I. Starting Point of the BGH Decision / Divergent Views

The priority of damages claims against a listed company arising from breaches of ad-hoc disclosure obligations or other capital-market disclosure duties[1] (“capital-markets damages claims”) can be highly significant in the insolvency of the company: In nearly all insolvencies, the debtor’s assets fall far short of satisfying all claims. How this shortfall is allocated also depends on the ranking of the claims involved. Very broadly, German insolvency law distinguishes three tiers: secured creditors, unsecured (ordinary) creditors, and shareholders. [2]

Whether ad-hoc disclosure-based damages claims rank alongside ordinary insolvency claims or—like shareholder rights—below them has been the subject of intense academic debate. Some commentators maintained that these claims compensate for an equity risk, must therefore be treated as membership rights under § 199 sentence 2 of the German Insolvency Code (InsO), and would only be satisfied if a surplus remains after final distribution. A shareholder, they argued, is not a third party relative to the company because liability of the issuer is inconceivable without the (temporary) status as shareholder. The protection afforded by capital-markets law is granted precisely because of that shareholder status. [3]

According to the opposing view, the affected shareholders should be treated like external creditors. Capital-markets disclosure liability takes precedence over the creditor-protection rules rooted in capital-maintenance principles; otherwise, the behavioral incentives created by liability for defective capital-market disclosures would be undermined. [4] A further view classified misled shareholders as subordinated insolvency creditors under § 39 InsO: Surpluses belong to the shareholders, but they bear the final loss risk ahead of debt capital providers. [5]

II. The Decision

The BGH assigns capital-markets damages claims a priority ranking below the ordinary insolvency claims of § 38 InsO and leaves open whether such claims must be satisfied only after the final distribution from any remaining surplus under § 199 sentence 2 InsO, or whether, by analogy, they rank as subordinated insolvency claims under § 39(1) sentence 1 no. 5 InsO (paras. 49 et seq. of the judgment).

The Insolvency Code establishes a distribution and priority system. The fundamental distinction is between equity investors and “creditors whose claims do not depend on a decision to participate in the debtor as shareholder and provider of equity capital” (para. 51). Although no explicit statutory rule governs the ranking of such claims in insolvency, the BGH may nevertheless determine the ranking (paras. 72 et seq.). The distribution and priority system embedded in the Code is controlling. For example, the Code assigns certain claims of ordinary creditors to a subordinated tier (e.g., shareholder loans under § 39(1) sentence 1 nos. 1 and 2 InsO).

The priority system “protects” debt capital providers from claims by equity holders arising out of their participation. Accordingly, capital-markets damages claims held by shareholders arising from their acquisition of shares are subordinated to the claims of ordinary insolvency creditors. These claims are “so closely linked to shareholder status that they can be satisfied only under § 199 sentence 2 InsO or, at most—by analogy—at the priority level of § 39(1) sentence 1 no. 5 InsO.”

This follows from the purpose of purchasing shares and from “the damages claim, which legally and economically aims at unwinding that investment”: According to the BGH, shareholders entitled to damages may demand natural restitution from the company, meaning reimbursement of the purchase price in exchange for re-transfer of the acquired shares, or—if the shares have since been sold—offsetting the sale proceeds. “This makes these damages claims fundamentally different from those of ordinary insolvency creditors, both in the legal position of the claimant and in the nature and purpose of the claim.” [6]

Capital-markets damages claims are therefore “sufficiently connected” to the shareholder’s participation in the debtor to be treated like claims under § 39(1) sentence 1 no. 5 InsO and § 199 sentence 2 InsO. The Insolvency Code’s priority system draws a “clear distinction between creditors whose claims are independent of any decision to participate in the debtor as shareholder and such claims that arise from the decision to participate and the ensuing participation.”

The damages claim does not meet the requirements of a third-party creditor claim detached from shareholder status. Rather, it is “directly linked to the value of the share as assumed under the underlying contractual transaction. Economically, natural restitution grants the shareholder the value of the share as measured by the purchase price. The compensatory payment addresses the incorrect pricing of the investment as an equity holder.” It is not sufficient for pari passu treatment with ordinary insolvency creditors that shareholders appear in the role of (misled) purchasers, because this would disregard the purpose of the acquisition. “Shareholders, by virtue of their participation in the company, are invariably closer to assuming entrepreneurial risks than any of the company’s creditors” (para. 69).

EU law—namely Regulation (EU) No. 596/2014 of April 16, 2014 on market abuse (Market Abuse Regulation)—likewise does not require that shareholder capital-markets damages claims be treated on an equal footing with ordinary insolvency creditors in the company’s insolvency (para. 86).

III. Relationship Between the Groups Involved

The approach of deriving the solution from the economic relationship of the relevant creditors to the company and from their classification under the fundamental value judgments of insolvency law is to be endorsed.

