OLG Hamm (8th Civil Senate), judgement of 15 February 2023 - 8 U 41/22 - (interpretation of a provision in a partnership agreement on the transferability of limited partnership shares in an Austrian company inter vivos and upon death)

Chain of standards: BGB § 133, § 157, § 2084; EuErbVO Art. 1 para. 2 lit h), 4, 39

Guiding principles:

A dispute about the limited transferability and inheritability of shares in a partnership under company law falls under the exception in Art. 1 para. 2 lit. h) EU Succession Regulation, so that the scope of application of this Regulation does not apply.

The international jurisdiction for such legal disputes does not then arise from Art. 4 EU Succession Regulation.

If an inheritance decision under Austrian inheritance law contains statements about the legal succession to a limited partner's share in a German limited partnership, this is not binding for the limited partnership and its partners under Art. 39 of the EU Succession Regulation, at least if the scope of application of the Regulation has not been opened. In this case, recognition cannot be based on Art. 1 Para. 1 S. 1, 4, 7 of the Treaty between the Federal Republic of Germany and the Republic of Austria on the Mutual Recognition and Enforcement of Judgements, Settlements and Authentic Instruments in Civil and Commercial Matters of 6 June 1959.

On the interpretation of a provision in a partnership agreement on the transferability of limited partnership shares inter vivos and upon death.

Tenor:

The defendant's appeal against the judgement of the Regional Court of Bielefeld delivered on 6 April 2022 is dismissed.

Orders the defendants to pay the costs of the appeal proceedings.

The judgement is provisionally enforceable.

The defendants may avert enforcement by providing security in the amount of 110% of the amount enforceable on the basis of this judgement, unless the plaintiffs provide security in the amount of 110% of the amount to be enforced in each case prior to enforcement.

Reasons:

1 With their appeal against the judgement of the Regional Court of Bielefeld granting the claim, the defendants continue to pursue their first-instance motion to dismiss the claim. The parties are in dispute about the legal succession to the limited partner share of the limited partner of plaintiff 1) B A, who died on ... 2017 and was a citizen of Qatar.

2 Plaintiff 1) is a limited partnership registered in the commercial register of the Local Court of Bielefeld under HRA HRA01 with a limited partnership capital totalling € 1,102,500.00. The personally liable partner is D C Verwaltungs-GmbH, whose managing directors include the plaintiff 2). The limited partners of the plaintiff (1) are or were Ms E-F with a limited partnership investment of € 210,000.00, Mr B A (deceased on ...2017) with a limited partnership investment of € 157,500.00 (approx. 14.29%), Ms G with a limited partnership investment of € 52,500.00 and the plaintiff (2) with a limited partnership investment of € 682,500.00.

3 The partnership agreement dated 1 October 1999 (Annex K 2) states, inter alia:

„(...) § 8 - Right to information and control

1) Subsequent shareholders are entitled to the right to information and control provided for shareholders of a general partnership in § 118 HGB.

Mrs H Mr B A Mrs E-F Mr I E Mrs J

Otherwise, the limited partners' right of control is governed by § 166 HGB.

2) The successors of Mr B A and Mr I E are entitled to the right to information and control pursuant to § 118 HGB for the partners of a general partnership. However, they must transfer their voting rights to the general partner in accordance with Section 10 (2) (...).

16 - Withdrawal of a shareholder

1) The death of a shareholder does not dissolve the company.

2) Every limited partner with the right to information and control, which is provided for in Section 118 HGB for the partners of a general partnership, is authorised to dispose of his share by legal transactions inter vivos or by testamentary disposition as to who should take over his share in whole or in part. However, each new or modified share created by transfer must amount to at least 10% of the share capital. A reduction to 7½ % is possible if the transferee is an heir or legatee of Mr B A. Each limited partner with the right to information and control, which is provided for in Section 118 HGB for the partners of a general partnership, has the right to appoint up to four successors, although this may not be less than the aforementioned minimum capital share.

3) The limited partners with the right to information and control, which is provided for in § 118 HGB for the partners of a general partnership, are authorised to draw up a disposition of their company shares in writing, sign it personally and have it countersigned by a co-partner entitled to vote in accordance with § 10 point 2) as a witness or have it notarised. A copy of this disposition must then be sent to all shareholders by registered letter no later than four weeks after signing.

This disposition is part of the partnership agreement and can be replaced by a new one at any time if the previous disposition is declared invalid within this new disposition. In the event of the death of a partner authorised to dispose of shares, the general partner must notify the persons named in the disposition by registered letter within four weeks of the date of death.

4) Successors are defined as persons who are either heirs, legatees or other third parties who are named in the disposition of the individual partners authorised to dispose of the company as part of the partnership agreement. All successors generally join the company as limited partners if the time of succession is either the death of the disposing partner or the death of the disposing partner's spouse and the successor(s) accept(s) the shareholding.

Similarly, the successors join the company as limited partners at the time when the disposing partner or the spouse of the disposing partner with an interest in the company concludes an inter vivos legal transaction with the successor in relation to this partnership interest.

Each successor has the right, insofar as he is an heir/legatee, to declare in a legally binding manner within three months of becoming aware that he does not accept the shareholding but wishes it to be paid out. Successors who are not heirs/legatees, but who would have to realise the succession by legal transaction inter vivos with the heirs/legatees, must make a legally binding declaration to the company no later than three months after becoming aware of the succession as to whether they wish to join the company as shareholders. If such a declaration is not received by the company in good time or if a successor declares that he/she does not wish to join the company and no further provision is made in the disposition for such a case, the remaining shareholders shall have the right to take over the share in the company intended for the non-joining shareholder in proportion to their shares in the company and to pay out the heirs/legatees in accordance with § 13 point 4 a) to d). If a spouse is named as a successor within the disposition, a further disposition of the shares after the death of the spouse may be made within this disposition, which must be co-signed by the spouse concerned.

If a shareholder authorised to dispose dies and there is no disposition in accordance with § 15 point 3), his heirs/legatees shall be paid out in accordance with § 13 point 4 a) to d). If a shareholder makes a disposition contrary to the provisions of § 15 point 2), the disposition shall be invalid in these respects and his heirs/legatees shall also be paid out in accordance with § 13 point 4 a) to d). In both cases, the company shares can be taken over by the remaining shareholders in proportion to their shareholdings.

5) The company shall not continue the partnership relationship with the heirs of legatees of limited partners without a right to information and control, which is provided for in § 118 HGB for the partners of a general partnership. However, the partnership relationship shall be continued with those heirs of a spouse of a limited partner or a limited partner with a right of control who were designated in the disposition of the deceased limited partner with a right of control (...).

21 - Written form, place of jurisdiction Amendments to this contract must be made in writing. No verbal collateral agreements have been made. The place of jurisdiction for all disputes arising from this contract is the competent court in Bielefeld. (...)“

4 In 2006, the currencies were converted to euros, followed by a partial reduction in the capital contribution, which was entered in the commercial register in January 2007, and an increase in the capital contribution, which was entered in the commercial register in September 2007. The corresponding capital measures were jointly resolved by all shareholders and also jointly filed for entry in the commercial register. The shareholding situation in the company was then such that of the limited partnership capital of € 1,102,500.00, Mr B A held a limited partnership share of € 157,500.00, i.e. only € 14.29% of the limited partnership capital instead of the previous € 15%.

5 A handwritten „Order on the articles of association of K C GmbH & Co KG, L“ of B A dated 7 January 2017 (Annex K3), which is only available as a copy and cannot be found in the original, states:

6 In the event of my death, I dispose of my limited partnership interests of 15% as follows:

„1) My sons M and N A each receive 7.5%. M exercises the voting rights for both.

2) Should one of my sons die before me or at the same time as me, the surviving son will receive all 15% KG shares.

3) In the event of the death of both sons, my wife O A will receive the 15% KG shares. She will decide on the voting rights.

4) It is my intention that the shares go to the E-C family last, after the four of us.“

7 The order signed by B A in Vienna on 7 January 2017 was signed by plaintiff 2) on 27 January 2017 with the addition „As witness:“. The limited partner B A died on ... 2017. It is not certain whether an original signed by the plaintiff 2) still reached him by post. The other partners did not receive a copy by registered letter.

8 In a letter from the lawyer P from Q dated 14 July 2017 (Annex K6), the defendants informed the plaintiffs' current legal representatives that the heirs after the deceased Mr B A were his wife, the plaintiff 3), and the two sons, the plaintiffs 1) and 2). In a letter dated 3 December 2018 (Annex K 8), the shareholders of plaintiff 1) sent the defendants a commercial register application dated 11 October 2018 (Annex K7) and requested them, as heirs of Mr B A, to sign the application and have this signature notarised. The application states, among other things:

„The general partner and the limited partners apply for entry in the commercial register:

The limited partner B A left the company due to his death on ... 2017 (...).

As a result of the departure of Mr B A, the shares have increased in proportion to the shareholding of the remaining limited partners. This results in the following increases in the limited partner shares:

- Mrs E-F's limited partner share increases by € 34,996.50 from € 210,000.00 to € 244,996.50.

- Mrs G's limited partner share increases by € 8,757.00 from € 52,500.00 to € 61,257.00.

- The limited partner's share of Mr I E increases from € 682,500.00 by € 113,746.50 to € 796,246.50. (...)“

9 In a lawyer's letter dated 14 December 2018 (Annex K 9), the defendants had the claim of the plaintiff's shareholders rejected. On 22 November 2019, a so-called „Einantwortungsbeschluss“ was issued by the Mödling District Court (Austria) (Annex K 11). It states, among other things:

„(...) Furthermore, the following entry will have to be made in the commercial register on the basis of the agreement on the division of the estate between the heirs and the results of the probate proceedings: (...)

D C GmbH & Co KG, HRA HRA01

The limited partner's share in D C GmbH & Co. KG, registered under HRA HRA01 in the Commercial Register A of the Local Court of Bielefeld and domiciled in L, which is part of the estate of KR B R A, born ... 1932, and corresponds to a contribution of EUR 157,500.00, is assigned in its entirety to (...) N A, born ... 1972, so that (...) N A, born ... 1972, now holds a limited partner's share in D C GmbH & Co. KG, with its registered office in L, falls entirely to (..) N A, born ...1972, so that (..) N A, born ...1972, is now a limited partner in D C GmbH & Co. KG, registered under HRA HRA01 in the Commercial Register A of the Local Court of Bielefeld, with a share in the company corresponding to a contribution of EUR 157,500.00. KG with its registered office in L. (...)“

10 In a letter from the Local Court of Bielefeld dated 8 April 2021 (Annex K 12), the plaintiff 1) was requested to register or comment on the commercial register case. The letter states, among other things:

„(...) the registered limited partner B A is deceased. The commercial register is therefore incorrect. The withdrawal of the deceased limited partner must be registered for entry in the commercial register not only by the remaining partners, but also by all heirs of the deceased partner, see BayObLG, DB, 79, D.86, DB 93, p. 385. The registration at the time had to be rejected because the alleged heirs of Mr B A had not participated in the registration. In the meantime, a so-called “Einverantwortungsbeschluss", comparable to the German certificate of inheritance, is said to have been issued after the deceased Mr B A. Should the heirs again refuse to co-operate in the registration, the substitution of consent by way of an action pursuant to § 16 HGB must be considered. (...)"

11 In the present legal dispute, the plaintiffs sought a declaration at first instance that none of the defendants had become a limited partner of the plaintiff (1) after Mr B A and that the defendants be ordered to cooperate in the corresponding commercial register registration of the accrual of the shares of the existing partners. The plaintiffs took the view that the defendants had not become the legal successors of Mr B A in the limited partner's share. The question of legal succession to the partnership share concerned the company statute. According to Article 1(2)(h) of the EU Succession Regulation, questions of company law are excluded from the scope of the EU Succession Regulation. When distinguishing between the law of succession and the law of the company, Article 1(2)(h) of the Regulation gives priority to the law of the company insofar as it contains specific rules on „the fate of the shares of deceased shareholders“. This means that the company statute covers everything that is regulated by company law or that can be regulated by the articles of association and is also contractually regulated there. It is therefore a question of the company statute whether a company share can be inherited at all. Restrictions on inheritability (e.g. with regard to the persons authorised as acquirers - e.g. special succession in German partnership law) must also be qualified by the articles of association. Only the subsequent questions of how the possibility of inheritance of the company share can be utilised by means of legal succession upon death are subject to the law of succession. The question of whether a succession clause only establishes a right of entry of a third party or directly effects the succession to the share under the law of obligations (so-called legal succession clause) is also not subject to the law of succession, but to the company statute. The same applies to clauses according to which only certain persons can inherit a shareholding (so-called qualified succession clause). Irrespective of whether German or Austrian inheritance law applies under the EU Succession Regulation, the plaintiff 1) is a German company, meaning that company law takes precedence over inheritance law in accordance with Section 2 EGHGB. This meant that the provisions on inheritance provided for in the articles of association took precedence over the provisions of inheritance law. The requirements for the inheritability of B A's limited partner's share pursuant to § 16 of the partnership agreement were not met.

