Federal Court of Justice denies claims of Wirecard shareholders as ordinary insolvency creditors
In a ruling dated September 12, 2024 (Ref. IX ZR 127/24), the Federal Court of Justice (BGH) clarified that shareholders of the insolvent Wirecard AG are not entitled to financial claims from the insolvency estate as ordinary insolvency creditors. This judgment provides legal certainty for capital market participants regarding the legal status of shareholders in insolvency cases and defines the boundaries between shareholder and creditor rights.
Background of the decision
In the course of the insolvency of Wirecard AG, numerous shareholders claimed financial compensation in the insolvency proceedings. The applicants argued that they had acquired their shares based on incorrect or incomplete corporate information and were thereby harmed. They thus demanded that their claims for damages be considered as insolvency claims within the meaning of §§ 38 ff. InsO.
Legal position of shareholders in insolvency proceedings
However, the BGH confirmed that shareholders – and thus also shareholders – cannot generally assert payment claims against their own company as ordinary insolvency creditors. This applies even if the share acquisition was based on misleading information. Rather, the court adheres to the principle that company law grants priority to creditors over shareholders, ensuring that shareholders bear entrepreneurial loss risks with their capital investment.
Exclusion of compensation claims from fraud-based acquisition
Claims arising from an acquisition based on deception are also covered by this regulation. According to the BGH, claims for compensation by investors who acquired shares under misleading premises are legally classified as so-called “subordinated claims” (§ 39 Abs. 1 Nr. 5 InsO). Thus, affected shareholders are treated as subordinate in the insolvency proceedings and their claims are ranked behind ordinary insolvency creditors.
Detailed reasoning of the Federal Court of Justice
The BGH emphasizes that classifying compensation claims of damaged shareholders as ordinary insolvency claims would undermine corporate structures and economically favor shareholders over priority external creditors. In the interest of equal treatment, the court ties into existing fundamental decisions on corporate risk allocation and capital protection.
It is further pointed out that any deception by the company’s governing bodies does not entitle the affected shareholders to directly participate in the realization proceeds in insolvency proceedings. Claims against the insolvent company based on the shareholder relationship as such are expressly excluded (§ 39 Abs. 1 Nr. 5 InsO).
Consequences for shareholders and investors
The judgment illustrates the risks associated with a shareholder investment in the event of an issuer’s insolvency. Shareholders are generally restricted to their investment in insolvency scenarios, while external creditors take precedence. The decision also underscores the legislature’s intent to maintain a clear distinction between shareholder and creditor rights in corporate insolvencies.
For Wirecard AG shareholders, the judgment means that their claims for damages related to the acquisition of shares are to be treated as subordinate in insolvency proceedings and do not constitute ordinary insolvency claims. The extent and possibility of satisfying the claims as subordinate creditors will be clarified within the framework of the insolvency proceedings.
Further details can be found in the official judgment of the Federal Court of Justice (Ref. IX ZR 127/24) and relevant reports, such as on urteile.news (https://urteile.news/BGH_IX-ZR-12724_Wirecard-Aktionaere-haben-keinen-Anspruch-auf-Geld-als-einfache-Insolvenzglaeubiger-aus-der-Insolvenzmasse~N35561).
Legal issues in insolvency law
The current decision by the BGH highlights the complexity of corporate legal issues in the insolvency context and emphasizes the importance of carefully examining each legal basis for claims. Especially in the area of capital market protection and investments in public companies, numerous specific features emerge in the event of insolvency that require differentiated legal assessment.
Companies, investors, and wealthy private individuals dealing with issues of enforcing or defending against insolvency claims can find further information and professional support in the field of insolvency law under Legal Advice in Insolvency Law.
