# Delisting Compensation Based on Stock Market Price before the Kammergericht > The Kammergericht confirms that consideration in a delisting is generally based on the six-month stock market price. Source: https://www.mtrlegal.com/en/delisting-compensation-stock-market-price-kammergericht/ · Language: en · Updated: 2026-10-18 --- ## Kammergericht on Compensation in a Delisting The Kammergericht Berlin (Higher Regional Court of Berlin) commented in its judgment of 30 October 2025 – 12 U 54/24 – on the assessment of consideration in a delisting and on possible shareholder claims for damages. The central question was whether a shareholder can demand a higher payment if the delisting offer complies with the statutory requirements, but the alleged enterprise value is said to be significantly higher. According to the decision, the appropriateness of the consideration in a delisting under [§ 39 Abs. 3 BörsG](https://www.gesetze-im-internet.de/b_rsg_2007/__39.html) a.F. (German Stock Exchange Act, former version) is generally determined by the average stock market price over the preceding six months. A valuation based on enterprise value is only considered in the expressly regulated exceptional cases. In the view of the Kammergericht, extraordinary market developments, in particular a pandemic-related decline in the share price, do not establish an additional, unwritten exception. ## Background to the Proceedings ### Delisting of Rocket Internet SE Defendant no. 1 in the proceedings was a Societas Europaea based in Berlin operating in the investment and internet business. Defendant no. 2 was a co-founder and then member of the management board who was personally sued. The claimant was a New York investment firm that held shares in defendant no. 1 and sought damages of approximately EUR 98 million. Rocket Internet SE had announced its withdrawal from the stock exchange on 1 September 2020. The shareholders were presented with a delisting share buyback offer of EUR 18.57 per share. This amount corresponded to the statutory minimum price based on the relevant stock market price. The offer was published on 1 October 2020 after the offer document had been approved by the [Bundesanstalt für Finanzdienstleistungsaufsicht](https://www.mtrlegal.com/offices/berlin/kapitalmarktrecht/) (BaFin, Federal Financial Supervisory Authority). The stock exchange listing of the shares on the Frankfurt Stock Exchange ended at the close of 30 October 2020. ### Shareholdings and General Meeting In connection with the delisting, it had been agreed that a German investment company as a major shareholder holding 45.11% of the share capital, as well as the management board member who was personally sued holding 4.53%, would not tender their shares. The [extraordinary general meeting](https://www.mtrlegal.com/offices/berlin/kapitalmarktrecht/aktienrecht/) of 24 September 2020 approved the stock exchange withdrawal with approximately 81% of the votes. In parallel proceedings, at the end of March 2021, the Kammergericht approved, in clearance proceedings, the registration of the capital reduction resolved at the 2020 general meeting. The claimant accepted the offer for part of its shares, namely for 6,216,262 shares. With a further 4,184,793 shares, it remained invested in defendant no. 1 after the offer. ## The Shareholder’s Claims ### Allegedly Higher Share Value The claimant took the view that the actual value of the shares in September 2020 was EUR 34.29 per share. On that basis, it demanded the difference between this value and the offer price of EUR 18.57, i.e. EUR 15.72 per share. In total, it claimed EUR 97,719,638.64 plus interest. In support of its claim, it argued in particular that the offer price had not been appropriate. In its view, it had resulted from an abusive exploitation of stock market prices during the coronavirus pandemic. ### Reference to Subsequent Share Buyback The claimant also referred to a subsequent buyback of shares in connection with the repurchase of a hedge fund shareholding. This concerned a hedge fund shareholding of just over 20% built up after the delisting announcement, which was repurchased in December 2021 at EUR 35 per share. The buyback was formally processed via tender rights for all shareholders, with the substantially participating major shareholder transferring its rights to the hedge fund largely free of charge. In the claimant’s view, this later price proved that the delisting offer of EUR 18.57 per share had been grossly inadequate. ### Allegations against the Company and the Management Board Member Against defendant no. 1, the claimant based its claims, among other things, on § 39 Abs. 3 BörsG a.F. in conjunction with § 31 Abs. 1 WpÜG (German Securities Acquisition and Takeover Act) as well as on damages considerations. It argued that special circumstances existed which required an assessment based on enterprise value. Against defendant no. 2, it relied in particular on alleged breaches of fiduciary duties. Among other things, it objected to his approval of the management board resolution of 1 September 2020 and to his voting conduct in connection with the general meeting of 24 September 2020. ## Decision of the Lower Court ### Dismissal of the Action by the Landgericht The Landgericht (Regional Court) had dismissed the action. Although it considered the action admissible, it regarded it as unfounded. In the view of the Landgericht, the court had no discretion when reviewing the appropriateness of the consideration. The conditions under which an enterprise valuation may be decisive pursuant to § 39 Abs. 3 BörsG a.F. were not met. ### No Obligation to Choose a Particularly Favourable Time The Landgericht also denied a claim under § 280 Abs. 1 BGB (German Civil Code). The company had to safeguard the interests