Saugmandsgaard ØE on Rome I’s lex societatis exception applied to trusts /’Treuhand’ in Verein für Konsumenteninformation v TVP Treuhand.

Update 20 October 2019 on 3 October the CJEU agreed.

Advocate General Saugmandsgaard ØE in C-272/18 Verein für Konsumenteninformation v TVP Treuhand opined early September (I have been busy) that the Rome Convention’s and Rome I’s lex societatis exception does not apply to ‘Treuhand’ (a trust-like construction) contracts between investors and the corporation they entrust to manage investment in real estate companies located in Germany. The relevant choice of court rule follows the standard Rome I (cq Convention) rules.

At the time of adoption of the Rome Convention, the Giuliano Lagarde Report went into a bit more detail as to what is and is not excluded:

Confirming this exclusion, the Group stated that it affects all the complex acts (contractual administrative, registration) which are necessary to the creation of a company or firm and to the regulation of its internal organization and winding up, i. e. acts which fall within the scope of company law. On the other hand, acts or preliminary contracts whose sole purpose is to create obligations between interested parties (promoters) with a view to forming a company or firm are not covered by the exclusion.

The subject may be a body with or without legal personality, profit-making or non-profit-making. Having regard to the differences which exist, it may be that certain relationships will be regarded as within the scope of company law or might be treated as being governed by that law (for example, societe de droit civil nicht-rechtsfahiger Verein, partnership, Vennootschap onder firma, etc.) in some countries but not in others. The rule has been made flexible in order to take account of the diversity of national laws.

Examples of ‘internal organization’ are: the calling of meetings, the right to vote, the necessary quorum, the appointment of officers of the company or firm, etc. ‘Winding-up’ would cover either the termination of the company or firm as provided by its constitution or by operation of law, or its disappearance by merger or other similar process.

At the request of the German delegation the Group extended the subparagraph (e) exclusion to the personal liability of members and organs, and also to the legal capacity of companies or firms. On the other hand the Group did not adopt the proposal that mergers and groupings should also be expressly mentioned, most of the delegations being of the opinion that mergers and groupings were already covered by the present wording.

Particularly in KA Finanz, the Court could have done a lot to clarify the scope of the Convention, but did not. Current case however offered a lot less beef to that particular bone for only with a stretch in my view could the issue be considered to fall under the corporate exception. The argument made was that given that the contracts instruct the Treuhand to manage the companies, and that there was ‘alignment’ (‘imbrication’ is the word used in the French version of the Opinion at 36; no English version yet exists) between the contacts and the by-laws of the companies concerned: these were geared in part specifically to facilitate the investment in the companies by the Treuhand.

The AG points out that there is no European code for company law hence no possibility to use harmonised substantive law to help interpret private international law. He relies therefore on the general interpretative rules, including predictability, and sides in my view justifiably with the issue, in essence, being about contractual obligations: not life and death of companies. A link alone with questions relating to corporate law (at 53) is not enough.

Geert.