OLG Zweibrücken; 2023-05-11; 8 U 161/21
Decision by national courts in the field of European Union law — ECLI:DE:POLGZWE:2023:0509.8U161.21.00
Date: 2023-05-11
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0511(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff filed an action against a corporation existing under the law of the United Kingdom (hereinafter ‘the defendant’) seeking the repayment of profit participation certificates that he acquired in 2006 and 2007 in the Austrian company TL Investments AG, which was later converted into a GmbH type of company with an otherwise identical company name. These participation certificates were later transferred to the defendant through a merger of the GmbH.
The plaintiff terminated the investment as of 31 December 2018, which was also the key date for the merger, and demanded the repayment of his investment amount of EUR 23 495.35. He claimed that the actions of the defendant and the forced conversion of the profit participation certificates into shares had destroyed the relationship of trust, thus justifying the termination. He claimed that he was entitled to the arithmetical value of his investments as stated in the defendant’s letter, as the defendant had forced him to choose between a supposed total loss or a dubious conversion of the certificates into shares.
The Landgericht Zweibrücken (hereinafter ‘the Court of First Instance’), as the court seised under Article 17(1)(c) and Article 18 of the Brussels I Regulation (recast) (1), upheld the action, stating that the plaintiff was entitled to the repayment in accordance with the terms and conditions of the profit participation certificates due to the properly made termination, as the termination was announced prior to the confirmation of the merger by the defendant. The repayment was independent of the conversion of the profit participation certificates into shares, as the conversion did not affect the rights acquired by the plaintiff as a result of the termination. Furthermore, the defendant had not provided sufficient evidence that the value of the participation certificates had fallen to zero due to losses.
In the appellate proceedings, the defendant argued that the profit participation rights had lapsed as a result of the conversion into shares and that no repayment obligation could exist anymore. The defendant maintained and extended their view presented in the proceedings at first instance that the plaintiff’s extraordinary termination was unfounded as there were no important reasons therefor, and that the plaintiff was no longer a consumer within the meaning of the Brussels I Regulation (recast) due to the said conversion, and that for that reason, the German courts did not hold any international jurisdiction.
The Oberlandesgericht Zweibrücken (hereinafter ‘the Court of Appeal’) dismissed the appeal of the defendant, stating that the plaintiff was entitled to the repayment of the nominal amount of his investment due to the effective termination. The withdrawal of the ordinary termination by the plaintiff in February 2019 was ineffective, as the legal consequences of the termination had already occurred on 31 December 2018 and the plaintiff’s participation certificates had therefore not been the subject of the conversion into shares. The defendant did not provide any substantiated evidence of the alleged losses that would have reduced the nominal amount of the participation certificates. The plaintiff was therefore not obliged to accept losses that could have been deducted from the repayment amount under the terms of the profit participation rights.
The Court of Appeal dismissed the defendant’s appeal and amended the judgment of the Court of First Instance to correct the amount in dispute and the interest.
(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.