KA Finanz AG v Sparkassen Versicherung AG Vienna Insurance Group.
Date: 2016-04-07
41


In addition, according to settled case-law of the Court, questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it (judgment in Verder LabTec, C‑657/13, EU:C:2015:331, paragraph 29 and the case-law cited).
52


It is clear from the Report on the Convention on the law applicable to contractual obligations by Mario Giuliano, professor at the University of Milan and Paul Lagarde, professor at the University of Paris I (OJ 1980 C 282, p. 1), that questions governed by the law of companies or other bodies corporate or unincorporated were not included within the scope of the Rome Convention in view of the work being conducted on the subject of company law within the European Communities. It is also clear from the report that contracts governing the winding-up of companies, such as mergers or groupings of companies, are listed among those covered by the exceptions set in Article 1(2) of the Rome Convention. The Convention does not therefore apply to the merger of companies.
53


However, in so far as the documents before the Court show that the contracts at issue in the main proceedings fell, before the merger of KA Finanz with Kommunalkredit, within the scope of the Rome Convention and that the contracting parties had chosen, in accordance with Article 3(1) of the Convention, German law as the law applicable to those contracts, it needs to be determined whether that law continues to govern those contracts after the merger, and, accordingly, pursuant to Article 10(1) of the Convention, their interpretation, the performance of the obligations to which they give rise and how those obligations are extinguished.
54


To that end, the legislation adopted by the EU legislature in the field of company law must be considered in the second place. In that regard, it should be noted that company law has been the subject of two pieces of legislation, intended both to organise the procedure for mergers and to govern their legal effects, namely, first, Directive 78/855, adopted with a view, as is apparent from its third recital, to coordinating the laws of the Member States relating to mergers of public limited liability companies, and to making provision for mergers in the laws of all the Member States and, second, Directive 2005/56, adopted with a view, as is apparent from recital 1 of that directive, to facilitating the carrying-out of cross-border mergers between various types of limited liability company governed by the laws of different Member States.
55


Accordingly, since the case in the main proceedings concerns how subordinated loans are to be dealt with following a cross-border merger, it is on the basis of Directive 2005/56 that the effect that merger had on such loans needs to be determined.
56


It is stated in Article 2(2)(a) of Directive 2005/56 that a merger by acquisition is an operation whereby one or more companies, on being dissolved without going into liquidation, transfer all their assets and liabilities to another existing company, namely the acquiring company.
57


As regards the effects of such an operation, it is stated in Article 14(2)(a) of Directive 2005/56 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.
58


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.