1.

The Verein für Konsumenteninformation (‘the VKI’), a consumer protection association established in Austria, has brought an action for an injunction ( 3 ) against TVP Treuhand- und Verwaltungsgesellschaft für Publikumsfonds mbH & Co KG (‘TVP’), a company whose registered office is located in Hamburg (Germany), seeking to prohibit that company from using in its business dealings with consumers residing in Austria a number of contractual terms. Those terms are contained in trust agreements concerning the management of shares in closed-end real property investment funds established in Germany in the form of limited partnerships. The terms in question include a choice-of-law clause designating German law.

2.

The Oberster Gerichtshof (Supreme Court, Austria) asks about the compatibility of that choice-of-law clause with Directive 93/13/EEC on unfair terms in consumer contracts ( 4 ) in the light, in particular, of the Court’s interpretation of that directive adopted in the judgment in Verein für Konsumenteninformation. ( 5 ) The answer to that question depends, in particular, on whether Austrian law is applicable to the trust agreements at issue in the absence of such a choice, or whether German law is applicable. That issue is, in turn, dependent on the interpretation of the Convention on the law applicable to contractual obligations ( 6 ) and of Regulation (EC) No 593/2008 on the law applicable to contractual obligations. ( 7 )

3.

That court has thus submitted various questions to the Court seeking, first, to determine whether those trust agreements raise ‘questions governed by the law of companies and other bodies, corporate or unincorporated’, which are excluded from the material scope of the Rome Convention and of the Rome I Regulation, since they concern limited partners’ shares and are closely linked to the agreements governing the relevant limited partnerships. Assuming that that is not the case, those questions turn, next, to whether those contracts are excluded from the scope of the protective rules on consumer contracts laid down in those instruments on the ground that the services are to be supplied to consumers, pursuant to those same agreements, exclusively outside Austria. Ultimately, those questions seek a ruling on the compatibility of the choice-of-law clause at issue with the Unfair Terms Directive.

4.

In this Opinion, I will explain why, in my view, the law applicable to trust agreements such as those at issue in the main proceedings must be determined in accordance with the rules of the Rome Convention and the Rome I Regulation. Furthermore, I will set out the reasons why, in my opinion, such agreements, under which services must be provided at a distance in the country in which the consumer is habitually resident from the territory of another country, are covered by the protective rules on consumer contracts provided for in those instruments. Lastly, I will explain that a choice-of-law clause such as that included in the agreements in question is unfair where, notwithstanding that choice, it does not inform the consumer that he enjoys the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence.

5.

Article 1 of the Rome Convention, entitled ‘Scope of the Convention’, provides, in paragraphs 1 and 2:

‘1.   The rules of this Convention shall apply to contractual obligations in any situation involving a choice between the laws of different countries.

2.   They shall not apply to:

…

…’

6.

Article 5 of the Rome Convention, entitled ‘Certain consumer contracts’, provides:

‘1.   This Article applies to a contract the object of which is the supply of goods or services to a person (“the consumer”) for a purpose which can be regarded as being outside his trade or profession, or a contract for the provision of credit for that object.

2.   Notwithstanding the provisions of Article 3, a choice of law made by the parties shall not have the result of depriving the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence:

or

…

3.   Notwithstanding the provisions of Article 4, a contract to which this Article applies shall, in the absence of choice in accordance with Article 3, be governed by the law of the country in which the consumer has his habitual residence if it is entered into in the circumstances described in paragraph 2 of this Article.

4.   This Article shall not apply to:

…

…’

7.

Article 1 of the Rome I Regulation, entitled ‘Material scope’, provides in paragraphs 1 and 2:

‘1.   This Regulation shall apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters.

It shall not apply, in particular, to revenue, customs or administrative matters.

2.   The following shall be excluded from the scope of this Regulation:

…

…’

8.

Article 6 of that regulation, entitled ‘Consumer contracts’, provides:

‘1.   Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:

…

and the contract falls within the scope of such activities.

2.   Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1.

3.   If the requirements in points (a) or (b) of paragraph 1 are not fulfilled, the law applicable to a contract between a consumer and a professional shall be determined pursuant to Articles 3 and 4.

4.   Paragraphs 1 and 2 shall not apply to:

…’

9.

The Rome I Regulation replaced the Rome Convention. Under Article 28 of that regulation, the Regulation is to apply to contracts concluded as from 17 December 2009. It is established that the action for an injunction at issue in the main proceedings concerns both contracts concluded before that date and contracts concluded and to be concluded after that date, such that those two instruments are applicable ratione temporis.

10.

Article 3(1) of the Unfair Terms Directive provides:

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’

11.

The company MPC Münchmeyer Capital AG Hamburg (‘MPC’) structures and markets closed-end real property investment funds, established in the form of limited partnerships under German law. ( 8 ) TVP, which is a 100% subsidiary of MPC, is the managing and founding general partner of the partnerships in question.

12.

Those investment funds were, from the outset, designed in such a way as to enable private and institutional investors to invest in them as limited partners. Under the limited partnership agreements structuring those investment funds, TVP is thus authorised, in its capacity as managing and founding general partner, to introduce further limited partners.

13.

To that end, another subsidiary of MPC was tasked with recruiting potential investors. The prospectuses relating to investments in the investment funds structured by MPC were distributed in particular (and, in certain cases, exclusively) in Austria.

