CELEX: 62004CJ0341
Judicial cooperation in civil matters
Regulation (EC) No 1346/2000
Insolvency proceedings
Decision to open the proceedings
Centre of the debtor's main interests
Recognition of insolvency proceedings
Public policy

This reference for a preliminary ruling concerns the interpretation of Council Regulation (EC) No 1346/2000 of 29 May 2000
on insolvency proceedings (OJ 2000 L 160, p. 1) (‘the Regulation’).
The reference was submitted in the context of insolvency proceedings concerning the Irish company Eurofood IFSC Ltd (‘Eurofood’).

Legal context

Community legislation
According to Article 1(1) thereof, the Regulation applies ‘to collective insolvency proceedings which entail the partial or
total divestment of a debtor and the appointment of a liquidator’.
According to Article 2 of the Regulation, headed ‘Definitions’:
‘For the purposes of this Regulation:
(a)      “insolvency proceedings” shall mean the collective proceedings referred to in Article 1(1). These proceedings are listed in
Annex A;
(b)      “liquidator” shall mean any person or body whose function is to administer or liquidate assets of which the debtor has been
divested or to supervise the administration of his affairs. Those persons and bodies are listed in Annex C;
…
(e)      “judgment” in relation to the opening of insolvency proceedings or the appointment of a liquidator shall include the decision
of any court empowered to open such proceedings or to appoint a liquidator;
(f)      “the time of the opening of proceedings” shall mean the time at which the judgment opening proceedings becomes effective,
whether it is a final judgment or not;
…’
Annex A to the Regulation, concerning the insolvency proceedings referred to in Article 2(a) of the Regulation, mentions under
Ireland the procedure of ‘compulsory winding up by the Court’. By way of liquidators referred to in Article 2(b) of the Regulation,
Annex C indicates, in relation to Ireland, the ‘provisional liquidator’.
Concerning the determination of the court having jurisdiction, Article 3(1) and (2) of the Regulation provide:
‘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.
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’.
Concerning the determination of the law to be applied, Article 4(1) of the Regulation provides:
‘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 …’.
Concerning the recognition of insolvency proceedings, Article 16(1) of the Regulation 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.’
Article 17(1) of the Regulation states:
‘The judgment opening the proceedings referred to in Article 3(1) shall, with no further formalities, produce the same effects
in any other Member State as under this law of the State of the opening of proceedings …’.
However, according to Article 26 of the Regulation:
‘Any Member State may refuse to recognise insolvency proceedings opened in another Member State or to enforce a judgment handed
down in the context of such proceedings where the effects of such recognition or enforcement would be manifestly contrary
to that State’s public policy, in particular its fundamental principles or the constitutional rights and liberties of the
individual.’
According to Article 29(a) of the Regulation, the liquidator in the main proceedings may request the opening of secondary
proceedings.
Article 38 of the Regulation provides that, where the court of a Member State which has jurisdiction pursuant to Article 3(1)
appoints a temporary administrator, that temporary administrator ‘shall be empowered to request any measures to secure and
preserve any of the debtor’s assets situated in another Member State, provided for under the law of that State, for the period
between the request for the opening of insolvency proceedings and the judgment opening the proceedings’.

National legislation
Section 212 of the Companies Act 1963 (‘the Companies Act’) confers on the High Court jurisdiction to wind up any company.
Section 215 of the Companies Act provides that an application to the court for the winding up of a company is to be by petition
presented either by the company or by any creditor or creditors.
Section 220 of the Companies Act provides:
‘1.      Where, before the presentation of a petition for the winding up of a company by the court, a resolution has been passed by
the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing
of the resolution, and unless the court, on proof of fraud or mistake, thinks fit to direct otherwise, all proceedings taken
in the voluntary winding up shall be deemed to have been validly taken.
2.      In any other case, the winding up of a company by the court shall be deemed to commence at the time of the presentation of
the petition for the winding up.’
