Ausgabejahr 2025
Erscheinungsdatum 13.11.2025

Nr. 211/2025

Judgment of 13 November 2025 – IX ZR 127/24

The Ninth Civil Senate of the Federal Court of Justice (BGH, Bundesgerichtshof), which has jurisdiction for areas including insolvency law, today ruled that shareholders of an insolvent stock corporation are not to be treated as ordinary insolvency creditors with respect to their claims for damages under capital market law and therefore do not participate in the distribution of the insolvency estate.

Facts and Circumstances:

Wirecard AG was a listed stock corporation. On 25 August 2020, Munich Local Court – Insolvency Court – opened insolvency proceedings relating to the company’s assets and appointed the first defendant as insolvency administrator. Approximately 50,000 Wirecard AG shareholders then filed claims for registration in the insolvency administrator’s schedule of claims on account of their acquisition of shares amounting to approximately 8.5 billion euro. The second defendant is the joint representative of creditors of bonds for 500 million euro issued by Wirecard AG who have also filed claims for registration in the insolvency administrator’s schedule of claims. With the claims of other creditors, total claims of some 15.4 billion euro have been filed for registration in the schedule. The insolvency assets currently available are approximately 650 million euro.

The plaintiff is a German capital investment company. Between 1 January 2015 and 12 June 2020, it acquired Wirecard AG shares on the secondary market and resold most of them. On 18 June 2020, the plaintiff still held 73,345 Wirecard AG shares. In its view, it has claims to damages against the company under capital market law. Wirecard AG had feigned the existence of a business model that did not actually exist and had been deceptive about the situation regarding its assets, finances and profits. If the plaintiff had been aware of the real situation, it would not have acquired any shares.

The plaintiff therefore filed claims for registration in the insolvency administrator’s schedule of claims amounting to a total of 9,836,098.79 euro as ordinary insolvency claims under section 38 of the Insolvency Code (Insolvenzordnung, InsO). At the verification meeting held on 15 April 2021, the first and second defendants disputed the claims registered by the plaintiff. In their view, the plaintiff’s claims are not ordinary insolvency claims. The shareholders’ claims arising from the fraud-induced acquisition of shares were subordinate to those of the other insolvency creditors. Their claims were only to be taken into account to the extent that there was a surplus upon conclusion of the insolvency proceedings.

The plaintiff brought an action for acknowledgement of its claims filed for registration in the insolvency administrator’s schedule of claims. The first defendant brought an interlocutory counterclaim for a declaratory judgment (Zwischenfeststellungswiderklage) to determine that the plaintiff’s claims can only be taken into account within the framework of a distribution of surplus assets under section 199 sentence 2 InsO.

Previous Proceedings:

The Regional Court dismissed the action and the counterclaim The plaintiff and the first defendant appealed against that ruling.

The Higher Regional Court dismissed the first defendant’s appeal by partial judgment and issued an interlocutory judgment in response to the plaintiff’s appeal. In that interlocutory judgment, the Higher Regional Court ruled that the action was admissible and that the plaintiff could submit claims for damages under capital market law as insolvency claims under section 38 InsO.

With their appeal on points of law, which was admitted by the Higher Regional Court, the defendants are maintaining their application for the action to be dismissed; the first defendant is also maintaining its interlocutory counterclaim for a declaratory judgment.

Ruling of the BGH

The defendant’s appeal on points of law, which was admissible in its entirety, was largely successful.

The appeal on points of law is also admissible to the extent that the Higher Regional Court has ruled in an interlocutory judgment on the classification of the plaintiff’s claims under insolvency law. Despite designation as an interlocutory judgment, the Higher Regional Court passed an interlocutory ruling of acknowledgment on the merits in accordance with section 256 (2) ZPO, which may be contested by an appeal on points of law. The classification of claims as insolvency claims is a legally ascertainable matter.

With regard to the interlocutory acknowledgement, the appeal on points of law is well-founded. The claims for registration in the insolvency administrator’s schedule filed by the plaintiff are not ordinary insolvency claims in accordance with section 38 InsO. Shareholders’ claims for damages under capital market law are linked with their shareholder status such that in the case of a company’s insolvency, they are subordinate to the claims of ordinary insolvency creditors in accordance with section 38 InsO. Since only the filing of a proof of claim ranked in accordance with section 38 InsO was in dispute, no ruling was required as to whether the claims in accordance with section 199 sentence 2 InsO were to be met only after final distribution from the remaining surplus or whether they were to be satisfied mutatis mutandis as subordinate insolvency creditors ranked in accordance with section 39 (1) sentence 1 no. 5 InsO.

The Insolvency Code contains – in so far as it concerns satisfaction from the assets of the insolvent company – an order of distribution and an order of precedence. The legislature ranks shareholders’ claims behind those of ordinary insolvency creditors referred to in section 38 InsO if those claims are sufficiently linked with participation in the company. That is so in the present case.