of all shareholders. It had not been obliged to choose a point in time that would have provided departing shareholders with particularly high consideration. In the Landgericht’s view, the subsequent acquisition of shares in the context of the hedge fund buyback at a higher price also did not establish a breach of duty, since that acquisition occurred after the relevant period had expired. ### No Liability of the Management Board Member The Landgericht likewise denied any liability of defendant no. 2. As a management board member, he had fiduciary duties towards the company, but not in the manner asserted by the claimant towards fellow shareholders. Nor had he, as a co-shareholder, breached any duty giving rise to liability through his voting conduct. ## Appeal before the Kammergericht ### Continuation of the Claim in the Second Instance The claimant pursued its claim further on appeal. It elaborated on its submissions at first instance and again argued that the consideration of EUR 18.57 per share had been grossly inadequate. In doing so, it relied, among other things, on the later price of EUR 35 per share in connection with the hedge fund buyback and on statements made by the company at a later general meeting. In its view, no value-changing factors had arisen in the period since 1 September 2020 that would explain the later higher price. ### Argumentation on Unwritten Exceptions The claimant took the view that the statutory exceptions in § 39 Abs. 3 BörsG a.F. were not exhaustive. In any event, an analogous application of the law was required because the offer had been grossly inadequate. In support of this, it referred in particular to: - the effects of the coronavirus pandemic on stock market prices, - the stock market price, which in its view was not meaningful, - the subsequent share buyback at EUR 35 per share, - alleged negative signals or a “talking down” of the company. The Kammergericht did not follow this argument. ## Standard for Compensation under § 39 Abs. 3 BörsG a.F. ### Stock Market Price as the Statutory Starting Point The Kammergericht made clear that, for the appropriateness of the consideration in a delisting, the decisive factor is generally the weighted average domestic stock market price over the preceding six months. What is relevant is not whether this stock market price accurately reflects the intrinsic enterprise value. In the case of delisting, the legislature had deliberately opted for a capital markets law solution. Unlike structural measures that directly interfere with membership rights, the shareholder status as such remains unaffected in a delisting. What is primarily affected is the easier tradability of the share on the regulated market. ### Enterprise Valuation Only in Cases Regulated by Statute An assessment based on enterprise value is considered under § 39 Abs. 3 BörsG a.F. only in the cases expressly specified there. This concerns in particular constellations in which the informative value of the stock market price is impaired due to certain breaches of publication obligations under capital markets law or [market manipulation prohibitions](https://eur-lex.europa.eu/legal-content/DE/TXT/?uri=CELEX:32014R0596), or where a meaningful stock market price cannot be determined. In the view of the Kammergericht, these conditions were not met. In particular, there was no apparent breach that had been established by a final administrative decision or with binding legal effect and that would have fulfilled the statutory requirements for an exception. ## No Unwritten Exception Due to the Coronavirus Pandemic ### No Extension beyond the Wording of the Statute The Kammergericht refused to recognise further unwritten exceptional cases in addition to the statutory exceptions. The wording of § 39 Abs. 3 BörsG a.F. and the legislative concept were clear. The Senate saw no scope to expand the provision because of an allegedly manifestly inadequate stock market price. Judicial development of the law must not result in courts replacing the legislature’s decision with their own notions of fairness. ### Stock Market Fluctuations as a Circumstance Recognised by the Legislature In the view of the Kammergericht, the legislature was aware that stock market prices may fluctuate significantly as a result of political, economic or other events. Nevertheless, it did not provide for a general exception for special market events or sharp price movements. The court pointed out that such an open-ended exception would create considerable legal uncertainty. It would hardly be possible to draw a reliable line as to the point at which the gap between the stock market price and the alleged enterprise value would require a valuation based on enterprise value. ### Pandemic-Related Share Price Decline Not Sufficient Nor did the coronavirus pandemic lead to a different assessment according to the decision. The Kammergericht found that the DAX had indeed fallen considerably in spring 2020, but had subsequently recovered significantly within a short period. With regard to the shares of defendant no. 1, the Senate also relied on the fact that their price had already been declining in the second half of 2019. According to the court’s findings, the further pandemic-related decline was not to be equated with the general development of the DAX. ## Subsequent Buyback at EUR 35 per Share ### No Retroactive Effect on the Delisting Offer In the view of the Kammergericht, the subsequent share buyback at EUR 35 per share did not mean that the delisting offer was retrospectively to be classified as a breach of duty. The decisive factor for the Senate was that the buyback took place only after the statutory period had expired. Simply waiting for the period to expire did not constitute circumvention of the statutory rule. The legislature