14.

Interested investors could invest in those funds, inter alia, by sending TVP a declaration of accession in the form of a proposal to enter into a trust agreement (Treuhandsvertrag). The amount corresponding to the investment was to be paid into one of the fiduciary accounts (Treuhandkonten) opened for that purpose at Austrian banks. Investors thus entered those investment funds indirectly as settlor-beneficiaries through TVP, acting as trustee of their limited-liability partnership shares. On that basis, TVP exercises, in its own name but for the benefit of the investors in question, those investors’ rights deriving from their shares. It transfers to them the payment of dividends and other financial benefits arising therefrom. TVP also forwards to investors information received from the investment fund relating to its performance. In return for those various services, TVP receives a flat-rate fee.

15.

The trust agreements thus concluded with TVP contain inter alia the following clause (or a clause equivalent to it): ‘The trust agreement shall be governed by the law of the Federal Republic of Germany. The place of performance and jurisdiction for all disputes arising from this contract and concerning the conclusion of this contract shall be the seat of the trustee, in so far as this may legally be agreed.’

16.

On 6 September 2013, the VKI brought an action for an injunction before the Handelsgericht Wien (Commercial Court, Vienna, Austria) seeking an order prohibiting TVP from using, in its business dealings with consumers residing in Austria, in the general terms and conditions forming the basis of the trust agreements which it concludes and/or in the standard contract forms used for that purpose, a number of terms on the ground, inter alia, that they are unfair within the meaning of the Unfair Terms Directive and the Austrian law transposing that directive. In addition, the VKI seeks authorisation to publish the judgment.

17.

The action brought by the VKI concerns, in particular, the clause relating to the place of performance of the fiduciary services and the law applicable to the trust agreements, as set out in point 15 of this Opinion. In that context, the VKI has claimed that, in accordance inter alia with the provisions of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations, ( 9 ) the validity of the terms at issue must be assessed in the light not of the law applicable to those contracts but of the lex loci damni — that is, Austrian law. Moreover, it maintains that Austrian law is also applicable under the Rome Convention and the Rome I Regulation.

18.

TVP contended that the action brought by the VKI should be dismissed. According to that company, in accordance with the provisions of the Rome I Regulation, the validity of the terms at issue must be determined under German law, which was chosen as the law applicable to the trust agreements. In addition, the trust and limited partnership agreements are so closely interwoven that the former must necessarily be subject to the same law as the latter, that is, German law. Moreover, TVP performed all its duties agreed under the agreements in Germany and has no branch, permanent establishment or even employees in Austria.

19.

By a judgment of 3 September 2015, the Handelsgericht Wien (Commercial Court, Vienna) granted the VKI’s action. Applying Austrian law, that court ordered TVP to stop using, in its business dealings with consumers residing in Austria, the terms referred to in that action, including the choice-of-law clause. It also granted the application for publication of the judgment.

20.

By an order of 13 September 2016, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) set aside the judgment given by the Handelsgericht Wien (Commercial Court, Vienna) and referred the case back to that court for a fresh decision after further proceedings. In particular, the court of appeal held, referring to the judgment in VKI v Amazon, that, whilst the validity of the choice-of-law clause at issue had to be analysed in the light of German law, such a term is unfair under that law in so far as it misleads the consumer by giving him the impression that only that law applies to the agreement, without informing him that, under the Rome Convention and the Rome I Regulation, he also enjoys the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence — in the present case, Austrian law.

21.

The VKI and TVP each lodged an appeal against that order before the Oberster Gerichtshof (Supreme Court). In those circumstances, that court decided to stay the proceedings and refer the following questions to the Court for a preliminary ruling:

22.

The order for reference, dated 28 March 2018, was received at the Court Registry on 20 April 2018. Written observations were submitted by the VKI, TVP and the European Commission. The same parties were represented at the hearing on 27 February 2019.

23.

The background to the action for an injunction brought in the present case by the VKI against TVP is investments by private investors residing in Austria in closed-end real property investment funds in the form of limited partnerships subject to German law. ( 10 ) More specifically, by signing an application to enter those investment funds, the investors did not directly acquire shares in the limited partnerships in question. In actual fact, they entrusted the value of their shares to TVP, which is the managing and founding general partner of those limited partnerships, and signed with that partnership trust agreements (Treuhandvertrags) concerning the management of those shares. ( 11 )

24.

It is important at this stage to explain briefly that, in the context of a Treuhand transaction (Treuhand being a German law concept, similar to a fiducie under French law), one person, referred to as the settlor (Treugeber), transfers the ownership of assets to another person, called the trustee, who is to hold those assets separately from his own assets and manage them for a specific purpose for a beneficiary (who may be, but is not necessarily, the settlor). As the owner of the assets transferred, the trustee acts in his own name but for the benefit of the beneficiary. ( 12 )

25.

Under the trust agreements at issue, TVP, which is thus also a ‘direct’ limited partner of the limited partnerships in question, therefore manages the shares owned by it in those partnerships in its name but on behalf of a large number of investors who are at the same time settlors and beneficiaries of trustee arrangements relating to the relevant shares. In that way, those investors (in the words of the referring court) ‘became partners indirectly’ in those partnerships. ( 13 )

26.

