No money for Wirecard shareholders from insolvency estate

Background of the decision

The proceedings originated from a lawsuit by asset manager Union Investment, which had purchased Wirecard shares for its clients. The lawsuit was directed, among others, against the insolvency administrator Michael Jaffé. Union Investment sought a declaratory judgment to ensure that capital market damage claims amounting to approximately 9.8 million euros could be registered in the insolvency schedule as ordinary creditor claims pursuant to Section 38 of the Insolvency Code (InsO). Until now, there had been no supreme court decision on this matter.

Union Investment based its claim for damages on the allegation of a misrepresentation of Wirecard’s financial situation, which had influenced the decision-making process when purchasing the shares. The insolvency administrator Michael Jaffé contested the claims and viewed the claims of ordinary creditors, such as lending banks, service providers, or former employees, as having priority. Although shareholders had to accept price losses, they had neither provided capital to the group nor rendered other services for which Wirecard still owed them a payment. He intended to consider shareholders only if money remained after the final distribution in the insolvency proceedings.

The Munich I District Court initially dismissed the lawsuit. Union Investment subsequently filed an appeal, and the Munich Higher Regional Court reached a different assessment: damage claims from shareholders who were fraudulently deceived when purchasing shares were ordinary insolvency claims and could therefore also be registered in the insolvency schedule. In the oral hearing on October 16, 2025, the BGH remained non-committal and emphasized that both parties had presented convincing arguments.

Core statements of the BGH

However, the BGH judgment of November 13, 2025, was clear. The BGH overturned the interim judgment of the Munich Higher Regional Court and ruled in favor of the insolvency administrator. The Ninth Civil Senate clarified, with reference to the Insolvency Code, that the shareholders’ claims are not ordinary insolvency claims and that shareholders are therefore only to be considered on a subordinate basis.

The Senate justified its decision with the following considerations:

Insolvency law standards alone determine the conditions, form, and extent to which a claim can be satisfied from the debtor’s assets. The rules of the Insolvency Code must not be bypassed in the process.

The capital market damage claims of shareholders take a back seat to the claims of ordinary insolvency creditors, as they are not comparable to the claims of lending banks, service providers, or former employees. Shareholder claims are subordinate provided they are sufficiently connected to their participation in the company. Exactly such a connection exists for the damage claims asserted here.

The target of the transaction concluded between Wirecard and the individual shareholder was participation in the company in exchange for a capital contribution. This purpose was achieved regardless of the fact that the investment later proved to be unprofitable for the shareholder.

The rank of ordinary creditors, on the other hand, is based on the fact that their claims do not stem from a (albeit value-disappointing) participation in the insolvency debtor, but rather, for example, from services rendered for which no remuneration has yet been paid. The Insolvency Code makes a clear distinction:
Priority is given to those whose claims result, for example, from a loan that has not yet been repaid and who have not sought any participation in the debtor beyond this exchange of services. Only then, if insolvency assets remain, are shareholders considered as partners whose participation has proven to be unprofitable.

To achieve equal ranking with ordinary insolvency creditors, it is also not sufficient for shareholders to claim that they were deceived about the value of the participation upon acquisition. As participants in the company, shareholders are always closer to the entrepreneurial risks than the other creditors. A shareholder can not only claim the potential profit opportunities of the participation in the company for themselves but must also bear the risks associated with their position.

Conclusion and practical implications

Enormous sums were at stake in Karlsruhe: around 50,000 Wirecard shareholders have now registered damage claims totaling approximately 8.5 billion euros – against an insolvency estate of only around 650 million euros. Even without the participation of the shareholders, creditors such as lenders, service providers, and former employees receive only a fraction of their claims. The judgment clarifies: aggrieved shareholders are not placed on an equal footing with ordinary insolvency creditors and are only considered on a subordinate basis. Those who participate in the company should share not only in the entrepreneurial success but also in the risk. This clear line from the BGH could prevent further legal disputes in similar cases. Furthermore, the decision brings advantages for insolvency administrators and creditors: it increases insolvency quotas, creates more clarity in the distribution of funds, and saves the laborious examination of numerous complex shareholder claims.

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