BGH, (III ZR 244/18), 21st November 2019
In Germany, intermediaries may be simultaneously registered in a number of categories, provided they comply with the conditions for admission to the profession, and in particular when they wish to combine the activity of distribution of insurance products with the activity of distribution of investment products (Article 34f of the GewO).
Although the licences are separate, the borderline between these two activities can sometimes be blurred when it comes to an insurance intermediary’s duty to give advice on an investment product in the course of his activity of distribution of insurance.
A client approached his insurance broker with a view to planning his retirement, seeking a short-term investment offering high returns.
However, the broker did not direct clients to this type of product but instead offered him a life insurance policy. Some time later, the broker contacts the client again and informs him of the existence of an investment product such as the one his client was looking for, but still did not offer him this product. The client proceeded to make the investment on his own but suffered substantial losses in the months following the investment. As a result, he sued the broker for having steered him towards a risky product without having warned him of the risks associated with such an investment, and for not having provided him with appropriate advice. The broker claims that he has no responsibility in this case, as he has not given him any specific advice on this investment, but had only informed him of the existence of such a product.
The magistrates hold the broker liable, considering that the insured’s decision to invest in this product was linked to the advice provided by the intermediary. The insurance broker, once he indicated the existence of this product to his client, entered the field of investment advice, giving rise to an obligation to provide advice on this type of investment, even if the client decided to proceed later and on his own to the subscription of this contract without having received further advice. According to the judges, the advice initially given to the client therefore continued to have effect.
This decision has far-reaching consequences for insurance intermediaries, and places new obligations on their shoulders, even if they merely indicate the existence of a product. Even “occasional” advice would therefore be an integral part of the broker’s duty to give advice under the broker-client contract. Therefore, in such circumstances, the broker must verify the profitability of the advised product, even if he has no opinion on the investment strategy to be adopted.
Intermediaries must therefore exercise caution with regard to the products they offer, even if only mentioned, as this may give rise to a duty to give advice.