CELEX: 62015CJ0212
Reference for a preliminary ruling
Judicial cooperation in civil matters
Insolvency proceedings
Regulation (EC) No 1346/2000
Article 4
Effects provided for by legislation of a Member State on claims which were not pursued by means of insolvency proceedings
Forfeiture
Fiscal nature of the claim
No effect
Article 15
Concept of ‘lawsuits pending’
Enforcement proceedings
Excluded

This request for a preliminary ruling concerns the interpretation of Article 4 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (
OJ 2000 L 160, p. 1
).
The request has been made in proceedings between ENEFI Energiahatékonysági Nyrt (‘ENEFI’), formerly E-Star Alternatív Energiaszolgáltató Nyrt, and the Direcția Generală Regională a Finanțelor Publice Brașov (Regional Directorate-General of Public Finances of Brașov, Romania; ‘DGRFP Brașov’), relating to the enforcement of a tax claim at the request of the DGRFP Brașov.
Legal context
EU law
Recitals 12, 20, 21 and 23 of Regulation No 1346/2000 state:
‘(12)
This Regulation enables the main insolvency proceedings to be opened in the Member State where the debtor has the centre of his main interests. These proceedings have universal scope and aim at encompassing all the debtor’s assets. To protect the diversity of interests, this Regulation permits secondary proceedings to be opened to run in parallel with the main proceedings. Secondary proceedings may be opened in the Member State where the debtor has an establishment. The effects of secondary proceedings are limited to the assets located in that State. Mandatory rules of coordination with the main proceedings satisfy the need for unity in the Community.
…
(20)
… In order to ensure the dominant role of the main insolvency proceedings, the liquidator in such proceedings should be given several possibilities for intervening in secondary insolvency proceedings which are pending at the same time. For example, he should be able to propose a restructuring plan or composition or apply for realisation of the assets in the secondary insolvency proceedings to be suspended.
(21)
Every creditor, who has his habitual residence, domicile or registered office in the Community, should have the right to lodge his claims in each of the insolvency proceedings pending in the Community relating to the debtor’s assets. This should also apply to tax authorities and social insurance institutions. However, in order to ensure equal treatment of creditors, the distribution of proceeds must be coordinated …
…
(23)
This Regulation should set out, for the matters covered by it, uniform rules on conflict of laws which replace, within their scope of application, national rules of private international law. Unless otherwise stated, the law of the Member State of the opening of the proceedings should be applicable (
lex concursus
). … the
lex concursus
determines all the effects of the insolvency proceedings, both procedural and substantive, on the persons and legal relations concerned. It governs all the conditions for the opening, conduct and closure of the insolvency proceedings.’
Article 3 of Regulation No 1346/2000, entitled ‘International jurisdiction’, provides:
‘1.   The courts of the Member State within the territory of which the centre of a debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings. In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary.
2.   Where the centre of a debtor’s main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State. The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State.
3.   Where insolvency proceedings have been opened under paragraph 1, any proceedings opened subsequently under paragraph 2 shall be secondary proceedings. These latter proceedings must be winding-up proceedings.
…’
Article 4 of that regulation, entitled ‘Law applicable’, provides:
‘1.   Save as otherwise provided in this Regulation, the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened, hereafter referred to as the “State of the opening of proceedings”.
2.   The law of the State of the opening of proceedings shall determine the conditions for the opening of those proceedings, their conduct and their closure. It shall determine in particular:
…
(f)
the effects of the insolvency proceedings on proceedings brought by individual creditors, with the exception of lawsuits pending;
(g)
the claims which are to be lodged against the debtor’s estate and the treatment of claims arising after the opening of insolvency proceedings;
(h)
the rules governing the lodging, verification and admission of claims;
…
(j)
the conditions for and the effects of closure of insolvency proceedings, in particular by composition;
(k)
creditors’ rights after the closure of insolvency proceedings;
…’
Article 15 of Regulation No 1346/2000, entitled ‘Effects of insolvency proceedings on lawsuits pending’, states:
‘The effects of insolvency proceedings on a lawsuit pending concerning an asset or a right of which the debtor has been divested shall be governed solely by the law of the Member State in which that lawsuit is pending.’
