In 2003, the claimant had mandated the German broker to perform exchange-traded contracts for future delivery. The German broker's fee structure provided for extensive fees and profit participation, leaving virtually no room for earnings of the customer. After the claimant had transferred an investment of EUR6,000 to her account with the German broker, the German broker ordered numerous transactions by entering the orders and the respective brokerage in an online platform provided by the New Jersey broker where the transactions were performed fully automatically without any supervision by the New Jersey broker.

After the business relationship between the claimant and the German broker had ended, the claimant only received a payment of EUR205.01.

The BGH has ruled that the German broker had acted against public policy and that the New Jersey broker was liable for the damage caused based on its participation in the violation. The German broker's actions were deemed an intentional violation of public policy because they had not offered any chances for earnings from the outset. The court found that the New Jersey broker had not examined the German broker's business model but had provided him with access to its fully automated online system without any control measures and with the understanding that he would be able to use the system as he pleased.

The BGH has further held that the German broker's business model was aimed at exploiting the greediness and carelessness of uninformed and gullible investors, and that the New Jersey broker had participated in this model despite its business experience and its awareness of the high risk for misuse of forward option transactions by allowing the German broker to use its automatic online system to access the New York exchange without any supervision.

The court argued that the New Jersey broker had at least intentionally taken the chance of the German broker inducing its customers to enter into transactions involving exchange-traded contracts for future delivery that did not offer any chance for earnings from the outset. The court concluded from this behaviour that the New Jersey broker had taken into account that the customer might suffer damage. Because the New Jersey broker had intentionally ignored the pressing potential of a violation of public policy and ensuing damage to the German broker's customers, the court found it liable for the damage caused.

The German Government aims for an international consensus on steps to be taken as a result of the financial markets crisis and a sharing of the banks in covering future risks. In this context the intended levy to finance coverage of such risks has received most public attention. While it remains uncertain whether an international consensus can be achieved, the German government appears prepared to go it alone if necessary. The Cornerstones are the basis for a stand-alone German solution.

According to the German government the financial markets crisis has demonstrated that failure of system relevant banks can have an impact on the overall financial markets system. As a result of lessons learned from the crisis, it is intended to develop procedures which allow for self-administered restructuring or orderly proceedings for the liquidation of financial institutions. The aim is to avoid unstructured insolvencies (as in the case of Lehman Brothers) and to ensure that the "good part" of a bank in trouble can permanently survive and the financial system is not jeopardised.

In a market economy, primarily the shareholders and management are responsible for the restructuring of their enterprises. The new reorganisation proceedings would provide the framework for collective negotiations and avoid the blocking power of individual shareholders.

The levy that is intended to be imposed would ensure that the costs rescuing system relevant banks is not only borne by the taxpayers, but rather by the banks according to their systemic risk.

All German credit institutions would pay the levy. (The Cornerstones suggest that financial service institutions and EEA branches of foreign banks are outside the scope of the levy; however, the respective wording of the draft act has not yet been determined.)

Systemic risk would be determined by the amount of liabilities of a given credit institution and how it is linked with and integrated in the financial markets, as well as other relevant indicators.

These parameters would also determine the burden to be shared by foreign banks operating a subsidiary credit institution in Germany.

It is expected that the German Ministry of Finance will deliver further details in due course.

The intended levy is highly disputed and also gives rise to constitutional concerns. The levy is to be considered as a special levy with a financing function (Sonderabgabe mit Finanzierungsfunktion). Under German constitutional law, such levies are only permissible within certain quite narrow parameters:

Critics of the Cornerstones argue that: