OLG Köln; 2021-12-07; 4 U 107/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGK:2021:1207.4U107.20.00
Date: 2021-12-07
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82021DE1207(51)_ENG_SUMJURE
JURE summary
JURE summary
A private individual (hereinafter ‘the plaintiff’) brought an action seeking an adjustment of its settlement balance following the termination of an atypical silent partnership by a company domiciled in the United Kingdom (hereinafter ‘the defendant’).
The plaintiff and her husband participated in a company (hereinafter ‘company’) pursuant to a contract for the establishment of an atypical silent partnership. The defendant merged with the company as a successor company and informed the plaintiff and her husband that their silent partnerships had been converted into shares (hereinafter ‘B shares’). However, they terminated their participation and demanded payment of their settlement balance based on the nominal value of their participations as of 31 December 2018. The defendant refused to pay because it held that the plaintiff had received ‘B shares’ as a result of the merger, which were to be regarded as a equivalent replacement.
The Landgericht Aachen (hereinafter ‘the Court of First Instance’), seized pursuant to Article 18(1)(2) of the Brussels I Regulation (recast) (1), dismissed the claim. It argued that the merger had led to the merger of the atypical silent partnership and that the plaintiff no longer had any claims to payment of the settlement balance. The ‘B shares’ which the plaintiff received are to be regarded as economically equivalent replacement. Furthermore, termination of the silent partnership after the merger is excluded because the UmwG (2) takes precedence. The Regional Court also confirmed its international jurisdiction based on the consumer jurisdiction pursuant to Article 18 of the Brussels I Regulation (recast), since the plaintiff and her husband had acted as consumers.
Following the plaintiff’s appeal, the Oberlandesgericht Köln (hereinafter ‘the Court of Appeal’) partially amended the judgment of the Court of First Instance and ruled in favour of the plaintiff. It awarded her an amount of EUR 6 610.32 plus interest. The Court of Appeal found that the extraordinary termination of the silent partnership in March 2019 was effective despite the merger of the company with the defendant. The termination was justified because the plaintiff was not sufficiently informed about the merger and was not granted economically equivalent rights within the meaning of Article 23 of the UmwG. The ‘B shares’ which were offered to her did not meet the requirements of an equivalent replacement, as they did not grant the plaintiff any information, control or participation rights and also lost economic value due to the at the time impending Brexit. This significantly impeded her rights.
(1) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 regarding jurisdiction and the recognition and enforcement of judgements in civil and commercial cases (recast).
(2) Umwandlungsgesetz (German Reorganization Act).