BGH denies damages for missing prospectus
The Bundesgerichtshof (BGH, Federal Court of Justice) ruled on 28 April 2026 that, in the specific case, no claims for damages existed due to the absence of a sales prospectus where profit participation rights were transferred to investors in the course of the liquidation of a fund company. The decision was issued under case reference XI ZR 55/24 and bears the ECLI identifier ECLI:DE:BGH:2026:280426UXIZR55.24.0. The full text is available on the website of the Bundesgerichtshof and is marked in the heading with the note “Nachschlagewerk: ja” (reference work: yes).
The decision focused on questions relating to the Vermögensanlagengesetz (VermAnlG, German Capital Investment Act) and the Kreditwesengesetz (KWG, German Banking Act). In particular, the XI. Zivilsenat (Eleventh Civil Senate) had to assess whether the transfer of partial profit participation rights constituted a public offer within the meaning of the Vermögensanlagengesetz and whether the trustee involved had provided financial services requiring authorisation under the Kreditwesengesetz.
Interest in fund company and subsequent liquidation
Claimant’s indirect limited partnership interest
In 2007, the claimant had acquired an indirect interest as a limited partner in a fund company via the defendant trustee. The capital invested amounted to a total of EUR 40,000. The fund company was a GmbH & Co. KG (German limited partnership with a limited liability company as general partner).
On the basis of an agreement on the issuance of a profit participation right, the fund company held a profit participation right in another company. According to the courts’ findings, this profit participation right was the fund company’s only asset.
Splitting of the profit participation right into partial profit participation rights
The fund company was liquidated in 2017 and 2018 and deleted from the commercial register in April 2018. In the course of the winding-up, the profit participation right was first transferred to the defendant. The defendant divided it into equal-ranking, independent partial profit participation rights in order to pass them on to the limited partners of the fund company in accordance with their respective participation quotas.
At least 1,200 limited partners received a corresponding offer. The claimant was also among this group. The transfer of the two partial profit participation rights to him was based on agreements dated 2/4 July 2018 and 3/4 July 2018.
In October 2021, the company in which the profit participation right existed filed for insolvency.
Action for rescission and further claims
Claimant’s payment claim
The claimant sought damages from the defendant in the amount of EUR 40,000 plus interest. Payment was to be made concurrently with the transfer of the two partial profit participation rights.
In addition, he sought a declaration that the defendant was in default of acceptance regarding the return of the partial profit participation rights. He also claimed pre-litigation legal fees in the amount of EUR 2,416.41 plus interest.
Legal bases for claims under the VermAnlG and KWG
The claimant based his action, among other things, on § 21 Abs. 1 Satz 1 VermAnlG (Section 21(1) sentence 1 German Capital Investment Act). In his view, the absence of a prospectus gave rise to liability on the part of the defendant.
He also relied on § 823 Abs. 2 BGB (Section 823(2) German Civil Code) in conjunction with § 32 Abs. 1 KWG (Section 32(1) German Banking Act). He argued that the defendant had provided financial services requiring authorisation without the necessary authorisation.
Lower courts dismissed the action
Decisions of the Landgericht and Kammergericht
At first instance, the Landgericht Berlin II (Regional Court Berlin II) at the Tegeler Weg location heard the case. It dismissed the action. The Kammergericht (Berlin Higher Regional Court), as the appellate court, also upheld this outcome.
The appellate court denied a claim under § 21 Abs. 1 Satz 1 VermAnlG on the ground alone that the claimant was not an acquirer of a capital investment within the meaning of that provision. There was no acquisition for consideration. In its assessment, only the modalities for distributing trust property in lieu of a settlement credit had been agreed.
The appeal on points of law was not admitted by the appellate court, but by the XI. Zivilsenat of the Bundesgerichtshof itself. The claimant pursued his claim in full in the appeal on points of law.
No public offer within the meaning of the VermAnlG
Standard applied by the Bundesgerichtshof
The Bundesgerichtshof clarified that an offer within the meaning of § 1 Abs. 1 Satz 1 and § 6 VermAnlG (Section 1(1) sentence 1 and Section 6 German Capital Investment Act) is public if the persons addressed do not have an essentially equal basis of information. This basis of information must enable them to weigh the opportunities and risks of the offered capital investment against each other. The same applies if they cannot obtain such a basis by reasonable means.