12 The plaintiffs have applied,

declare that none of the defendants became a limited partner of D C GmbH & Co. KG after Mr B R A, who died on ... 2017;

in the event that it is established that none of the defendants has become a shareholder of D C GmbH & Co. KG, to oblige the defendants to compensate Mr B R A's withdrawal from D C GmbH & Co. KG and the increase in his limited partnership interest with the other limited partners in proportion to their shareholding in accordance with the draft commercial register application attached as Annex 1 to the commercial register of the Local Court of Bielefeld.

13 The defendants have applied,

dismiss the action.

14 They took the view that the defendant 1) was the only heir to succeed the deceased limited partner B A to the entire limited partner's share by virtue of death, so that the defendant 1) achieved a participation quota required under the partnership agreement, but was not excluded. The EU Succession Regulation was applicable to the present case. This regulation stipulates that the decision of the Austrian probate court pursuant to the inheritance order is also valid for German legal transactions. Art. 1 para. 2 lit. h) of the EU Succession Regulation does not preclude this, as the correct application of the conflict of laws for the delimitation of the corporate statute and the law of succession in this case concerns a question relating to the law of succession; the territorial exception of Art. 1 para. 2 lit. h) of the EU Succession Regulation does not extend to the law of succession. The law of succession determines who inherits what share of the estate, i.e. also the disputed question of who succeeds the deceased limited partner B A in the limited partnership share. The articles of association, on the other hand, govern the question of whether the partnership position is inheritable or whether it can be the subject of a legacy in rem, i.e. the question of whether a succession to the partnership position can take place at all as well as other questions regarding the effect of the death of a partner on the partnership and the partnership share, such as the dissolution of the partnership or the accrual of compensation claims of the deceased or his heirs, but not the legal succession by reason of death as such. In the present case, only the defendant 1) had become the legal successor to the undivided limited partnership share of the deceased. The only decisive factor for the acquisition of the estate was the decision on the distribution of the estate within the meaning of Sections 177 and 178 of the Austrian Non-Contentious Proceedings Act (AußStrG), with which the court assigned the estate to the heirs within the meaning of Section 197 of the Austrian Civil Code (ABGB) and which contained the title to the inheritance, the inheritance quotas and the reference to the agreement on the division of the estate in accordance with Section 178 para. 1 no. 3 of the Austrian Non-Contentious Proceedings Act (AußStrG). If, as in the present case, the division of the estate takes place prior to the inheritance, the effect of the latter is that each co-heir acquires the property to which he or she is thus entitled as a direct consequence of the acquisition of the estate and therefore as the direct universal successor of the deceased in the manner provided for in the division of the estate. The partnership agreement of the plaintiff re 1) does not contain any rules restricting inheritance, not even in Sections 8 (1), 16 (2) and (3). The defendants have denied with ignorance that the handwritten „Disposition of the partnership agreement of K C GmbH & Co KG, L“ of the limited partner B A dated 7 January 2017 constitutes a disposition upon death of the deceased. They - the defendants - were not aware of it.

15 The Regional Court ruled in favour of the action. It essentially stated that the action was admissible and well-founded. The application for a declaratory judgement was justified as the defendants had not become successors in the limited partner share of the limited partner of D C GmbH & Co. KG B R A (testator) who died on ... 2017. It was irrelevant whether the defendant 1) had become the sole heir after the deceased with regard to the limited partner's share, as the company statute applied in this case. The inheritance statute decides who inherits what share. The articles of association, on the other hand, governed the question of whether the shareholder position was inheritable, i.e. the question of whether a succession to the shareholder position could take place at all. According to the articles of association of D C GmbH & Co. KG dated 1 October 1999, the conditions under which a limited partner's share could be inherited were not met. According to § 16 Para. 4 of the partnership agreement, successors within the meaning of the partnership agreement generally join the company as limited partners. According to the partnership agreement, successors are only those persons who are either heirs, legatees or other third parties who are designated by name in the disposition of the individual partners authorised to dispose of the shares, which is part of the partnership agreement. According to § 8 para. 1 of the partnership agreement, the deceased belonged to the group of limited partners who, in addition to the right of control pursuant to § 166 HGB, should have been entitled to the right to information and control provided for partners of a general partnership pursuant to § 118 HGB. As such a limited partner, according to § 16 para. 2 of the partnership agreement, he had the right to dispose of his share by legal transactions inter vivos or by testamentary disposition as to who should take over his share in whole or in part. The articles of association thus establish the prerequisite that a succession to a share can only take place through legal transactions inter vivos or by disposition upon death. Succession on the basis of statutory succession is therefore excluded. The exclusion of succession by intestate succession is confirmed by the provision of § 16 Para. 4 a. E., according to which, in the event of the death of a shareholder authorised to dispose and no disposition pursuant to § 15 point 3) exists, his heirs/legatees would be paid out pursuant to § 13 point 4 a) to d). It should be noted that there is an obvious drafting error at this point in the articles of association and that reference should obviously be made to § 16 para. 3 of the articles of association. This is because the regulation of the disposal can only be found in § 16 of the articles of association, while § 15 of the articles of association does not contain any „Point 3)“.

16 The shareholder's disposal must be made in writing and either co-signed by a co-shareholder or notarised. Pursuant to § 16 para. 3 of the articles of association, the disposing shareholder is entitled to draw up a disposition of his shares in writing, to sign it personally and to have it countersigned by a co-shareholder with voting rights pursuant to § 10 point 2) as a witness or to have it notarised. A copy of this decree, which becomes part of the articles of association, is to be sent to all shareholders by registered letter no later than four weeks after signing. From the provision of § 16 Para. 4 a. E., according to which, in the event of the death of a shareholder authorised to dispose and no disposition pursuant to § 15 point 3) exists, his heirs/legatees would be paid out pursuant to § 13 point 4 a) to d), it follows that, contrary to the wording of the articles of association („authorised“), the form provided for in § 16 para. 2 of the articles of association must be observed. Insofar as the defendants denied with ignorance that the handwritten disposition of the limited partner B A dated 7 January 2017 constituted a disposition upon death of the testator, the absence of such a disposition would mean that, pursuant to Section 16 para. 4 a. E. of the partnership agreement, his heirs/legatees would be paid out in accordance with Section 13 (4) a) to d) and would not succeed to the limited partner's share.

