Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 20 April 2018 – Verein für Konsumenteninformation v TVP Treuhand- und Verwaltungsgesellschaft für Publikumsfonds mbH & Co KG

(Case C-272/18)

Language of the case: German

Referring court

Oberster Gerichtshof

Parties to the main proceedings

Applicant: Verein für Konsumenteninformation

Defendant: TVP Treuhand- und Verwaltungsgesellschaft für Publikumsfonds mbH & Co KG

Questions referred

Does the exclusion from the scope of the legislation provided for in Article 1(2)(e) of the Convention on the law applicable to contractual relations of 19 June 1980 (‘the Rome Convention’) and in Article 1(2)(f) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (‘the Rome I Regulation’)  ¹ also apply to agreements between a beneficiary and a fiduciary who holds an interest in a limited partnership on behalf of the beneficiary, particularly where the partnership agreements and the fiduciary agreements are interwoven?

If Question 1 is answered in the negative:

Is Article 3(1) of Council Directive No 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (‘the Unfair Contract Terms Directive’) ² to be interpreted as meaning that a clause in a fiduciary agreement concluded between a professional and a consumer concerning the management of an interest in a limited partnership, which was not individually negotiated and which provides that the law of the State in which the limited partnership has its seat is to apply, is unfair if the sole purpose of the fiduciary agreement is the management of the limited partnership interest and the beneficiary is granted the rights and obligations of a direct partner?

If Question 1 or 2 is answered in the affirmative:

Does this answer still hold if, in addition, the consumer’s subscription application was signed in his State of residence, the professional also provides information on the internet about the limited partnership interest and a payment agency has been established in the consumer’s State, to which the consumer must pay his subscription monies, even though the professional has no right to give directions as to that bank account? Does it make a difference whether the Rome I Regulation or the Rome Convention is applicable?

If Question 3 is answered in the affirmative:

Does this answer still hold if, in addition, the consumer’s subscription application was signed in his State of residence, the professional also provides information on the internet about the limited partnership interest and a payment agency has been established in the consumer’s State, to which the consumer must pay his subscription monies, even though the professional has no right to give directions as to that bank account? Does it make a difference whether the Rome I Regulation or the Rome Convention is applicable?

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¹ OJ 2008 L 177, p. 6.

² OJ 1993 L 95, p. 29.