I. Introduction
Price is what you pay; value is what you get. Warren Buffett’s famous stock-market maxim is turned on its head in the context of a delisting for minority shareholders: value is what you lose; price is what you get - except that, in a delisting, what you receive is merely the stock market price. In its judgment of October 30, 2025 1), the Berlin Kammergericht answered in the affirmative the question whether, in a delisting under Section 39(3) BörsG (former version), the stock market price remains controlling even where the share price suffered during the COVID-19 crisis and, in the plaintiff’s view, fell below the company’s true value. The judgment concerned the 2020 delisting of Rocket International SE. Shareholders were offered consideration of EUR 18.57 per share. The plaintiff argued that the company’s actual enterprise value was approximately EUR 35 per share. According to the plaintiff, the decline in the share price during the COVID-19 period did not reflect the company’s true value. Consistently with that view, after the expiration of the one-year period set out in Section 39(3), sentence 2 BörsG (former version) and Section 31(5) WpÜG, the activist shareholder Elliott was allegedly paid almost twice as much (the “Elliott Deal”).
The plaintiff sought damages of nearly EUR 100 million, both from the SE in the form of the differential amount pursuant to Section 39(3), sentence 2 BörsG (former version) and from the principal shareholder and member of the management board on the ground that the latter had allegedly violated fiduciary duties as a fellow shareholder and duties of care as a director. The Kammergericht dismissed the action.
The judgment therefore represents a new variation on the familiar theme of “stock market price versus true value” in the context of delistings. To be sure, the legislature amended Section 39(3) BörsG in a relevant respect at the beginning of 2026, and the COVID-19 crisis has passed. Nevertheless, the court’s remarkably detailed opinion illustrates the fault lines in this debate and serves in several respects as a blueprint for future litigation. Once again, the court’s analysis demonstrates that valuation issues are invariably also D&O liability issues.
II. The Transaction
In 2020, Rocket International offered to repurchase its own shares from shareholders by way of a self-tender offer and intended subsequently to cancel the repurchased shares in order to reduce its share capital.2)
The self-tender transaction required three steps. First, the shareholders’ meeting adopted a resolution providing for the subsequent cancellation of treasury shares and the related reduction of share capital. Second, the company publicly offered to acquire the shareholders’ shares. Finally, the shares acquired by the company were to be cancelled and the company was to be delisted from the stock exchange.
The Kammergericht had already ruled on the shareholders’ resolution in 2021.2) The court held that the resolution (a simplified reduction of share capital pursuant to Sections 237(3) no. 2 and 71(1), sentence 1 no. 6 AktG) generally required no substantive justification. The court further held that there was no objection to a reduction of share capital in connection with a delisting where the purpose was to enable the company itself to acquire securities that it had issued. According to the court, both the decision whether to delist and the timing of the delisting fall within the management board’s “free discretion.”3) This issue will be revisited below in Part VI in connection with the claims for damages.
III. Historical Development of German Delisting Law: A Brief Reminder
The 2025 decision must be understood against the backdrop of the eventful evolution of German delisting law. In its Macrotron decision of 2002,4) the Federal Court of Justice (Bundesgerichtshof) held that a regular delisting required both a shareholders' resolution and a judicially reviewable cash compensation offer because the loss of a stock exchange listing substantially impaired the position of shareholders. The Federal Constitutional Court (Bundesverfassungsgericht), however, ruled in 20125) that stock exchange listing is not part of the shareholder's property-protected membership rights. The share itself remains intact; only its marketability is affected. On that basis, the Federal Court of Justice abandoned the Macrotron doctrine in its Frosta decision in 2013.6) Under Frosta, a delisting required neither a shareholders' resolution nor a cash compensation payment. As a result, a broad freedom to delist initially prevailed. The courts nevertheless made clear that the legislature remained free to establish higher standards through statutory law. The legislature exercised that authority in 2015 by revising Section 39(3) of the German Stock Exchange Act (Börsengesetz).7) Delistings were to remain permissible, but minority shareholders were to receive a mandatory offer. The decisive benchmark was to be the stock market price rather than a valuation of the enterprise. Unlike Section 31 of the German Securities Acquisition and Takeover Act (WpÜG), which generally requires an "adequate" price in takeover bids and thereby leaves room for flexibility,8) Section 39(3) BörsG, in the version then in force, provided that the consideration must "at least correspond to the weighted average domestic stock market price of the securities during the six months preceding the publication of the delisting." The statute provided only a limited exception where violations of insider-trading rules or the prohibition of market manipulation had occurred. In those cases, the bidder making the mandatory offer was required to pay the "difference between the consideration stated in the offer" and "the value of the company determined on the basis of a valuation." The provision was subsequently amended in ways that are not relevant here. At the beginning of 2026, however, the legislature substantially revised Section 39(3) BörsG.9) Under the revised provision, the difference amount must be paid not only in the situations previously specified by statute, but whenever "special circumstances have influenced the stock market price [during the relevant period] to such an extent that it constitutes an unreasonably low basis for determining the consideration." Following the amendment, special circumstances exist in particular in the statutory examples previously enumerated by law. The legislature has therefore significantly expanded the scope of Section 39 BörsG.