17 However, even in the event that the handwritten disposition of limited partner B A dated 7 January 2017 would constitute a disposition pursuant to Section 16 para. 3 or Section 16 para. 4 of the partnership agreement, the further requirements for the inheritability of the limited partner's share would not be met. This is because, according to Section 16 (2) of the partnership agreement, each new or amended share created by transfer must amount to at least 10% of the share capital. A reduction to 7½ % is possible if the transferee is Mr B A's heir or legatee. On the basis of the testator's handwritten disposition, his sons, defendants 1) and 2), should each have received 7.5%, i.e. the minimum required pursuant to § 16 para. 2 of the articles of association. However, due to the changed participation situation, the testator was only able to dispose of 14.29% of the limited partnership capital. Due to the capital measures previously carried out in 2006 and 2007, the participation situation in the company was such that, of the limited partnership capital of € 1,102,500.00, the testator had a limited partnership share of € 157,500.00, i.e. € 14.29% of the limited partnership capital. As the defendants 1) and 2) could therefore only have been transferred less than 7.5% of the limited partnership capital, the minimum required pursuant to § 16 para. 2 of the partnership agreement had not been reached with the consequence that pursuant to § 16 para. 2 of the partnership agreement the disposition in these points was invalid and the heirs/legatees of the deceased were paid out pursuant to - according to the correct reading - § 14 point 4 a) to d) of the partnership agreement. Since the conditions under which the deceased's limited partner's share could be inherited were therefore not met according to the partnership agreement, the question of whether the defendant 1) had become an heir with regard to the limited partner's share was at most relevant with regard to the question - which was not in dispute - of who could claim payment from the company pursuant to § 14 para. 4 of the partnership agreement.

18 Since none of the defendants had therefore succeeded to the deceased's limited partnership share, the shares of the departing partner could be taken over by the remaining partners in proportion to their shareholdings in accordance with § 16 (5) of the partnership agreement. As a result, the defendant was obliged to submit the declarations requested in the application under 2) for registration in the commercial register.

19 The defendants' appeal is directed against this judgement, in which they continue to seek the dismissal of the claims and essentially assert the following grounds:

20 The Regional Court did not recognise that the requirements under the partnership agreement for a succession to the limited partner's share of the deceased B A existed. It also failed to recognise the scope of application of the EU Succession Regulation in the distinction between the statute of succession and the statute of the company and interpreted the area exception of Art. 1 para. 2 lit. h) EU Succession Regulation too broadly. Furthermore, it did not see that even if the EU Succession Regulation did not apply to the case to be decided here, the action should be dismissed, as the order of the Mödling District Court of 23 October 2019, together with the official confirmation contained therein, should be recognised pursuant to Section 182 (3) of the Austrian Foreign Proceedings Act (AußStrG) in accordance with Article 1 (1) sentence 1 of the Treaty between the Federal Republic of Germany and the Republic of Austria on the Mutual Recognition and Enforcement of Judgments, Settlements and Authentic Instruments in Civil and Commercial Matters in Germany of 6 June 1959. The Regional Court was wrong not to deal with a supplementary interpretation of the testator's last will and testament. Even if neither the scope of application of the EU Succession Regulation was opened with regard to the company shares at issue here nor the decision of the Mödling Local Court of 23 October 2019 was binding for the German courts, the action should be dismissed. This is because at least defendant 2) would have become K. of plaintiff 1) upon the death of the decedent even under German law, namely with regard to the decedent's entire share in the company in the amount of 14.29% of the limited partner's capital. In any case, if the will had not been interpreted in a supplementary manner, the Regional Court would have had to recognise that the defendant 2) was entitled to at least a partnership share of 7.5%, namely according to the wording of the last will and testament.

21 The defendants request,

amend the contested judgement and dismiss the action.

22 The plaintiffs request,

dismiss the appeal.

23 They defend the contested judgement against the defendant's appeal attacks, expanding on their first instance submissions.

24 For further details of the facts of the case and the dispute, reference is made to the content of the contested judgement, the exchanged written submissions and the documents submitted to the court files.

II.

25 The defendant's admissible appeal is unfounded.

The appeal is admissible. It has been lodged in writing with the Higher Regional Court within the one-month period stipulated in Section 517 ZPO in accordance with Section 519 (1) ZPO and has been substantiated in good time before the Senate within the extended period for substantiating the appeal in accordance with Section 520 (2) sentence 3 ZPO.

The defendant's appeal is unfounded, as the Regional Court was right to uphold both claims.

The action is admissible. The Senate affirms its international jurisdiction as well as the declarable legal relationship and the interest in declaratory judgement within the meaning of Section 256 (1) ZPO for the claim under 1).

The Regional Court and, consequently, the Senate have international jurisdiction to decide the legal dispute. The Senate is not prevented from examining international jurisdiction with regard to Section 513 (2) ZPO. Even if its wording does not contain any restriction in this respect, the international jurisdiction assumed at first instance is subject to review by the court of appeal due to its great significance, which also controls the applicable law via private international law (see Heßler, in: Zöller, ZPO, 34th edition, Section 513 marginal no. 8 with further references).

30 In the present case, contrary to the opinion of the defendant, international jurisdiction is not governed by Article 4 of 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 (EU Succession Regulation). According to this regulation, the courts of the member state in whose territory the deceased had his habitual residence at the time of his death have jurisdiction for decisions in matters of succession for the entire estate. In the case of B A, this was indisputably in Austria, so that the Austrian courts would have jurisdiction for all matters relating to the estate under the EU Succession Regulation.

31 However, as the plaintiffs rightly argue, the exception to the scope of application in Art. 1 para. 2 h) of the EU Succession Regulation applies. According to this, „questions relating to company law, the law of associations and the law of legal persons, such as clauses in the instrument of constitution or in the articles of association of a company, association or legal person which determine the fate of the shares of deceased shareholders or members“ are excluded from the scope of the Regulation. This is the issue at hand: The question of whether the defendants or one of them inherit B A's limited partner's share or rather whether it accrues proportionately to the existing limited partners is a „question of company law“, for which the disputed interpretation of the „clauses ... in the company's articles of association“ regarding the „fate of the shares of deceased partners“, in this case of B A, is decisive for the dispute, namely §§ 8, 14, 16 of the articles of association. The area exception of Art. 1 para. 2 lit. h) EU Succession Regulation concerns in particular the admissibility and organisation of the transfer of shares in partnerships and corporations upon the death of a shareholder, e.g. the inheritance of the shareholder position or continuation, entry or succession clauses or accrual. In contrast, the determination of the heirs and their inheritance shares is based on the law of succession (Grüneberg-Thorn, BGB, 82nd ed., Art. 1 EuErbVO para. 12). In the present case, the combination of provisions in § 16 of the partnership agreement regulates whether and under what conditions a limited partner's share is transferred or accrues to the co-partners. If the limited partner has not made a disposition in accordance with the requirements of § 16 para. 2 or para. 3 of the partnership agreement, the share is not transferred to the heirs in accordance with § 16 para. 4, last sub-para. but they only have a claim to payment. Contrary to the opinion of the defendant, which was reiterated at the Senate hearing, the limited partnership shares in the plaintiff 1) are not freely inheritable. The impression possibly initially conveyed in § 16 (1), (2) of the partnership agreement is decisively relativised in § 16 (4), last subparagraph. This relates to the admissibility of the transfer of shares in a company, which is subject to the articles of association, and justifies the exemption. In this respect, it is not a question of who has become an heir with which inheritance share. The company statute also takes precedence over the inheritance statute in specific questions of inheritance law, for example if it subjects the inheritance of a company share to special regulations, e.g. the German case law on succession clauses in the inheritance of partnership shares (Schmidt, in: Dutta/Weber, Internationales Erbrecht, 2nd ed. Art. 1 EuErbVO para. 106).