Section 226(1) of the Companies Act provides that the court may appoint a provisional liquidator at any time after the presentation
of a winding-up petition. The appointment of the liquidator, pursuant to section 225, is otherwise made at the time the winding-up
order is made. Pursuant to section 229(1), a provisional liquidator, once appointed, is obliged to ‘take into his custody
or under his control all the property and things in action to which the company is or appears to be entitled’.

Background and questions referred for a preliminary ruling
Eurofood was registered in Ireland in 1997 as a ‘company limited by shares’ with its registered office in the International
Financial Services Centre in Dublin. It is a wholly owned subsidiary of Parmalat SpA, a company incorporated in Italy, whose
principal objective was the provision of financing facilities for companies in the Parmalat group.
On 24 December 2003, in accordance with Decree-Law No 347 of 23 December 2003 concerning urgent measures for the industrial
restructuring of large insolvent undertakings (GURI No 298 of 24 December 2003, p. 4), Parmalat SpA was admitted to extraordinary
administration proceedings by the Italian Ministry of Production Activities, who appointed Mr Bondi as the extraordinary administrator
of that undertaking.
On 27 January 2004, the Bank of America NA applied to the High Court (Ireland) for compulsory winding up proceedings to be
commenced against Eurofood and for the nomination of a provisional liquidator. That application was based on the contention
that that company was insolvent.
On the same day the High Court, on the strength of that application, appointed Mr Farrell as the provisional liquidator, with
powers to take possession of all the company’s assets, manage its affairs, open a bank account in its name, and instruct lawyers
on its behalf.
On 9 February 2004, the Italian Minister for Production Activities admitted Eurofoods to the extraordinary administration
procedure and appointed Mr Bondi as the extraordinary administrator.
On 10 February 2004, an application was lodged before the Tribunale Civile e Penale di Parma (District Court, Parma) (Italy)
for a declaration that Eurofoods was insolvent. The hearing was fixed for 17 February 2004, Mr Farrell being informed of that
date on 13 February. On 20 February 2004, the District Court in Parma, taking the view that Eurofood’s centre of main interests
was in Italy, held that it had international jurisdiction to determine whether Eurofoods was in a state of insolvency.
By 23 March 2004 the High Court decided that, according to Irish law, the insolvency proceedings in respect of Eurofood had
been opened in Ireland on the date on which the application was submitted by the Bank of America NA, namely 27 January 2004.
Taking the view that the centre of main interests of Eurofood was in Ireland, it held that the proceedings opened in Ireland
were the main proceedings. It also held that the circumstances in which the proceedings were conducted before the District
Court in Parma were such as to justify, pursuant to Article 26 of the Regulation, the refusal of the Irish courts to recognise
the decision of that court. Finding that Eurofood was insolvent, the High Court made an order for winding up and appointed
Mr Farrell as the liquidator.
Mr Bondi having appealed against that judgment, the Supreme Court considered it necessary, before ruling on the dispute before
it, to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)  Where a petition is presented to a court of competent jurisdiction in Ireland for the winding up of an insolvent company and
that court makes an order, pending the making of an order for winding up, appointing a provisional liquidator with powers
to take possession of the assets of the company, manage its affairs, open a bank account and appoint a solicitor all with
the effect in law of depriving the directors of the company of power to act, does that order combined with the presentation
of the petition constitute a judgment opening … insolvency proceedings for the purposes of Article 16, interpreted in the
light of Articles 1 and 2, of Council Regulation (EC) No 1346/2000?
(2)      If the answer to Question 1 is in the negative, does the presentation, in Ireland, of a petition to the High Court for the
compulsory winding up of a company by the court constitute the opening of insolvency proceedings for the purposes of that
regulation by virtue of the Irish legal provision (section 220(2) of the Companies Act, 1963) deeming the winding up of the
company to commence at the date of the presentation of the petition?
