No insolvency quotas for Wirecard shareholders from the insolvency estate
With the decision of May 23, 2024 (Case No. IX ZR 127/24), the Federal Court of Justice (BGH) clarified that shareholders of Wirecard AG have no claims to participate in the insolvency estate as simple insolvency creditors. This judgment confirms the fundamental distinction between the shareholder position and the rights of creditors in the insolvency process of a stock corporation.
Basics of shareholder position in the event of insolvency
Shareholders are involved in a stock corporation as equity providers. In contrast to creditors, they do not have claims against the company but bear the risk of a complete capital loss if the company becomes insolvent. With the opening of insolvency proceedings, the claims of equity providers are generally treated as subordinate.
BGH decision on the exclusion of simple insolvency claims
The BGH had to assess whether shareholders of Wirecard AG could register claims as simple insolvency creditors in the context of insolvency proceedings. This was explicitly denied. The capital maintenance principle and the corporate law principle that losses in corporate assets are generally to be borne by the shareholders were decisive for this.
No priority of shareholders over creditors
The ruling emphasized that it would not be consistent with stock corporation law if shareholders could participate in the estate to the extent of a drop in stock value. Even compensation claims arising from the purchase or sale of shares do not usually constitute equal-ranking claims within the meaning of the Insolvency Code.
Subordination of corporate law claims
The court thus clarified that any claims by shareholders related to their participation in the company or losses incurred due to insolvency do not constitute claims that could be considered on an equal footing with those of other creditors in insolvency proceedings. Rather, these claims are subordinate, meaning they are generally not considered in the course of bankruptcy proceedings.
Implications for shareholders in insolvency proceedings
The BGH decision once again highlights the clear separation of the position of shareholders and creditors in insolvency law. Shareholders must bear the risk of the total loss of their capital contribution and have no access to the insolvency estate through insolvency quotas akin to the rights creditors are entitled to. This underscores the priority rights of creditors in the insolvency of a stock corporation.
Further details on this judicial decision can be read in the publication on urteile.news (https://urteile.news/BGH_IX-ZR-12724_Wirecard-Aktionaere-haben-keinen-Anspruch-auf-kein-Geld-als-einfache-Insolvenzglaeubiger-aus-der-Insolvenzmasse~N35561).
Note on the status of the proceedings and further information
At the time of publication of this article, it was noted that the presumption of innocence applies to all persons under investigation, and proceedings against other parties may still be ongoing.
For companies, investors, or individuals who have specific legal questions in the context of insolvency proceedings, professional support can be helpful to understand the complex relationships in insolvency law. More information can be found here:Legal advice in insolvency law.