The action for an injunction brought by the VKI against TVP concerns the validity of various terms contained in those trust agreements (or, more specifically, in the general terms and conditions on which the agreements are based and in the standard contract forms used for that purpose). The VKI argues, in particular, that those terms are unfair within the meaning of Article 3(1) of the Unfair Terms Directive. Since TVP’s registered office is located in Germany and the VKI is seeking to protect the interests of consumers resident in Austria, the issue arises of the law applicable to that action.

27.

In the judgment in VKI v Amazon, the Court held, in essence, that the law applicable to an action for an injunction directed against the use of allegedly unfair contractual terms by an undertaking established in a Member State which concludes contracts with consumers resident in other Member States must be determined in accordance with Article 6(1) of the Rome II Regulation. ( 14 ) However, the question of the unfairness of a particular contractual term falls within the scope of the law applicable to the contract, which is, in principle, determined by the Rome Convention or the Rome I Regulation. ( 15 ) In the present case, in order to dispose of the action brought by the VKI against TVP, the law applicable to the trust agreements at issue must therefore be determined.

28.

In this regard, TVP relies on a choice-of-law clause, provided for in those trust agreements and designating German law, the law in which TVP itself and the limited partnerships are established, as being applicable. The VKI, however, claims that that term is unfair. In the judgment in VKI v Amazon, the Court held that a term of that kind is such as to mislead the consumer in so far as it fails to inform him that he enjoys the protection offered, in accordance with the protective rules on consumer contracts laid down in the Rome I Regulation, notwithstanding the chosen law, by the mandatory provisions of the law of the country in which he has his habitual residence. ( 16 ) TVP submits in response that that case-law cannot be applied to the case in the main proceedings. The choice-of-law clause is purely declaratory: the trust agreements at issue in the main proceedings must, in any event, be subject to German law, which is applicable to those partnerships.

29.

In that context, the referring court asks the Court, by its first questions, whether, as TVP submits, the trust agreements at issue in the main proceedings are excluded from the material scope of the Rome Convention and the Rome I Regulation under the exclusion laid down in Article 1(2)(e) of that convention and Article 1(2)(f) of that regulation concerning ‘questions governed by the law of companies and other bodies, corporate or unincorporated’ and, if that is the case, to what extent. I will consider this issue first in this Opinion (Section A).

30.

If the trust agreements at issue do fall within the material scope of the Rome Convention and the Rome I Regulation, the referring court seeks to determine, by its third and fourth questions, whether those agreements are covered by the protective rules on consumer contracts contained in Article 5 of that convention and Article 6 of that regulation. More specifically, it asks about the scope of the exclusion laid down in paragraph 4 of those two articles, on which TVP relies, under which those protective rules do not apply to ‘a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence’. For the sake of convenience, I will examine those questions together and secondly (Section B).

31.

Finally, I will end this Opinion by considering the second question put by the referring court concerning the unfairness, within the meaning of Article 3(1) of the Unfair Terms Directive, of the choice-of-law clause at issue (Section C).

32.

By its first question, the referring court asks, in essence, whether Article 1(2)(e) of the Rome Convention and Article 1(2)(f) of the Rome I Regulation are to be interpreted as meaning that the exclusion provided therein, concerning ‘questions governed by the law of companies and other bodies, corporate or unincorporated’, covers contractual obligations which arise out of a trust agreement concerning the management of shares in a limited partnership, in particular where that agreement and agreements governing the partnership are interwoven.

33.

The Rome Convention and the Rome I Regulation apply, as stated in Article 1(1) of both instruments, to ‘contractual obligations’. ( 17 ) The law applicable to such obligations must, in principle, be determined according to the conflict-of-laws rules of those instruments.

34.

However, Article 1(2) of those instruments expressly excludes certain matters from their scope. In particular, under Article 1(2)(e) of the Rome Convention and Article 1(2)(f) of the Rome I Regulation, they do not apply to ‘questions governed by the law of companies and other bodies, corporate or unincorporated’. Accordingly, the law applicable to such ‘questions’ must be determined according to national conflict-of-laws rules. ( 18 )

35.

It is not disputed that, as a general rule, a trust agreement creates between the parties ‘contractual obligations’ falling within the material scope of the Rome Convention and the Rome I Regulation.

36.

However, the trust agreements to which the action brought in the present case by the VKI against TVP relates are peculiar in that, first, they concern the management of shares in limited partnerships and, second, that, to use the wording of the referring court, those agreements and the partnership agreements in question are ‘interwoven’.

37.

It is apparent from the order for reference and from the observations submitted to the Court that that ‘interwoven’ nature stems from the fact that provision is made in the agreements governing the partnerships for investors to conclude a trust agreement with TVP and ‘indirectly’ become partners of the limited partnerships as settlor-beneficiaries. Furthermore, the partnership agreements provide that settlor-beneficiaries are to be treated as ‘direct’ limited partners in their relationship with the partnership concerned and with the other limited partners, who have the same obligations (including participation in capital and losses) and rights (including the right to receive dividends and voting rights). TVP’s fee for its fiduciary services is provided for in the partnership agreements and paid not by the settlor-beneficiaries but by the partnerships. The trust agreements in question also refer, in several places, to the partnership agreement governing those partnerships.

38.