(3)      Does Article 3 of the said regulation, in combination with Article 16, have the effect that a court in a Member State other
than that in which the registered office of the company is situated and other than where the company conducts the administration
of its interests on a regular basis in a manner ascertainable by third parties, but where insolvency proceedings are first
opened has jurisdiction to open main insolvency proceedings?
(4)      Where,
(a)      the registered offices of a parent company and its subsidiary are in two different Member States,
(b)      the subsidiary conducts the administration of its interests on a regular basis in a manner ascertainable by third parties
and in complete and regular respect for its own corporate identity in the Member State where its registered office is situated
and
(c)      the parent company is in a position, by virtue of its shareholding and power to appoint directors, to control and does in
fact control the policy of the subsidiary, in determining the “centre of main interests”, are the governing factors those
referred to at (b) above or on the other hand those referred to at (c) above?
(5)      Where it is manifestly contrary to the public policy of a Member State to permit a judicial or administrative decision to
have legal effect in relation [to] persons or bodies whose right to fair procedures and a fair hearing has not been respected
in reaching such a decision, is that Member State bound, by virtue of Article 17 of the said regulation, to give recognition
to a decision of the courts of another Member State purporting to open insolvency proceedings in respect of a company, in
a situation where the court of the first Member State is satisfied that the decision in question has been made in disregard
of those principles and, in particular, where the applicant in the second Member State has refused, in spite of requests and
contrary to the order of the court of the second Member State, to provide the provisional liquidator of the company, duly
appointed in accordance with the law of the first Member State, with any copy of the essential papers grounding the application?’
By order of the President of the Court of Justice of 15 September 2004, the application by the Supreme Court that the accelerated
procedure provided for in the first subparagraph of Article 104a of the Rules of Procedure be applied to the present case
was rejected.

The questions

The fourth question
By its fourth question, which should be considered first since it concerns, in general, the system which the Regulation establishes
for determining the competence of the courts of the Member States, the national court asks what the determining factor is
for identifying the centre of main interests of a subsidiary company, where it and its parent have their respective registered
offices in two different Member States.
The referring court asks how much relative weight should be given as between, on the one hand, the fact that the subsidiary
regularly administers its interests, in a manner ascertainable by third parties and in respect for its own corporate identity,
in the Member State where its registered office is situated and, on the other hand, the fact that the parent company is in
a position, by virtue of its shareholding and power to appoint directors, to control the policy of the subsidiary.
Article 3 of the Regulation makes provision for two types of proceedings. The insolvency proceedings opened, in accordance
with Article 3(1), by the competent court of the Member State within whose territory the centre of a debtor’s main interests
is situated, described as the ‘main proceedings’, produce universal effects in that they apply to the assets of the debtor
situated in all the Member States in which the regulation applies. Although, subsequently, proceedings under Article 3(2)
may be opened by the competent court of the Member State where the debtor has an establishment, those proceedings, described
as ‘secondary proceedings’, are restricted to the assets of the debtor situated in the territory of the latter State.
Article 3(1) of the Regulation provides that, in the case of a company, 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.
It follows that, in the system established by the Regulation for determining the competence of the courts of the Member States,
each debtor constituting a distinct legal entity is subject to its own court jurisdiction.
The concept of the centre of main interests is peculiar to the Regulation. Therefore, it has an autonomous meaning and must
therefore be interpreted in a uniform way, independently of national legislation.
The scope of that concept is highlighted by the 13th recital of the Regulation, which states that ‘the ‘centre of main interests’
should correspond to the place where the debtor conducts the administration of his interests on a regular basis and is therefore
ascertainable by third parties’.
That definition shows that the centre of main interests must be identified by reference to criteria that are both objective
and ascertainable by third parties. That objectivity and that possibility of ascertainment by third parties are necessary
in order to ensure legal certainty and foreseeability concerning the determination of the court with jurisdiction to open
main insolvency proceedings. That legal certainty and that foreseeability are all the more important in that, in accordance
with Article 4(1) of the Regulation, determination of the court with jurisdiction entails determination of the law which is
to apply.
