CELEX: 62007CJ0339
Judicial cooperation in civil matters
Insolvency proceedings
Court with jurisdiction

This reference for a preliminary ruling concerns the interpretation of Article 3(1) of Council Regulation (EC) No 1346/2000
of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1) and Article 1(2)(b) of Council Regulation (EC) No 44/2001 of
22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001
L 12, p. 1).
The reference was made in the course of proceedings between Mr Seagon, in his capacity as liquidator in respect of the assets
of Frick Teppichboden Supermärkte GmbH (‘Frick’), and Deko Marty Belgium NV (‘Deko’) concerning repayment by the latter of
EUR 50 000 paid to it by Frick.

Legal background
Recital 2 in the preamble to Regulation No 1346/2000 states:
‘The proper functioning of the internal market requires that cross-border insolvency proceedings should operate efficiently
and effectively and this Regulation needs to be adopted in order to achieve this objective which comes within the scope of
judicial cooperation in civil matters within the meaning of Article 65 of the [EC] Treaty.’
According to recital 4 in the preamble to that regulation ‘[i]t is necessary for the proper functioning of the internal market
to avoid incentives for the parties to transfer assets or judicial proceedings from one Member State to another, seeking to
obtain a more favourable legal position (forum shopping)’.
Recital 6 in the preamble to Regulation No 1346/2000 provides:
‘In accordance with the principle of proportionality this Regulation should be confined to provisions governing jurisdiction
for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and
are closely connected with such proceedings. In addition, this Regulation should contain provisions regarding the recognition
of those judgments and the applicable law which also satisfy that principle.’
Recital 8 in the preamble to Regulation No 1346/2000 states:
‘In order to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects,
it is necessary, and appropriate, that the provisions on jurisdiction, recognition and applicable law in this area should
be contained in a Community law measure which is binding and directly applicable in Member States.’
Article 3(1) of Regulation No 1346/2000 provides:
‘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.’
Article 16(1) of Regulation No 1346/2000 states:
‘Any judgment opening insolvency proceedings handed down by a court of a Member State which has jurisdiction pursuant to Article
3 shall be recognised in all the other Member States from the time that it becomes effective in the State of the opening of
proceedings.
This rule shall also apply where, on account of his capacity, insolvency proceedings cannot be brought against the debtor
in other Member States.’
The first and second subparagraphs of Article 25(1) of Regulation No 1346/2000 provide:
‘Judgments handed down by a court whose judgment concerning the opening of proceedings is recognised in accordance with Article
16 and which concern the course and closure of insolvency proceedings, and compositions approved by that court shall also
be recognised with no further formalities. …
The first subparagraph shall also apply to judgments deriving directly from the insolvency proceedings and which are closely
linked with them, even if they were handed down by another court.’
Article 1(1) of Regulation No 44/2001 defines the scope of the regulation. The latter is to apply in civil and commercial
matters and is not to extend, in particular, to revenue, customs or administrative matters.
Article 1(2)(b) of Regulation No 44/2001 provides:
‘The Regulation shall not apply to:
…
(b)      bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions
and analogous proceedings.’

The dispute in the main proceedings and the question referred for a preliminary ruling
On 14 March 2002, Frick, which has its seat in Germany, transferred EUR 50 000 to an account with KBC Bank in Düsseldorf in
the name of Deko, a company with its seat in Belgium. Pursuant to an application made by Frick on 15 March 2002, the Amtsgericht
Marburg (Local Court, Marburg) (Germany) opened insolvency proceedings on 1 June 2002 in respect of Frick’s assets. By application
to the Landgericht Marburg (Regional Court, Marburg), Mr Seagon, in his capacity as liquidator in respect of Frick’s assets,
requested that court, by way of an action to set a transaction aside by virtue of the debtor’s insolvency, to order Deko to
repay the money.
The Landgericht Marburg dismissed that application as inadmissible on the ground that it did not have international jurisdiction
to hear and determine it. Since the appeal brought by Mr Seagon was also dismissed he brought an appeal on a point of law
(‘Revision’) before the Bundesgerichtshof (Federal Court of Justice) (Germany).
In those circumstances the Bundesgerichtshof decided to stay the proceedings before it and to refer the following questions
to the Court for a preliminary ruling:
‘(1)      Do the courts of the Member State within the territory of which insolvency proceedings regarding the debtor’s assets have
been opened have international jurisdiction under Regulation [No 1346/2000] in respect of an action in the context of the
insolvency to set a transaction aside that is brought against a person whose registered office is in another Member State?
(2)      If the first question is to be answered in the negative:
Does an action in the context of the insolvency to set a transaction aside fall within Article 1(2)(b) of Regulation [No 44/2001]?’

