VGH Munich on the obligation of "old hands" to undergo further training
The Higher Administrative Court [Verwaltungsgerichtshof - VGH] of Munich has confirmed that so-called "old hands" are exempt from the examination of their expertise (“Sachkundeprüfung”) as insurance brokers, but not from the obligation to undergo regular further training (decision of 12 August 2021, 22 ZB 20.1840).
The case at hand:
The managing director of an insurance broker (§ 34d German Industrial Code [Gewerbeordnung - GewO]) had completed his second state law examination in 1970 and had been working continuously in the field of insurance brokerage since 31 August 2000. The insurance broker had therefore received a broker's licence without an examination of expertise. In the time that followed, the responsible Chamber of Industry and Commerce [Industrie- und Handelskammer – IHK] demanded that the insurance broker submit proof of further training in accordance with § 7 of the German Insurance Brokerage Ordinance [Versicherungsvermittlungsverordnung - VersVermV]. The broker refused to do so, arguing that, among other things, the managing director was not subject to any further training obligation due to his professional qualifications.
The decision of the VGH Munich
The VGH Munich has now ruled in favour of the IHK and confirmed a first-instance decision by the Administrative Court [Verwaltungsgericht - VG] of Ansbach (AN 4 K 19.2370). The court pointed out that a distinction must be made between the exemption from the examination of expertise for obtaining the broker's licence and the exemption from the further training obligation. The protection of the status quo for "old hands" contained in § 2 (3) VersVermV does not apply to the further training obligation, since the further training obligation specifically does not provide for any statutory exemption.
The court also did not follow the insurance broker’s further line of argumentation that the fulfilment of the further training obligation had not been possible with certainty from the outset due to the lack of further training certifications by the IHK. In the court’s opinion, her broker herself was able to check the minimum quality requirements for further training measures by comparing the offer against the criteria in Annex 3 to the VersVermV and, if necessary, clarifying any existing doubts as to quality with the respective IHK. Furthermore, the broker could also further her education by means of self-study and could ensure the balanced nature of the further training measures by taking advantage of the offers of different providers.
Summary and further information
The decision shows that IHKs and courts take a serious stance on compliance with the further training obligation of insurance brokers pursuant to § 34d GewO. Even brokers with many years of professional experience fundamentally cannot be exempted from this requirement.
Answers to the most important questions on the subject of a further training obligation can also be found in a joint FAQ sheet of the Association of German Chambers of Industry and Commerce [Deutsche Industrie- und Handelskammertag - DIHK] and the German Federal Financial Supervisory Authority [Bundesanstalt für Finanzdienstleistungsaufsicht - BaFin]
Anna-Catharina von Girsewald
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