It is therefore necessary to ascertain, in the light of those particular facts, whether the law applicable to the contractual obligations arising under those agreements is to be determined in accordance with national conflict-of-laws rules, on the basis of the exclusion relating to ‘questions governed by the law of companies and other bodies, corporate or unincorporated,’ within the meaning of Article 1(2)(e) of the Rome Convention and Article 1(2)(f) of the Rome I Regulation.

39.

The VKI submits that that is not the case. The trust agreements established a unique relationship between the settlor-beneficiaries and TVP which is covered not by the law of companies but by the law of obligations. The settlor-beneficiaries do not have the status of limited partners, which is reserved for persons registered in that capacity in the German commercial register. They have no direct legal relationship with those partnerships or its partners. The settlor-beneficiaries cannot, for instance, directly exercise any voting rights or right to dividends as does a partner. They may only instruct TVP to transfer to them any dividends that it receives as a partner and to exercise its voting rights in a particular way for their benefit.

40.

Conversely, TVP contends that, in so far as the settlor-beneficiaries have the same rights and obligations as ‘direct’ partners, those settlor-beneficiaries are directly involved in those limited partnerships and must, from the perspective of the law of partnerships, be regarded as partners (or ‘quasi-partners’) in their internal relationship with those partnerships. There is a direct relationship between the settlor-beneficiaries, the partnerships and the partners. The settlor-beneficiaries can, for instance, exercise voting rights and the right to dividends vis-à-vis the partnership. As a trustee, TVP’s involvement is confined to facilitating the handling of the status of settlor-beneficiaries as partners in matters relating to registration and facilitating the internal management of those partnerships. The relationship between the settlor-beneficiaries and TVP is also determined by the law of partnerships. The trust agreements are therefore inseparable from the limited partnership agreements. There is a single legal relationship between the partnership, the ‘direct’ partners, trustees and settlor-beneficiaries, which falls squarely within the exclusion provided for in Article 1(2)(e) of the Rome Convention and Article 1(2)(f) of the Rome Regulation. ( 19 )

41.

For my part, I take the view that contractual obligations such as those arising from the trust agreements at issue do not fall within the scope of the exclusion relating to ‘questions governed by the law of companies and other bodies, corporate or unincorporated’, within the meaning of Article 1(2)(e) of the Rome Convention and Article 1(2)(f) of the Rome I Regulation for the following reasons. Since the content of those provisions is essentially the same, I will refer in the following points, for the sake of convenience, to that regulation alone; however, my analysis is entirely applicable to that convention.

42.

The Rome I Regulation does not define the concept of ‘questions governed by the law of companies and other bodies, corporate or unincorporated’ within the meaning of Article 1(2)(f) of that regulation. Nevertheless, its meaning cannot, in my view, be left to the law of each Member State. Where it contributes to defining the scope of that regulation, and in order to guarantee the uniform application in all Member States of the conflict-of-laws rules for which it provides, that concept must be given an autonomous meaning, by reference to the wording of that provision, its legislative history, the scheme and the objectives of the regulation. ( 20 ) In view of the factual context of the present case, I will focus solely on ‘questions governed by the law of companies’ and partnerships, thus setting aside all other bodies, corporate or unincorporated.

43.

Turning first of all to the wording of Article 1(2)(f) of the Rome I Regulation, that provision provides a list — which is admittedly not exhaustive but is nonetheless indicative — of such ‘questions’. They relate, inter alia, to ‘the creation …, legal capacity, internal organisation or winding-up of companies …, and the personal liability of officers and members as such for the obligations of the company …’. The Giuliano-Lagarde Report provides similar indications, clarifying that that exclusion covers ‘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 organisation and winding-up’, that is to say acts which ‘fall within the scope of company law’. ( 21 )

44.

Next, with regard to the legislative history of that exclusion, the Giuliano-Lagarde Report explains that its inclusion in the Rome Convention was justified by the action undertaken by the European Community in the field of substantive company law when that convention was drawn up, with a view to approximating the related laws of the Member States. ( 22 ) Furthermore, the differences that exist between Member States vis-à-vis the company law conflict-of-laws rules similarly explain that exclusion in my view. ( 23 )

45.

As for the scheme and objectives of the Rome I Regulation, I note that that regulation lays down conflict-of-laws rules which are intended to be highly foreseeable, with a view to ensuring legal certainty as to the applicable law. ( 24 ) In my view, the exclusion relating to ‘questions governed by the law of companies’ provided for in Article 1(2)(f) of the Rome I Regulation contributes to that objective. In that connection, companies operating internationally are confronted with various legal systems which may claim to govern those companies. In that context, it is generally accepted within the legal systems of the Member States that, with the same aim of ensuring foreseeability and legal certainty, in the interest in particular of the creditors and members of a company, a certain number of questions relating to that company must be centralised and fall within the scope of a single body of law, commonly referred to as company law (or lex societatis).

46.

In short, the purpose of Article 1(2)(f) of the Rome I Regulation is to exclude from its scope questions of company law, or in other words, questions falling within the scope of the lex societatis, with a view to preventing these specific questions being subject to different legal systems, since the objective is to ensure foreseeability and legal certainty as regards the applicable law to companies and, in so doing, the movement of companies on the international stage. ( 25 )

47.