32 Insofar as the defendants argue with Art. 21, 23 para. 2 lit. e) EU Succession Regulation, because the exception of Art. 1 para. 2 h) EU Succession Regulation does not cover the conditions under which rights to the estate could be acquired and the transfer of the assets, rights and obligations belonging to the estate, this does not apply. It is true that the two aforementioned provisions of the EU Succession Regulation stipulate in principle that the aforementioned issues are subject to the law of succession. However, the exception of Art. 1 para. 2 h) of the EU Succession Regulation, which for the above reasons covers cases such as the present one, would be largely meaningless if the law of succession were to be applied again via the diversions of Art. 21, 23 of the EU Succession Regulation when solving questions at the interface with the law of the company regarding the „whether“ of the legal succession of the company shares of deceased shareholders.

33 It therefore depends on the international jurisdiction established for company law, which in this case lies with the German courts. This does not follow from the local jurisdiction provision of Section 22 ZPO, which also applies in principle to the international jurisdiction at the registered office of the company - here L - as an indication. This is because Art. 5 para. 2 of Regulation 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 (Brussels I Regulation) makes an exception to this, according to which non-domestic jurisdiction rules can be applied if Art. 5 (1) Brussels I Regulation applies (see Higher Regional Court of Saxony-Anhalt, judgement of 24 August 2000, 7 U (Hs) 3/00, juris, on Art. 5 (2), 16 No. 2 of the former Brussels I Regulation). However, the local jurisdiction of the Regional Court of Bielefeld and subsequently of the Senate arises in any case from the unrepentant defence of the defendants domiciled in Austria at first instance pursuant to Art. 26 (1) Brussels Convention. The defendants are all domiciled in Austria, i.e. a member state of the European Union. At first instance, they accepted the international jurisdiction of the Regional Court of Bielefeld without complaint. They merely disputed the applicability of German substantive law, but not international jurisdiction. A deviating exclusive international jurisdiction according to the Brussels I Regulation is not apparent. In particular, this does not arise from Art. 24 No. 2 Brussels I Regulation. If this provision were to be applied despite its narrowly interpreted wording (Geimer, in: Zöller, loc. cit., Art. 24 EuGVVO para. 21), according to which the proceedings must concern the validity, nullity or dissolution of a company or legal entity or the validity of the resolutions of its organs, the German courts would also have jurisdiction as the courts of the Member State in whose territory the company or legal entity has its registered office - here L.

As a result, both plaintiffs have a declarable legal relationship and a legal interest in a declaratory judgement within the meaning of Section 256 (1) ZPO against all three defendants for the claim under 1) at the time of the conclusion of the oral hearing before the Senate, which is decisive for the assessment, and the plaintiffs were also right to bring the claim under 2), which is aimed at cooperation in the entry in the commercial register, against all three defendants.

a) The legal relationship that can be established requires that there is a current relationship between the parties regarding a subjective right that can be established with substantive legal effect or that such a right could arise from the relationship. Mere preliminary questions or abstract legal questions do not establish such a legal relationship (Greger, in: Zöller, loc. cit., Section 256 para. 3 et seq.). In the present case, such a present legal relationship, which can be legally clarified with a negative declaratory action, exists in the plaintiffs' contested assertion that none of the defendants became a limited partner of D C GmbH & Co. KG after Mr B R A, who died on ... 2017.

b) Both plaintiffs also have the necessary legal interest in a declaratory judgement within the meaning of Section 256 (1) ZPO against all three defendants. This presupposes that there is a current risk of uncertainty with regard to the legal relationship in dispute, i.e. the subjective right famed by the plaintiffs, due to the fact that the defendants seriously dispute it or claim to have a conflicting right and that the judgement sought is suitable to eliminate this risk due to its legal force pursuant to Section 322 (1) ZPO (BGH, NJW 2010, p. 1877; Greger, in: Zöller, loc. cit., Section 256 para. 2, 7).

aa) As the company concerned, the plaintiff (1) has an interest in clarifying who succeeds to B A's limited partner share. It has been requested by the registry court to file a corresponding commercial register application.

bb) Plaintiff 2), as another limited partner of plaintiff 1), also has an interest of his own in establishing that and who is/will be (not) a limited partner of plaintiff 1) alongside him. This must apply in any case because the legally binding determination in accordance with the application under 1) would have the consequence that, in accordance with the co-operation in the entry in the commercial register pursued with the application under 2), a share of the limited partner's share of the deceased B A would itself increase, namely from € 682,500.00 to date by € 113,746.50 to € 796,246.50.

cc) Ultimately, the aforementioned interest in a declaratory judgement is not only directed against defendant 1), who is primarily responsible for the legal succession to the limited partner's share on the basis of the Austrian inheritance order, but also against defendants 2) and 3) at the time of the Senate's decision. These are also heirs of B A. It is true that even before the present action became lis pendens on 26 July 2021, not all three defendants, but originally only defendant 1), had claimed succession to the limited partnership share at issue. Only defendant 1) is named in the „Einantwortungsbeschluss“ of the Mödling District Court referred to by the defendant as the heir to the limited partner's share in dispute. In pre-trial correspondence, the defendants, represented by a lawyer, most recently referred solely to the fact that defendant 1) had become the heir to the limited partner's share in dispute after the probate proceedings in Austria had ended. However, defendant 2) also defended himself against the plaintiff's letters before the court. In addition, in the appeal proceedings at any rate, he is now claiming, in the alternative, legal succession to the limited partner's share on the basis of B A's order dated 7 January 2017. Since he is claiming, in the alternative, the full or at least a 7.5% limited partner's share (see grounds of appeal p. 14), the interest in a declaratory judgement also exists vis-à-vis defendant 2). Ultimately, this also applies to defendant 3). Although it is undisputed that it is a co-heir, it has never, as far as can be seen, asserted a claim to a share in B A's limited partnership interest. However, at the oral discussion before the Senate on 15 February 2023, the defendant's representative stated that in the event that the defendants 1) and 2) could not become heirs to the limited partnership share for legal reasons contrary to item 1) of B A's disposition, it should be examined whether this should be equated with the death of both sons in accordance with item 3) of the disposition and therefore B A's widow, the defendant 3), should inherit the limited partnership share in accordance with the will of the testator. In this respect, at the end of the hearing before the Senate, the defendant 3) was also aware of a possible inheritance right in her favour to the limited partnership share at issue. The plaintiffs therefore have a legal interest in clarification.

