9.2.2015

Official Journal of the European Union

C 46/17

(Case C-483/14)

(2015/C 046/24)

Language of the case: German

Referring court

Parties to the main proceedings

Defendant and appellant: KA Finanz AG

Applicant and respondent: Sparkassen Versicherung AG Vienna Insurance Group

Questions referred

Is Article 1(2)(e) of the 1980 Convention on the law applicable to contractual obligations (‘the Convention’) to be interpreted as meaning that the ‘company law’ excepted area includes.

(a)reorganisations such as mergers and divisions, and

(b)in connection with reorganisations, the creditor protection provision in Article 15 of the Third Council Directive 78/855/EEC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies?

Is the conclusion the same if Article 15 of Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies is applicable?

If the replies to Questions 1 and 2 are in the affirmative: Does the excepted area in Article 1(2)(d) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (‘the Rome I Regulation’) — as the successor provision to Article 1(2)(e) of the Convention — lead to the same conclusion, or must it be interpreted differently? If so, how?

Are any requirements concerning the treatment of mergers in relation to conflict of laws to be inferred from European primary law such as the freedom of establishment under Article 49 TFEU, the freedom to provide services under Article 56 TFEU and the free movement of capital and payments under Article 63 TFEU, in particular as to whether the national law of the State of the outwardly merging company or the national law of the target company is to be applied?

If Question 4 is answered in the negative: Are any principles concerning treatment in relation to conflict of laws to be inferred from European secondary law such as Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies or Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies or the Sixth Council Directive 82/891/EEC of 17 December 1982 based on Article 54(3)(g) of the Treaty concerning the division of public limited liability companies, in particular as to whether the national law of the State of the outwardly merging company or the national law of the target company is to be applied, or are national conflict-of-law rules free to decide to which substantive national law reference should be made?

Is Article 15 of the Third Council Directive 78/855/ECC of 9 October 1978 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies to be interpreted as meaning that the issuer is entitled, as against holders of securities, other than shares, to which special rights are attached, particularly in the case of subordinated loans, to terminate the legal relationship and to pay off the persons entitled in the case of a cross-border merger?

May the same conclusion be reached by applying Article 15 of Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies?

(1) 80/934/EEC: Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980, OJ 1980 L 266, p. 1.

(2) OJ 1978 L 295, p. 36.

(3) OJ 2011 L 110, p. 1.

(4) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ 2008 L 177, p. 6.

(5) OJ 2005 L 310, p. 1.

(6) OJ 1982 L 378, p. 47.