In the absence of a uniform and complete body of rules applicable to companies in EU law, ( 26 ) it is difficult, if not impossible, to provide an exhaustive definition of what constitutes a question governed by the law of companies and by the lex societatis. A case-by-case approach must be adopted, looking to the general principles which stem from the corpus of the national legal systems. I further note that, in some legal systems, the conflict-of-laws rules contain a list of the questions falling within the scope of the lex societatis. However, those lists are only illustrative and differences exist between Member States as to the questions governed by that law. ( 27 ) In view of those differences, attention should undoubtedly be focussed on the core set of questions generally accepted in those States, whilst seeking to preserve the objective of foreseeability and legal certainty vis-à-vis the law applicable to a company sought by Article 1(2)(f) of the Rome I Regulation. ( 28 )

48.

In that context, a company’s constitution or partnership agreement, in so far as it governs questions regarding the internal organisation of that company or partnership, such as the extent and exercise of company or partnership rights (such as voting rights) and financial rights (such as the right to dividends) which stem from the status of shareholder or partner, fall within the exclusion laid down in that provision.

49.

However, I take the view that the mere fact that a contract concerns shares, whether it is for example a contract of sale or — as in the present case — a trust agreement, cannot justify excluding the obligations which arise from that contract or agreement from the scope of Article 1(2)(f) of the Rome I Regulation.

50.

It is true that transactions such as the sale of, or a trust over, shares may raise ‘questions governed by the law of companies’, which are excluded from the Rome I Regulation. ( 29 ) However, in my view, a distinction must be drawn between such questions and those raised by the contracts underpinning such transactions, which — for their part — fall within the field of the lex contractus, ( 30 ) and within the scope of that regulation.

51.

A rigorous classification exercise must therefore be undertaken in every case. In that context, as the referring court rightly points out, a distributive classification approach must generally be adopted according to the points of law posed by a request.

52.

For example, in the case which gave rise to the judgment in KA Finanz, ( 31 ) which specifically concerned the exclusion relating to ‘questions governed by the law of companies’ (in the iteration of that exclusion contained in Article 1(2)(e) of the Rome Convention), the question at issue was that of the law applicable, following a cross-border merger by acquisition, to the interpretation, performance and means of extinguishing obligations under a loan contract taken out by the acquired company prior to that merger. The Court stated that the interpretation, performance and extinguishing of the obligations to which such contracts give rise are questions falling within the field of the lex contractus and the scope of that convention. However, the question of the effect of a merger by acquisition on the contracts taken out by the acquired company fell, in the Court’s view, within the field of lex societatis and the scope of the exclusion. ( 32 )

53.

In other words, the mere fact that there is a link between a contract and ‘questions governed by the law of companies’ does not have the effect of excluding from the scope of the Rome I Regulation the obligations arising from that contract. This will be the case only in relation to such ‘questions’, which must therefore be classified separately from questions of a contractual nature. ( 33 )

54.

That being clarified, in the present case, the action for an injunction brought by the VKI concerns, I reiterate, the unfairness and, therefore, the validity of certain terms of the trust agreements at issue, terms which concern questions such as the extent of TVP’s liability as a trustee, the limitation and prescription periods within which the investor, as a settlor-beneficiary, may bring a claim against TVP, the place of performance of the fiduciary services and the law applicable to the trust agreement. In my view, all those questions are contractual in nature and therefore fall within the field of the lex contractus and the scope of the Rome I Regulation.

55.

The fact that those agreements and the limited partnership agreements are ‘interwoven’, as has been explained in point 37 of this Opinion, does not, in my opinion, call that interpretation into question.

56.

In this regard, I note that the parties in the main proceedings disagree as to whether or not, given the interwoven nature of the transaction, the settlor-beneficiaries have the status of partners. In my view, that is indeed a ‘question governed by the law of companies’ excluded from the Rome I Regulation and falling within the field of lex societatis. As a general rule, it is for that law to determine who has that status. It is, where appropriate, for the referring court to answer that question of substantive law in the light of German law. ( 34 )

57.

However, in the context of the action brought by the VKI, that question is not the decisive factor. The matter at issue is not determining the extent of any rights and obligations which the settlor-beneficiaries may have, under the applicable partnership law, directly vis-à-vis the limited partnerships. If the law applicable to those partnerships, that is, German law, were to provide that, in the light of the rights and obligations of the settlor-beneficiaries, as laid down in the partnership agreements, it is necessary to regard those settlor-beneficiaries as partners, ( 35 ) this would not, in my view, alter the contractual nature of the questions submitted in the present case. Questions such as the extent of TVP’s liability as a trustee, or the rules on the limitation of actions brought by settlor-beneficiaries against TVP, are not simply ‘questions governed by the law of companies’, which must be centralised within the context of the lex societatis. An interpretation to the contrary would, as the referring court rightly points out, go beyond the objective of foreseeability and legal certainty pursued by Article 1(2)(f) of the Rome I Regulation.

58.

As the Commission claims, it is also possible to reason in terms of legal relationships. The terms of the trust agreement are intended to govern the legal relationship between the settlor-beneficiary and the trustee. They determine their respective rights and obligations under the trust agreement. Even where the agreement reproduces rights and obligations provided for in the agreements governing a partnership, one party to the agreement may rely on them against the other only in so far as that same agreement so provides. The contractual obligations at issue must therefore be distinguished from those agreements. The partnership agreements and the lex societatis are directly relevant only with regard to the settlor-beneficiaries’ potential relationships, as partners (supposing that they are partners) vis-à-vis the partnership and its limited partners, ( 36 ) relationships which are not at issue in the present case.

