The Bundesgerichtshof (BGH, Federal Court of Justice) has dismissed the appeals on points of law against a partial model case ruling by the Bayerisches Oberstes Landesgericht (Bavarian Supreme State Court) concerning damages claims in connection with the collapse of Wirecard AG (BGH, decision of 23 September 2026 – case no. III ZB 7/25). According to the decision, claims against an audit firm concerning audit opinions it issued do not fall within the scope of the Kapitalanleger-Musterverfahrensgesetz (KapMuG, German Capital Markets Model Case Act) in the version applicable until 19 July 2024.
Dispute over Wirecard AG’s capital markets communications
The subject matter of the model case proceedings is whether Wirecard AG breached its capital markets disclosure obligations when publishing its annual reports for the years 2014 to 2018. The proceedings are governed by the Kapitalanleger-Musterverfahrensgesetz in the version applicable until 19 July 2024, hereinafter referred to as the former KapMuG.
An audit firm involved as model defendant no. 2 is alleged to have issued unqualified audit opinions in its capacity as statutory auditor and thereby either participated in Wirecard AG’s incorrect capital markets information or itself published inaccurate capital markets information. These allegations formed the basis of the claims asserted; the decision on whether they were admissible in the model case proceedings did not include any substantive determination as to whether they were well-founded.
Declaratory objectives in the originating proceedings
By decision of 14 March 2022 – case no. 3 OH 2767/22 KapMuG – the Landgericht München I (Munich I Regional Court) had referred numerous declaratory objectives to the Bayerisches Oberstes Landesgericht. The proceedings are being conducted there under case no. 101 Kap 1/22 and fall within the jurisdiction of the 1st Civil Senate.
The declaratory objectives concerned in particular:
- Under the section entitled “principal offence,” it was to be determined whether Wirecard AG’s annual reports for the years 2014 to 2018 were incorrect.
- A further section addressed questions concerning possible participation by model defendant no. 2.
- Other declaratory objectives concerned loss and causation as well as substantive-law and procedural admissibility issues.
Several parties applied for the model case proceedings to be expanded to include numerous additional declaratory objectives. According to the Bundesgerichtshof’s press release, the Bayerisches Oberstes Landesgericht had not yet ruled on their admission. It initially ordered a separate hearing on the admissibility of the declaratory objectives already referred by the Landgericht München I.
Partial model case ruling by the Bayerisches Oberstes Landesgericht
The Bayerisches Oberstes Landesgericht rejected some of the declaratory objectives as not being a permissible subject of the model case proceedings. In particular, this covered all declaratory objectives directed against model defendant no. 2. It held that the majority of the remaining declaratory objectives were inadmissible.
The model appellant and a further 1,076 joined parties appealed on points of law against this partial model case ruling. Another 566 parties joined the appeals on points of law.
The model appellant and the majority of the other appellants continued to pursue all declaratory objectives. Other appellants challenged only the rejection of the declaratory objectives relating to model defendant no. 2 as not being a permissible subject of the model case proceedings.
All appeals on points of law unsuccessful
The Third Civil Senate of the Bundesgerichtshof upheld the decision of the Bayerisches Oberstes Landesgericht. All appeals on points of law were unsuccessful.
Partial model case ruling was procedurally permissible
According to the Bundesgerichtshof, the Bayerisches Oberstes Landesgericht was entitled to rule on the declaratory objectives already pending by way of a partial model case ruling. There was no risk of conflicting decisions in relation to the additional declaratory objectives applied for.
The declaratory objectives in an application for expansion only become part of the model case proceedings upon the issuance of a corresponding expansion order. In this respect, such an order assumes the function of the statement of claim initiating the proceedings. Until such an order has been issued, the additional declaratory objectives applied for must be disregarded. According to the Bundesgerichtshof, the possibility that a current decision might conflict with a later decision on future subject matter of the proceedings does not preclude a partial model case ruling.
Audit opinion is not public capital markets information
The Bundesgerichtshof also confirmed that § 1 KapMuG, former version, is not applicable to the claims directed against model defendant no. 2. The corresponding declaratory objectives were therefore not a permissible subject of the model case proceedings.
Statutory examples do not include audit opinions
According to the decision, an audit opinion does not fall within the standard example set out in § 1(2), sentence 2, no. 5 KapMuG, former version. The provision lists annual financial statements, management reports, consolidated financial statements, group management reports and half-yearly financial reports of the issuer. Audit opinions are not listed.
The Bundesgerichtshof also rejected the classification of an audit opinion as public capital markets information within the meaning of § 1(2), sentence 1 KapMuG, former version. While the wording of the provision was not unambiguous, the statutory scheme showed that claims based on an incorrect audit opinion could not be the subject of model case proceedings under the version of the legislation applicable at the time.
According to the court, this interpretation is supported by the close connection between the audit opinion and the accounting documents expressly listed in § 1(2), sentence 2, no. 5 KapMuG, former version. If the legislature had also intended to include audit opinions, it would have been natural either to list them expressly or to include financial reporting as a whole within the provision.
Furthermore, in the Bundesgerichtshof’s view, an audit opinion differs in material respects from the statutory examples of public capital markets information. The legislative history confirmed this classification. The legislative materials relating to the 2005 and 2012 versions of the Kapitalanleger-Musterverfahrensgesetz did not identify audit opinions as falling within its scope. An interpretation based on the purpose and objective of the provision did not lead to a different conclusion either.
No inclusion based on alleged participation
According to the decision, the scope of the former KapMuG is likewise not engaged insofar as the model claimant bases the claims on model defendant no. 2’s participation in Wirecard AG’s breaches of capital markets law.
Otherwise, it would be possible to circumvent the statutory limitation. The mere issuance of an incorrect audit opinion could then be treated as aiding and abetting the dissemination of incorrect capital markets information through publication of the annual financial statements, thereby making it possible to bring model case proceedings against the audit firm. In the Bundesgerichtshof’s view, such an outcome would be incompatible with the scope of § 1 KapMuG, former version.
The decision therefore concerns whether the claims asserted can be dealt with in model case proceedings under the version of the legislation applicable at the time. It does not contain any general ruling on whether claims against the audit firm may exist outside those proceedings.
Further declaratory objectives were insufficiently specific
The Bundesgerichtshof also upheld the rejection of further declaratory objectives as inadmissible. Numerous applications did not satisfy the specificity requirements developed in its case law.
A declaratory objective must clearly identify the subject matter of the dispute and the scope of the court’s authority to examine and decide the matter. It must not be formulated so vaguely that the model defendants are unable to present a comprehensive defence.
The declaratory objective must also indicate which finding is to have binding effect in the stayed originating proceedings. This delineation may not be left to the trial courts that will decide the individual proceedings after the model case proceedings have concluded. In the Bundesgerichtshof’s assessment, numerous declaratory objectives did not meet these requirements.
Significance of the decision for capital markets proceedings
The decision defines the limits of the scope of the former KapMuG for claims relating to audit opinions issued by statutory auditors. The decisive point is that, under this version of the legislation, an audit opinion is neither covered by the relevant standard example nor classifiable as other public capital markets information. This limitation cannot be overcome by characterising the issuance of the opinion as participation in a breach of duty by the issuer.
At the same time, the decision highlights the stringent requirements governing the formulation of declaratory objectives in capital markets model case proceedings. Companies, investors and high-net-worth individuals with legal questions concerning the scope of model case proceedings or damages claims under capital markets law can contact MTR Legal Rechtsanwälte. Further information is available under legal advice on capital markets law.
