OLG Hamm; 2023-02-15; I-8 U 41/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGHAM:2023:0215.8U41.22.00
Date: 2023-02-15
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82023DE0215(51)_ENG_SUMJURE
JURE summary
JURE summary
A limited partnership with its registered office in Germany (hereinafter ‘plaintiff 1’) and the managing director of a general partner of plaintiff 1 (hereinafter ‘plaintiff 2’) applied for a declaratory judgment that none of the three heirs - two sons and the wife (hereinafter ‘the defendants’) - of an Austrian citizen - a deceased limited partner of plaintiff 1 (hereinafter ‘the deceased limited partner’) - had become a limited partner of plaintiff 1.
In a handwritten disposition to the partnership agreement of plaintiff 1, only a copy of which is available and the original cannot be found, the deceased limited partner divided his limited partner shares among the defendants. The order was also signed by plaintiff 2 as a witness. Neither plaintiff 2 nor the other shareholders received the original or a copy of the ruling. Based on this order, the defendant's lawyer demanded that changes be made to the ownership structure of plaintiff 1. It was claimed that there is succession by operation of law. The plaintiffs' claim is directed against this.
The Landgericht Bielefeld (hereinafter ‘the Court of First Instance’) ruled in favour of the plaintiffs. The defendants had not become successors in the limited partner share of the deceased limited partner. A distinction must be made between the law of succession and the company law. The inheritance statute determines who inherits what share. The company statutes, on the other hand, regulate the question of whether the shareholder position is inheritable. Several requirements for an inheritance of the limited partner's share in accordance with the partnership agreement, including the correct notification of the disposition to all partners within a period of four weeks, were not met. There is no disposition pursuant to Article 15(3) of the articles of association. The heirs of the deceased limited partner are entitled to a payout. A succession based on the operation of law is excluded.
The defendant's appeal to the Oberlandesgericht Hamm (hereinafter ‘the Court of Appeal’) is unfounded.
Contrary to the defendants' view, the case is excluded from the scope of Regulation (EU) No 650/2012 (1) within the meaning of Article 1(2)(h) thereof. This is a question of company law and the decisive factor is the interpretation of the correct clause in the articles of association regarding the fate of the shares of deceased shareholders. The Court of First Instance rightly upheld the plaintiffs' claim. The deceased limited partner did not issue a disposition in accordance with the requirements of Article 16(2) or (3) of the partnership agreement. His shares are, therefore, not transferred to the defendants, who are only entitled to payment.
The Court of Appeal dismissed the defendant's appeal against the judgment of the Court of First Instance.
(1) Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.