Preliminary findings of BaFin on Adler Real Estate AG's balance sheets
As a result of various allegations against ADLER Group S.A. (Adler) as well as against ADLER Real Estate AG, Adler had initiated a special investigation in order to refute allegations made by shortsellers in the public, including allegations of incorrect balance sheets. To a large extent, this was not successful: the final report revealed deficiencies and Weisswert filed a first investor lawsuit.
The German Federal Financial Supervisory Authority (BaFin) had also initiated and recently even expanded its investigations.
BaFin has now (on August 1, 2022) published first results of its investigations. And these are alarming. BaFin has determined that the consolidated financial statements of ADLER Real Estate AG are incorrect. The result of the audit is not conclusive and only represents a finding with regard to one of the particularly controversial transactions at Adler Real Estate AG, namely the city of DĆ¼sseldorf “Glasmacherviertel”. Yet, BaFin’s findings are substantial.
According to BaFin, the “Glasmacherviertel” site, which is valued in the books at 375 million euros, is overvalued by at least 170 million euros to at most 233 million euros. Against the backdrop of BaFin’s findings, we see our assessment confirmed that the Adler Group has made significant accounting errors and has provided the capital market with incorrect information. In our firm opinion, investors can claim damages for breach of disclosure obligations. Adler Real Estate AG has stated that it will appeal BaFin’s decision.
Our opinion on the findings of BaFin in re Adler
BaFin’s decision represents a bitter defeat for Adler. While Adler has declared to appeal against the decision, we are firmly convinced that Adler will not succeed. BaFin is not known for public overenforcement, rather for the opposite (which is why BaFin has received criticism, especially due to its role and before the background of Wirecard, one of Germany’s largest corporate scandals). One must assume, also due to the significance of this action, that BaFin has examined its step carefully. BaFin’s assessment of the fair value, including a wide corridor, leads to the conclusion that the figures provided are valid.
The BaFin notice, dated August 1, 2022, reads as follows (courtesy translation provided by WEISSWERT):
August 1, 2022
ADLER Real Estate AG: BaFin finds accounting errors in valuation of Gerresheim site
The German Federal Financial Supervisory Authority (BaFin) has determined during its balance sheet control audit that the consolidated financial statements of ADLER Real Estate Aktiengesellschaft (AG), Berlin, as of the balance sheet date December 31, 2019, are erroneous. The “Glasmacherviertel” real estate project in DĆ¼sseldorf-Gerresheim was recognized at EUR 375 million and thus overvalued by at least EUR 170 million to a maximum of EUR 233 million. This is a partial error finding.
In valuing the Gerresheim site, ADLER Real Estate AG had incorrectly recognized a property value that was not representative of the price that could have been obtained for the sale in an orderly transaction between market participants as of December 31, 2019. As a result, the balance sheet item “Non-current assets held for sale” and the “Result from the valuation of investment properties” were overstated.
The identified overvaluation of at least 170 million euros corresponds to the difference between the book value of 375 million euros and the carrying amount as of June 30, 2019 (205 million euros). Compared with the original acquisition cost of 142 million euros, the overvaluation is no more than 233 million euros. Within this range, the correct fair value should have been determined (fair value as defined by International Financial Reporting Standards IFRS). The real estate value, which was implicitly agreed in the sales contract for the shares in the owner of the Gerresheim site and on which the valuation was based, did not represent a fair value. ADLER Real Estate AG assumed in the valuation that the Gerresheim site could be developed as planned, although the necessary permits had not yet been obtained. This was based on assumptions regarding possible uses that were not certain as of December 31, 2019. In addition, the sale agreement was not an orderly business transaction between any market participants.
The BaFin’s error finding is a so-called partial error finding, i.e. the audit of the accounting of the consolidated financial statements and the combined management report for fiscal year 2019 is still ongoing. The same applies to the audit of the 2020 and 2021 financial years. BaFin is making use of the option of a partial error finding for the first time. In this way, the capital market can already be informed of accounting errors during a balance sheet audit that is still ongoing.
BaFin had initiated the audit of ADLER Real Estate AG’s financial statements for the years 2019 and 2020 in August 2021 at the German Financial Reporting Enforcement Panel (FREP), which is still responsible until the end of 2021. Following the failure opinion of the auditor of the consolidated financial statements, BaFin also opened an audit for the 2021 consolidated financial statements and combined management report in June 2022.
ADLER Real Estate AG, which is domiciled and listed in Germany, is 96.72 percent owned by Luxembourg-based Adler Group S.A. The Commission de Surveillance du Secteur Financier (CSSF) is responsible for auditing the financial statements of the Luxembourg parent company.
About the Author
Maximilian Weiss
Maximilian Weiss is German attorney at law (Rechtsanwalt) and the managing director of the German investor law firm WEISSWERT. Max exclusively advises on banking and capital markets law as well as on financial market related antitrust law. His practice areas include, in particular, shareholder disputes, claims for misadvice and cases of investment fraud as well as asset tracing and asset recovery. Max is experienced in dealing with mass proceedings and instruments of collective redress.
His clients include both companies and individuals, in particular institutional investors, private investors and bank clients.
About the Author
Maximilian Weiss
Maximilian Weiss is German attorney at law (Rechtsanwalt) and the managing director of the German investor law firm WEISSWERT. Max exclusively advises on banking and capital markets law as well as on financial market related antitrust law. His practice areas include, in particular, shareholder disputes, claims for misadvice and cases of investment fraud as well as asset tracing and asset recovery. Max is experienced in dealing with mass proceedings and instruments of collective redress.
His clients include both companies and individuals, in particular institutional investors, private investors and bank clients.