At the end of last week things really got going.
As the Frankfurt district court reported on request, 100 lawsuits from Wirecard investors were filed against the Bafin within one day, and another 500 have been announced.
And it probably won't stay that way.
In November, District Court President Wilhelm Wolf spoke of the fact that the court was initially expecting 1,500 lawsuits, with cost commitments from legal protection insurers for a further 20,000.
The plaintiffs are demanding damages from the financial supervisory authority: they argue that the Bafin did not control Wirecard sufficiently, did not take indications of violations of the law seriously enough and thus did not prevent the manipulation.
And further: You have not informed the public, at least not sufficiently.
Hundreds of angry investors are concerned and are now trying to
Anna Sophia Lang
Editor in the Rhein-Main-Zeitung.
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For the district court, this means that another wave of class action lawsuits is imminent, which will push the company beyond its breaking point.
The problem is similar to other mass proceedings, such as the diesel scandal: Each individual complaint must be examined carefully, even if the text, some of which is several hundred pages long, is almost word for word and most of it comes from a law firm that is trying to attract Wirecard investors online – just like the Bafin is always represented by the same law firm.
A file is created for each procedure, it is terminated, negotiated, negotiated.
This not only creates an enormous amount of work for the civil chambers, but also for the offices.
Court changed its business regulation
The court reacted to the impending wave last year: it changed its rules of procedure with regard to the Bafin lawsuits by decision.
They are thus spread across all civil chambers and not only remain with the Treasury Chamber, which is responsible for official liability claims.
According to the court, the mass could not be lifted otherwise.
At the same time, however, synergies are also lost if each individual chamber has to familiarize itself.
Even if it cannot be ruled out that a chamber will at some point have a different view of the subject: So far, the regional court has denied investor claims against the Bafin in all decisions.
The reason for this - and for the fact that the civil courts are responsible for the lawsuits at all - lies in the Financial Services Act, according to which the BaFin "only exercises its tasks and powers in the public interest".
And in paragraph 839 of the Civil Code: "If a civil servant intentionally or negligently violates the official duty incumbent on him towards a third party, he must compensate the third party for the resulting damage.
If the official is only charged with negligence, he can only be held liable if the injured person is not able to obtain compensation in any other way law does not act in the interests of third parties, here the individual interests of the individual investors,
they also have no claim for damages.
The Bafin has therefore not violated any existing official duty towards a third party.
With reference to the case law of the highest court, the judges wrote in their judgment that individual investors would be protected by the banking supervisory authority "only indirectly as a reflexive effect".
Acted negligently but not intentionally
And what about the fact that Bafin employees had traded in Wirecard shares?
The judgments state that in 2019 41 employees made 137 private transactions of this type, and in 2020 56 employees made 196 transactions.
The judges write that an abuse of office requires particularly reprehensible behavior that is “supported by irrelevant, purely personal motives”.
"The mere fact that employees of the defendant owned shares in Wirecard AG and traded with them cannot justify immoral behavior.
In addition, it is not apparent that these employees (. . .) did not participate in the decline in the value of the shares."
The last point made by the judges related to the assessment that the Bafin acted only negligently and not intentionally.
From this follows the conclusion: the investors can only make use of the institution if they could not get a replacement elsewhere.
So you should have first claimed damages elsewhere, for example from the members of the Wirecard board.
That's not impossible, not even in the case of Jan Marsalek, according to the district court.
There is the possibility of a so-called public service of the complaint if the defendant cannot be found.
In any case, the plaintiffs did not state that he or the former CEO Markus Braun, who is in custody, no longer owns any assets in Germany.
When asked, the Munich I Regional Court confirmed that a default judgment had recently been issued in which a plaintiff was awarded damages of EUR 250,000 to Braun.
It is assumed, however, that an appeal would be filed against this.
A spokeswoman said there are still a number of main proceedings regarding claims against Braun.
Another court in Munich, this time the Higher Regional Court (OLG), already commented on a question in mid-December that the Frankfurt judges also mention in their judgments.
Namely the possibility of holding the auditors accountable.
The 8th civil senate reprimanded the district court in clear terms for dismissing claims by investors against EY without taking evidence - and set dates for oral hearings in some appeals.