OLG Brandenburg; 2022-12-29; 12 U 100/22
Decision by national courts in the field of European Union law — ECLI:DE:OLGBB:2022:1229.12U100.22.00
Date: 2022-12-29
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE1229(51)_ENG_SUMJURE
JURE summary
JURE summary
A private person domiciled in Germany (hereinafter ‘the plaintiff’) filed an action against a private limited company domiciled in the United Kingdom (hereinafter ‘the defendant’) demanding the payment of EUR 7 963.12.
Based on a merger, the defendant was the legal successor of a joint-stock company from which the plaintiff had acquired profit participation certificates to the above value. The plaintiff claimed that, following the merger, the defendant violated its contractual obligations under their participation certificate agreement when it failed to provide the plaintiff with rights equivalent to participation rights.
The defendant contested the international jurisdiction of the court seised, claiming that based on the cross-border nature of the merger, the plaintiff became a shareholder of the defendant and could therefore not file an action as a consumer.
The Landgericht Potsdam (hereinafter ‘the Court of First Instance’), as the court seised under Article 17(1)(c) of the Brussels I Regulation (recast), ordered the defendant to pay the disputed amount citing that the notice of termination was effective and established a right to be paid out 100 % of the nominal value of the participation certificates. The possibility of returning the participation certificates to the defendant, which was given to the owners of the participation shares, did not represent any financially reasonable option when compared to the notice of termination. Following a buyback, the investors would receive only a fraction of the value of their investment, which they could receive when giving a notice of termination of their participation certificate if the merger had not taken place.
The appeal lodged by the defendant with the Bandenburgisches Oberlandesgericht (hereinafter ‘the Court of Appeal’) was not successful.
The Court of Appeal stated that the plaintiff retained her consumer status after the merger which took place without her consent or any previous hearing. The dispute did not have the nature of an internal company dispute.
Under the applicable Austrian law, the defendant violated its contractual rights for failing to provide the plaintiff with rights equivalent to participation rights following the merger. The Court of First Instance was correct to state that the right to profit participation had been modified to the detriment of the investors as any distribution of dividends was at the sole discretion of the defendant and the previous right of investors to terminate their participation and be paid out the value of their nominal investment was limited solely to the possibility to buy back their shares for the amount of their nominal value.
The Court of Appeal intended to dismiss the appeal of the defendant against the decision of the Court of First Instance. The defendant was given the opportunity to send its statement within four weeks.
(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).