Bundesgerichtshof (BGH, Federal Court of Justice) declares KapMuG proceedings against EY inadmissible
In connection with the accounting scandal involving an insolvent German payment services provider, the Bundesgerichtshof has issued a significant procedural decision (order of 23 September 2026 – III ZB 7/25). According to that decision, the Kapitalanleger-Musterverfahren under the Kapitalanleger-Musterverfahrensgesetz (KapMuG, German Capital Markets Model Case Act) against the auditor EY is inadmissible. The BGH thereby confirmed the partial model case decision of the Bayerisches Oberstes Landesgericht (Bavarian Supreme Regional Court) of 28 February 2025 in proceedings docket no. (Az.) 101 Kap 1/22, which was based on the referral order of the Landgericht München I (Munich Regional Court I) of 14 March 2022, docket no. (Az.) 3 OH 2767/22.
The Bundesgerichtshof has clarified that questions concerning EY’s audit opinions cannot be the subject of the KapMuG proceedings before the Bayerisches Oberstes Landesgericht.
Significance for the model proceedings
The Kapitalanleger-Musterverfahren under the KapMuG serves to bundle similar capital markets law issues. In the complex of proceedings concerning the payment services provider, around 19,000 persons with registered claims were involved before the Bayerisches Oberstes Landesgericht. In addition, around 8,500 damages actions before the Landgericht München I had been stayed pending completion of the model proceedings.
With the BGH’s decision, the model proceedings conducted against EY will not be continued in their previous form. The decision therefore concerns the procedural classification of the issues directed against EY within the framework of the KapMuG, but not necessarily all individual proceedings conducted outside model proceedings.
BGH points to high requirements for claims against auditors
The Bundesgerichtshof is also said to have pointed out that claims against auditors may be rather unlikely even outside model proceedings. The reason is that auditors are generally liable to investors only in cases of intentional damage contrary to public policy.
This statement concerns the liability-law requirements and is not equivalent to a final decision on every individual investor proceeding. The specific subject matter of the dispute in the respective proceedings and the factual submissions made there remain decisive in each case.
Earlier decision concerning lending bank
As early as 26 February 2026, the III. Zivilsenat des BGH (Third Civil Senate of the Federal Court of Justice) held in proceedings docket no. (Az.) III ZB 22/24 that claims of a lending bank do not fall within the personal scope of application of the KapMuG. According to that decision, a stayed civil action must be continued. This decision also concerned the question of whether a specific claim can be dealt with within the framework of the Kapitalanleger-Musterverfahren.
Further proceedings before the Landgericht München I
The relevant action by the DSW and the instructed legal representatives had originally been filed on behalf of more than 13,000 investors. The claim asserted is said to have amounted to more than EUR 700 million.
Expansion to include further EY entities
By order of 21 April 2026, docket no. (Az.) 101 Kap 1/22, the Bayerisches Oberstes Landesgericht expanded the model proceedings to include three further EY entities as model defendants. Registrations against these entities are said to be possible until 28 October 2026 at the latest.
The BGH decision that has now become known concerns the KapMuG proceedings directed against EY and the question of whether certain declaratory objectives can admissibly be dealt with there. Insofar as further proceedings are being conducted, their respective procedural status must be considered separately.
Claimant side intends to resume stayed proceedings
Despite the decision of the Bundesgerichtshof, the model claimant side did not appear discouraged. The model claimant’s legal representatives intend to resume without delay the civil proceedings that had been compulsorily stayed before the Landgericht München I and the Oberlandesgericht München (Munich Higher Regional Court).
As the reason for the intended acceleration, the claimant side states that it wishes to obtain judgments against EY in good time. According to its account, the background is what it regards as a “flight of capital” at EY initiated at the beginning of 2024. This account is to be classified as submissions by the claimant side.
Criminal proceedings in the complex concerning the payment services provider are proceeding separately
The presumption of innocence applies until a conviction becomes final. The criminal proceedings must be distinguished from the civil-law investor proceedings and the capital markets law issues.
Assessment for investors and companies
The BGH decision makes clear that mass proceedings under capital markets law are subject to strict procedural limits. In particular, a distinction must be made between the admissibility of model proceedings, the continuation of individual civil actions and the substantive merits of claims.
The following points are of particular importance for further developments:
- The KapMuG proceedings against EY were declared inadmissible.
- The partial model case decision of the Bayerisches Oberstes Landesgericht of 28 February 2025 was confirmed.
- According to the claimant side, stayed individual proceedings before Munich courts are to be resumed without delay.
- According to the BGH’s classification, claims against auditors are subject to high liability-law requirements.
- Criminal-law and civil-law proceedings must be kept separate.
Anyone with legal questions concerning investor claims, capital market information or procedural options in connection with capital market matters may consider obtaining an assessment tailored to the individual case as part of the legal advice in capital markets law provided by MTR Legal Rechtsanwälte.