59.

The interpretation which I am advocating is not undermined by TVP’s submission that distinguishing between the trust agreement and the partnership agreement for the purposes of determining the applicable law could disturb the balance between the partners of those limited partnerships and the settlor-beneficiaries, in particular, as far as concerns the partnership’s liability to third-party creditors for the debts of the partnership. TVP maintains, in that regard, that, in accordance with the case-law of the Bundesgerichtshof (Federal Court of Justice), although the settlor-beneficiaries are not directly liable to third-party creditors, they are nevertheless to reimburse the trustee any liability it may have incurred as a limited partner vis-à-vis those beneficiaries (since they are ‘indirectly’ liable to creditors). In that regard, I accept that the liability of partners for the debts of the partnership is again a ‘question governed by the law of companies and other bodies corporate or unincorporate’, which is excluded from the Rome I Regulation, as expressly laid down in Article 1(2)(f) thereof. However, the question of any obligation owed by a settlor-beneficiary to reimburse the trustee his liability for the debts of the partnership is, above all, a question of their contractual relationship. In my opinion, it is therefore governed by the lex contractus and falls within the scope of that regulation. ( 37 )

60.

In the light of all the foregoing considerations, I suggest that the Court answer the first question to the effect that the exclusion provided for in Article 1(2)(e) of the Rome Convention and in Article 1(2)(f) of the Rome I Regulation, which relates to ‘questions governed by the law of companies and other bodies, corporate or unincorporated’, does not apply to contractual obligations arising from a trust agreement relating to the management of shares in a limited partnership.

61.

In so far as the Court holds, as I propose that it do, that contractual obligations arising from the trust agreements at issue do not fall within the scope of the exclusion provided for in Article 1(2)(f) of the Rome I Regulation (or the equivalent exclusion in the Rome Convention), the law applicable to those agreements must be determined in accordance with the conflict-of-laws rules provided for in those instruments.

62.

In this regard, the referring court has found that the trust agreements at issue are consumer contracts which may fall within the scope of the relevant protective rules laid down in Article 5 of that convention and Article 6 of that regulation. ( 38 ) They bind a ‘professional’, namely TVP, acting in the exercise of its trade or profession, to various investors who are ‘consumers’, namely natural persons who, by concluding those agreements, have acted for a purpose which can be regarded as being outside their trade or profession. ( 39 ) That court has also found that the conditions governing the application of that protection are met. ( 40 )

63.

However, paragraph 4 of those articles expressly excludes certain contracts from their scope. In particular, Article 5(4)(b) of the Rome Convention and Article 6(4)(a) of the Rome I Regulation, the wording of which is identical, provide that the protection for consumer contracts is not to apply to ‘a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence’. The law applicable to contracts falling within the scope of that exclusion must be determined in the light of the general conflict-of-laws rules provided for in Articles 3 and 4 of those instruments.

64.

In that context, by its third and fourth questions, the referring court asks, in essence, whether trust agreements such as those concerned by the action for an injunction brought by the VKI may be covered by that exclusion.

65.

The VKI and the Commission submit, in essence, that that exclusion should not apply in the present case where the consumers receive certain services under trust agreements at issue in Austria. TVP, on the other hand, contends that it provides fiduciary services exclusively in Germany, ( 41 ) as provided for in those agreements, since the activities required to perform those agreements are carried out exclusively in that Member State.

66.

I share the view of the latter for the following reasons. Once again, since there is no difference between the Rome Convention and the Rome I Regulation as far as concerns the issue at hand, the same interpretation must be adopted for both instruments. For the sake of convenience, I will therefore once more refer in the remainder of this Opinion to the Rome I Regulation only.

67.

Two cumulative conditions are clear from the wording of Article 6(4)(a) of the Rome I Regulation. The exclusion contained in that provision applies provided that, first, there is a ‘contract for the supply of services’ and, second, that the services are to be supplied to the consumer ‘exclusively in a country other than that in which he has his habitual residence’.

68.

The interpretation of the first condition leaves no room for doubt. In that regard, the concept of a ‘contract for the supply of services’ used in Article 6(4)(a) of the Rome I Regulation must, in my view, be defined autonomously and must be given the same meaning as that of a ‘contract for the provision of services’ contained in Article 4(1)(b) of that regulation. ( 42 ) The category of contracts covered by both concepts, despite a slight difference in terminology, is quite clearly the same. Furthermore, that category must therefore have the same scope as that of a ‘provision of services’ laid down, for the purposes of jurisdiction in matters relating to a contract, in Article 7(1)(b) of the Brussels Ia Regulation. ( 43 ) It is apparent from the case-law of the Court on that provision that the concept of ‘services’ implies, at the very least, that the party who provides the service carries out a particular activity in return for remuneration. ( 44 ) As TVP makes clear, a trust arrangement constitutes such a ‘service’: under a trust agreement, the trustee carries out a particular activity — consisting in the management of the assets vested in trust — in return for remuneration.

69.

