol is a legally required documentation for insurance brokerage , which is intended to improve consumer protection.
Emergence
On 30 September 2002 the Council of the European Union , the Directive 2002/92 / EC on insurance mediation (European Mediation Directive) was adopted. The aim of this EC directive is to harmonize the intermediary market and improve consumer protection. In Germany, the law on the revision of insurance brokerage law (Broker Act), which transposed the brokerage directive into national law, was promulgated on December 22, 2006. The brokerage law came into force on May 22, 2007. The trade regulations (GewO), the law on insurance contracts and the insurance supervision law were changed .
The insurance broker's duties to provide advice are regulated in the Insurance Contract Act (VVG). The insurance broker is obliged to document every consultation - including over the phone. Since May 22, 2007 (when the Broker Act came into force), every insurance broker had to fulfill its advisory obligations.
On December 18, 2006, a draft of the ordinance on insurance brokerage and advice (Insurance Brokerage Ordinance - VersVermV) was adopted on the basis of the amended Section 34d (8) GewO. In § 15 VersVermV certain information obligations are imposed on the insurance broker.
With the implementation of Directive 2004/39 / EC on markets in financial instruments (Financial Market Directive ) in 2007, investment advice was subject to similar advisory obligations, which also include the obligation to prepare advisory documentation.
According to Section 59 (1) VVG, both the insurance broker and the insurance agent fall under the term insurance intermediary. In addition to the insurance broker, who is on the side of the policyholder and thus his customer, the insurance agent, who works in the interests of an insurance company, must also fulfill the advisory and documentation obligations.
The following shows what information must be included in a counseling protocol.
Insurance intermediary obligations
The insurance broker has to observe the following four obligations according to § 61 Abs. 1 VVG when giving advice:
Interview obligation
The insurance broker has to ask the customer about his wishes and needs, as far as the situation or the person of the customer give cause for this.
For the insurance broker, this means that he has to inquire more intensively with customers who are not familiar with questions from the field of insurance in order to clarify their wishes and needs.
Desires are understood as a general picture of a future situation, the occurrence of which is perceived as positive. Needs represent a subjective feeling of deficiency that triggers consumer behavior. The question of the obligation to interview is therefore about capturing the subjective world of the customer in line with the reason for the consultation.
Duty to advise
The consultation is always divided into two parts, on the one hand the analysis of the current situation and on the other hand the submission of a recommendation appropriate to the situation and the wishes and goals of the customer.
The current situation is primarily about the family, financial, tax and asset situation. Then there are the current insurance contracts.
From the wishes and needs of the customer and the situation analysis, the insurance broker (broker) determines the need, the objective determination of the necessary procedure and any changes or adjustments to the insurance contracts. This need is the basis for the insurance intermediary's recommendation or the advice he gives.
Duty to give reasons
The insurance intermediary must justify his advice. Above all with regard to the wishes and needs of the customer and the given situation. If the present situation cannot be completely resolved, for example because there are insufficient funds or suitable insurance cover cannot be obtained, this should also be noted in the reasoning of the council.
Documentation obligation / consultation documentation
The content of the consultation, i.e. the fulfillment of the obligations, must be recorded in text form in documentation ( Section 61 (1) sentence 2 in conjunction with Section 62 VVG). This does not initially have to be done in writing, but must be done after the conclusion of the contract ( Section 62 (2) VVG).
It is important to record the customer's decision, especially if it deviates from the advice given.
A signature from the insurance agent or broker is helpful but not mandatory for documentary evidence. The document is conclusive even without a signature. The consumer advice centers recommend policyholders never to sign advice protocols for their part.
The documentation is mandatory for all insurance intermediaries. The insurer is not entitled to the documentation and its delivery, as this law only applies to insurance intermediaries on this point. Only when the Insurance Contract Act comes into force is there an obligation for representatives to forward the documentation. If the documentation is to be forwarded to the insurer, for example to be used in the risk assessment, a data protection declaration should be agreed with the customer in order to enable the forwarding.
Since multiple representatives are vicarious agents and vicarious agents of the insurer, the insurer should be able to check compliance with the advisory obligations at least in the cases in which an application has been made to it.
Electronic archiving options, which are already offered today in the corresponding software, are particularly suitable for archiving.
Attachments can definitely be added to the documentation, which then become part of the documentation. These can be computer-aided analyzes or calculations from other programs or the insurance company's quotation software. However, the attachments should be explicitly listed.
In accordance with Section 61 (2) VVG, the customer can do without “advice” and “documentation”. For this purpose, however, a declaration of waiver is required, which expressly informs the customer that he can lose his claims for damages ( § 63 VVG) against the insurance broker in the event of a breach of the advisory and documentation obligations. This declaration of waiver must always be made on a separate document, i.e. it must not be part of the documentation or even the application.
Different variants of documentation or protocol templates are offered on the market, which differ in their methodology. This is due to the fact that the legislature was not prepared to issue a model recommendation, as was the case in Austria. This means that only the case law will provide final clarity about the procedure for documentation.
On the one hand, software companies in particular develop independent documentation solutions according to their own needs. Usually there are no interfaces between them. The content is based on different approaches derived from the paper forms available on the market.
The advisory processes working group was set up by professional associations and service companies and is financially supported by insurers. The working group offers forms for downloading.
The cooperation partners "EU Protocol" pursue a completely different strategy. The partners access the system, which is always up-to-date and at the same level, via an XML interface. The integration of legislation and case law as well as system development are always carried out centrally. This cooperation on the "broker side" consists of several broker associations and a large number of software companies. The intermediary directive stipulates certain minimum requirements that all states have to observe in their respective national legislation. The "EU Protocol", which was developed on the basis of German law, can be adapted to the relevant national regulations in cooperation with cooperation partners of the respective EU country, since the laws of the other EU countries are also based on the Brokerage Directive. The "EU Protocol" is largely free of charge. However, this service has since been discontinued. You can continue to work with it, but no more legal adjustments are made.
In the entire discussion about intermediary documentation, it should not be overlooked that many insurance intermediaries still advise their customers on site and there is no possibility of expression there. For this reason, data is currently mainly recorded in paper form. Mixed forms are conceivable in such a way that documents are filled with already known content as part of the preparation. If the printout is then made on NCR paper (which is possible today with laser and ink printers), the advice can be completed on site in paper form and then on the computer.
Web links
Individual evidence
- ↑ Systematic advice - mediate successfully and securely. In: Advisory Processes Working Group. Retrieved November 30, 2018 .
- ↑ Downloads. Our free materials for your advice. In: Advisory Process Working Group. Retrieved November 30, 2018 .
