No economic assessment of the "intrinsic value" of the business assets in the event of a merger of cooperatives

The applicant was a member of a cooperative bank with two shares, which were merged with another cooperative bank as transferring cooperatives by way of absorption into the respondent, also a cooperative bank. According to the provisions of the merger agreement, the claimant received ten shares in the defendant, each worth € 25.00, for his two fully paid-up shares totaling € 250.00. He applied for a ruling in the appraisal proceedings ordering the defendant to make a payment for a loss in value resulting from the merger at the higher intrinsic value of the transferring cooperative. The Regional Court dismissed the application as inadmissible. The appeal lodged against this was unsuccessful.

The BayObLG dismissed the applicant's appeal on points of law to the BGH. In the opinion of the BGH, the BayObLG correctly denied the admissibility of the application because a claim to the economic value compensation (asserted in the proceedings) in excess of the nominal value of the previous share capital that can be enforced in appraisal proceedings is excluded in accordance with the provisions of § 85 Para. 2 UmwG. In the case of a purely cooperative merger, the members of the transferring cooperative are only entitled to a claim for improvement of the exchange ratio (§ 15 UmwG, § 1 No. 4 SpruchG) to be asserted in appraisal proceedings in accordance with § 85 Para. 2 UmwG if their share capital in the acquiring cooperative is lower than their share capital in the transferring cooperative.

According to the BGH, the share capital pursuant to § 85 para. 2 UmwG is the nominal value of the member's participation in the cooperative, i.e. the amount to be shown in the balance sheet that the member has actually paid into the share(s), plus or minus any profit or reimbursement credits and loss write-offs. According to the law, there is no economic valuation of the "intrinsic value" of the share capital, including reserves or hidden reserves in merger constellations. The BGH is convinced that this assessment in § 85 para. 2 UmwG on the limitation of the compensation claim corresponds to the cooperative nominal value principle. According to the explanatory memorandum to the previous provision with the same content in Section 85 para. 1 UmwG in the version valid until 28.02.2023, the limitation of the compensation claim was intended to prevent the members of the merging cooperative from acquiring a share in the reserves and other assets of the merging company to which they would not be entitled in the event of their withdrawal following termination. The equity of the cooperative should also be preserved.

The intervention in ownership brought about by § 85 Para. 2 UmwG also constitutes a permissible content and limitation provision pursuant to Art. 14 Para. 1 Sentence 2 GG. Through this, the legislator had brought the interests of the parties worthy of protection into a fair balance and a balanced relationship. The nature of the cooperative, namely the interest worthy of protection in securing a stock of promotional capital and the economic substance, outweighed the property interests of the members and justified the restriction of the member's right to compensation in the event of a purely cooperative merger. A distribution of the cooperative assets among the members in excess of the nominal value of their business credit balances is only provided for by law if the cooperative is liquidated (§§ 90, 91 GenG) and the cooperative's promotional purpose thereby ceases to exist; as long as the promotional purpose exists and remains achievable, the cooperative assets in excess of the business credit balances are a promotional capital stock permanently allocated to the company for a specific purpose and to be passed on to future member bases as faithfully as possible. It should also be noted that by joining the cooperative, the member voluntarily participates in the cooperative in accordance with the statutory provisions and knows that, outside of liquidation, he cannot expect any economic compensation beyond the nominal value of his share capital.

The BGH rejects a teleological reduction of the exclusion of claims pursuant to Section 85 (2) UmwG in cases in which the intrinsic value deviates significantly from the nominal value of the share capital due to the lack of a loophole. It is not required under constitutional law and would violate the intention of the legislator expressed in the wording and in the explanatory memorandum to Section 85 UmwG.