Shareholders who were intentionally induced to acquire shares by consciously false, ad-hoc disclosures by board members on the company’s business development, relevant to share prices, can claim from the company reimbursement of the purchase price paid in exchange for transfer of the shares or – in so far as these are no longer available on account of having been sold in the meantime – in exchange for setting off the sales price. In the company insolvency, such shareholder claims are subordinate to ordinary insolvency creditors. In the event of insolvency, the enforcement of claims for damages under capital market law no longer concerns the liability of the company, but a distribution conflict between external creditors and creditors with shares in the company. In this distribution conflict, the shareholders’ creditor position is sufficiently connected to their equity participation.

A shareholder’s claim for damages under capital market law is fundamentally different from claims of ordinary insolvency creditors. It arises only on account of equity participation. From an economic perspective, it offsets the losses from a (fraud-induced) failed investment in one’s own business activity, namely that of the company in which the shareholder invests. Liability to the plaintiff thus concerns compensation for damages that were necessarily connected with its shareholder status. The order of ranking in insolvency law places such claims relating to the acquisition of shares behind those of ordinary insolvency creditors under section 38 InsO. The fact that the shareholders were fraudulently induced to acquire their shares does not, in itself, warrant equal ranking with ordinary insolvency creditors because that ignores the fact that the legal transaction was aimed at obtaining a participation in the company. The risks associated with that status must therefore be borne by the shareholders.

The appeal on points of law was unsuccessful with regard to the claim on the admissibility of the action and on the first defendant’s interlocutory counterclaim for a declaratory judgment. The first defendant’s interlocutory counterclaim for a declaratory judgment is inadmissible. To the extent that such a judgment were to deny the ranking of section 38 InsO, it would do no more than dismiss the principle claim. There is no legal interest in establishing that the plaintiff’s claims can only be taken into account within the framework of the distribution of surplus funds.

The BGH has been able to rule on the case in its entirety. The BGH reversed the appeal judgment to the extent that the Higher Regional Court had established that the plaintiff was submitting claims for damages under capital market law as insolvency claims under section 38 InsO. In that respect, it restored the judgment of the Regional Court, which had rejected the action to establish the plaintiff’s claims for registration in the insolvency administrator’s schedule. In relation to the first defendant’s interlocutory counterclaim for a declaratory judgment, the BGH dismissed the appeal on points of law.

Lower Courts:

Munich I Regional Court – judgment of 23.11.2022 – 29 O 7754/21
Munich Higher Regional Court – judgment of 17.09.2024 – 5 U 7318/22 e

Relevant legal provisions:

Section 256 Code of Civil Procedure Action for acknowledgment
(1) A complaint may be filed to establish the existence or non-existence of a legal relationship, to recognise a deed or to establish that it is false, if the plaintiff has a legitimate interest in having the legal relationship, or the authenticity or falsity of the deed, established by a judicial ruling at the court’s earliest convenience.

(2) Until the closure of the hearing subsequent to which the judgment will be handed down, the plaintiff may petition, by extending the claim, and the defendant may petition, by bringing counterclaims, that a legal relationship that has become a matter of dispute in the course of the court proceedings be acknowledged by judicial ruling if the decision on the legal dispute depends, either wholly or in part, on such legal relationship existing or not existing.

Section 38 Definition of insolvency creditors
The insolvency estate serves to satisfy the well-founded claims held by the personal creditors against the debtor on the date when the insolvency proceedings were opened (insolvency creditors).

Section 39 Lower-ranking insolvency creditors
(1) The following claims are satisfied ranking below the other claims of insolvency creditors in the order given below and according to the proportion of their amounts if ranking with equal status:

[…]

5. in accordance with subsections (4) and (5), claims for restitution of a loan replacing equity capital or claims resulting from legal transactions corresponding in economic terms to such a loan.

[…]

(4) Subsection (1) no. 5 applies to companies which neither have a natural person nor a company as general partner in which a general partner is a natural person. If, in the case of the company’s impending or existing insolvency or its overindebtedness, a creditor acquires shares for the purpose of the company’s rehabilitation, then until the company has been rehabilitated to become sustainable this does not lead to the application of subsection (1) no. 5 to the creditor’s claims from existing or newly granted loans or to claims from legal transactions which correspond in economic terms to such a loan.

(5) Subsection (1) no. 5 does not apply to the non-managing partner of a company within the meaning of subsection (4) sentence 1 who holds 10 per cent or less of the liable equity capital.

Section 199 Surplus resulting from final distribution

If the claims of all the insolvency creditors can be fully satisfied during final distribution, the insolvency administrator is to transfer any remaining surplus to the debtor. If the debtor is not a natural person, the insolvency administrator is to transfer to any person owning a share of the debtor’s capital that share of such surplus devolving to such person under liquidation outside the insolvency proceedings.

Karlsruhe, 13 November 2025