IV. The Judgment of the Kammergericht
1. The Capital-Market-Oriented Approach of Section 39 BörsG (Former Version)
The delisting reviewed by the Kammergericht had taken place in 2020. The court therefore applied the version of Section 39 BörsG that was in force at that time and concluded that the stock market price was controlling because none of the statutory exceptions applied in the case before it. This forms the central pillar of the decision. The court views Section 39 BörsG a.F. as a conclusive legislative policy choice in favor of the stock market price. According to the court, consideration is adequate if the statutory requirements of Section 39(3) BörsG have been satisfied. The benchmark for adequacy is not the company's "true" enterprise value but rather the stock-market-price standard prescribed by the legislature. As the court stated (para. 26): "Beyond the situations addressed in Section 39(3), sentence 3 nos. 1 and 2 and sentence 4 BörsG, there is no room for additional exceptions." The court thereby rejected the existence of unwritten exceptions. The plaintiff had argued that the market decline caused by COVID-19 temporarily disconnected the stock market price from the company's economic fundamentals. According to the plaintiff, the company's enterprise value should therefore have been used instead. The court declined to follow that argument "in light of the clear wording and the purpose of the statute" (paras. 33 et seq.).
According to the court, the legislature was fully aware that stock prices can fluctuate significantly. Nevertheless, it deliberately provided for only certain narrowly defined exceptions. By implication, courts are not permitted to create further exceptions through judicial interpretation. Even if the valuation figures asserted by the plaintiff were correct, that would not alter the legal relevance of the stock market price.
2. The "Elliott Deal"
Nor was the Kammergericht persuaded by the fact that slightly more than one year later the activist investor Elliott sold shares to the defendant at a price almost twice as high as the original delisting consideration (see para. 47 of the judgment in connection with the damages claims). The legal background is the reference in Section 39(3), sentence 2 BörsG a.F. (today: sentence 3) to Section 31 WpÜG. Under Section 31(5) WpÜG, the bidder must increase the offer price if, within one year, shares in the target company are purchased at a higher price than the offer price. The plaintiff viewed the Elliott transaction as confirmation that the market value of the company had already been substantially higher at the time of the delisting than was reflected in the COVID-era stock market price. The court, however, attached no decisive significance to that argument. First, the one-year period had already expired. Second, and more importantly, the only relevant issue was whether the consideration had been determined in accordance with the statutory requirements applicable at the time of the delisting. Even if the Elliott transaction were viewed as evidence of a significantly higher true value,7) the statute focuses on the stock market price and not on an ex post analysis of subsequent market transactions.
3. Capital-Market Value Versus "True" Value
The facts of the case place the issue of delisting compensation precisely on the dividing line between advocates of compensation based on the stock market price and proponents of compensation based on true enterprise value. The judgment aligns itself with the former position because Section 39 BörsG a.F. in fact relies on the stock market price and permits only limited deviations. The court locates the substantive justification for this capital-market-oriented approach in the principle already developed by the Federal Constitutional Court11) and the Federal Court of Justice12): a delisting does not deprive shareholders of their shares but merely reduces the fungibility of those shares (judgment, paras. 21 et seq., 28). It should be added that the value of that stock-exchange fungibility is reflected precisely in the stock market price of the share rather than in the company's "true" enterprise value.
