DThe official liability suit, which the Frankfurt Regional Court received on Thursday evening and is directed against the financial supervisory authority Bafin, is tough. In the lawsuit filed by the Tilp law firm, the F.A.Z. In excerpts: “You would have had to simply investigate instead of making yourself a stirrup holder for fraudsters.” The head of the agency, Felix Hufeld, claims that the lawyers believe that the supervision was not effective enough to prevent the debacle. “The Bafin could have done something against Wirecard – and she should have done something,” says the lawsuit.
The law firm accuses financial supervisors of carelessly violating legal obligations to clarify market manipulations at Wirecard and of unilaterally informing the public and capital markets. “In our opinion, the Bafin has for years grossly disregarded its legal duties and powers to conduct its own investigations against Wirecard AG due to market manipulation and acted unilaterally against journalists and short sellers, even though it was well aware of the public reporting about massive irregularities at Wirecard AG,” says Andreas Tilp, the firm’s name partner. Accordingly, the balance sheet fraud could have been exposed on February 15, 2019.
At that time, Bafin had the Wirecard half-yearly financial report examined for possible violations. From Tilp’s point of view, the supervisory authority, i.e. indirectly the state, must be liable for business with Wirecard papers that took place from February 18, 2019. In addition, the law firm applied to initiate a model investor proceeding against Bafin before the Frankfurt Higher Regional Court.
The defendant tax authority does not want to agree with the legal view. In a statement, it was said that all the information that had been received was dutifully followed up. Official liability claims by investors or customers against Bafin are legally excluded – because tasks and powers are performed “only in the public interest”. A spokeswoman for the agency also writes that it is not possible to initiate a model procedure. Tilp counters that the defendant cannot rely on a liability privilege if there is an abuse of office. Regarding the model claim, which at first glance is unusual, the law firm refers to the wording of the law: it speaks of civil disputes. In Tilp’s view, this is the case with the official liability claim.
In mid-May, the law firm filed the first German investor lawsuit against the payment processor before the Munich I Regional Court. In the meantime, the demands have been extended to the auditors of EY and the former management board of Wirecard (file number 3 O 5875/20). No decision has yet been taken on a possible model procedure in which investors could have exchange rate losses determined. According to the law firm, 30,000 investors were registered in a database at the end of June, and since then the number has jumped.