Shareholders of the insolvent payment service provider Wirecard have attempted to recoup their losses by suing Bafin for damages – the authority had not fulfilled its supervisory duties. The Frankfurt Higher Regional Court has now dismissed the claim of a shareholder in the second instance.

The Frankfurt Higher Regional Court (OLG) has denied a claim for damages by former Wirecard investors against the financial supervisory authority Bafin in the second instance. The Federal Financial Supervisory Authority (BaFin) had not “breached the official duties incumbent upon it with regard to balance sheet control”, the OLG ruled, as various media, including the “Handelsblatt”, reported unanimously, citing communications from the court. A plaintiff cannot therefore hold Bafin liable for losses suffered as a result of purchases of Wirecard shares. The OLG decision (Case No. 1 U 173/22) is not yet legally binding and would end up at the Federal Supreme Court (BGH) in case of a non-admission appeal.

Background: The former Dax member Wirecard collapsed in the summer of 2020 after the management board admitted that 1.9 billion euros allegedly booked in escrow accounts could not be found. The share price then plummeted – from just under 100 euros to less than one euro. Aggrieved investors therefore sued the supervisory authority, arguing that it had failed to prevent Wirecard’s market manipulations and had not sufficiently informed the public. According to the “Handelsblatt”, there are almost 500 cases pending before the 1st Civil Senate of the Higher Regional Court of Frankfurt from investors who are claiming damages from the financial supervisory authority. In the case in question, a shareholder lost almost 40,000 euros.

No abuse of office
According to the Higher Regional Court, the plaintiff had “not presented any tangible evidence for the assumption” that Bafin should have commissioned a special audit at Wirecard at an earlier point in time. Ultimately, it was “not ascertainable that the plaintiff’s damage would not have occurred in the event of an earlier intervention (…)”, the business newspaper quotes the Frankfurt Higher Regional Court. A claim for damages due to alleged abuse of authority was also ruled out. The fact that Bafin employees held shares in Wirecard was “not immoral”. In dismissing the action, the OLG confirmed a decision by the Frankfurt Regional Court. (jb)