c) The application for performance under 2) to oblige the defendants to cooperate in the commercial register registration of the accrual of B A's limited partner share in favour of the previous limited partners is admissible against all three defendants. Since the Senate, like the Regional Court, grants the application for a declaratory judgement, the intra-procedural condition for the application under 2) has been met. As heirs of B A, all three defendants are required to provide the requested cooperation (see letter from the Bielefeld registry court dated 8 April2021: „The withdrawal of the deceased limited partner must be filed for entry in the commercial register not only by the remaining partners, but also by all heirs of the deceased partner,...“), so that the application for substitution of consent in the course of the commercial register application pursuant to Sections 16, 108 HGB must be directed against all three of them.

The complaint is well-founded.

The Regional Court rightly granted the application for a declaratory judgement on the merits.

a) The Regional Court correctly and implicitly assumed the applicability of German substantive law.

aa) Contrary to the opinion of the defendant, the applicability of Austrian law does not result from Art. 20 et seq. EuErbVO. It is true that the temporal scope of application would be opened in principle in view of the succession occurring in Austria on ...2017 after 16 August 2015. Art. 20 et seq. EU Succession Regulation do not apply in the matter itself from the outset due to Art. 1 para. 2 h) EU Succession Regulation.

bb) It is therefore decisive that the plaintiff 1), as a company under German law, has its registered office in L in Germany in accordance with § 1 of the articles of association dated 1 October 1999 (Annex K 2), where it was also founded, where its administration is located and where the relevant decisions are taken (Art. 63 (1) Brussels I Regulation). The national commercial law applicable pursuant to §§ 1 et seq. EGHGB is determined in this respect according to the modified seat theory (BGH, judgement of 1 July 2002, II ZR 380/00, BGHZ 151, p. 204; BGH, judgement of 27 October 2008, II ZR 158/06, BGHZ 178, p. 192 = NJW 2009, p. 289).

b) Contrary to the grounds of appeal, the decisions of the Regional Court and, following it, of the Senate in the case itself under German law are also not excluded by the fact that the order of the Mödling District Court of 23 October 2019 on the transfer of ownership, together with the official confirmation contained therein, must be recognised as binding pursuant to Section 182 para. 3 of the Austrian Non-Contentious Proceedings Act (AußStrG) and conclusively and bindingly regulates the legal succession to the limited partner's share.

aa) This does not follow from Article 39(1) of the Regulation, according to which decisions given in one Member State are recognised in the other Member States without the need for a special procedure. According to the above findings, the EU Succession Regulation does not apply to the present dispute. In the absence of the applicability of this Regulation, the question of whether the defendants, as they claim in their appeal, have submitted a European Certificate of Succession to be recognised in the legal dispute within the meaning of Art. 63 para. 1 of the Regulation is also irrelevant. The positive presumption asserted by the defendants in favour of the correct establishment of facts and the legal status as heir is not relevant to the decision in view of the company statute, which has priority for the issues in dispute.

bb) Recognition of the decision on the inheritance without special proceedings - at least with an appointment of heirs binding for the German courts regarding the limited partner's share in dispute - also does not arise from Art. 1 para. 1 sentence 1, 4, 7 of the Treaty between the Federal Republic of Germany and the Republic of Austria on the Mutual Recognition and Enforcement of Judgments, Settlements and Authentic Instruments in Civil and Commercial Matters in Germany of 6 June 1959.

(1) According to this provision, judgments given in civil or commercial matters by the courts of one state, by which claims of the parties are recognised in proceedings of contentious or non-contentious jurisdiction (in contentious or non-contentious proceedings), are recognised in the other state, even if they are not yet final. According to § 1 para. 2 of the aforementioned treaty, it is also irrelevant for the recognition whether the decision is designated as a judgement, order, order for payment, payment order, enforcement order or otherwise. In addition, an Austrian order for the assignment of property, at least insofar as it can become legally binding as an act of shaping the law (BeckOK FamFG/Sieghörtner, 45th edition, § 108 marginal no. 40 with further references), can even be recognised in accordance with the aforementioned treaty of 6 June 1959 if it was originally null and void but the nullity has been cured by the entry into legal force (LG Hamburg, decision of 11 July 1991, 302 O 49/91, IPRax 1992, pp. 251, 252).

(2) These principles do not, however, mean that in the present case the decision on the transfer of ownership with the content of a legally binding appointment of the defendant 1) as heir regarding the limited partner's share would have to be recognised as binding.

(a) This follows from systematic reasons: According to Art. 75 para. 2 of the EU Succession Regulation, this Regulation takes precedence, notwithstanding Art. 75 para. 1 of the EU Succession Regulation, in relations between Member States over agreements concluded exclusively between two or more of them insofar as they concern matters governed by this Regulation. This also applies to the above-mentioned German-Austrian treaty of 6 June 1959 (Dutta, in: MüKo-BGB, 8th ed., Art. 75 EuErbVO para. 42 f.). However, if the special provisions of Art. 39 et seq. contained in the EU Succession Regulation on the recognition of the inheritance decision do not apply because the issue at hand is subject to the area exception of Art. 1 para. 2 lit. h) EU Succession Regulation, the decision issued in inheritance law proceedings cannot claim validity under the rules of the German-Austrian Treaty of 6 June 1959. In this case of conflict, the provisions of the EU Succession Regulation take precedence over the older provisions, as otherwise there would be an irreconcilable contradiction of values.

