As is well known, brokering subordinated loans via crowdfunding platforms under certain conditions (Section 2a VermAnlG) requires only a key information sheet (VIB) rather than a full prospectus. The liability of issuers for inaccuracies in the prospectus or VIB is specifically regulated under Sections 20–22 of the VermAnlG. A ruling by the Ravensburg Regional Court on February 7, 2025, addressed the liability of the platform operator. The operator was sued by an investor who had provided subordinated loans for real estate projects via the platform. The investor claimed they had not been sufficiently informed about the consequences of the subordination clause and demanded a refund of the loan amounts in exchange for the assignment of the resulting rights.

The Ravensburg Regional Court ruled in the investor's favor, affirming a contractual claim for damages due to a culpable breach of an investment brokerage agreement. The court held that merely pointing out the risk of "total loss" and the "issuer's default risk" was insufficient. Instead, the investor should have been informed that the qualified subordination clause significantly increases the risk of total loss even before insolvency occurs. Furthermore, the court noted that the investor should have been warned that the loan was subject to the same risks as an equity investment. It also stated that the specified term was nothing more than a statement of intent, as the actual repayment date remained completely open.

The Ravensburg Regional Court apparently only assumed the existence of an investment brokerage agreement with corresponding disclosure obligations because the platform had identified itself as an investment broker in the preamble of the loan agreements. The court also attributed the content of the VIB to the platform operator. While platform operators are generally not liable for third-party content under Section 7 of the German Telemedia Act (TMG) in conjunction with Articles 4–6 of the Digital Services Act (Regulation (EU) 2022/2065), this ruling should serve as sufficient reason for issuers to clearly highlight the significance of qualified subordination and its specific risks.

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Wolfgang Weitnauer, Partner

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