It follows that, in determining the centre of the main interests of a debtor company, the simple presumption laid down by
the Community legislature in favour of the registered office of that company can be rebutted only if factors which are both
objective and ascertainable by third parties enable it to be established that an actual situation exists which is different
from that which locating it at that registered office is deemed to reflect.
That could be so in particular in the case of a ‘letterbox’ company not carrying out any business in the territory of the
Member State in which its registered office is situated.
By contrast, where a company carries on its business in the territory of the Member State where its registered office is situated,
the mere fact that its economic choices are or can be controlled by a parent company in another Member State is not enough
to rebut the presumption laid down by the Regulation.
In those circumstances, the answer to the fourth question must be that, where a debtor is a subsidiary company whose registered
office and that of its parent company are situated in two different Member States, the presumption laid down in the second
sentence of Article 3(1) of the Regulation, whereby the centre of main interests of that subsidiary is situated in the Member
State where its registered office is situated, can be rebutted only if factors which are both objective and ascertainable
by third parties enable it to be established that an actual situation exists which is different from that which locating it
at that registered office is deemed to reflect. That could be so in particular in the case of a company not carrying out any
business in the territory of the Member State in which its registered office is situated. By contrast, where a company carries
on its business in the territory of the Member State where its registered office is situated, the mere fact that its economic
choices are or can be controlled by a parent company in another Member State is not enough to rebut the presumption laid down
by the Regulation.

The third question
By its third question, which should be examined second, since it concerns the recognition system established by the Regulation
in general, the referring court essentially asks whether, by virtue of Articles 3 and 16 of the Regulation, a court of a Member
State, other than the one in which the registered office of the undertaking is situated, and other than the one in which that
undertaking conducts the administration of its interests on a regular basis in a manner ascertainable by third parties, but
where insolvency proceedings are first opened, must be regarded as having jurisdiction to open the main insolvency proceedings.
The referring court is thus essentially asking whether the jurisdiction assumed by a court of a Member State to open main
insolvency proceedings may be reviewed by a court of another Member State in which recognition has been applied for.
As is shown by the 22nd recital of the Regulation, the rule of priority laid down in Article 16(1) of the Regulation, which
provides that insolvency proceedings opened in one Member State are to be recognised in all the Member States from the time
that they produce their effects in the State of the opening of proceedings, is based on the principle of mutual trust.
It is that mutual trust which has enabled a compulsory system of jurisdiction to be established, which all the courts within
the purview of the Convention are required to respect, and as a corollary the waiver by those States of the right to apply
their internal rules on recognition and enforcement of foreign judgments in favour of a simplified mechanism for the recognition
and enforcement of decisions handed down in the context of insolvency proceedings [see by analogy, in relation 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;
‘the Brussels Convention’), Case C-116/02
Gasser
[2003] ECR I-14693, paragraph 72; Case C-159/02
Turner
[2004] ECR I‑3565, paragraph 24].
It is inherent in that principle of mutual trust that the court of a Member State hearing an application for the opening of
main insolvency proceedings check that it has jurisdiction having regard to Article 3(1) of the Regulation, i.e. examine whether
the centre of the debtor’s main interests is situated in that Member State. In that regard, it should be emphasised that such
an examination must take place in such a way as to comply with the essential procedural guarantees required for a fair legal
process (see paragraph 66 of this judgment).
In return, as the 22nd recital of the Regulation makes clear, the principle of mutual trust requires that the courts of the
other Member States recognise the decision opening main insolvency proceedings, without being able to review the assessment
made by the first court as to its jurisdiction.
If an interested party, taking the view that the centre of the debtor’s main interests is situated in a Member State other
than that in which the main insolvency proceedings were opened, wishes to challenge the jurisdiction assumed by the court
which opened those proceedings, it may use, before the courts of the Member State in which they were opened, the remedies
prescribed by the national law of that Member State against the opening decision.