Article 20 of that regulation, entitled ‘Return and imputation’, provides:
‘1.   A creditor who, after the opening of the proceedings referred to in Article 3(1), obtains by any means, in particular through enforcement, total or partial satisfaction of his claim on the assets belonging to the debtor situated within the territory of another Member State, shall return what he has obtained to the liquidator, subject to Articles 5 and 7.
2.   In order to ensure equal treatment of creditors a creditor who has, in the course of insolvency proceedings, obtained a dividend on his claim shall share in distributions made in other proceedings only where creditors of the same ranking or category have, in those other proceedings, obtained an equivalent dividend.’
Article 39 of Regulation No 1346/2000, entitled ‘Right to lodge claims’, is worded as follows:
‘Any creditor who has his habitual residence, domicile or registered office in a Member State other than the State of the opening of proceedings, including the tax authorities and social security authorities of Member States, shall have the right to lodge claims in the insolvency proceedings in writing.’
Hungarian law
Article 20(3) of the 1991. évi XLIX. törvény, a csődeljárásról és a felszámolási eljárásról (Law No XLIX of 1991 on proceedings for bankruptcy and liquidation) states:
‘Where the time limit prescribed [by] the present law is not observed, a creditor cannot participate in the conclusion of the composition and the effects of the composition do not extend to the creditor. A person with a claim which is not registered due to a failure to observe the time limits for the declaration of claims cannot bring that claim against the debtor, but he may lodge his claim, since it is not yet registered, in insolvency proceedings opened by another creditor. …’
The dispute in the main proceedings and the questions referred for a preliminary ruling
ENEFI is a company whose registered office is in Hungary and which possessed, at the time of the events in the main proceedings, an establishment in Romania. On 13 December 2012, insolvency proceedings were commenced against that company in Hungary and the opening of the proceedings was notified on 7 January 2013 to the DGRFP Brașov.
In January 2013, the DGRFP Brașov lodged two claims in the insolvency proceedings. However, given that it had not observed the applicable time limit and had failed to pay the registration fees, those claims could not be taken into account in those proceedings, a fact of which the DGRFP Brașov was notified on 2 May 2013.
Subsequently, while the insolvency proceedings were still pending, the DGRFP Brașov carried out a tax inspection at the premises of ENEFI’s establishment in Romania. On 25 June 2013, the DGRFP Brașov issued a tax notice (‘the tax notice’) concerning liability to value added tax (VAT). However, it did not lodge the claim relating to that tax notice in the insolvency proceedings.
ENEFI did not initially challenge the tax notice. Consequently, on 7 August 2013, an enforcement order was issued against it by the Romanian authorities, which subsequently initiated enforcement proceedings.
Prior to the closure of the insolvency proceedings in Hungary on 7 September 2013, ENEFI brought an action against the enforcement initiated in Romania. It took the view that it was not obliged to pay the VAT that the tax notice indicated as being owed and expressed the view that the associated enforcement was illegal, given that, on the date on which the tax inspection leading to the issuance of the tax notice had occurred, ENEFI had already been the subject of insolvency proceedings opened in Hungary. As a consequence of this, ENEFI argues that the DGRFP Brașov ought to have lodged its claim in those insolvency proceedings. However, under Hungarian law, which it argues is conclusive pursuant to Article 4 of Regulation No 1346/2000, claims not produced in the context of insolvency proceedings are, in principle, forfeited.
In those circumstances, the Tribunalul Mureş (Regional Court, Mureş, Romania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
For the interpretation of Article 4(1) and Article 4(2)(f) and (k) of Council Regulation No 1346/2000, may the effects of the insolvency proceedings governed by the law of the State in which proceedings are opened include forfeiture of the right of a creditor, which has not taken part in the insolvency proceedings, to pursue its claim in another Member State or suspension of the enforcement of that claim in that other Member State?
