Federal Court of Justice Confirms Insolvency Ranking: Shareholders' Damages Claims Subordinated

Rotthege Rechtsanwälte assisted injured shareholders in the Wirecard AG matter and provided legal commentary on the Federal Court of Justice’s ruling. The Federal Court of Justice (BGH, case no. IX ZR 127/24) on 13 November 2025 held that capital-markets damages claims asserted by shareholders—as in the present Wirecard AG case—do not qualify as insolvency claims under § 38 of the German Insolvency Code (InsO). The court reasoned that such damages claims are inseparable from the status of a shareholder and therefore follow the insolvency-law subordination applicable to equity holders. According to the IX. Civil Senate, the asserted claim seeks to remedy a failed investment rather than constitute a claim against the company; even deliberate deception does not alter this insolvency-law classification. The BGH emphasised that shareholders bear entrepreneurial risk and accordingly are not treated as ordinary insolvency creditors. The decision has clear practical consequences: the established priority of external creditors, suppliers and employees remains intact and predictable; insolvency proceedings and dividend distributions will not be burdened by mass investor claims. Although the ruling is unfavourable to harmed investors because their claims are payable only after all ordinary creditors, it is systematic and consistent in distinguishing entrepreneurial investment risk from the protection of general commercial transactions. Rotthege Rechtsanwälte represented injured shareholders in the Wirecard AG matter with a team composed by: Dr. Andreas Töller — Rechtsanwalt and Partner.

Federal Court of Justice Confirms Insolvency Ranking: Shareholders' Damages Claims Subordinated

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