OLG Köln; 2024-05-23; I-18 U 157/23, 18 U 157/23
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2024:0523.18U157.23.00
Date: 2024-05-23
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82024DE0523(51)_ENG_SUMJURE
JURE summary
JURE summary
The plaintiff brought an action against a London-based limited company (hereinafter ‘the defendant’) for repayment of her deposits regarding two profit participation rights and for payment of outstanding dividends plus interest. In 2006, it had subscribed to two participations in a Vienna-based public limited company for asset investments, which was later merged with various legal successors and finally with the defendant in 2018. The plaintiff terminated her participation on 31 December 2017 and demanded repayment of her paid-in amounts totalling EUR 13 289.10 plus additional dividends.
The plaintiff argued that the defendant, as the legal successor, was obliged to make the repayment. The plaintiff had made its contributions in accordance with the rules, the termination had been confirmed, and there was no reason to deduct a share of the loss. In addition, it was entitled to basic dividends, which had never been paid out.
The defendant objected that the action was inadmissible because German courts no longer had international jurisdiction after Brexit. It also argued that the claim was unfounded. According to the balance sheets, the value of the profit participation rights had fallen to EUR 0 on the reporting date because the loss participation had been fully realised. Furthermore, the claim was time-barred.
The Landgericht Köln (hereinafter ‘the Court of First Instance’) rejected the defendant’s objections and partially upheld the action. It affirmed the international jurisdiction of German courts under Articles 17 and 18 of the Brussels I Regulation (1) even after the United Kingdom’s withdrawal, as the case concerned a consumer matter. The place of jurisdiction agreed in the terms and conditions of the contract was invalid. In terms of the merits, the Court of First Instance awarded the plaintiff EUR 13 289.10 plus interest, but rejected the further claim for dividends. It clarified that Austrian law applied, according to which the plaintiff was in any case entitled to repayment of the nominal amounts paid in. The defendant failed to substantiate a loss deduction.
Both parties appealed against this ruling to the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’).
The Court of Appeal dismissed the defendant’s appeal. The jurisdiction for consumer matters under Article 6(1) in conjunction with Article 18 of the Brussels I Regulation remained applicable even after Brexit if, as in this case, proceedings became pending after 31 December 2020. Although the United Kingdom was a third country, the Brussels I Regulation remained applicable to the Member States. Neither the Withdrawal Agreement nor the Hague Convention on Choice of Court Agreements precluded this, as consumer matters were excluded from the material scope of this Convention. Nor was there an intra-company dispute within the meaning of Article 24 of the Brussels I Regulation.
The plaintiff was entitled to repayment of her deposits in the amount of EUR 13_289.10. The defendant did not satisfy its secondary burden of proof regarding the alleged full loss participation, so that its assertions were considered unproven. Contradictions in the balance sheets and investor information show that an actual loss of this amount was not plausible. The claim was also not time-barred, as Austrian law provides for a thirty-year limitation period.
On appeal by the plaintiff, the Court of Appeal amended the judgment of the Court of First Instance and ordered the defendant to pay a total of EUR 15 817.85 plus interest.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.