OLG Köln; 2023-03-02; 18 U 188/21
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2023:0302.18U188.21.00
Date: 2023-03-02
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0302(52)_ENG_SUMJURE
JURE summary
JURE summary
A private individual residing in Germany (hereinafter ‘the plaintiff’) asserted a claim against a limited liability company based in the United Kingdom (hereinafter ‘the defendant’) for repayment of the capital contribution made and for reimbursement of extrajudicial legal fees.
The plaintiff subscribed to a participation right in the assets of a stock corporation domiciled in Vienna. The plaintiff later declared its consent to the revision of the terms and conditions of the profit participation rights and the change of issuer to another stock corporation with its registered office in Vienna, with which the defendant merged as legal successor. The cancellation of the plaintiff's participation in the profit participation rights was confirmed by the defendant's legal predecessor.
The defendant criticised the lack of international jurisdiction of German courts. The exclusive place of jurisdiction is claimed to be Austria.
The Landgericht Aachen (hereinafter 'the Court of First Instance'), seised pursuant to Article 17(1)(c) of the Brussels I Regulation (recast) (1), upheld the claim for repayment of the contribution and dismissed the remainder of the action. It was a private deposit and the plaintiff was a consumer. The defendant, who was burdened with the burden of presentation and proof, had not provided sufficiently substantiated evidence of a loss participation and therefore the investment should be repaid in full. However, the plaintiff is not entitled to reimbursement of the extrajudicial legal fees.
Both parties appealed against the judgement of the Court of First Instance to the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’).
The Court of First Instance rightly affirmed its international jurisdiction as a consumer court: The defendant's legal predecessor also focussed its activities on Germany and the plaintiff acted as a private investor. This is not precluded by a jurisdiction agreement contained in the terms and conditions for profit participation rights, as this only offers the holder of profit participation rights an additional place of jurisdiction in Austria.
The plaintiff is entitled to payment of the profit participation rights less any share of losses. As the legal successor to the issuer, the defendant bore a secondary burden of proof regarding the plaintiff's assertion that there was no reduction in the claimed nominal amount due to a loss share. The defendant did not fulfil this obligation.
In accordance with the provision of the decisive Austrian law, Article 1333(2) of the ABGB (2), the plaintiff is entitled to the necessary costs of the extrajudicial debt collection and recovery measures in reasonable proportion to the claim pursued.
The Court of Appeal partially amended the judgement of the Court of First Instance and awarded the plaintiff the extrajudicial costs.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
(2) Allgemeines Bürgerliches Gesetzbuch (General Civil Code).