Breuer interview

from Wikipedia, the free encyclopedia

Under the slogan Breuer interview refers to the statements in an interview of the then Spokesman of Deutsche Bank , Rolf Breuer , in February 2002 on the financial situation of the Kirch group . The interview cost Deutsche Bank almost a billion euros and led to criminal proceedings against former and current board members of the institute.

The interview

On the fringes of the World Economic Forum held in New York in 2002 on February 3, 2002, Breuer granted Bloomberg TV an interview on the Kirch Group's financial situation, which was broadcast in Germany a day later and distributed as a text message . When asked about Deutsche Bank's credit exposure , Breuer first explained that the bank's claims were “in the middle range” and “fully secured by a lien on Kirch's shares in Springer-Verlag ”. Nothing could actually happen to the bank. When asked whether they would help Kirch to continue, he replied:

“I think that's relatively questionable. All you can read and hear about it is that the financial sector is not ready to provide further external or even own funds on an unchanged basis . So it can only be third parties who may be interested in, as you said, support. "

At the beginning of April 2002, KirchMedia GmbH & Co. KGaA (KirchMedia) filed for insolvency . In June 2002 insolvency proceedings were opened against the assets of several companies belonging to the Kirch Group, including PrintBeteiligungs GmbH . Leo Kirch , partner in the group, made Breuer's statement responsible for the bankruptcy. He is quoted with the sentence:

"Rolf shot me."

The legal dispute

Kirch sued both Deutsche Bank (defendant 1) and Breuer personally (defendant 2) for damages. Kirch was represented by the law firm of Peter Gauweiler . After Kirch's death in 2011, the dispute was continued by Kirch's heirs.

Civil law disputes

dish Plaintiff Defendant judgment Reference Result
District Court Munich I Leo Kirch Deutsche Bank, Breuer Judgment of February 18, 2003 - Az. 33 O 8439/02 NJW 2003, 1046 The action upheld
Higher Regional Court of Munich Leo Kirch Deutsche Bank, Breuer Judgment of December 10, 2003 - Az. 21 U 2392/03 World Cup 2004, 74 Deutsche Bank's appeal dismissed, suit against Breuer dismissed
Federal Court of Justice Leo Kirch Deutsche Bank, Breuer Judgment of January 24, 2006 - Az.XI ZR 384/03 BGHZ 166.84 Defendant's obligation to pay damages to PrintBeteiligungs GmbH was established. Otherwise dismissal.
District Court Munich I Leo Kirch Deutsche Bank, Breuer Judgment of February 22, 2011 - Az. 33 O 9550/07 Dismissal
District Court Munich I Kirch Group Litigation Pool Deutsche Bank, Breuer Judgment of March 31, 2009 - Az. 33 O 25598/05 Dismissal
Higher Regional Court of Munich Kirch Group Litigation Pool Deutsche Bank, Breuer December 14, 2012 - Ref. 5 U 2472/09 World Cup 2013, 795 Partial victory of the applicant.

The Kirch Group had large debts with various banks. Deutsche Bank had a credit claim against PrintBeteiligungs GmbH (Print), a subsidiary of TaurusHolding GmbH & Co. KG, (Taurus) in the amount of € 1.4 billion. Deutsche Bank had no business relationships with Kirch personally or with Taurus.

The first process up to the 2006 BGH ruling

Kirch's lawsuit, in its own and assigned rights of Taurus and Print, aimed to establish that the defendants were obliged to compensate the plaintiff for any financial loss caused by the interview. The Federal Court of Justice only upheld the claim based on the assigned right of print. For the judgment, the probability that the utterance had caused damage was sufficient; whether and in what amount was still open. 2/3 of the costs were imposed on the plaintiff Kirch and 1/6 each on the defendants Deutsche Bank and Rolf Breuer.

Basis for claims against Deutsche Bank:
1. § 280 BGB in connection with positive breach of contract ( § 241 BGB): breach of the duty to safeguard interests, protect and loyalty resulting from the loan agreement . The bank must accept Breuer's statement in accordance with § 31 BGB can be attributed. The BGH explains:

“The obligation includes, among other things, not to endanger the creditworthiness of the borrower through assertions of fact, even if they are true, or through value judgments or expressions of opinion. The second defendant did this, however, through his answer to the last of the interview questions asked by the television journalist, 'whether one can help him (Kirch) more to keep going'. The first sentence of the answer, 'I think that is relatively questionable', contains a skeptical assessment of the second defendant regarding the future approval of additional funds for companies in the Kirch Group. This assessment had special weight due to the fact that the second defendant, as the spokesman for the first defendant at the time, was able to participate in the decision on the approval of further loans for companies of the Kirch group. This became through the second sentence of the answer of the defendant to 2), 'what you can read and hear about it, is that the financial sector is not ready to provide further outside or even own funds on an unchanged basis', still increased considerably. As the largest German bank, Defendant 1 also belongs to the financial sector. A knowledgeable viewer or reader of the interview, who was also aware of the position of Defendant 2) as a board spokesman at the time, had to understand his skeptical assessment of the financial sector's willingness to borrow, as the appellate court rightly stated, that neither the defendant would 1) Still other banks would provide the plaintiff and his group with additional loans on an unchanged basis. This also applies taking into account the fact that the second defendant, with the help of the word 'man' and the reference to media reports, tried to make his assessment appear as not based on his special knowledge as a board spokesman. The third sentence of the response of the defendant to 2), `` It can only be third parties who may be interested in - as you have said - support '', contains a confirmation of what has already been said by providing support for the plaintiff and his group, which was in a publicly discussed serious financial crisis a few days before the interview after Springer Verlag exercised the put option with a volume of € 767 million, was excluded by the banking sector. In view of his position as spokesman for the board of the largest German bank and his reputation, especially in the banking industry, these statements by the second defendant were suitable for the taking out of urgently needed additional loans by PrintBeteiligungs GmbH, but also by the plaintiff, TaurusHolding or other companies to complicate the Kirch group considerably. There was an obvious risk that other credit institutions or other financial backers would reject loan requests from the claimant or from companies in his group without an impartial examination after the statements made by the second defendant, because the first defendant was a particularly respected German bank despite theirs according to the assessment of the defendant to 2) good security of the granted loan was not prepared to grant further loans on an unchanged basis. The stated statements by Defendant 2) represent a violation of the obligation to safeguard interests, protect and loyalty resulting from the loan agreement with PrintBeteiligungs GmbH, which is attributable to Defendant 1) according to Section 31 of the German Civil Code. Defendant can defend its own legitimate interests 1) and the right to freedom of expression (Article 5, Paragraph 1, Sentence 1 of the Basic Law). This does not allow the breach of obligations that the defendant 1) has contractually assumed. "


2. Liability of Deutsche Bank for violation of the law in the established and operated business enterprise .
3. The BGH rejected claims by Kirch or Taurus against Deutsche Bank, as there were no contractual relationships between these parties and the conditions for a contract with protective effect in favor of third parties existed. In this context, the BGH refers to the principle of separation under group law.
4. The BGH also denied a claim for damages under Section 824 (1) BGB (credit risk ).
5. This also applies to a violation of Section 55a KWG (unauthorized use of information on loans worth millions).
6. The BGH also denied a violation of Section 823 (2) BGB i. V. with § 17 Abs. 1 UWG a. F.

The second process up to the judgment of the OLG Munich in 2012

KGL Pool GmbH (KGL probably stands for Kirch Group Litigation) combined the claims assigned to it by 17 different companies of the former Kirch Group and their insolvency administrators. She claimed that the individual companies had suffered damage as a result of the Breuer interview. This damage is said to have been partly due to the fact that various assets of these companies were sold for less than their value. On the other hand, the damage is said to have consisted in the sale of company shares itself. The sale of the shares in ProSiebenSat1 Media AG to the investors around Haim Saban is said to have been a significant loss. KGL Pool GmbH calculated a loss of around 2 billion euros, i.e. H. the result of the purchase price is said to have been too low by this amount. The action was accordingly aimed at reimbursement of this amount and the establishment of further liability for damages. To avoid the statute of limitations, the lawsuit was filed at the end of 2005 and could therefore not yet take into account the legal opinion of the Federal Court of Justice from the first Kirch judgment of January 24, 2006, and therefore contained many points that were obsolete according to the case law of the Federal Court of Justice.

The Regional Court of Munich I dismissed the action without taking any evidence. In response to the appeal, the Munich Higher Regional Court took evidence with around 40 witnesses over a period of about one year and nine months. The main question was whether Deutsche Bank AG was liable for negligence in contract negotiations and / or Breuer and Deutsche Bank AG for tortious claims. In the judgment of December 14, 2012, the Higher Regional Court did not see any fault in contract negotiations, but assumed tortious liability on the part of Breuer and Deutsche Bank AG under Section 823 (1) of the German Civil Code (violation of the established and exercised business operations) and in accordance with Section 826 of the German Civil Code. Furthermore, there should be contractual liability for breach of an auxiliary agreement in the course of the project to merge ProSiebenSat.1 AG with KirchMedie KGaA. As a result, an obligation to pay damages was rejected for many of the 17 assignors, but affirmed for some. The amount of the compensation for the sale of the shares in ProSiebenSat.1 AG was not determined; only a basic judgment was given here.

End the argument through comparison

After years of disputes, the legal dispute between the Kirch heirs and Deutsche Bank was ended by a settlement on February 20, 2014 . The bank then paid € 775 million plus interest, according to the manager magazine, a total of approx. € 925 million. In addition, there are costs for lawyers and third parties in the millions.