The answer to the third question must therefore be that, on a proper interpretation of the first subparagraph of Article 16(1)
of the Regulation, the main insolvency proceedings opened by a court of a Member State must be recognised by the courts of
the other Member States, without the latter being able to review the jurisdiction of the court of the opening State.

The first question
By its first question, the referring court essentially asks whether the decision whereby a court of a Member State, presented
with a petition for the liquidation of an insolvent company, appoints, before ordering that liquidation, a provisional liquidator
with powers whose legal effect is to deprive the company’s directors of the power to act, constitutes a decision opening insolvency
proceedings for the purposes of the first subparagraph of Article 16(1) of the Regulation.
The wording of Article 1(1) of the Regulation shows that the insolvency proceedings to which it applies must have four characteristics.
They must be collective proceedings, based on the debtor’s insolvency, which entail at least partial divestment of that debtor
and prompt the appointment of a liquidator.
Those forms of proceedings are listed in Annex A to the Regulation, and the list of liquidators appears in Annex C.
The Regulation is designed not to establish uniform proceedings on insolvency, but, as its second recital states, to ensure
that ‘cross-border insolvency proceedings … operate efficiently and effectively’. To that end, it lays down rules which, as
its third recital indicates, are aimed at securing ‘coordination of the measures to be taken regarding an insolvent debtor’s
assets’.
By requiring that any judgment opening insolvency proceedings handed down by a court of a Member State which has jurisdiction
pursuant to Article 3 be recognised in all the other Member States from the time that it becomes effective in the State of
the opening of proceedings, the first subparagraph of Article 16(1) of the Regulation lays down a rule of priority, based
on a chronological criterion, in favour of the opening decision which was handed down first. As the 22nd recital of the Regulation
explains, ‘[t]he decision of the first court to open proceedings should be recognised in the other Member States without those
Member States having the power to scrutinise the court’s decision’.
However, the Regulation does not define sufficiently precisely what is meant by a ‘decision to open insolvency proceedings’.
The conditions and formalities required for opening insolvency proceedings are a matter for national law, and vary considerably
from one Member State to another. In some Member States, the proceedings are opened very shortly after the submission of the
application, the necessary verifications being carried out later. In other Member States, certain essential findings, which
may be quite time-consuming, must be made before proceedings are opened. Under the national law of certain Member States,
the proceedings may be opened ‘provisionally’ for several months.
As the Commission of the European Communities has argued, it is necessary, in order to ensure the effectiveness of the system
established by the Regulation, that the recognition principle laid down in the first subparagraph of Article 16(1) of the
Regulation, be capable of being applied as soon as possible in the course of the proceedings. The mechanism providing that
only one main set of proceedings may be opened, producing its effects in all the Member States in which the Regulation applies,
could be seriously disrupted if the courts of those States, hearing applications based on a debtor’s insolvency at the same
time, could claim concurrent jurisdiction over an extended period.
It is in relation to that objective seeking to ensure the effectiveness of the system established by the Regulation that the
concept of ‘decision to open insolvency proceedings’ must be interpreted.
In those circumstances, a ‘decision to open insolvency proceedings’ for the purposes of the Regulation must be regarded as
including not only a decision which is formally described as an opening decision by the legislation of the Member State of
the court that handed it down, but also a decision handed down following an application, based on the debtor’s insolvency,
seeking the opening of proceedings referred to in Annex A to the Regulation, where that decision involves divestment of the
debtor and the appointment of a liquidator referred to in Annex C to the Regulation. Such divestment involves the debtor losing
the powers of management which he has over his assets. In such a case, the two characteristic consequences of insolvency proceedings,
namely the appointment of a liquidator referred to in Annex C and the divestment of the debtor, have taken effect, and thus
all the elements constituting the definition of such proceedings, given in Article 1(1) of the Regulation, are present.
Contrary to the arguments of Mr Bondi and the Italian Government, that interpretation cannot be invalidated by the fact that
the liquidator referred to in Annex C to the Regulation may be a provisionally-appointed liquidator.