(b) It can therefore be left open whether, even in the case of a fundamental recognisability of the present order of inheritance in Germany, its effect would stand in the way of the present proceedings. The decision would not result in the legally binding appointment of the defendant 1) as heir to the limited partner's share. This is because the inheritance only regulates the structure of the inheritance, but not a legally binding determination of the appointment as heir (OLG Cologne, decision of 2 January 2018, 2 Wx 269/17, juris, para. 15; Rauscher, in: MüKo-FamFG, 3rd edition, Section 108 para. 19 with footnote 74). However, it is precisely the legally binding clarification of the (non-)appointment of the defendant as heir that is the subject of the negative declaratory action under 1). The procedure for the assignment of assets is not an adversarial procedure in the event of a disputed appointment as heir, but regulates the inheritance quotas or the distribution of the assets between the heirs. The plaintiffs were not involved in these proceedings and, based on the content of the decision on the transfer of ownership, there are doubts as to whether the partnership agreement and the order of 7 January 2017 were submitted to the Mödling District Court. Rather, the court decided on the basis of an „inheritance distribution agreement of the heirs declared as heirs“ - i.e. the three defendants - that as part of the division of the estate, defendant 1) would receive the limited partnership share in its entirety and that this should be entered in the commercial register. However, whether this legal arrangement of the acquisition of the inheritance between the three defendants also has a binding effect in the event that the decision is recognised with regard to the „whether“ of the legal succession of the heirs of B A to the limited partnership share, which is disputed between the parties, does not appear to be beyond doubt, but can be left open.

cc) Finally, the automatic recognition and enforceability of the order for the transfer of ownership without special proceedings does not result from Art. 36 et seq. and Art. 39 et seq. Brussels I Regulation. The effect of recognition under these more general standards cannot go further than that under the above-mentioned provisions in the event of their applicability with regard to the inheritance order.

c) This means that the substantive legal situation under German law, in particular the German partnership statute, is decisive, which the Regional Court itself assessed correctly in the end. The decisive factor here is whether the partnership's articles of association permit legal succession to the partnership share.

aa) The Senate is unable to establish that the conditions for the inheritance of the limited partner's share of B A in favour of the or a defendant pursuant to § 16 para. 2 or para. 3 of the partnership agreement are met. In this case, § 16 para. 4, last subpara. provides that the heirs of the deceased partner are paid out, i.e. there is no succession to the limited partner's share. In this respect, it has remained undisputed between the parties before the Senate that, in accordance with the correct interpretation of the Regional Court, the references to § 15 and § 13 of the articles of association are editorial errors and that the provisions in §§ 16 and 14 are meant. The transfer of B A's limited partner share to his heirs therefore only takes place in accordance with § 16 para. 4, last subpara. if the testator has made a disposition in accordance with the standards of § 16 para. 2 or § 16 para. 3. Neither of these is the case in the present case, at least it cannot be established. The Senate can leave open the question of whether the provisions of § 16 para. 2 and 3 of the articles of association refer to each other or whether - as the defendant's representative stated at the Senate hearing - the percentage lower limit for the minimum limited partner share only applies to dispositions inter vivos or upon death pursuant to § 16 para. 2, while a disposition to supplement the articles of association with the signature of a co-shareholder should in principle enable an unrestricted legal succession regulation. This is because the requirements set out in the articles of association do not apply either cumulatively or separately.

(1) Insofar as B A, who as a limited partner within the meaning of Section 8 (1) of the partnership agreement was authorised to dispose of his limited partner's share inter vivos or upon death in accordance with Section 16 of the articles of association, made a disposition upon death of his limited partner's share within the meaning of Section 16 (2) of the articles of association on 7 January 2017, the basic requirements under the partnership agreement for the legal succession of the defendants to the partnership share were not met. The Regional Court correctly justified this by stating that, following the execution of B A's handwritten order dated 7 January 2017, the defendants 1) and 2) would not each receive 7.5% of the limited partner's share, but only half of the limited partner's share, which only amounts to 14.29%, i.e. around 7.145%, and that these shares do not fulfil the minimum quorum of 7.5% stipulated in § 16 para. 2 of the articles of association. There is no dispute between the parties that this minimum requirement in the articles of association is not objectively fulfilled. In this respect, the question of whether B A made a testamentary disposition in the form of a will pursuant to Sections 2064 et seq. BGB or the corresponding Austrian provisions in conjunction with Section 16 para. § Section 16 (2) of the Articles of Association is not relevant to the decision at this point. For the reasons given in bb) below, a supplementary interpretation of the articles of association and/or the disposition of 7 January 2017 does not help the defendants in this respect.

(2) Insofar as the defendants believe that the requirements of § 16 para. 3 of the articles of association are in any case fulfilled and that the minimum quorums specified in § 16 para. 2 should not apply to such an appointment of heirs by supplementing the articles of association, they cannot be successful with this either. The Senate is not able to establish with the necessary certainty within the meaning of § 286 ZPO that B A has made a formally effective disposition to supplement the articles of association that fulfils the requirements of § 16 para. 3 of the articles of association.

(a) Firstly, it cannot be established with certainty that the original of the order dated 7 January 2017 - a copy of which was submitted to the court files on 27 January 2017 by plaintiff 2) as co-signatory and witness - still existed at the time of B A's death. Since there were only six days between the witness signature by the plaintiff 2) and the death of B A on ... 2017, it cannot be ruled out that the original never reached the latter by post. In any case, it is undisputed that an original was not found in his estate. In addition, the defendants disputed the content of the order in the first instance in a fundamentally admissible manner in accordance with Section 138 (4) ZPO, as they were not aware of it, and the plaintiff's representative and the plaintiff 2) stated at the Senate hearing that they did not know whether B A had the original in his estate at the time of his death and whether this should still have applied.

(b) In any case, the Senate is convinced that the further requirements for the amendment to the articles of association regulated in § 16 para. 3 cannot be established. Since § 16 para. 3 regulates the formal requirements for an amendment to the articles of association regarding the disposal of company shares, this amendment can only become „part of the articles of association“ as formulated there if the procedure described there has been fully complied with. In addition to the shareholder's disposition and the certificate of another co-signing shareholder, this required that a copy of this disposition be sent to all shareholders by registered letter no later than four weeks after signing and that, in the event of the death of a shareholder authorised to dispose of shares, the persons named in the disposition be notified by the general partner by registered letter within four weeks of the date of death. It has neither been argued nor is it evident that these requirements were met. When questioned by the Senate at the hearing on 15 February 2023, the plaintiff re 2) and the party representatives stated that they had no knowledge that this procedure had been followed. In view of the lack of prerequisites, the question of whether an effective amendment to the articles of association should also have regulated the free inheritance of company shares below 7.5% is no longer relevant to the decision.

bb) Finally, a supplementary interpretation of the partnership agreement or a supplementary interpretation of the will would not help the defendants to succeed against the action for a negative declaratory judgement, either for a possible disposition upon death in accordance with § 16 Para. 2 of the articles of association or if an amendment to the articles of association is assumed in accordance with the provisions of § 16 Para. 3. In this way, too, it cannot be established that the transfer of a limited partner's share of less than 7.5% in each case would be permissible or that one of the defendants is to be allocated the entire 15% or at least 7.5% limited partner's share on the basis of a testamentary disposition alone, as claimed by him.