The scope of the second condition, relating to the place where the services ‘shall be supplied’ to the consumer is less obvious. The Court has indeed previously addressed the question of the place of performance of a contractual obligation or of a contract for the purposes of determining jurisdiction in matters relating to a contract, using a variety of criteria. ( 45 ) However, the Court has not yet examined that question in the context of Article 4(1)(b) of the Rome I Regulation for the purposes of determining the applicable law. It is necessary to determine, first of all, whether the question of the place of performance is governed by national law, in particular by the lex contractus, or must be defined autonomously under EU law, and the significance to be attributed to any place of performance stipulated in the contract.

70.

In that regard, I note that the referring court has focussed on certain obligations under the trust agreements at issue, namely TVP’s obligation to provide the investor with information about the performance of the investment fund and the obligation to transfer to that investor dividends and any other financial benefits owed to him, and has determined where those obligations are to be performed, having regard both to Austrian and German law, that is to say the two laws capable of being applicable to those agreements. ( 46 ) That court also took the view that, under either law, the clause designating the place of performance under the trust agreements is invalid. ( 47 )

71.

However, I take the view that the question of the place where the services are to be supplied to the consumer (and of the effect of any term designating that place of performance), for the purposes of the application of Article 6(4)(a) of the Rome I Regulation, should not be left to the lex contractus. That question must in fact be settled before the lex contractus is designated, and its specific purpose is to determine that law. In order to avoid adopting circular or complex logic, ( 48 ) it is necessary, in my view, to adopt an autonomous interpretation of the ‘place where the services are to be supplied to the consumer’, within the meaning of that provision, which must be identified in the light of the context and the objectives of that provision.

72.

With regard, in the first place, to the context of Article 6(4)(a) of the Rome I Regulation, I take the view, as do the VKI and the Commission, that that provision must be interpreted strictly, since it has the effect of causing the consumer to lose the protection afforded to him by the law of the country in which he has his habitual residence (or at the very least the mandatory rules of that law) and it thus runs counter to the objective of protection generally pursued by that article. ( 49 )

73.

In addition, the fact that an equivalent exclusion is not found in Article 17 of the Brussels Ia Regulation ( 50 ) in relation to jurisdiction likewise argues, in my view, in favour of such a strict interpretation. ( 51 )

74.

With regard, in the second place, to the objective pursued by the exclusion in question, it is explained in the Giuliano-Lagarde Report, in relation to Article 5(4)(b) of the Rome Convention, that, ‘in the case of contracts relating to the supply of services (for example, accommodation in a hotel, or a language course) which are supplied exclusively outside the State in which the consumer is resident, the latter cannot reasonably expect the law of his State of origin to be applied ( 52 ) in derogation from the general rules of Articles 3 and 4’. In such cases, ‘the contract is more closely connected with the State in which the other contracting party is resident, even if the latter has performed one of the acts described [in Article 5(2)] (advertising, for example) in the State in which the consumer is resident’. ( 53 )

75.

Furthermore, it is apparent from the discussions held at the time the Rome I Regulation was adopted, in particular those within the Council of the European Union, that that exclusion was maintained in that regulation inter alia because certain delegations feared that consumers would otherwise be ‘over-protected’ and they wanted to prevent too great an impact on small and medium-sized undertakings, particularly in the tourism sector. ( 54 )

76.

In my view, it follows from those factors that, in order to determine the place where the services ‘shall be supplied’ to the consumer, within the meaning of Article 6(4)(a) of the Rome I Regulation, regard must be had, from a factual perspective, to the nature of the services in question. Although a term designating the place of performance of the contractual obligations may perhaps be indicative in that regard, it is by no means decisive. The words ‘to be supplied’ do not refer, in that context, as TVP contends, to the place where the obligations must be performed in accordance with the terms of the contract. ( 55 ) As the VKI claims, it is in reality necessary to ascertain whether it follows from the very nature of the contracted services that they will necessarily be supplied outside the State in which the consumer has his habitual residence. Furthermore, in the case of ‘complex’ services, regard must be had to all the services provided to the consumer. ( 56 )

77.

The assessment of the place where the services are to be supplied to the consumer is relatively simple in the case of the tourist industry services mentioned in the Giuliano-Lagarde Report and discussed in the Council, such as catering or hotel accommodation. In such situations, the provision of services is, by its nature, located in a single place: the professional physically performs the necessary activities and the consumer receives the corresponding result in one and the same place.

78.

However, other services may be supplied at a distance, that is to say the place where the services are physically provided is not the same place where the consumer receives the result of that service. In particular, those two places may be in different countries. This means that the services are thus provided on a cross-border basis and the trader has not, as stated by the referring court in its third question, travelled to the consumer’s country to perform his obligations.

79.

In that regard, I share the view of the referring court and of the Commission that, in the case referred to in the previous point, ‘services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence’ within the meaning of Article 6(4)(a) of the Rome I Regulation. ( 57 ) In other words, the exclusion provided for in that provision should not apply in that case.

80.

In my view, first, the EU legislature’s insistence, in the wording of Article 6(4)(a) of the Rome I Regulation, that the services must be supplied ‘exclusively’ outside the country in which the consumer has his habitual residence and, second, the explanations underlying that provision ( 58 ) tend to make it clear that the exclusion in question should apply only to situations in which the consumer must, having regard to the nature of the relevant services, go to another country in order to receive the services. In this scenario, the contract has few connections with the country in which the consumer has his habitual residence and is (manifestly) more closely connected with the country in which the services are supplied. ( 59 ) However, in the case of services supplied at a distance in the country in which the consumer has his habitual residence, those services are more closely connected with that country and the consumer may reasonably expect that the law of that country applies (or at least mandatory provisions of that law).

