No Claim for Wirecard Shareholders to the Insolvency Estate: Recent BGH Decision and Its Implications
In a ruling on November 13, 2025 (Case No. IX ZR 127/24), the Federal Court of Justice emphatically clarified that shareholders of Wirecard AG cannot participate in the insolvency estate as simple insolvency creditors during the insolvency proceedings. The decision by the BGH is central to significant corporate and insolvency law discussions and places many shareholders in a difficult position. The following article provides a detailed analysis of the decision and places it in the context of existing liability principles.
Basics: Insolvency Law Allocation of Shareholder Claims
Shareholder Status and Creditor Privileging
The fundamental corporate law order already stipulates that shareholders, due to their position as equity investors, are generally not equated with the company’s creditors. In the case of insolvency, this means that their claims for compensation (e.g., due to a drop in share price or investments dependent on the share price) regularly fall behind the claims of ordinary insolvency creditors. The Stock Corporation Act and relevant provisions of the Insolvency Act explicitly exclude privileged equality with external creditors. Participation in the company’s success—and thus the assumption of entrepreneurial risk—does not constitute a claim position protected by insolvency law.
Differentiation According to Grounds for Claims
In the recent decision, the BGH stated that purchasing Wirecard shares, in principle, does not establish a claim for damages against the insolvency estate that can be asserted in insolvency proceedings. This applies both to direct loss allocations (e.g., lost dividends, drop in share price) and to compensatory adjustments due to market-relevant irregularities. Even in the case of serious breaches of duty by company organs, the precedence of corporate liability remains unaffected, so that claims would primarily need to be pursued outside the insolvency proceedings, for instance, through lawsuits for damages against liable parties.
Reasons for the BGH Decision in the Context of the Wirecard Insolvency
Exclusion of Corporate Law Compensation Claims from the Insolvency Estate
The central argument of the BGH is based on the character of the share as a representative of a social participation in the company. Consequently, neither a drop in market value nor the insolvency can independently establish a claim to the estate. Insolvency claims, instead, require a genuine debt relationship between the company and the investor, which does not arise merely from participating in the company’s equity. The acquisition of shares does not constitute any contractual basis for compensatory payments, particularly none qualifying as insolvency claims.
Civil Law Compensation Claims under Reservation
The BGH further emphasizes that outside insolvency proceedings, civil law compensation claims can very well be conceivable—such as against liable board members, auditors, or others responsible for the accounting scandal, provided an attributable breach of duty is demonstrable. However, these claims are subject to strict criteria and cannot be generally extended to insolvency proceedings. Furthermore, regarding the criminal investigation of the Wirecard complex, the presumption of innocence applies until the final conclusion of the respective proceedings (Status: March 2024, Source: BGH IX ZR 127/24).
Conclusion and Consequences for Shareholders
The current BGH ruling confirms the traditional understanding that shareholders do not have a privileged right of access to the insolvency estate in the event of insolvency. As equity investors, they remain reliant on their company-specific risk share and are largely excluded from satisfaction from the insolvency estate. If a claim for compensation is nonetheless pursued, a stringent examination of the claim basis and the liable parties is indicated, whereby the route through the general creditor position is fundamentally blocked for shareholders.
Ongoing Need for Advisory Services in Complex Insolvency Situations
Especially in cases of high-profile corporate insolvencies—such as that of Wirecard AG—the distinctions between corporate and insolvency law are often difficult for investors and shareholders to grasp. Anyone feeling uncertain about their legal position connected to insolvent public companies can obtain further information and support in the field of insolvency law via the link Legal Advice on Insolvency Law. This allows significant risks and misinformation to be clarified in advance and individual ways to enforce claims to be examined.