(2)
Is it relevant that the claim pursued by means of enforcement in a Member State other than the State in which the proceedings are opened is a fiscal claim?’
Consideration of the questions referred for a preliminary ruling
The first question
By its first question, the referring court asks, in essence, whether Article 4 of Regulation No 1346/2000 must be interpreted as meaning that provisions of domestic law of the State of the opening of proceedings, which provide, in relation to a creditor who has not taken part in the insolvency proceedings, for the forfeiture of its right to pursue its claim or for the suspension of the enforcement of such a claim in another Member State, come within its scope of application.
In that regard, firstly, it is clear from Article 4(1) of Regulation No 1346/2000 that, save as otherwise provided in that regulation, the law applicable to insolvency proceedings and their effects is that of the State of the opening of proceedings (‘
lex fori concursus
’). Thus, as is apparent from recital 23 of that regulation, the
lex fori concursus
determines all the effects of the insolvency proceedings, both procedural and substantive, on the persons and legal relations concerned.
More specifically, Article 4(2)(g) and (h) of Regulation No 1346/2000 provide that the
lex fori concursus
determines which claims must be lodged against the debtor’s estate, the treatment of claims arising after the opening of insolvency proceedings, and the rules governing the lodging, verification and admission of claims. However, in order not to render those provisions ineffective, the consequences of a failure to respect the rules of the
lex fori concursus
concerning the filing of claims and, in particular, the time limits laid down in that regard must also be assessed on the basis of that
lex fori concursus
(see, by analogy, judgment of 10 December 2015, Kornhaas,
C‑594/14
,
EU:C:2015:806
, paragraph
).
As regards the effects of the closure of insolvency proceedings, in particular by way of composition, as well as the rights of creditors after the closure of insolvency proceedings, it must be recalled that those effects and those rights are, as expressly stated in Article 4(2)(j) and (k), also determined by the
lex fori concursus
.
While it is true in this regard that Article 4(2) of Regulation No 1346/2000, which contains a list of the matters falling under the
lex fori concursus
, makes no specific reference to creditors who have not participated in the insolvency proceedings and, consequently, the effects of those proceedings, or of its closure, on the rights of those creditors, there can, however, be no doubt that those effects must also be assessed on the basis of that
lex fori concursus
.
On the one hand, the list of matters coming within the scope of application of Article 4 of Regulation No 1346/2000, listed in paragraph 2 thereof, is not exhaustive, as is clear from its very wording, namely through the use of the term ‘in particular’.
On the other hand, it must be stated that an interpretation to the effect that the
lex fori concursus
determines the effects of the closure of the insolvency proceedings, in particular by composition, and the rights of creditors after that closure, but not the effects on the rights of creditors who did not participate in those proceedings, would risk seriously undermining the effectiveness of those proceedings.
The interpretation referred to in paragraph 22 of the present judgment would mean that creditors not participating in the insolvency proceedings could, after the closure of the proceedings, request the full amount of their claims, which would thus give rise to unequal treatment between creditors. Moreover, and above all, that interpretation would have the effect of frustrating all compositions or any of the debtor’s other comparable restructuring measures, in that the debtor, who must meet the claims of the creditors who did not participate in the insolvency proceedings, would lack the necessary means to pay, pursuant to such a composition or any other measures, the debts owed to other creditors, those debts being generally rescheduled and/or reduced in line with the financial means actually available to the debtor.
For partially similar reasons, it is necessary to reject the argument, put forward by the referring court in that context, to the effect that a provision of the
lex fori concursus
applicable to the main insolvency proceedings which limits or excludes the possibility of submitting a claim which had not been lodged in the context of that procedure, would limit the possibility of requesting the opening of secondary insolvency proceedings, provided for under Regulation No 1346/2000.