According to the decision, it is therefore not solely relevant whether an offer is addressed to an indefinite group of persons. A defined or definable group of addressees may also suffice if that group has a corresponding need for information.
Specific features of the investors’ position in the fund
In the specific case, however, the Bundesgerichtshof denied the existence of a public offer. The letter was addressed exclusively to the shareholders/partners of the fund company. What was offered was the transfer of a profit participation right divided according to participation quotas, which formed the only asset of the fund company to be liquidated.
In the court’s assessment, the investors had already been sufficiently informed in connection with their interest in the fund company. At the start of their participation, they had received sufficient information documents. Against this background, in the Bundesgerichtshof’s view, there was no information deficit warranting protection that would have constituted a public offer within the meaning of the Vermögensanlagengesetz.
No authorisation requirement under the Kreditwesengesetz
No investment brokerage
The Bundesgerichtshof also denied the existence of a financial service requiring authorisation under the Kreditwesengesetz. According to the decision, the defendant’s activity did not constitute investment brokerage within the meaning of § 1 Abs. 1a Satz 2 Nr. 1 KWG (Section 1(1a) sentence 2 no. 1 German Banking Act).
In the course of the liquidation, the defendant had divided the fund company’s only asset, namely the profit participation right, in accordance with the participation quotas and transferred it to the fund investors. The Senate did not regard this as an activity that would have required authorisation under § 32 Abs. 1 KWG.
No proprietary trading
The Bundesgerichtshof likewise denied proprietary trading within the meaning of § 1 Abs. 1a Satz 2 Nr. 4 Buchst. c KWG (Section 1(1a) sentence 2 no. 4(c) German Banking Act). The Senate based its assessment on the fact that proprietary trading requires a proprietary trader to acquire a financial instrument and then resell it to its customer. For this, a specific customer order must exist before the purchase.
The Bundesgerichtshof did not consider these requirements to be met in the case decided. The transfer took place in connection with the liquidation of the fund company and the distribution of its only asset to the investors in accordance with their participation quotas.
Key points of the decision
The decision can be summarised in several points:
- A public offer under § 1 Abs. 1 Satz 1 and § 6 VermAnlG may also exist where the group of addressees is defined or definable.
- The decisive factor is whether the group of persons addressed has an essentially equal basis of information or can obtain one by reasonable means.
- In the case decided, a letter addressed exclusively to the fund investors concerning the transfer of split partial profit participation rights is not a public offer.
- The splitting and transfer of the only asset of a fund company to be liquidated did not, in this case, give rise to an authorisation requirement under § 32 Abs. 1 KWG.
- According to the decision of the Bundesgerichtshof, neither investment brokerage nor proprietary trading was present.
Significance for capital investments and fund wind-ups
Public offer requires assessment of the individual case
The decision confirms that the concept of a public offer under the Vermögensanlagengesetz cannot be assessed schematically by reference to the number or identifiability of the addressees. Rather, the decisive factor is whether the persons addressed are in need of protection because they lack a reliable basis of information.
It must be examined what information was already available to the group of addressees, which documents they could access, and whether material open points still existed. In the individual case decided, the Bundesgerichtshof assessed this in favour of the defendant because, in its view, the fund investors had already been sufficiently informed.
Limits to transferability to other regulatory frameworks
The statements of the Bundesgerichtshof relate to the element of publicity under the Vermögensanlagengesetz. This assessment cannot readily be transferred to other provisions whose foundations lie in EU law.
The decision therefore concerns a specific constellation of fund liquidation. It deals with the transfer of a profit participation right already forming part of the fund assets to the existing investors in accordance with participation quotas, and not generally with every onward transfer or placement of capital investments.
Assessment from the perspective of MTR Legal Rechtsanwälte
The case shows that, in capital investments, fund wind-ups and the transfer of profit participation rights, the legal classification depends heavily on the specific structure. Particularly relevant in this context are the existing basis of information available to the investors, the scope of any possible offer, and the distinction from financial services requiring authorisation under the Kreditwesengesetz.
MTR Legal Rechtsanwälte advises companies, investors and high-net-worth individuals on matters of capital markets law, in particular in connection with capital investments, fund structures, prospectus requirements and banking supervisory law aspects. Where legal questions arise in comparable circumstances, an individual review as part of legal advice in capital markets law may be advisable.