The extraordinary length of the judgment suggests that, despite the firmness of its reasoning, the court did not regard this conclusion as self-evident. Indeed, confidence in stock market prices is not self-evident. Markets consistently overreact, frequently err, and an outside perspective can never provide a complete understanding of opportunities and risks.13) This may explain why the court additionally noted that, in the case before it, the decline in the stock price could only partially be attributed to COVID-19 because the share price had already been weakened for other reasons before the pandemic (judgment, paras. 42 et seq.). As an initial response to doubts regarding the stock market price, one may observe that a shareholder in a listed company participates in the company through a publicly traded share, that is, through a vehicle whose valuation is governed by rules different from those applicable to the valuation of the underlying enterprise itself. The valuation of the share is shaped by the mechanisms of the stock market, including herd behavior, fashions, and prevailing market beliefs. These mechanisms create independent opportunities and risks. Consequently, the stock market price can also be significantly higher than the company's true value.
This, however, gives rise to a further question: who should decide, and under what constraints, when a delisting takes place? According to the Kammergericht, as discussed above in Part II, that decision belongs to the management board, which enjoys broad discretion in exercising that judgment.
V. Consequences for Section 39(3) BörsG (New Version)
This gives rise to further questions regarding Section 39(3) BörsG in its amended form. With a single stroke of the pen, the legislature has formally superseded the judgment of the Kammergericht. Under the amended statute, the statutory exceptions to the stock-market-price standard are no longer exhaustive. Rather, the bidder must pay the difference between the stock market price and a higher value whenever “special circumstances” exist, and in particular in the situations enumerated in the statutory examples. Accordingly, unlike under Section 39(3) BörsG a.F. as interpreted by the Kammergericht, the statutory examples are no longer exhaustive. Nevertheless, part of the court’s reasoning remains important. The statute still requires special circumstances that have “influenced the stock market price during the relevant period to such an extent that it constitutes an unreasonably low basis for determining the consideration.” Unlike the wording of Section 31 WpÜG,14) the legislature has probably not introduced a general fairness review. Rather, the “special circumstances” must first have disrupted the normal functioning of the stock market mechanisms by which the stock price is formed. Absent such a disruption, the stock market price should remain controlling even where it lies substantially below (or above) the company’s true value.
Although the distinction may become blurred in individual cases, Section 39(3) BörsG appears to open the door to a fairness review based on an enterprise valuation less widely than Section 31 WpÜG. The justification for this difference lies in the fundamental distinctions between a delisting and a takeover bid.
VI. Damage Claims
The plaintiff did not confine itself to the allegation that the delisting offer had been unreasonably low. Rather, it sought to derive personal and corporate liability claims against both the company and the chief executive officer and major shareholder from the alleged undervaluation. The Kammergericht rejected all such claims (judgment, paras. 51–56).
1. Damage Claims Against the Company
The plaintiff argued that the company (Defendant No. 1) had breached both its fiduciary duties toward its shareholders and Sections 280(1) and 826 BGB by making the offer at the stated price.
The Kammergericht, however, found no breach of duty because the company had adhered to the valuation mechanism expressly prescribed by the legislature. A party that applies the statutory valuation method generally does not act unlawfully. Accordingly, a damages claim cannot be based merely on the proposition that shareholders prefer a different valuation methodology or regard a higher enterprise value as the correct one.
According to the court, the plaintiff’s argument ultimately amounted to an attempt to revise the statutory valuation rules through the law of damages. The court regarded such an approach as impermissible.
2. Damages Claims Against the Director
The claims against Defendant No. 2, who was both a member of the management board and a fellow shareholder, likewise failed.
- Management Board Liability
According to the Kammergericht, members of the management board owe their duties as corporate officers primarily to the corporation rather than to individual shareholders.15) More importantly, however, the court based its decision on the conclusion that the delisting, although structured as a self-tender offer, neither conferred a “special benefit at the expense of individual shareholders” nor resulted in arbitrary unequal treatment among shareholders (judgment, para. 52). The offer complied with Section 39(3) BörsG a.F.
This brings one back to the earlier decision of the Kammergericht concerning the shareholders’ meeting. There, the court had held that Section 39 BörsG leaves it to the company’s management to determine independently whether and when a delisting should take place. According to both the Federal Court of Justice (BGH) and the Federal Constitutional Court (BVerfG), stock exchange listing is not protected by the constitutional guarantee of property, and Section 39 BörsG a.F. contains “no requirements in this respect.” Furthermore, Section 39(6) BörsG provides that the legality of the revocation remains unaffected by the requirements of Section 39(3) BörsG, which are to be examined in subsequent proceedings.16) In the earlier decision, the court also addressed the issues of “special benefit” and “fiduciary duty” (ibid., paras. 63 et seq.).