It is particularly worth emphasizing the BGH’s observation (para. 68) that, economically speaking, corporate liability for damages means that “the existing shareholders compensate the new shareholders.” In the insolvency scenario, however, the issue is no longer corporate liability, “but a distributional conflict between external creditors and creditors who are shareholders; the internal competition among shareholders becomes competition among creditors.” In this distributional conflict, the creditor status of shareholders exhibits the necessary proximity to equity participation within the meaning of § 199 sentence 2 InsO.

In this conflict of allocation, the BGH assigns the claims to the “equity” group. The BGH’s findings concerning the distributional conflict, the interlinkage of the claims with shareholder status, and the group-based character of the claims redirect attention to constitutional law. For questions of priority are always questions of equality and inequality among the groups involved.

IV. Constitutional Law Dimension

As noted above, the BGH does not overlook the fact that it is the fellow shareholders who must bear the economic burden of capital-markets damages claims. But two additional aspects arise. First, these claims entail an economic shift in recovery among shareholder groups: share purchasers are favored, while passive shareholders who neither buy nor sell during the misinformation period bear the economic loss. Second, the (capital-markets-law-violating) loss suffered by the purchasers corresponds to an equally (capital-markets-law-violating) gain of the selling shareholders.

Legally mandated shifts in recovery among shareholder groups (here: among purchasers, passive shareholders, and the “laughing” sellers) must be evaluated in light of constitutional law—particularly the extensive case law of the German Federal Constitutional Court (BVerfG) on shareholder property and equal treatment of shareholders, especially where shifts in the relative value of shareholdings (Quotenverschiebungen) are concerned (Arts. 14 and 3 of the Basic Law). Elsewhere, the author has argued that capital-markets damages claims must be significantly restricted on constitutional grounds in light of this jurisprudence. [7] The BGH did not address this question in the Wirecard case.

The BGH tends to treat constitutional constraints in corporate law rather perfunctorily[8]—at least since the Court implemented the BVerfG’s requirements concerning the treatment of different shareholder groups in corporate group restructurings. As the following points illustrate[9], however, even in the Wirecard case, the legitimacy of the asserted capital-markets damages claims should have been questioned under Arts. 3 and 14 of the Basic Law:

1. Shareholders enjoy constitutional protection—and according to the BVerfG, this protection is “particularly strong” where the share serves as an instrument of personal wealth formation and thus as a safeguard of individual liberty.
2. In civil-law rules affecting the relationship among shareholders, not only Art. 14 but also the equality guarantee of Art. 3 must be considered. Under §§ 97 and 98 of the German Securities Trading Act (WpHG), where negative inside information contrary to the Market Abuse Regulation is disclosed only with delay, purchases during the misinformation period create unequal treatment:
   (a) The purchaser suffers a loss (price-difference damage), which the company must compensate under §§ 97 and 98 WpHG.
   (b) The seller receives a corresponding benefit (price-difference gain).
   (c) By contrast, passive shareholders (those who neither buy nor sell) suffer a loss corresponding to their pro rata interest through the company’s diminished value resulting from the damages payment.
   (d) The company and passive shareholders are made whole only to the extent the company can recover from the derelict corporate organs and to the extent those parties are solvent or covered by D&O insurance. Without corrective measures, however, the selling shareholder retains the benefit even in that scenario. (In the case of positive undisclosed information, the consequences for purchasers and sellers are reversed.)
3. Because there are no adequate grounds justifying this unequal treatment, §§ 97 and 98 WpHG must be construed in conformity with the Constitution so that the company is obligated to pay damages only to the extent it has recovered from the responsible corporate officers or from the selling shareholder. At a minimum, the purchasing shareholder must assign all claims against the selling shareholder to the company and assist the company in enforcing them. Difficulties in enforcing such claims cannot be shifted onto passive shareholders.
4. Under Arts. 14 and 3 of the Basic Law, in the hierarchy of parties who must bear the purchaser’s price-difference loss, the selling shareholder ranks ahead of the company’s officers and their D&O insurers.
5. The same results follow from the fiduciary duties among shareholders under corporate law, which bind shareholders entitled to compensation under §§ 97 and 98 WpHG.
6. EU law does not conflict with these conclusions.

V. Summary

1. In its judgment of November 13, 2025 in the Wirecard matter (IX ZR 127/24), the BGH held that if a management board violates ad-hoc or other disclosure obligations, giving rise to capital-markets damages claims by share purchasers, but the company subsequently enters insolvency, such claims rank below the company’s ordinary insolvency liabilities.
2. The BGH left open whether these claims must be satisfied only from any remaining surplus after final distribution under § 199 sentence 2 InsO, or whether, by analogy, they should be treated as subordinated insolvency claims under § 39(1) sentence 1 no. 5 InsO.
3. It is doubtful whether the capital-markets provisions giving rise to the damages claims are compatible with the BVerfG’s jurisprudence on equal treatment among shareholder groups and the protection of shareholder property against shifts in value (Arts. 3 and 14 of the Basic Law). For it is the fellow shareholders who must bear the loss, while the selling shareholders obtain and retain a corresponding benefit. The BGH, however, did not address this issue.