Both Mr Bondi and the Italian Government acknowledge that, in the main proceedings, the ‘provisional liquidator’ appointed
by the High Court, by decision of 27 January 2004, appears amongst the liquidators mentioned in Annex C to the Regulation
in relation to Ireland. They argue, however, that this is a case of a provisional liquidator, in respect of whom the Regulation
contains a specific provision. They note that Article 38 of the Regulation empowers the provisional liquidator, defined in
the 16th recital as the liquidator ‘appointed prior to the opening of the main insolvency proceedings’, to apply for preservation
measures on the assets of the debtor situated in another Member State for the period between the request for the opening of
insolvency proceedings and the judgment opening the proceedings. Mr Bondi and the Italian Government infer from that that
the appointment of a provisional liquidator cannot open the main insolvency proceedings.
In that respect, it should be noted that Article 38 of the Regulation must be read in combination with Article 29, according
to which the liquidator in the main proceedings is entitled to request the opening of secondary proceedings in another Member
State. That Article 38 thus concerns the situation in which the competent court of a Member State has had main insolvency
proceedings brought before it and has appointed a person or body to watch over the debtor’s assets on a provisional basis,
but has not yet ordered that that debtor be divested or appointed a liquidator referred to in Annex C to the Regulation. In
that case, the person or body in question, though not empowered to initiate secondary insolvency proceedings in another Member
State, may request that preservation measures be taken over the assets of the debtor situated in that Member State. That is,
however, not the case in the main proceedings here, where the High Court has appointed a provisional liquidator referred to
in Annex C to the Regulation and ordered that the debtor be divested.
In view of the above considerations, the answer to the first question must be that, on a proper interpretation of the first
subparagraph of Article 16(1) of the Regulation, a decision to open insolvency proceedings for the purposes of that provision
is a decision handed down by a court of a Member State to which application for such a decision has been made, based on the
debtor’s insolvency and seeking the opening of proceedings referred to in Annex A to the Regulation, where that decision involves
the divestment of the debtor and the appointment of a liquidator referred to in Annex C to the Regulation. Such divestment
implies that the debtor loses the powers of management that he has over his assets.

The second question
In the light of the answer given to the first question, there is no need to reply to the second question.

The fifth question
By its fifth question, the referring court essentially asks whether a Member State is required, under Article 17 of the Regulation,
to recognise insolvency proceedings opened in another Member State where the decision opening those proceedings was handed
down in disregard of procedural rules guaranteed in the first Member State by the requirements of its public policy.
Whilst the 22nd recital of the Regulation infers from the principle of mutual trust that ‘grounds for non-recognition should
be reduced to the minimum necessary’, Article 26 provides that a Member State may refuse to recognise insolvency proceedings
opened in another Member State where the effects of such recognition would be manifestly contrary to that State’s public policy,
in particular its fundamental principles or the constitutional rights and liberties of the individual.
In the context of the Brussels Convention, the Court of Justice has held that, since it constitutes an obstacle to the achievement
of one of the fundamental aims of that Convention, namely to facilitate the free movement of judgments, recourse to the public
policy clause contained in Article 27, point 1, of the Convention is reserved for exceptional cases (Case C-7/98
Krombach
[2000] ECR I‑1935, paragraphs 19 and 21).
Considering itself competent to review the limits within which the courts of a Contracting State may have recourse to that
concept for the purpose of refusing recognition to a judgment emanating from a court in another Contracting State, the Court
of Justice had held, in the context of the Brussels Convention, that recourse to that clause can be envisaged only where recognition
or enforcement of the judgment delivered in another Contracting State would be at variance to an unacceptable degree with
the legal order of the State in which enforcement is sought inasmuch as it infringes a fundamental principle. The infringement
would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which
enforcement is sought or of a right recognised as being fundamental within that legal order (
Krombach
, paragraphs 23 and 37).
That case-law is transposable to the interpretation of Article 26 of the Regulation.
