A few days ago the German high court (Bundesgerichtshof, the news is here but only in German) has made a landmark decision on transparency of commissions. The court came to the conclusion that only banks have an obligation to make all fees and commissions transparent to their clients. However, in the case of so-called independent advisers the court requires no mandatory disclosure.

In effect, this decision is a big step back for private clients in Germany. Financial product distributors like MLP or AWD have millions of clients in Germany but also in other countries like Switzerland. With this court decision they are encouraged to keep secret the kick backs they receive when they push certain products into the portfolios of their clients. The consequence of this decision is that the term “independent financial adviser” is probably as misleading as it gets.

The only good part is that the court has re-affirmed its older decisions that banks (as opposed to independent advisers) are required to be transparent to their clients. The financial industry is terrified about more transparency when it comes to investing their clients’ money. This explains the make-no-prisoners-resistance against any step of more transparency. But the industry should make no mistake. Clients become more and more aware of this conflict of interest and are increasingly ready to switch their providers. It is not too late yet for voluntary transparency yet.

“Ninety percent of wealth-management clients are not aware of the costs they pay indirectly,” said Binder, 43, who in 2008 co-founded MyPrivateBanking.com, a Kreuzlingen, Switzerland- based firm that provides research and analysis on the private- banking industry. “If they invest in relatively expensive alternative products it can be a huge amount.”

That’s from an exclusive story Bloomberg published yesterday on MyPrivateBanking and the wealth management industry in general.

The government of the German state (”Bundesland”) Baden Württemberg has started an initiative to force banks to disclose all kickbacks and commissions. The minister for consumer protection Peter Hauk (a member of the conservative CDU) said that he will soon bring this new regulation to the Bundesrat (the parliamentary chamber that represents the German states). The Minister encouraged the banks to support the new law because more transparency for banking clients will in the long-run strengthen the international competitiveness of the German banking industry.

The initiative is a logical next step after the new MIFID regulation has already compelled banks to keep written minutes of all client meetings detailing the recommendations that were made to the client. MyPrivateBanking research analysts expect that in the long run the reception of  kickbacks by banks and wealth managers will get completely banned.

“Calculation of performance is based on the time-weighted return and excludes front-end fees. Individual costs such as fees, commissions and other charges have not been included in this presentation and would have an adverse impact on returns if they were included.”

That’s the typical wording you find in the fact sheet of your common mutual fund. Ok. Let me get this straight. If  that fund company would be a car manufacturer they would say the total yearly costs of running this car is x dollar. And in the small print they would state: Costs are calculated without taking in account fuel, repairs, maintenance and the cut the dealer gets for selling the car.

Right ! What is next? Fund performance measured by taking out all years with double-digit losses? I understand that the fund industry feels the heat from the ETFs that deliver the same or better performance at a third or less of the costs. But this kind of “creative” fire-fighting adds to the frustration about funds as an investment vehicle in general. It’s time to change the rules and include ALL cost in the performance calculation of a fund.

Independent advise is slowly gaining ground in Germany: two leading direct banks, comdirect (majority-owned by Commerzbank/Dresdner Bank) and Cortal Consors (part of the french BNP group) have now started to offer fee based, independent advise to their clients. Both banks claim that they offer a best-of-breed model whereby the clients are offered the best products regardless of the issuer. Clients receive a refund for any kickbacks (retrocessions) the bank gets from the product issuer.

Cortal Consors commented in the press that clients are not yet storming their offices in order to sign up for the new advise model. However, the bank sees an interesting potential in the future.