On the one hand, such a provision of the
lex fori concursus
, contrary to what the referring court appears to imply, does not preclude the opening of secondary insolvency proceedings as such, but only the admission of a request seeking the opening of such proceedings brought by a creditor who has failed to observe the time limit for the lodging of his claim, such as it was set by the
lex fori concursus
applicable to the main insolvency proceedings. By contrast, any request submitted by a creditor consisting of a claim that has not yet been forfeited, or brought by the liquidator in the main insolvency proceedings, would remain admissible.
On the other hand, although Regulation No 1346/2000 provides for the possibility of opening secondary insolvency proceedings, subject to certain conditions, the Court has previously stated that the opening of such proceedings, which, pursuant to Article 3(3) of that regulation, must be winding-up proceedings, may run counter to the purpose served by main proceedings, which are of a protective nature, and that the regulation therefore sets out a number of mandatory rules of coordination intended to ensure, as expressed in recital 12 thereof, the unity required in the European Union. In that system, the main proceedings have a dominant role in relation to the secondary proceedings, as stated in recital 20 of the regulation (see, to that effect, judgment of 22 November 2012, Bank Handlowy and Adamiak,
C‑116/11
,
EU:C:2012:739
, paragraphs
and
).
In view of this dominant role of the main insolvency proceedings, it seems entirely consistent that national legislation could, on the basis of the forfeiture of the claims lodged outside of the time limit prescribed, exclude all requests brought by the person holding those claims seeking the opening of secondary insolvency proceedings, given that the opening of such proceedings would make it possible to circumvent the forfeiture provided for by the
lex fori concursus
. Furthermore, by analogy with the considerations set out in paragraph 23 above, such legislation prevents a creditor who did not participate in the main insolvency proceedings from being capable of frustrating a composition or any of the debtor’s comparable restructuring measures adopted in the context of that procedure by requesting the opening of secondary insolvency proceedings.
In view of the foregoing, it is therefore necessary to hold that a provision of the domestic law of the State of the opening of proceedings which provides, in relation to a creditor who has not taken part in the insolvency proceedings, for the forfeiture of its right to pursue its claim comes within the scope of Article 4 of Regulation No 1346/2000.
Next, having regard to the finding in paragraph 28 above, it must be stated that the
lex fori concursus
may also provide for the suspension of enforcement of a claim which has not been lodged within the time limit prescribed. As explained by the Advocate General in points 46 and 47 of his Opinion, since the forfeiture of unregistered claims is, in principle, allowed, Regulation No 1346/2000 must,
a fortiori
, also allow a rule of the
lex fori concursus
which merely suspends enforcement proceedings relating to those claims.
Furthermore, it should be added that, due to the fact that Regulation No 1346/2000 does not bring about harmonisation of the time limits for the lodging of claims in cases of insolvency coming within the scope of its application, it is for the national legal order of each Member State to establish them in accordance with the principle of procedural autonomy, provided, however, that the rules relating thereto are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness) (see, to that effect, judgment of 15 October 2015, Nike European Operations Netherlands,
C‑310/14
,
EU:C:2015:690
, paragraph
and the case-law cited). In the absence of sufficient information in that regard emerging, in particular, from the parties’ submissions, it will be for the national court to determine whether those criteria are fulfilled as regards Article 20(3) of Law No XLIX of 1991.
Finally, it must be stated that the conclusion in paragraphs 28 and 29 above is not called into question by the fact that Article 15 of Regulation No 1346/2000 provides that the effects of insolvency proceedings on a ‘lawsuit pending’ concerning an asset or a right of which the debtor has been divested are to be governed solely by the law of the Member State in which that lawsuit is pending.
That provision must be read in conjunction with Article 4(2)(f) of Regulation No 1346/2000, which distinguishes ‘lawsuits pending’ from other proceedings brought by individual creditors. Thus, the effects of insolvency proceedings on proceedings brought by individual creditors other than ‘lawsuits pending’ are in any event governed by the single
lex fori concursus
. As the Advocate General explained in points 67 to 78 of his Opinion, proceedings seeking the enforcement of a claim come within the latter category.
