Are all employers with group pension insurance contracts now also insurance intermediaries?
Effects of the ECJ decision of 22.09.2022
Due to a decision of the European Court of Justice of 22.09.2022 (C622 / 22) it is in principle possible that policyholders of a group insurance contract (group head) can also be considered insurance intermediaries at the same time.
Some of our customers were contacted by law firms with reference to the ECJ ruling. According to this ruling, employers who offer group contracts in the context of occupational pension benefits (bAV) or occupational health insurance (bKV) run the risk of being regarded in future as intermediaries within the meaning of the Trade Regulation Act (Gewerbeordnung). One consequence of this would be that employers would have to obtain permission under trade law in accordance with Section 34d of the Trade Regulation Act. This would entail a number of obligations.
As a rule, we do not see any risk of the employer being regarded as an intermediary. Up to now, it has been assumed that the capacity as policyholder of a group insurance contract and the capacity as intermediary are mutually exclusive. However, the ECJ now sees this differently. Nevertheless, in our opinion, no automatism can be derived from the decision that all group top “employers” are now to be regarded as insurance intermediaries.
In our view, the framework conditions of the group insurance contract are decisive. Particular weight is given to the question of whether the top management of the group has its own economic interest in concluding insurance policies under the existing group insurance contract.
Employers are not normally interested in arranging insurance contracts for their employees out of their own economic interest. Rather, they set up group insurance contracts for the implementation of mandatory or voluntary benefits for occupational pension schemes, for the implementation of voluntary benefits for occupational health insurance or for the reinsurance of long-term working accounts. As a rule, the employer as policyholder is not interested in realizing its own economic interests as an intermediary.
In our opinion, employers who, as group leaders, maintain group insurance contracts for the implementation of occupational pension schemes, occupational health insurance or working time accounts are not automatically insurance intermediaries. In contrast to individual contracts, group insurance contracts offer the employer advantages through the bundling of contracts in one contract and the possibility of being able to offer more attractive conditions. This primarily benefits the employees.
We assume that the employer who is the policyholder of a group insurance contract and only in exceptional cases is to be regarded as an intermediary.
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