Verein für Konsumenteninformation v TVP Treuhand- und Verwaltungsgesellschaft für Publikumsfonds mbH & Co KG.
Date: 2019-10-03
35


In that regard, the Court has held that the exclusion from the scope of the Rome I Regulation of matters relating to questions governed by the law of companies and other bodies, corporate or unincorporated, such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies, corporate or unincorporated, set out in Article 1(2)(f) of that regulation, applies exclusively to the structural aspects of those companies and other bodies, corporate or unincorporated (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 33).
36


That interpretation is supported by the Report on the Convention on the law applicable to contractual obligations, by Mario Giuliano, Professor, University of Milan, and Paul Lagarde, Professor, University of Paris I (OJ 1980 C 282, p. 1), according to which the exclusion of those questions from the scope of the Rome Convention, replaced between the Member States by the Rome I Regulation, affects all the complex acts which are necessary to the creation of a company or firm and to the regulation of its internal organisation and winding-up, that is to say acts which fall within the scope of company law (judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraph 34).
38


It should be noted that the Court has also held, as regards the obligations arising from a loan agreement concluded by a company before its cross-border acquisition, which fell, before its merger by acquisition, within the scope of the Rome Convention, that the applicable law for the interpretation and performance of those obligations after the merger remained the same as before (see, to that effect, judgment of 7 April 2016, KA Finanz, C‑483/14, EU:C:2016:205, paragraphs 52 to 58).
46


First, the concept of a ‘contract for the supply of services’ must be given the same meaning as ‘contract for the provision of services’ in Article 4(1)(b) of that regulation and ‘the provision of services’ in Article 5(1)(b) of Regulation No 44/2001, namely an obligation to carry out a particular activity in return for remuneration (see, to that effect, judgment of 8 May 2019, Kerr, C‑25/18, EU:C:2019:376, paragraphs 36 to 41).
58


Although Article 5(2) of the Rome Convention and Article 6(2) of the Rome I Regulation do, in principle, allow a choice-of-law clause, it must nevertheless be borne in mind that, within the meaning of Article 3(1) of Directive 93/13, such a term in the general terms and conditions of a seller or supplier which has not been individually negotiated, in so far as it leads the consumer into error by giving him the impression that only the law of the Member State of that professional’s seat applies to a contract concluded by electronic means, without informing him that under Article 6(2) of that regulation he also enjoys the protection of the mandatory provisions of the law that would be applicable in the absence of that term, this being for the national court to ascertain in the light of all the relevant circumstances, is unfair (judgment of 28 July 2016, Verein für Konsumenteninformation, C‑191/15, EU:C:2016:612, paragraph 71).