Even if the delisting forced certain shareholders to sell their shares because, as investment funds, their regulatory framework (KAGB, etc.) permitted investments only in listed companies, that disadvantage was merely an internal problem of those shareholders. According to the court, neither a special benefit nor a breach of fiduciary duty was implicated. Such duties, particularly on the part of a major shareholder, may indeed require consideration for the interests of fellow shareholders and may oblige a shareholder to support, or at least not oppose, measures that are beneficial to the interests of the company.17) However, the court held that no breach of duty occurred merely because the repurchase offer was made by the company rather than by the major shareholder and because the resulting capital reduction increased the proportional ownership interests of the remaining shareholders, including the major shareholder, and thus also their participation in the company’s true value.
All remaining shareholders benefited from that effect. Moreover, the court reasoned that the mere possibility of altering the ownership percentage of a major shareholder through lawful corporate measures cannot, by itself, establish an impermissible disadvantage to minority shareholders. Even a squeeze-out undertaken with the objective of obtaining a special benefit is not generally prohibited under German law and is not even viewed as inherently objectionable.
b) Liability as a Fellow Shareholder
The Kammergericht also denied liability on the part of Defendant No. 2 arising from his approval of the delisting resolution in his capacity as a major shareholder. The relevant shareholders’ resolution was lawful. The court further stated that Defendant No. 2 did not control the company and that only controlling shareholders are subject to fiduciary duties. That proposition is incorrect.18) However, the issue was ultimately irrelevant because the validity of the shareholders’ resolution was sufficient to dispose of the claim. Similarly, the court rejected liability under Section 117 AktG. Defendant No. 2 was not a controlling shareholder, but more importantly, the shareholders’ resolution approving the delisting was lawful.
3. The Court Sidesteps the Timing and Valuation Issue
In all of this, the court sidesteps the timing and valuation issue that lies at the heart of the dispute. If one conceptualizes stock market price fluctuations as a wave function oscillating around the median of the company’s “true” value, the amount of compensation depends critically on the timing of the delisting. In substance, the plaintiffs argued that the company had chosen a trough in that wave. When reviewing the shareholders’ resolution (Step 1), however, the Kammergericht, as discussed above in Parts II and VI.1 and 2.a, stated that the decision whether and when to delist falls within the “free discretion” of the management board. Accordingly, the court referred outside shareholders to subsequent civil litigation seeking payment of the difference amount.19) Yet in those subsequent proceedings, the court effectively foreclosed such claims by emphasizing that the shareholders’ resolution had been lawful. In doing so, the court overlooks the very purpose of fiduciary duties and duties of care, namely, to restrain the exercise of legal rights and discretionary powers in the interest of mutual consideration and fairness. It is difficult to deny that duties of loyalty may extend to the selection of the timing at which a corporate measure is implemented.
Where compensation is linked to the stock market price, it matters greatly whether the delisting occurs during a bull market or a bear market. Moreover, Section 39(3) BörsG, both in its former and current versions, establishes only a minimum requirement under stock exchange law. For that reason as well, it cannot be ruled out that fiduciary duties, equal-treatment obligations, and duties of care may require more.
VII. Conclusion / D&O Liability
1. The judgment serves as a magnifying glass for the valuation debate between stock market price and true value in the context of delistings. Its ultimate conclusion under Section 39(3) BörsG a.F. is persuasive, particularly because, as noted above, the court explains that COVID-19 only partially contributed to the decline in the share price, which had already been weakened before the pandemic for other reasons (judgment, paras. 42 et seq.).
2. The judgment has been superseded by the amendment to Section 39(3) BörsG,20) but it is also cast in a new light by that amendment. As discussed above, Section 39(3) BörsG n.F. may require consideration of “special circumstances.” It is likely that this provision will become the focal point of future litigation.
Even so, three points should not be overlooked: (i) a delisting does not deprive shareholders of their shares; (ii) the value of a stock exchange listing is reflected precisely in the stock market value of the shares; and (iii) the BörsG relies on six-month average prices and thereby makes it more difficult to exploit isolated price troughs.
