Federal Court of Justice Holds Shareholder Damage Claims Do Not Constitute Insolvency Claims in Wirecard Case

SZA Schilling, Zutt & Anschütz, assisted by BGH lawyer Dr. Reiner Hall, represented Wirecard AG’s insolvency administrator Dr. Michael Jaffé, while an investment fund that had acquired shares in Wirecard AG brought the claim seeking equal ranking with the company’s creditors. The Federal Court of Justice (Bundesgerichtshof – BGH), in its judgment of 13 November 2025 (Case No. IX ZR 127/24), dismissed the action and held that capital markets–related shareholder damage claims do not constitute insolvency claims pursuant to Section 38 of the German Insolvency Code (InsO) in the company’s insolvency proceedings. The BGH’s decision provides definitive clarification on a long-disputed issue: shareholders’ damage claims arising from capital markets conduct cannot be treated as claims that rank alongside the company’s creditors. The ruling confirms the fundamental principle of German insolvency law that shareholders’ claims are subordinated in insolvency and can only be taken into account once the company’s creditors have been fully satisfied, an event that in practice virtually never occurs. The decision was described by Prof. Dr. Thomas Liebscher, partner at SZA Schilling, Zutt & Anschütz, as a landmark ruling that provides urgently needed legal certainty for stakeholders and will significantly influence insolvency and restructuring practice in Germany. SZA Schilling, Zutt & Anschütz represented insolvency administrator Dr. Michael Jaffé with a team composed by: Prof. Dr. Thomas Liebscher (partner, lead counsel; Litigation and Arbitration, Mannheim), Alexander Rickelt (Litigation and Arbitration, Mannheim), Dr. Michael Schuster (Insolvency Law) and Martin Fritz (Insolvency Law). BGH lawyer Dr. Reiner Hall acted alongside SZA Schilling, Zutt & Anschütz before the Federal Court of Justice in the final-instance proceedings.

Federal Court of Justice Holds Shareholder Damage Claims Do Not Constitute Insolvency Claims in Wirecard Case

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