The questions referred for a preliminary ruling
The questions referred by the national court concern the international jurisdiction of courts in respect of actions to set
a transaction aside by virtue of insolvency.
It is clear from the order for reference that the action to set a transaction aside is governed in German law by Paragraph
129 et seq. of the Insolvency Code (Insolvenzordnung) of 5 October 1994 (BGB1. 1994 I, p. 2866). Only the liquidator may bring
such an action in the event of insolvency with the sole purpose of protecting the interests of the general body of creditors.
Under the provisions of Paragraphs 130 to 146 of that code, the liquidator may challenge acts undertaken before the insolvency
proceedings were opened which are detrimental to the creditors.
The action to set a transaction aside at issue in the main proceedings is therefore intended to increase the assets of the
undertaking which is the subject of insolvency proceedings.
It is appropriate to examine whether these actions to set a transaction aside are included within the scope of Article 3(1)
of Regulation No 1346/2000.
In that connection, it must be noted, as a preliminary point, that the Court has held, in its case-law relating to the Convention
of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36),
that an action similar to that at issue in the main proceedings is related to bankruptcy or winding-up if it derives directly
from the bankruptcy or winding-up and is closely connected with the proceedings for the ‘liquidation des biens’ or the ‘règlement
judiciaire’ (see Case 133/78
Gourdain
[1979] ECR 733, paragraph 4). An action with such characteristics does not therefore fall within the scope of that convention.
It is exactly that criterion that is used by recital 6 in the preamble to Regulation No 1346/2000 in order to delimit the
purpose of the regulation. Thus, according to that recital, the regulation should be confined to provisions governing jurisdiction
for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and
are closely connected with such proceedings.
Taking into account that intention of the legislature and the effectiveness of the regulation, Article 3(1) thereof must be
interpreted as meaning that it also confers international jurisdiction on the Member State within the territory of which insolvency
proceedings were opened in order to hear and determine actions which derive directly from those proceedings and which are
closely connected to them.
Concentrating all the actions directly related to the insolvency of an undertaking before the courts of the Member State with
jurisdiction to open the insolvency proceedings also appears consistent with the objective of improving the effectiveness
and efficiency of insolvency proceedings having cross-border effects, referred to in recitals 2 and 8 in the preamble to Regulation
No 1346/2000.
Furthermore, that interpretation is confirmed by recital 4 in the preamble to that regulation, according to which it is necessary
for the proper functioning of the internal market to avoid incentives for the parties to transfer assets or judicial proceedings
from one Member State to another, seeking to obtain a more favourable legal position (forum shopping).
The possibility for more than one court to exercise jurisdiction as regards actions to set a transaction aside by virtue of
insolvency brought in various Member States would undermine the pursuit of such an objective.
Finally, the interpretation of Article 3(1) of Regulation No 1346/2000, as set out in paragraph 21 above, is supported by
Article 25(1) of that regulation. The first subparagraph of that provision imposes an obligation to recognise judgments handed
down by a court whose judgment concerning the opening of proceedings is recognised in accordance with Article 16 of the regulation
and which concern the course and closure of insolvency proceedings, that is to say, a court with jurisdiction under Article
3(1) of that regulation.
Pursuant to the second subparagraph of Article 25(1) of Regulation No 1346/2000, the first subparagraph of Article 25(1) is
also to apply to judgments deriving directly from the insolvency proceedings and which are closely linked with them. In other
words, that provision allows the possibility for courts of a Member State within the territory of which insolvency proceedings
have been opened, pursuant to Article 3(1) of that regulation, also to hear and determine an action of the type at issue in
the main proceedings.
In that context, the words ‘even if they were handed down by another court’, at the end of the last sentence of the second
subparagraph of Article 25(1) of Regulation No 1346/2000, do not mean that the Community legislature wished to exclude the
jurisdiction of the courts of the State within the territory of which the insolvency proceedings for the type of actions concerned
were opened. Those words mean, in particular, that it is for the Member States to determine the court with territorial and
substantive jurisdiction, which does not necessarily have to be the court which opened the insolvency proceedings. Moreover,
those words refer to the recognition of judgments opening insolvency proceedings, which is provided for in Article 16 of Regulation
No 1346/2000.
Having regard to all of the foregoing considerations, the answer to the first question is that Article 3(1) of Regulation
No 1346/2000 must be interpreted as meaning that the courts of the Member State within the territory of which insolvency proceedings
have been opened have jurisdiction to decide an action to set a transaction aside by virtue of insolvency that is brought
against a person whose registered office is in another Member State.
Given the answer to the first question, there is no need to answer the second 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 (First Chamber) hereby rules:
Article 3(1) of  Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning
that the courts of the Member State within the territory of which insolvency proceedings have been opened have jurisdiction
to decide an action to set a transaction aside by virtue of insolvency that is brought against a person whose registered office
is in another Member State.
[Signatures]
*
Language of the case: German.