(1) The purpose of supplementary contract interpretation is to close gaps in the legal provisions. It is based on the parties' regulatory plan contained in the contract and understands this as a source of law from which regulations for unresolved points can be derived, taking into account good faith and customary practice. The unintended incompleteness of the contract, for which the dispositive law contains no or no regulation that is in the interests of the parties, must be closed on the basis of the hypothetical will of the parties by supplementing the content of the contract as part of a comprehensive assessment and weighing up of the interests of both parties (Grüneberg-Ellenberger, loc. cit., Section 157 para. 2 et seq. with further references).

(2) Measured against this standard, it is out of the question to interpret § 16 para. 2 sentence 3 of the articles of association in a supplementary manner to the effect that in the event of subsequent changes to the limited partner shares of the individual limited partners, a quorum of less than 7.5% share may also be considered in the case of legal succession inter vivos or upon death or that for the limited partner share of B A it was meant that his two sons, the defendants 1) and 2), should in any case each be entitled to 50% of his share. On the one hand, the wording of the articles of association as the limit of a supplementary interpretation speaks against this, but above all the meaning and purpose. A limited partner, who must hold at least a share of 10%, but in any case 7.5%, in accordance with § 16 para. 2 sentences 1 to 3 of the articles of association, may have an interest in being able to transfer his share to several heirs with a share of less than 7.5% in the event of a reduction in his limited partner share. However, the plaintiff 1) and the other limited partners would not have had to agree to this in good faith in accordance with Section 242 BGB. The purpose of § 16 para. 2 of the articles of association is to counteract excessive fragmentation of the limited partner shares in the personalistically structured plaintiff. This motive stands in the way of a supplementary interpretation of the contract in the aforementioned sense. If the provision in § 16 para. 2 of the articles of association were to be softened due to a limited partner affected in an individual case, no lower limit of a limited partner's share could be found for future comparable constellations. The fact that the provision in § 16 of the articles of association was not amended following the capital measures also speaks against the interpretation that a disposal by B A in favour of his two sons of ½ each should always be permissible. This may have been an oversight, but this cannot be established, especially as B A is described by the plaintiffs as an experienced and prudent limited partner who always had his interests in mind.

(3) Insofar as B A's ruling of 7 January 2017 is not a supplementary ruling to the articles of association, but rather a ruling by virtue of death, the Senate, which for the above reasons is in principle only called upon to examine the „whether“ of the legal succession to the limited partnership share against the standard of the articles of association, leaves open whether it must also assess these or only the provisions of the articles of association. It can also be left open whether the Senate is only entitled to a supplementary interpretation with regard to the question of whether a content in accordance with the articles of association can be inferred and whether legal concepts of inheritance law can be used for this purpose. In any case, a supplementary interpretation of the will in favour of validity in accordance with § 2084 BGB or § 553 ABGB is also out of the question. Even if one were to assume the opening of the determination of a hypothetical will of B A - what would he have regulated if he had been aware of the total amount of his limited partnership share of only 14.29%? - it could not be established that it would then have been his presumed will that the defendant 1) or the defendant 2) should inherit his entire limited partner's share or that one of them should in any case inherit a 7.5% limited partner's share. A hypothetical disposition in favour of the defendant 1) is contradicted by the fact that A not only gave the defendants 1) and 2) half of the 7.5% each in item 1 of the disposition, but also stipulated that M - the defendant 2) - should exercise the voting rights for both. If the hypothetical intention of B A had been that the defendant 1) N A should have become the sole heir to the company share in order to maintain the validity of his disposition, it might have been more appropriate to transfer the exercise of voting rights to him. On the other hand, the hypothetical will of B A presented in the alternative in favour of defendant 2) in the grounds of appeal cannot be established either. Again, the transfer of voting rights alone is too weak an indication of the presumed will. This is contradicted by the fact that the transfer of voting rights says little about the motives for the transfer of the assets. In this respect, there is no evidence to assess whether the testator, had he been aware of the circumstances, would have favoured one son over the other and, if so, which one this would have been. There is no further submission on the presumed will of B A. The defendant's representative conceded at the Senate hearing that the sons (defendants 1) and 2) had not been aware of their father's considerations.

(4) Finally, the Senate has no viable factual evidence to support the finding that - as the defendant's representative explained at the Senate hearing - it was B A's hypothetical intention in the event of the legal incapacity of defendants 1) and 2) to treat this in the same way as the predeath of the sons in section 3 of the disposition of 7 January 2017 and to appoint defendant 3) as the sole heir to the limited partner's share in this case. The will of B A alone, as expressed in the first three paragraphs of the disposition, that his limited partner's share should initially go to his family and should only go to the E-C family after the death of all four As, is not sufficient to establish such a hypothetical will.

65 The conditions under which the partnership agreement permits succession to B A's limited partner share are therefore not met.

66 Since, in conclusion, none of the defendants can successfully claim to be the sole or proportionate heir to B A's limited partner share, the plaintiffs' action for a negative declaratory judgement is successful.

Against this background, the application under 2) is also justified.

68 The claim of the plaintiffs to the obligation of the defendants as heirs of B A to cooperate in the requested registration of the withdrawal of B A and the pro rata accrual of the limited partnership shares in favour of the existing limited partners pursuant to Annex 1 of the contested judgement arises from § 16 para. 1 sentence 1 HGB. The registrations to be made in accordance with §§ 106, 107 HGB (e.g. also changes to the partners) must be made by all partners in the partnership in accordance with § 108 HGB. In the event of the death of a partner, these are his heirs, even if they do not become partners (Hopt/Roth, HGB, 42nd edition, § 108 marginal no. 1). The necessary consent of the defendants as heirs of the deceased limited partner B A to the requested entry in the commercial register is replaced by the future legal force of the regional court judgement, which the plaintiffs can submit to the commercial register court. The accrual of the respective company shares in proportion to each other pursued with the application for registration is provided for in § 16 Para. 4 a. E. of the articles of association, as no shareholder has taken over the share. The defendants have not asserted any objections to the correctness of the content of the commercial register entry, which forms part of the operative part of the Regional Court judgement as Annex 1, and the Senate is not able to recognise any such objections.

III.

The ancillary rulings are based on Sections 97 (1), 708 No. 10, 711 ZPO.

The Senate sees no reason to grant leave to appeal as requested by the defendants in their grounds of appeal, as the requirements of Section 543 (2) ZPO are not met. Neither the need to further develop the law nor to ensure the uniformity of case law justify such a requirement. As far as can be seen, the Senate does not deviate from other higher court rulings. The questions of the demarcation of the company's status as an heir and the scope of application of the exception of Article 1(2)(h) of the EU Succession Regulation also do not concern unresolved questions of legal principle in the present legal dispute and do not require a further development of the law by the highest court. Rather, the Senate has answered these questions on a case-by-case basis based on the specific content of the relevant provisions of the Articles of Association (Sections 8, 14, 16).