BGH Concludes Capital Markets Model Case concerning Porsche SE and Volkswagen AG
The Bundesgerichtshof (BGH, Federal Court of Justice) dismissed the appeals on points of law against the model ruling of the Oberlandesgericht Celle (OLG Celle, Higher Regional Court of Celle) in the capital markets model case in connection with the then-attempted takeover of Volkswagen AG by Porsche Automobil Holding SE. The order is dated 21 July 2026 and was announced on 30 September 2026.
At the core of the proceedings was the question of whether Porsche Automobil Holding SE had improperly denied to the capital market, in the period from 3 March 2008 to 6 October 2008, that it intended to seek a qualified majority in Volkswagen AG. In particular, the declaratory objectives were intended to clarify whether the market for ordinary shares of Volkswagen AG had been deliberately narrowed through option strategies.
Model Ruling of the Oberlandesgericht Celle as the Lower Court
Proceedings before the Antitrust Senate of the OLG Celle
The lower-court decision was the model ruling of the Oberlandesgericht Celle dated 23 May 2022, case no. 13 Kap 1/16. The Antitrust Senate had jurisdiction there. The model proceedings had already begun in 2017.
At the start of the model proceedings, declaratory objectives from 42 claimants were consolidated. The hearing dates took place at the Landgericht Hannover (Regional Court of Hanover). The actions were also directed against Volkswagen AG.
Dispute over Building the Shareholding and Capital Market Information
One of the central points in dispute was the alleged intention to increase the stake in Volkswagen ordinary shares to 75 percent. The issue was whether earlier notifications and statements by Porsche Automobil Holding SE accurately reflected the actual objective pursued in building the shareholding.
The claimants argued that the capital market had not been correctly informed about the intentions in connection with the acquisition of the shareholding. The Bundesgerichtshof reviewed these declaratory objectives by applying the standards relevant to capital markets model proceedings.
Decision of the Bundesgerichtshof
No Disclosure Obligation in the Period Reviewed
The Bundesgerichtshof concluded that, within the declaratory objectives pursued, Porsche Automobil Holding SE had neither a legal nor a moral duty until October 2008 to disclose to the capital market its intentions regarding the building of the shareholding. To that extent, the appeals on points of law against the model ruling of the Oberlandesgericht Celle were therefore dismissed, albeit subject to various qualifications.
At the same time, the BGH clarified that, from the perspective of market manipulation under § 20a WpHG a.F. (former version of the German Securities Trading Act), liability under § 826 BGB (German Civil Code) for intentional immoral damage can, in principle, also be considered vis-à-vis investors whose transactions concern financial instruments of other issuers. However, for the declaratory objectives pursued in the model proceedings, this did not result in the appeals on points of law being successful.
Notifications from the Perspective of a Reasonable Investor
According to the Bundesgerichtshof’s assessment, the notifications issued during the relevant period were not grossly inaccurate from the perspective of a reasonable investor. The BGH thus confirmed the essential approach of the model ruling by the Oberlandesgericht Celle.
The notification of 26 October 2008 also played a special role. At that time, Porsche had stated that, directly and via options, it had access to a total of 74.1 percent of VW ordinary shares. The Bundesgerichtshof acknowledged that this notification may have contained misleading information about the market situation.
Antitrust and Competition-Law Declaratory Objectives
The Bundesgerichtshof did not examine the substance of the antitrust and competition-law declaratory objectives. The decisive factor was that these objectives are inadmissible in capital markets model proceedings.
In this respect, the BGH decision is therefore limited to the procedural classification. The model proceedings did not include any substantive assessment of these antitrust and competition-law issues.
Significance for the Original Proceedings
Claims for Damages and Investors Involved
According to the information that became known, a total of 40 claimants, predominantly US hedge funds, had asserted damages claims in the amount of EUR 5.4 billion. The claimants included both early sellers who had sold their VW shares before 26 October 2008 and short sellers who had to cover their positions at increased prices after the short squeeze.
The decision is final and binding. It binds six original proceedings that had been stayed due to the model proceedings and must now formally be dismissed.
Reaction of Porsche SE and Market Reaction
Porsche SE stated that, on the basis of the current state of facts and the decision of the Bundesgerichtshof, the actions in the stayed original proceedings should be dismissed. On the day the decision was announced, Porsche SE shares rose.
The key points of the decision can be summarised as follows:
- The appeals on points of law against the model ruling of the OLG Celle were dismissed subject to various qualifications.
- For the period until October 2008, according to the declaratory objectives reviewed, there was no legal or moral duty to disclose the intentions regarding the building of the shareholding.
- In the BGH’s view, the notifications were not grossly inaccurate from the perspective of a reasonable investor.
- Antitrust and competition-law declaratory objectives were not examined on the merits because they are inadmissible in capital markets model proceedings.
- The decision has binding effect for six stayed original proceedings.
Assessment for Capital Markets Proceedings
The decision illustrates the demanding requirements for capital markets law damages claims in connection with public statements, the building of shareholdings and market conduct. It also shows that capital markets model proceedings are available only for admissible declaratory objectives and that not every related antitrust or competition-law issue is reviewed within this procedural framework.
For companies, investors and capital market participants, the distinction between capital markets law disclosure obligations, possible market manipulation and tortious liability is of considerable importance. The Bundesgerichtshof expressly did not rule out that market manipulation under § 20a WpHG a.F. may, under certain conditions, give rise to claims under § 826 BGB; however, for the declaratory objectives pursued in the specific model proceedings, it did not consider those conditions to be met.
Frequently Asked Questions
What did the BGH decide in the Porsche-Volkswagen capital markets model case?
The Bundesgerichtshof dismissed the appeals on points of law against the model ruling of the OLG Celle subject to various qualifications. According to the declaratory objectives reviewed, Porsche Automobil Holding SE had no legal or moral duty until October 2008 to disclose its intentions regarding the building of the shareholding.
Why did the BGH not review the antitrust and competition-law declaratory objectives in the Porsche-VW proceedings?
The BGH did not address the substance of these declaratory objectives because they are inadmissible in capital markets model proceedings. The decision therefore contains no substantive assessment of the antitrust or competition-law issues in this respect.
What practical consequences does the BGH decision in the Porsche-VW model proceedings have for the stayed actions?
The final and binding decision binds six stayed original proceedings. These proceedings must now formally be dismissed.
Capital Markets Law Issues in Connection with Model Proceedings
Capital markets model proceedings regularly involve complex issues of capital market communication, liability under capital markets law and tort-based causes of action. Where, in comparable constellations, the scope of disclosure obligations, declaratory objectives or damages claims must be assessed, careful legal classification can be decisive. MTR Legal Rechtsanwälte supports companies, investors and high-net-worth individuals with such issues as part of its legal advice in capital markets law.