had deliberately limited the period because stock market prices and actual enterprise values may change considerably over time. ### No Claim to the Difference The claimant therefore could not derive from the later higher buyback price any claim for payment of the difference to the delisting offer. According to the decision, the statutory system remains applicable: if the offer has been properly determined under § 39 Abs. 3 BörsG a.F. and no statutory exceptional case exists, there is no claim to compensation exceeding this amount based on enterprise value. ## No Liability of the Company for Damages ### Fiduciary Duties towards Shareholders The Kammergericht also addressed the question of whether the company could be liable under § 280 Abs. 1 BGB for breach of fiduciary duties. While the company generally owes a fiduciary duty to its members, this primarily concerns the unhindered and proper exercise of membership rights. In the court’s view, the delisting itself did not breach these duties. The decision on whether and when to carry out a delisting lies within the discretion of the management board. In addition, every shareholder remains free to accept the buyback offer or to retain the shares. ### Offer Compliant with the Law as the Decisive Point Since the offer complied with the statutory requirements, the Kammergericht did not see any breach of duty in it. In the case of a buyback offer by the company itself, the interest of the remaining shareholders in not expending more than legally required must also be taken into account. The court also denied intentional damage contrary to public policy under § 826 BGB. The use of a structuring option provided for by law does not in itself give rise to liability if there are no circumstances amounting to an abuse of rights. ## No Liability of the Management Board Member Sued Personally ### No Direct Fiduciary Duty towards Fellow Shareholders in the Management Board Function The Kammergericht also confirmed the dismissal of the action against defendant no. 2. Insofar as he had acted as a management board member, fiduciary duties existed towards the company. However, this did not result in liability towards the claimant as a fellow shareholder for the asserted differential payment. In the court’s view, the management board resolution on the delisting was not unlawful, since the consideration offered met the requirements of § 39 Abs. 3 BörsG a.F. According to the decision, this also applied even if the enterprise value would have been higher according to an enterprise valuation. ### No Grant of a Special Benefit Giving Rise to Liability The Kammergericht further focused on the fact that neither the delisting nor the buyback offer resulted in a special benefit to the detriment of individual shareholders or in objectively unjustified unequal treatment. Defendant no. 2 was also not to be regarded as a majority shareholder or as an indirectly controlling major shareholder. Insofar as the claimant relied on the voting conduct of the major shareholder, the court likewise denied liability on the part of defendant no. 2. Even assuming a breach of duty, at most the shareholder who acted could be the proper defendant in this respect, but not the management board member who was personally sued. ### No Liability under § 117 AktG and § 826 BGB The Kammergericht also denied claims under § 117 AktG (German Stock Corporation Act). Irrespective of the requirements for a controlling position, the decision held that there was no unlawful detrimental influence because the delisting offer complied with the statutory requirements. Liability for intentional damage contrary to public policy under § 826 BGB was likewise not considered. In this respect, the court referred to the considerations already stated in relation to the company. ## Significance of the Decision for Delisting Cases ### Strengthening of the Statutory Calculation Method The decision makes clear that the statutory assessment of compensation in a delisting is strictly aligned with the wording of § 39 Abs. 3 BörsG a.F. The stock market price over the preceding six months remains the central benchmark as long as no statutory exceptional case exists. For shareholders, this means that an allegedly higher enterprise value alone is not sufficient to demand higher consideration. According to the decision, even significant market dislocations do not automatically lead to an enterprise valuation. ### Distinction from Subsequent Transactions The case also shows that subsequent buybacks at higher prices do not automatically allow conclusions to be drawn about the lawfulness of an earlier delisting offer. The decisive factors remain the statutory valuation date and compliance with the relevant requirements. The decision is particularly important for listed companies, investors and larger shareholders because it clarifies the scope of possible damages claims in connection with a delisting. ## Assessment by MTR Legal Rechtsanwälte The judgment of the Kammergericht makes clear that delisting procedures involve a close interrelationship between stock corporation law, capital markets law and corporate fiduciary duties. According to the decision, the statutory system of § 39 Abs. 3 BörsG a.F. sets clear limits on subsequent claims for higher consideration. Especially in the case of stock exchange withdrawals, buyback offers and disputed valuation issues, economic interests and stock corporation law requirements can diverge significantly. MTR Legal Rechtsanwälte advises companies, investors and shareholders on issues relating to delisting, general meeting resolutions and capital markets law obligations. Further information can be found under [Legal advice in stock corporation law](https://www.mtrlegal.com/rechtsberatung/kapitalmarktrecht/aktienrecht/).