The German insurance Ombudsman

For the area of state action, out-of-court possibilities of complaint have existed for more than 200 years already. As judicial protection against sovereign acts was introduced at a relatively late point in time, the institution of Ombudsman was to provide some kind of substitute for the non-existent judicial possibility of control. In Sweden, as early as 1809, King Charles XII appointed an Ombudsman with whom citizens—in those days still “subjects”—could complain about grievances concerning the authorities. Thus, until the early 70s of the last century, the history of the Ombudsman was exclusively the history of a public institution, which established itself in many constitutional states in different forms, whether as ombudsmen, public advocates or petition committees. Their task is to control the legitimacy, transparency and resident-friendliness of state administration. With the establishment of the European Ombudsman in 1995, the bureaucracy of the European Union submitted to control by an independent Ombudsman as well.

For some time past, the realization that the idea on which the public Ombudsman is based applies to certain contractual relationships under private law as well, namely if these are characterized by “structural asymmetry” between the contracting parties, has increasingly gained acceptance. Such asymmetry between contracting parties exists if on one side there is an “ordinary” consumer while on the other side there is a company with concentrated legal expertise, financial resources and market power. Such business relationships where individual contracts are not negotiated, but terms of business and contract terms are stipulated by one side, show certain parallels with the relationship of superordination and subordination between the citizen and the state. Therefore, it seems appropriate to complement legal protection by offering out-of-court possibilities of dispute resolution in addition to recourse to the courts. In the Ombudsman procedure, the structural weakness of the consumer compared with the company is to be counterbalanced in such a way that the contracting parties may settle their dispute on an equal footing. At the same time, the concept of “equality of arms”, which dominates civil suits, is allowed for.