The law firm Leipold has commissioned an expert opinion on the liability of BaFin. The result shows that the Bafin and the FRG are liable.
According to an expert opinion by Prof. Dr. Matthias Lehmann from the University of Bonn, which was commissioned by the Leipold law firm, investors who acquired Wirecard AG shares between the enactment of the short sale ban on February 18, 2019 and the publication of Wirecard AG's ad hoc announcement on June 22, 2020 , Claims for the damage suffered, both from the national official liability claim and from the Union law state liability claim.


As an institution under public law, BaFin is liable for breaches of duty. The FRG is passively legitimized for breaches of duty by the DPR.
Section 4 (4) FinDAG does not preclude such liability. The standard does not apply to the Union law
State liability claim as well as for breaches of official duty on the part of the FREP. Union law also requires a restrictive interpretation, particularly in light of the more recent case law of the ECJ. Furthermore, the standard does not apply to cases of abuse of office.


BaFin is accused of various breaches of duty in connection with the supervision of Wirecard AG. First is the rejection
BaFin's classification of Wirecard AG as a financial holding company is at least doubtful. Second, BaFin checked the company financial statements and reports of Wirecard AG incorrectly and inadequately and thereby violated its obligations. Thirdly, contrary to its obligation under Section 6 (2) sentence 3 of the WpHG, BaFin failed to warn investors publicly. Such a warning should have been issued, in particular because of the unlawful short sale ban previously issued by BaFin.

The FREP has also committed a breach of duty by improperly carrying out the audit of Wirecard AG's corporate financial statements. The FREP was not sufficiently staffed for the audit and nevertheless failed to call in vicarious agents. In addition, there are considerable conflicts of interest that indicate a general unsuitability of the FREP.

 

The report underlines once again the legal opinion of lawyer and specialist lawyer for banking and capital markets law Michael Leipold. Right at the start of the Wirecard scandal in June 2020, he had already pointed out that BaFin was to be held liable.

 

"This gives the injured Wirecard AG investors a chance to have their damage reimbursed." so lawyer and specialist lawyer for banking and capital markets law Michael Leipold.
 

With offices in Hamburg and Bavaria, the law firm has been successfully active in the banking and capital market law sector since 2003 and currently represents around 450 investors who have suffered damage to Wirecard AG.