In the procedural area, the Court of Justice has expressly recognised the general principle of Community law that everyone
is entitled to a fair legal process (Case C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417, paragraphs 20 and 21; Joined Cases C-174/98 P and C-189/98 P
Netherlands and Van der Wal
v
Commission
[2000] ECR I-1, paragraph 17; and
Krombach
, paragraph 26). That principle is inspired by the fundamental rights which form an integral part of the general principles
of Community law which the Court of Justice enforces, drawing inspiration from the constitutional traditions common to the
Member States and from the guidelines supplied, in particular, by the European Convention for the Protection of Human Rights
and Fundamental Freedoms, signed in Rome on 4 November 1950.
Concerning more particularly the right to be notified of procedural documents and, more generally, the right to be heard,
referred to in the referring court’s fifth question, these rights occupy an eminent position in the organisation and conduct
of a fair legal process. In the context of insolvency proceedings, the right of creditors or their representatives to participate
in accordance with the equality of arms principle is of particular importance. Though the specific detailed rules concerning
the right to be heard may vary according to the urgency for a ruling to be given, any restriction on the exercise of that
right must be duly justified and surrounded by procedural guarantees ensuring that persons concerned by such proceedings actually
have the opportunity to challenge the measures adopted in urgency.
In the light of those considerations, the answer to the fifth question must be that, on a proper interpretation of Article
26 of the Regulation, a Member State may refuse to recognise insolvency proceedings opened in another Member State where the
decision to open the proceedings was taken in flagrant breach of the fundamental right to be heard, which a person concerned
by such proceedings enjoys.
Should occasion arise, it will be for the referring court to establish whether, in the main proceedings, that has been the
case with the conduct of the proceedings before the Tribunale civile e penale di Parma. In that respect, it should be observed
that the referring court cannot confine itself to transposing its own conception of the requirement for an oral hearing and
of how fundamental that requirement is in its legal order, but must assess, having regard to the whole of the circumstances,
whether or not the provisional liquidator appointed by the High Court was given sufficient opportunity to be heard.

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 (Grand Chamber) hereby rules:
1.
Where a debtor is a subsidiary company whose registered office and that of its parent company are situated in two different
Member States, the presumption laid down in the second sentence of Article 3(1) of Council Regulation (EC) No 1346/2000 of
29 May 2000 on insolvency proceedings, whereby the centre of main interests of that subsidiary is situated in the Member State
where its registered office is situated, can be rebutted only if factors which are both objective and ascertainable by third
parties enable it to be established that an actual situation exists which is different from that which location at that registered
office is deemed to reflect. That could be so in particular in the case of a company not carrying out any business in the
territory of the Member State in which its registered office is situated. By contrast, where a company carries on its business
in the territory of the Member State where its registered office is situated, the mere fact that its economic choices are
or can be controlled by a parent company in another Member State is not enough to rebut the presumption laid down by that
Regulation.
2.
On a proper interpretation of the first subparagraph of Article 16(1) of Regulation No 1346/2000, the main insolvency proceedings
opened by a court of a Member State must be recognised by the courts of the other Member States, without the latter being
able to review the jurisdiction of the court of the opening State.
3.
On a proper interpretation of the first subparagraph of Article 16(1) of the Regulation, a decision to open insolvency proceedings
for the purposes of that provision is a decision handed down by a court of a Member State to which application for such a
decision has been made, based on the debtor’s insolvency and seeking the opening of proceedings referred to in Annex A to
the Regulation, where that decision involves the divestment of the debtor and the appointment of a liquidator referred to
in Annex C to the Regulation. Such divestment implies that the debtor loses the powers of management that he has over his
assets.
4.
On a proper interpretation of Article 26 of the Regulation, a Member State may refuse to recognise insolvency proceedings
opened in another Member State where the decision to open the proceedings was taken in flagrant breach of the fundamental
right to be heard, which a person concerned by such proceedings enjoys.
[Signatures]
*
Language of the case: English.