On that last point, it should be added that Regulation No 1346/2000 is guided by the principle that the requirement of equal treatment of creditors, which,
mutatis mutandis
, underpins all insolvency proceedings, precludes, in general, proceedings brought by individual creditors by means of enforcement proceedings, introduced and conducted while insolvency proceedings against the debtor are pending. Thus, Article 20(1) of Regulation No 1346/2000 requires a creditor who obtains, ‘in particular through enforcement’, satisfaction with regard to its claim on the assets belonging to the debtor situated within the territory of a Member State other than the State of the opening of proceedings to return to the liquidator that which has been obtained.
It would be contradictory to interpret Article 15 of Regulation No 1346/2000 as also covering enforcement proceedings, with the consequence that the effects of the opening of insolvency proceedings would thus come within the scope of the law of the Member State in which such enforcement proceedings are pending, while, in parallel, Article 20(1) of that regulation, by explicitly requiring the return to the liquidator of everything obtained ‘through enforcement’, would render Article 15 ineffective.
Consequently, it is necessary to find that enforcement proceedings do not come within the scope of application of Article 15 of Regulation No 1346/2000.
In light of the foregoing, the answer to the first question is that Article 4 of Regulation No 1346/2000 must be interpreted as meaning that provisions of domestic law of the State of the opening of proceedings which provide, in relation to a creditor who has not taken part in the insolvency proceedings, for the forfeiture of its right to pursue its claim or for the suspension of the enforcement of such a claim in another Member State come within its scope of application.
The second question referred
By its second question, the referring court asks, in essence, whether the fact that a claim pursued by means of enforcement in a Member State other than the State in which the proceedings were opened is a fiscal claim has any bearing on the answer to be given to the first question.
In that regard, recital 21 of Regulation No 1346/2000 states that any creditor who has his habitual residence, domicile or registered office in the European Union should have the right to lodge his claims in each of the insolvency proceedings pending in the European Union relating to the debtor’s assets, and that this should also apply to tax authorities and social insurance institutions. However, that recital adds that, in order to ensure equal treatment of creditors, the distribution of proceeds must be coordinated. With this in mind, Article 39 of that regulation provides, in essence, that the tax authorities of Member States other than the State of the opening of proceedings have the right, on the same basis as any creditor who has his habitual residence, domicile or registered office in a Member State other than the State of the opening of proceedings, to lodge claims in the insolvency proceedings in writing.
It therefore follows from those provisions that Regulation No 1346/2000 precludes provisions of national law under which claims of the tax authorities in Member States other than the State of the opening of proceedings cannot be lodged in insolvency proceedings. It is also clear from the same provisions that that regulation does not distinguish between public and private law creditors.
In those circumstances, it must be held that the provisions of Regulation No 1346/2000 do not give the claims of tax authorities of a Member State other than the State of the opening of proceedings any preferential status, in that they should be capable of being subject to enforcement proceedings even after the opening of insolvency proceedings. Consequently, as regards the facts at issue in the main proceedings, the fact that the claims pursued by means of enforcement proceedings are fiscal claims does not mean that they would, by virtue of that fact, come solely under domestic Romanian law, or that the effects provided for by the
lex fori concursus
, in the present case Hungarian insolvency law, would not extend to them.
In those circumstances, the answer to the second question is that the fiscal nature of the claim pursued by means of enforcement in a Member State other than the State of the opening of proceedings, in a situation such as that at issue in the main proceedings, has no bearing on the answer to be given to the first question.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

1.
Article 4 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that provisions of domestic law of the Member State on the territory of which insolvency proceedings are opened which provide, in relation to a creditor who has not taken part in those proceedings, for the forfeiture of its right to pursue its claim or for the suspension of the enforcement of such a claim in another Member State come within its scope of application.

2.
The fiscal nature of the claim pursued by means of enforcement in a Member State other than that on the territory of which the insolvency proceedings are opened, in a situation such as that at issue in the main proceedings, has no bearing on the answer to be given to the first question referred for a preliminary ruling.

[Signatures]
(
*1
)	Language of the case: Romanian.