In its judgement of 21 April 2026 (XI ZR 232/23), the Federal Court of Justice (BGH) has upheld its established case law dating back to 2008: the provisions of the Money Laundering Act are not protective laws within the meaning of Section 823(2) of the German Civil Code (BGB). Victims of fraud therefore cannot derive a tortious claim for damages against banks or other obligated parties arising from breaches of obligations under the Money Laundering Act.
What was the case about?
An importing company entered into a contract for the supply of nitrile gloves and engaged a Hamburg-based tax consultancy firm as a trustee to handle the payment. Even before the final trust agreement had been signed, the company transferred €1,000,000 to the designated trust account. On the seller’s instructions, the trustee subsequently transferred the amount to an account held by a foreign company, in accordance with those instructions. The delivery failed, the money remained untraceable, and insolvency proceedings were later opened against the seller’s assets.
How does the Federal Court of Justice (BGH) justify its finding that the provisions of the Money Laundering Act (GWG) cannot give grounds for third-party claims for damages?
The decision is embedded within an assessment of claims under Section 10 of the German Banking Act (ZAG). However, what is important – and of particular significance for the banking sector – is that the Federal Court of Justice (BGH) upheld its case law from 2008 and unequivocally clarified that Sections 10 et seq. and 43 of the German Money Laundering Act (GWG) are not protective laws within the meaning of Section 823(2) of the German Civil Code (BGB). Although the BGH had already ruled on this in its judgement of 6 May 2008 (XI ZR 56/07), this decision had repeatedly been called into question due to various legislative amendments. The BGH has now put a definitive stop to such attempts.
The BGH provides a consistent rationale for its decision: the amendments made to the GWG after 2002 do not indicate that the identification and reporting obligations are also intended to protect the financial interests of individual customers. The GWG protects only the financial system as such, but not individual interests.
In this regard, the Senate analyses the entire legislative history: the 2008 Act Supplementing the Measures to Combat Money Laundering and the Financing of Terrorism extended the anti-money laundering instruments to cover the financing of terrorism and differentiated the due diligence obligations in accordance with the risk-based approach – without any indication that the protection of individual victims was intended. In the implementation of the Fourth EU Anti-Money Laundering Directive in 2017, the explanatory memorandum to the Act expressly states: “The Act aims to strengthen supervision in the area of combating money laundering and terrorist financing. Beyond that, it has no consumer-specific implications.”
Nor does the underlying EU Anti-Money Laundering Directive (EU) 2015/849 suggest otherwise: its provisions are preventive in nature and aim to combat money laundering and terrorist financing in order to prevent flows of illicit funds from damaging the integrity, stability and reputation of the financial sector. The Directive contains no provisions on civil law consequences such as claims for damages by contracting parties – nor are such legal consequences mentioned in Recital 59 of the Directive. The Federal Court of Justice (BGH) considered it unnecessary to refer the matter to the European Court of Justice (ECJ).
Why is this decision important?
The decision is important for banks and other entities subject to anti-money laundering obligations because victims – for example, following investment or transfer fraud – may seek compensation from banks and other entities subject to the Money Laundering Act for financial losses suffered. The argument put forward is that the bank could and should have prevented the loss had it carried out customer identification or transaction monitoring in accordance with its obligations. With this decision, the BGH draws a clear line under an argument put forward by many claimants – one that had in fact already been clarified in case law and legal literature – that the bank must be held liable as a last resort. The Money Laundering Act protects the financial system as such – but not individual interests. European law does not alter this either. For banks and other entities subject to the Money Laundering Act, this means that the risks associated with breaches of the Act’s obligations remain relevant under supervisory law; civil claims for damages by third parties, however, are ruled out.
For further information, please contact:
Dr. Jonas Baier LL.M., Partner, Bird & Bird
jonas.baier@twobirds.com
