Opinion of the Advocate General — ECLI:EU:C:2015:757
Date: 2015-11-12
Language of the case: German
Subject matter: Right of establishment;Free movement of capital;Freedom to provide services;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary — Judgment of the Court (Third Chamber), 7 April 2016 1. Questions referred for a preliminary ruling — Admissibility — Limits — Hypothetical questions (Art. 267 TFEU) 2. Judicial cooperation in civil matters — Convention on the law applicable to contractual obligations — Scope — Merger of companies — Not included (Rome Convention of 19 June 1980, Art. 1(1) and (2)(e)) 3. Freedom of establishment — Companies — Directive 2005/56 — Cross-border mergers of limited liability companies — Applicable law, following a cross-border merger by acquisition, to the interpretation and performance of the obligations under a loan contract and to how those obligations are extinguished — Applicable law prior to that merger — Provisions governing the protection of the creditors of the acquired company — National legislation applicable to that company (European Parliament and Council Directive 2005/56, Recital 3, Arts 2(2)(a), 4 and 14(2)(a)) 4. Freedom of establishment — Companies — Rules on mergers of limited liability companies — Directive 78/855– Merger by acquisition — Article 15 — Securities, other than shares, to which special rights are attached — Definition (Council Directive 78/855, as amended by Directive 2009/109, Art. 15) 5. Freedom of establishment — Companies — Rules on mergers of limited liability companies — Directive 78/855 — Merger by acquisition — Article 15 — Scope — Grant of rights to the issuer of securities, other than shares, to which special rights are attached — Not included (Council Directive, as amended by Directive 2009/109, Art. 15) 1. See the text of the decision. (see paras 41-44) 2. It is stated in Article 1(2)(e) of the Rome convention of 19 June 1980 on the law applicable to contractual obligations and in Mario Giuliano and Paul Lagarde’s report on that convention that the convention does not apply to the merger of companies. (see paragraphs 50-52) 3. EU law must be interpreted as meaning, first, that the law applicable following a cross-border merger by acquisition to the interpretation of a loan contract taken out by the acquired company, such as a subordinated loan contract, to the performance of the obligations under the contract and to how those obligations are extinguished is the law which was applicable to the contract before the merger and, second, that the provisions governing the protection of the creditors of the acquired company are those of national law which were applicable to that company. In the first place, as regards the effects of a merger by acquisition within the meaning of Article 2(2)(a) of Directive 2005/56 on cross-border mergers of limited liability companies, it is stated in Article 14(2)(a) of that directive that a cross-border merger brings about, from the date when the merger takes effect, the transfer of all the assets and liabilities of the company being acquired to the acquiring company. A merger by acquisition therefore entails the acquisition by the acquiring company of the company being acquired in its entirety, without extinguishing the obligations that a winding-up would have brought about, and, without novation, has the effect of substituting the acquiring company for the company being acquired as party to all of the contracts concluded by the latter. Consequently, the law which was applicable to those contracts before the merger continues to be applicable after the merger. In the second place, as regards the protection of the interests of creditors in the case of a cross-border merger, it is apparent from recital 3 and Article 4 of Directive 2005/56 state that a company participating in a cross-border merger remains subject, as far as, inter alia, the protection of its creditors is concerned, to the provisions and formalities of the national law which would be applicable in the case of a national merger. It follows that, where a subordinated loan is taken out, the provisions governing the protection of the creditors of the acquired company, acting in their capacity as subscribers to such a loan, are those of national law which were applicable to that company before the merger. (see paragraphs 57-61, operative part 1) 4. Securities, other than shares, to which special rights are attached, within the meaning of Article 15 of Third Council Directive 78/855 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies, as amended by Directive 2009/109, refer, in addition to other securities, to debentures exchangeable for shares, debentures conferring a right of pre-emption over share capital to be issued, profit-sharing debentures and rights to be issued shares. Consequently, such securities are those which grant their holders rights which are broader than the mere reimbursement of debts and stipulated interest. The same applies, in particular, to securities acknowledging a right of their holders to exchange such securities for shares or the right to share in the profits of the issuing company. In so far as the securities issued by the company being acquired, before the merger, against the taking out of a subordinated loan do not grant their holders rights which are broader than a mere reimbursement of the debts and the stipulated interest, such securities do not, in principle, fall within the scope of Article 15 of Directive 78/855, which is a matter to be ascertained by the referring court. (see paragraphs 65-67) 5. Article 15 of Third Council Directive 78/855 based on Article 54(3)(g) of the Treaty concerning mergers of public limited liability companies, as amended by Directive 2009/109, must be interpreted as granting rights to holders of securities, other than shares, to which special rights are attached, but not to the company issuing such securities. That article lays down that the holders of securities, other than shares, to which special rights are attached, must be given rights in the acquiring company at least equivalent to those they possessed in the company being acquired, unless the alteration of those rights has been approved by a meeting of the holders of such securities, if such a meeting is provided for under national laws, or by the holders of those securities individually, or unless the holders are entitled to have their securities repurchased by the acquiring company. That article therefore aims to safeguard the interests of holders of securities, other than shares, to which special rights are attached and grants rights to the holders of those securities but not to their issuer. In those conditions, national legislation which grants the issuer of such securities the right unilaterally to terminate the legal relationship between it and the holders of those securities and to pay off those holders is incompatible with the wording and purpose of Article 15 of Directive 78/855 and cannot therefore be regarded as transposing that article. (see paragraphs 68-71, operative part 2)