Abandoning of the commission for online portal (comparison for insurance)
The administrative court (VG) of Frankfurt has rejected the urgent application of the operator of an online insurance portal to oblige the Federal Financial Supervisory Authority not to impose sanctions on its insurance partners.
The applicant has been operating an online portal for insurance companies since summer 2017. Its business model consists of refunding its customers the commissions from its insurance contracts for a fee or directly procuring them net tariffs that do not provide for commissions for the broker. As early as August 2017, the respondent, the Federal Financial Supervisory Authority (BaFin), had stated in the specialist insurance press that the Insurance Supervision Act (§ 48b VAG) prohibits the transfer of commissions. An exception applies only if the durable benefit increase or premium reduction is realized within the mediated contract. Also in August 2017, the applicant turned to the respondent and requested information on the interpretation of § 48b VAG. She was then informed that her business model did not fall under the exemption from the prohibition on commissions in § 48b (4) VAG. In August 2018, the respondent wrote to the insurance companies subject to its supervision and communicated its legal opinion on the applicant's business model. At the same time, it was pointed out that insurance companies that continued to cooperate with the applicant and similar intermediaries were threatened with a prohibition order. The applicant turned against this with an emergency application, since some insurance companies had already terminated their cooperation with her after receipt of the letter and threatened her with losses and insolvency. Her business model did not violate the commission fee prohibition, but was covered by the exceptional provision.
The VG Frankfurt could not share this view and saw no objections to the measures threatened by the respondent against the insurance companies subject to its supervision.
In the opinion of the Administrative Court, the application for provisional preventive legal protection against the imminent prohibition of cooperation by insurance companies is already inadmissible due to a lack of legal protection. The applicant had already been aware since the beginning of its business activity that the respondent considered its cooperation with insurance companies to be unlawful. However, knowing the risk, the defendant continued the business model at issue and did not make any adjustments. Finally, the content of the intention expressed by the respondent to issue prohibition orders was not objectionable, since the business model of the respondent was likely to violate the prohibition on the sale of commissions. The special remunerations granted by the applicant within the framework of its business model were also not permitted on the basis of the exemption. There was no permanent reduction in premiums, which was regulated in the insurance contract and granted by the insurer itself. The narrow interpretation of the exceptional provision also required the purpose of the prohibition on the sale of commissions, namely that the forwarding of commissions must not lead to "false incentives for the consumer" through "short-term financial advantages".
The declaration of intent to prohibit cooperation between insurance undertakings and the applicant does not appear disproportionate with regard to the objective pursued - to obtain information and comments from the insurance companies in order to remedy the situation - either.
An appeal against the decision can be lodged with the VGH Kassel within two weeks of notification.
Source: Press release of the VG Frankfurt No. 13/2018 v. 28.09.2018
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