OLG Celle; 2021-01-29; 9 U 66/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGCE:2021:0129.9U66.20.00
Date: 2021-01-29
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE0129(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter ‘the plaintiff’) sought a refund concerning two profit participation rights which he acquired in relation to an Austrian joint-stock company who was a legal predecessor of a private limited company from the United Kingdom (hereinafter ‘the defendant’).
The Landgericht Verden (hereinafter ‘the Court of First Instance’) upheld the action. The participation of the plaintiff in Fund 1 had been properly terminated by a notice. Regarding the participation of the plaintiff in Fund 2, German law was applicable due to an ineffective provision regarding the choice of law contained in the terms and conditions relating to the profit participation rights. As the plaintiff’s profit participation rights ceased to exist after the cross-border transformation of the legal predecessor of the defendant to the defendant, the extraordinary notice of termination had been justified.
The appeal filed by the defendant with the Oberlandesgericht Celle (hereinafter ‘the Court of Appeal’) was not successful.
Contrary to the opinion of the defendant, the Court of Appeal found the Court of First Instance to hold international jurisdiction regarding the action filed by the plaintiff.
The Court of Appeal stated that the jurisdiction over consumer contracts under Article 17(1)(c) and Article 18(1) of the Brussels I Regulation (recast) (1) could not be forfeited due to a merger carried out at a later point.
The legal predecessor of the defendant was obliged to preserve the existence of the profit participation rights. Upon the transformation, the profit participation rights could only have been affected in line with the contract if the entitled parties received equivalent rights regarding the new legal entity. This was however not the case in this dispute. The B shares which the defendant allegedly offered to the plaintiff after the merger had not been specified at all within the presentation of facts. Therefore, it was impossible for the Court of Appeal to clarify whether the B shares presented equivalent rights regarding the capital of the defendant when compared to the profit participation rights regarding the legal predecessor of the defendant.
The Court of Appeal dismissed the appeal of the defendant against the decision of the Court of First Instance.
(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.