[1][1] Claims may arise on tort grounds, such as under § 826 of the German Civil Code (BGB), §§ 823(2) BGB in conjunction with § 400 of the German Stock Corporation Act (AktG) and § 331(1) no. 1 of the German Commercial Code (HGB), as well as under special statutory provisions, in particular §§ 97 and 98 of the German Securities Trading Act (WpHG).

[2] More specifically: parties entitled to separation (Aussonderungsberechtigte), estate creditors (Massegläubiger), secured creditors with rights of separate satisfaction (Absonderungsberechtigte), ordinary insolvency creditors (einfache Insolvenzgläubiger), subordinated insolvency creditors (nachrangige Insolvenzgläubiger), post-petition creditors (Neugläubiger), and persons holding an equity interest in the debtor.

[3] Thole, ZIP 2020, 2533; ders., ZRI 2024, 1032; Madaus, ZRI 2022, 1; ders., ZIP 2023, 1273; Paulus, EWiR 2023, 54; ders., ZIP 2024, 2737; Liebscher/Rickelt, ZIP 2024, 717; Gehrlein, WM 2021, 763; ders., WM 2021, 805; Baumert, NZG 2023, 111; Habersack, ZIP 2025, 1307; Schönfelder/Zuleger, NZI 2025, 673; Holzer in Prütting/Bork/Jacoby, InsO, 2025, § 199 para. 2; HmbKomm-InsO/Lüdtke, 10. Aufl., § 38 para. 10.

[4] Brinkmann/Richter, AG 2021, 489; Bitter/Jochum, ZIP 2021, 653; dies., ZIP 2023, 277; Becker, NZI 2021, 302; ders., NZI 2022, 319; ders., NZI 2023, 116; Mock, BKR 2023, 127; ders., NZI 2024, 969; Richter, BKR 2024, 1033; Gottwald/Haas/Mock, Insolvenzrechts-Handbuch, 6. Aufl., § 91 para. 129; Graf-Schlikker/Bremen/Neußner, InsO, 6. Aufl., § 39 para. 87; Holzer in Prütting/Bork/Jacoby, InsO, 2023, § 38 para. 20; Gundlach/Frenzel/Schmidt, ZInsO 2006, 1316, 1319; MünchKomm-AktG/Bayer, 6. Aufl., § 57 para. 45 f; Bürgers/Lieder/Lieder, AktG, 6. Aufl., § 57 para. 40; Hellgardt in Assmann/Schneider/Mülbert, Wertpapierhandelsrecht, 8. Aufl., § 98 WpHG para. 53a; K. Schmidt/Lutter/Fleischer, AktG, 5. Aufl., § 57 para. 67a; Koch, AktG, 19. Aufl., § 57 para. 12; Großkomm-AktG/Arnold/Notz, 5. Aufl., § 57 para. 53.

[5] KölnKomm-AktG/Drygala, 3. Aufl., § 57 para. 33; Uhlenbruck/Hirte, InsO, 16. Aufl., § 11, para. 205A; Hirte in Festschrift Kirchhof, 2003, S. 223, 242; Langenbucher, ZIP 2005, 239, 244 f; ablehnend Wachter/Servatius, AktG, 4. Aufl., Anhang zu § 57 para. 9; Zimmer, WM 2004, 9, 11 f; for subordination de lege ferenda Baums, ZHR 167, 139, 167, 170; Möllers, BB 2005, 1637, 1642; Hellgardt, Kapitalmarktdeliktsrecht, 2008, S. 408; vgl. auch Fleischer, ZIP 2005, 1805, 1811.

[6] Judment, para. 60, unter Verweis auf BGH, Urteil vom 09.05.2005 - II ZR 287/02, WM 2005, 1358, 1359.

[7] Reuter, Schadensersatz und Bußgelder zu Lasten des Unternehmens bei Ad hoc – Pflichtverstößen: Ein Verstoß gegen die Grundrechte und die Treuepflicht der Aktionäre?, NZG 2019, 321 ff.

[8] Cf. on the adequacy of the compensation and the cash settlement for outside shareholders BGH, 21.02.2023 - II ZB 12/21, BGHZ 236, 180 para. 18; 31.01.2024 - II ZB 5/22.

[9] In more detail Reuter, Schadensersatz und Bußgelder zu Lasten des Unternehmens bei Ad hoc – Pflichtverstößen: Ein Verstoß gegen die Grundrechte und die Treuepflicht der Aktionäre?, NZG 2019, 321 ff.