Recourse by Deutsche Bank against Breuer

The Supervisory Board of Deutsche Bank has decided to assert recourse claims against Breuer. The professional indemnity insurance Deutsche Bank recognized approximately. € 100 million; however, this sum was reduced by a deductible of 10% by the bank. In a settlement, Breuer undertook to pay € 3.2 million. With this payment approx. 3 ‰ of the material damage offset, the damage to the bank's reputation cannot be quantified.

Criminal proceedings

Defendant Josef Ackermann 2012

Advertisement Kirchs

On May 4th, 2002 Leo Kirch filed a criminal complaint against Rolf Breuer u. a. for violation of trade secrets.

Trial of attempted fraudulent proceedings

The Munich I public prosecutor's office has been investigating Josef Ackermann , Rolf Breuer, Jürgen Fitschen , the board member of Deutsche Bank Stephan Leithner and other people for attempted fraud before the Munich Higher Regional Court since 2011 . There were also searches and seizures.

The background to the investigation was the suspicion that Deutsche Bank had tried to obtain a mandate from Kirch to reorganize his group of companies, which was in difficulty. The background to this was an item on the agenda of the board meeting on January 29, 2002. Considerations from investment bankers at Deutsche Bank could have been part of this, as to how they could earn money as advisors from restructuring or breaking up the Kirch Group.

With a constitutional complaint , Ackermann wanted to prevent the Kirch heirs from using seized documents in civil proceedings. However, Ackermann suffered a defeat before the Federal Constitutional Court. The court did not accept the complaint for decision, as a spokesman said (Az. 2 BvR 2657/13). The associated application for an interim order was thus settled, the court said on request. According to media reports, the public prosecutor's office has given the heirs of media entrepreneur Leo Kirch access to documents.

In the course of the investigation, the public prosecutor's office also searched the offices of the Hengeler Mueller law firm , which Deutsche Bank had advised and represented until shortly before the Kirch settlement. On September 23, 2014, the Munich I public prosecutor's office announced that they had brought charges against Rolf Breuer, Josef Ackermann, Clemens Börsig , Jürgen Fitschen and the former board member Tessen von Heydebreck for attempted fraud in a particularly serious case. The investigations were started on the basis of a notification decision by the Munich Higher Regional Court on June 28, 2011, in which the Senate stated that it did not believe the statements of the witnesses concerned.

“After the investigation has been concluded, the prosecution assumes that the five accused cooperated in a collusive manner in order to deceive the Munich Higher Regional Court by providing false information and thus achieve a dismissal.

However, this did not succeed because the civil court did not follow the oral and written lectures and with a partial judgment of December 14, 2012, the complaint of the Kirch side was upheld on essential points. "

In the event of a final conviction, the punishment of a breach of duty of supervision (OWiG) by Deutsche Bank with a fine of up to € 1 million can also be considered.

The Munich Regional Court admitted charges against Fitschen, Breuer, Ackermann, Börsig and von Heydebreck. The trial began on April 28, 2015. In April 2016, all of the defendants were acquitted.

literature

  • Peter Derleder : The billion dollar grave . (On the judgment of the Munich Higher Regional Court of December 14, 2012.) NJW 2013, 1786–1789.
  • Clemens Höpfner , Maximilian Seibl: Loyalty duty under bank contracts and liability for statements that damage credit after the Kirch judgment. In: BB 2006, 673-679.

Individual evidence

  1. ^ Wording from the Hamburger Abendblatt. Retrieved on October 6, 2014
  2. ↑ Handelsblatt: Probably the most expensive television interview of all time. Retrieved October 6, 2014
  3. ↑ partly from own, partly from assigned right
  4. ↑ Joachim Jahn: The "Black Sheriff" resigns from all offices. FAZ from April 1, 2015, p. 15.
  5. ↑ Manager-Magazin: Deutsche Bank reaches an agreement with Kirch heirs.
  6. ^ FAZ Retrieved on March 2, 2015
  7. ↑ Breuer pays Deutsche Bank 3.2 million. Retrieved April 1, 2016.
  8. ↑ The fall of the church empire. Retrieved October 7, 2014
  9. ↑ Jürgen Fitschen Second preliminary investigation against Deutsche Bank boss. Retrieved October 10, 2014
  10. ^ Manager magazine: Public prosecutor is also investigating against Deutsche Bank board member Leithner.
  11. ↑ Der Spiegel 44/2014: Stress test in the Wagenburg.
  12. ^ Defeat for Ackermann in the church dispute. Retrieved October 30, 2014
  13. ^ Manager magazine: Raid on Deutsche Bank lawyers.
  14. ^ Public prosecutor's office brings charges against Deutsche Bank boss Fitschen. Retrieved October 29, 2014
  15. ↑ Press release of the Munich Public Prosecutor I dated September 23, 2014, accessed on October 10, 2014
  16. ^ Süddeutsche Zeitung: Munich judges allow charges against Fitschen. Retrieved March 2, 2015
  17. ↑ Deutschlandfunk broadcast background 27./28. April 2015
  18. ^ FAZ: First class acquittal. Retrieved April 26, 2016