3. Of particular importance for D&O liability practice is the following: the decision demonstrates once again that valuation issues are always liability issues. It also demonstrates that valuation rules inevitably influence liability analysis. This, generally speaking, makes sense because valuation rules should not be re-litigated through the back door of damages law. From a liability perspective, however, that principle must be qualified: (i) the more complex the valuation rules become; (ii) where those rules establish only minimum standards; (iii) where they create mechanical discretion that must be constrained by fiduciary duties; or (iv) where they lead to the “wrong” substantive result. The burden of substantiating such claims nevertheless remains with the plaintiffs.21)
Endnotes
1) Berlin Kammergericht, Judgment of Oct. 30, 2025, 12 U 54/24, Rocket International, NZG 2026, 1370 et seq.; with approving case note by Bachmann, No Damages Based on a Lawful Delisting, ZIP 2026, 2023 et seq.
2) Berlin Kammergericht, Decision of Mar. 25, 2021, 12 AktG 1/21, ZIP 2021, 2634.
3) Berlin Kammergericht, Decision of Mar. 25, 2021, 12 AktG 1/21, para. 55, ZIP 2021, 2634; reiterated in Berlin Kammergericht, Judgment of Oct. 30, 2025, 12 U 54/24, Rocket International, para. 21.
4) Federal Court of Justice (Bundesgerichtshof), Judgment of Nov. 25, 2002, II ZR 133/01 - Macrotron.
5) Federal Constitutional Court (Bundesverfassungsgericht), Judgment of July 11, 2012, 1 BvR 3142/07, 1 BvR 1569/08, BVerfGE 132, 99.
6) Federal Court of Justice (Bundesgerichtshof), Decision of Oct. 8, 2013, II ZB 26/12 - Frosta, ZIP 2013, 2254; see also BGH, Decision of Oct. 22, 2019, XI ZR 682/18, BKR 2020, 305; AG 2020, 124.
7) In the version effective Nov. 26, 2015, pursuant to Article 2 of the Act of Nov. 20, 2015, BGBl. I 2029.
8) See our recent blog posts on unresolved questions of enterprise valuation and Reuter, Stock Market Prices versus Synergy Benefits in Enterprise Valuation, NZG 2026, 1355 et seq.; forthcoming: Reuter, Adequate Price and True Value in Corporate Acquisitions, NZG 2026.
9) In the version effective Feb. 10, 2026, pursuant to Article 20 of the Act of Feb. 4, 2026, BGBl. I 2026 No. 33.
10) This is not necessarily the case. Higher prices may reflect block premiums or control premiums. See, e.g., Berle/Means, The Modern Corporation and Private Property (1932/1968), pp. 215 et seq.; Baums, ZIP 2010, 2374 (2375); Cascante, FS Wegen, 2015, 175 (183); and, on the opposing view, Easterbrook/Fischel, 91 Yale Law Journal (1981/82), 698 (715 et seq.); Grossman/Hart, 11 Bell Journal of Economics (1980), 42 (59).
11) Federal Constitutional Court (Bundesverfassungsgericht), Judgment of July 11, 2012, 1 BvR 3142/07, 1 BvR 1569/08, BVerfGE 132, 99.
12) Federal Court of Justice (Bundesgerichtshof), Decision of Oct. 8, 2013, II ZB 26/12 - Frosta, ZIP 2013, 2254.
13) See Reuter, Stock Market Prices versus Synergy Benefits in Enterprise Valuation, NZG 2026, 1355 et seq.
14) See our blog post, Unresolved Issues in Enterprise Valuation: The Pressure Point in UniCredit/Commerzbank and Schaeffler/Vitesco; forthcoming: Reuter, Adequate Price and True Value in Corporate Acquisitions, NZG 2026.
15) This proposition is too broad; however, it cannot be addressed further within the scope of the present article.
16 Kammergericht Berlin, Decision of Mar. 25, 2021, 12 AktG 1/21, paras. 55, 63 et seq.; ZIP 2021, 2634.
17) See, e.g., Schwab in Schmidt/Lutter, AktG, 4th ed. 2020, Section 243, para. 4.
18) The Kammergericht itself expressed a different view in its Mar. 25, 2021 decision, 12 AktG 1/21, para. 64, ZIP 2021, 2634.
19) Kammergericht Berlin, Decision of Mar. 25, 2021, 12 AktG 1/21, para. 55; reiterated in Kammergericht Berlin, Judgment of Oct. 30, 2025, 12 U 54/24, Rocket International, para. 21.
20) See also Bachmann, No Damages Based on a Lawful Delisting, ZIP 2026, 2023, 2024.