81.

Those considerations are, in my view, fully applicable to a case such as that in the main proceedings. In particular, the fact that the subscription monies required were paid by Austrian consumers into fiduciary accounts (Treuhandkonten) held by TVP in Austria, ( 60 ) that TVP transfers the payment of the dividends and other financial benefits owed to Austrian consumers into Austrian accounts, that that partnership fulfils its obligations to provide information arising from the trust agreement by sending reports on the performance of the investment funds in Austria and that it has a website for Austrian consumers on which they may consult information and exercise their voting rights ( 61 ) shows that those consumers receive the result of the services supplied by TVP in the country in which they are habitually resident. Therefore the exclusion laid down in Article 6(4)(a) of the Rome I Regulation is not, in my opinion, intended to apply.

82.

In the light of the foregoing, I suggest that the Court answer the third and fourth questions to the effect that Article 5(4)(b) of the Rome Convention and Article 6(4)(a) of the Rome I Regulation are to be interpreted as meaning that the exclusion provided for therein, relating to ‘a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence’, does not apply to a trust agreement under which the services are supplied by the trader to the consumer, in the country in which the consumer has his habitual residence, at a distance from the territory of another country.

83.

By its second question, the referring court asks, in essence, whether Article 3(1) of the Unfair Terms Directive is to be interpreted as meaning that a term of a trust agreement concluded between a professional and a consumer concerning the management of shares in a limited partnership, which was not individually negotiated and which provides that the law of the Member State in which that limited partnership has its seat is to apply, is unfair within the meaning of that provision.

84.

As indicated in this Opinion, in my view, the law applicable to contractual obligations such as those arising from the trust agreements at issue must be determined in accordance with the conflict-of-laws rules laid down in the Rome Convention and in the Rome I Regulation and, more specifically, in accordance with those relating to consumer contracts contained in Article 5 of that convention and in Article 6 of that regulation.

85.

Article 5(3) of the Rome Convention and Article 6(1) of the Rome I Regulation provide that, in principle, a consumer contract is governed by the law of the country where the consumer has his habitual residence. In the present case, this would therefore be Austrian law.

86.

However, the trust agreements at issue provide, I reiterate, for a choice-of-law clause designating the law of the country where TVP and the limited partnerships has its seat, that is, German law. The VKI argues however that that clause is unlawful. In particular, like the other terms to which its action refers, that clause is unfair.

87.

In that regard, it should be borne in mind that Article 5(2) of the Rome Convention and Article 6(2) of the Rome I Regulation allow, in principle, such a choice-of-law clause. However, under those provisions, such a choice may not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement (or ‘mandatory provisions’ ( 62 )) by virtue of the law of the country where he has his habitual residence. In the present case, the term at issue cannot therefore prevent consumers residing in Austria (and the VKI in its action for an injunction) from relying on the mandatory provisions of Austrian law.

88.

In the judgment in VKI v Amazon, the Court held that a term in the general terms and conditions of a seller or supplier which has not been individually negotiated, under which the contract concluded with a consumer electronically is to be governed by the law of the Member State in which the seller or supplier is established, is unfair — within the meaning of Article 3(1) of the Unfair Terms Directive — in so far as it leads the consumer into error by giving him the impression that only the law of that Member State applies to the contract, without informing him that under Article 6(2) of the Rome I Regulation (or, as the case may be, Article 5(2) of the Rome Convention) he also enjoys the protection of the mandatory provisions of the law of the country in which he has his habitual residence. ( 63 )

89.

Like the VKI and the Commission, I am of the opinion that that case-law may be applied to the case in the main proceedings. In that regard, I share the Commission’s view that the fact that the trust agreements at issue do not appear to have been concluded electronically is irrelevant. In my understanding, a choice-of-law clause is unfair where, contrary to the requirement that terms must be drafted in plain, intelligible language, as set out in Article 5 of the Unfair Terms Directive, it does not inform the consumer that, notwithstanding that choice, he may rely on the mandatory provisions of the law of the country in which he has his habitual residence. ( 64 ) The form and manner in which the contract was concluded is not a relevant factor to that reasoning. By contrast, the fact that the term at issue does not satisfy that information requirement is decisive. ( 65 )

90.

In the light of the foregoing considerations, I suggest that the Court answer the second question to the effect that Article 3(1) of the Unfair Terms Directive is to be interpreted as meaning that a term of a trust agreement concluded between a professional and a consumer concerning the management of shares in a limited partnership, which has not been individually negotiated and under which the applicable law is that of the Member State in which the seller or supplier and that limited partnership is established, is unfair — within the meaning of that provision — where it does not inform the consumer that, notwithstanding that choice of law, under Article 5(2) of the Rome Convention and Article 6(2) of the Rome I Regulation, he also enjoys the protection afforded to him by the mandatory provisions of the law that would be applicable in the absence of that clause.

91.

In the light of all the foregoing considerations, I propose that the Court answer the questions referred by the Oberster Gerichtshof (Supreme Court, Austria) as follows: