CELEX: 62013CJ0295
Reference for a preliminary ruling
Area of freedom, security and justice
Judicial cooperation in civil matters
Jurisdiction of the courts of a Member State in which insolvency proceedings have been opened for an action in respect of insolvency against a defendant domiciled in a non-member State
Action brought against the managing director of a company for reimbursement of payments made after that company has become insolvent or after it has been established that its liabilities exceed its assets

This request 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), Article 5(1)(a) and (b) and Article 3 of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007, which was approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008 (
OJ 2009 L 147, p. 1
) (‘the Lugano II Convention’).
The request has been made in proceedings between, on the one hand, H, acting as liquidator in the insolvency of G.T. GmbH (‘G.T.’) and, on the other hand, H.K., regarding an action for reimbursement of payments which H.K. allegedly made as the managing director of G.T. after the company became insolvent or after it had been established that its liabilities exceeded its assets.
Legal context
International law
Article 1 of the Lugano II Convention, entitled ‘Scope’, provides as follows:
‘1.   This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal …
2.   The Convention 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;
…’
Article 5 of that convention, entitled ‘Special jurisdiction’, provides as follows:
‘A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued:
(a)
in matters relating to a contract, in the courts for the place of performance of the obligation in question;
(b)
for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
—
in the case of the sale of goods, the place in a State bound by this Convention where, under the contract, the goods were delivered or should have been delivered;
—
in the case of the provision of services, the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided;
…
3.   in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;
…’
EU law
Article 3 of Regulation No 1346/2000, entitled ‘International jurisdiction’, provides in paragraph 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.’
According to 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
), that regulation does not apply to ‘bankruptcy, proceedings relating to the winding‑up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’.
German law
The first and second sentences of Paragraph 64 of the Law on limited liability companies (Gesetz betreffend die Gesellschaften mit beschränkter Haftung), in the version applicable to the facts in the main proceedings (‘the GmbHG’), provided as follows:
‘The managing directors of a company are obliged to reimburse to the company payments made after the company is declared insolvent or after it has been established that its liabilities exceed its assets. That does not apply to payments, even those made after those events, that are compatible with the care to be expected of a prudent businessman.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
The applicant in the main proceedings is the liquidator in insolvency proceedings opened on 1 November 2009 and concerning the assets of G.T., a German company with its registered office at Offenbach am Main (Germany). The defendant in the main proceedings is the managing director of G.T. He is domiciled in Switzerland.
On 1 July 2009, G.T. transferred EUR 115 000 to one of its subsidiaries and, on 8 July 2009, to the same subsidiary, EUR 100 000, EUR 50 000 of which it recovered. The applicant in the main proceedings is seeking from the defendant in those proceedings, in his capacity as managing director of G.T., reimbursement of the remaining EUR 165 000. He has based his claim on the first and second sentences of Paragraph 64 of the GmbHG and submits that the transfers made by the defendant in the main proceedings on 1 and 8 July 2009 to the subsidiary in question were made after G.T. became insolvent and after it had been established that the company’s liabilities exceeded its assets.
The referring court raises the question whether the proceedings fall within the substantive scope of Article 3(1) of Regulation No 1346/2000. According to the judgments in
Seagon
(C‑339/07,
EU:C:2009:83
) and
F-Tex
(C‑213/10,
EU:C:2012:215
), an action to set a transaction aside falls within the scope of that provision, since that action relates to bankruptcy or winding‑up proceedings within the meaning of that regulation, is derived directly from those proceedings and is closely connected with proceedings realising the assets of the debtor or in which the debtor’s affairs are administered by the courts. However, that court has doubts as to the legal classification to be given to an action such as that brought in the main proceedings and based on Paragraph 64 of the GmbHG.
According to the referring court, if the action at issue falls within the substantive scope of Article 3(1) of Regulation No 1346/2000, it is necessary to answer the question whether that provision also applies if the insolvency proceedings have been opened in a Member State while the defendant’s domicile or registered office is situated in a non-member State as, in the present case, the Swiss Confederation. The Swiss Confederation, while a contracting party to the Lugano II Convention, is not bound by that regulation.
Should the Court conclude that Article 3(1) of Regulation No 1346/2000 is not applicable in a case such as that in the main proceedings, the referring court raises the issue whether the dispute in the main proceedings falls within the substantive scope of Article 1(2)(b) of the Lugano II Convention. Pursuant to that provision, that convention does not apply to ‘bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’.
In those circumstances, the Landgericht Darmstadt decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘1.
Do the courts of the Member State in the territory of which insolvency proceedings regarding the debtor’s assets have been opened have jurisdiction to hear and determine an action brought by the liquidator in the insolvency proceedings against the managing director of the debtor for reimbursement of payments which were made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets?
2.
Do the courts of the Member State in the territory of which insolvency proceedings regarding the debtor’s assets have been opened have jurisdiction to hear and determine an action brought by the liquidator in the insolvency proceedings against the managing director of the debtor for reimbursement of payments which were made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets, if the managing director is not domiciled in another Member State … but in a contracting party to the Lugano II Convention?
3.
Does the action referred to in question 1 above fall under Article 3(1) of Regulation No 1346/2000?
4.
If the action referred to in question 1 above does not fall under Article 3(1) of Regulation No 1346/2000 and/or the jurisdiction of the court in that regard does not extend to a managing director who is domiciled in a contracting party to the Lugano II Convention: does the case concern bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions or analogous proceedings within the meaning of Article 1(2)(b) of the Lugano II Convention?
5.
If question 4 is to be answered in the affirmative:
(a)
Does the court of the Member State in which the debtor has its registered office have jurisdiction, in accordance with Article 5(1)(a) of the Lugano II Convention, in relation to an action of the kind referred to in question 1 above?
(i)
With regard to that action, is the defendant being sued in a matter relating to a contract within the meaning of Article 5(1)(a) of the Lugano II Convention?
(ii)
With regard to that action, is the defendant being sued in a matter relating to a contract for services within the meaning of Article 5(1)(b) of the Lugano II Convention?
(b)
In relation to the action referred to in question 1 above, is the defendant being sued in a matter relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Lugano II Convention?’
Consideration of the questions referred
Questions 1 and 3
By its first and third questions, which can be examined together, the referring court asks, in essence, whether Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction, on the basis of that provision, to hear and determine an action, such as that at issue in the main proceedings, brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets.
The applicant in the main proceedings takes the view that Article 3(1) of Regulation No 1346/2000 is not applicable. He submits that the action in the main proceedings is not an action directly derived from insolvency or winding‑up proceedings and closely connected to such proceedings. Paragraph 64 of the GmbHG merely regulates the liability of company directors, and an action for liability against the managing director of a company may be brought not only in the context of insolvency proceedings, but also outside that context, in particular where the application to open insolvency proceedings is dismissed on the grounds that the company concerned has insufficient assets.
The European Commission, on the other hand, contends that, even if all the criteria laid down by the Court in the judgments in
Gourdain
(133/78,
EU:C:1979:49
) and
Seagon
(
EU:C:2009:83
) in order for the action in the main proceedings to be regarded as an action which derives directly from insolvency proceedings and is closely connected with them had not been met, Paragraph 64 of the GmbHG would pursue an objective under insolvency law. An action based on that provision seeks to preserve the distributable assets of a limited liability company which has suspended all payments, in the interest of all its creditors. Accordingly, the joinder of that action and of the insolvency proceedings meets the objective of improving the efficiency and speed of insolvency proceedings, given that the court before which the insolvency proceedings have been brought should be able to provide an answer more rapidly than another court to the question of when the liabilities of the company at issue exceeded its assets.
It must be observed in this connection that, having regard, inter alia, to the effectiveness of Regulation No 1346/2000, Article 3(1) thereof must be interpreted as meaning that it 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 (judgment in
Seagon
,
EU:C:2009:83
, paragraph 21).
Furthermore, it must be stated that the Court, in its case-law concerning the assessment of the question whether proceedings derive directly from insolvency proceedings or are closely connected with them, has taken into account, first, the fact that the various types of actions which it heard were brought in connection with insolvency proceedings. Secondly, the Court concerned itself above all with determining on each occasion whether the action at issue derived from insolvency law or from other rules (see, to that effect, judgment in
Nickel & Goeldner Spedition
, C‑157/13,
EU:C:2014:2145
, paragraph 26).
Thus, so far as concerns the action at issue in the main proceedings, based on Paragraph 64 of the GmbHG, it must be found, first, that it has been brought in connection with insolvency proceedings.
Secondly, so far as concerns the fact that the wording of Paragraph 64 of the GmbHG theoretically allows an action to be brought even where no insolvency proceedings concerning the assets of the debtor company have been opened, it must be stated that this fact per se does not preclude such an action being characterised as an action which derives directly from insolvency proceedings and is closely connected with them, providing that that action was actually brought in the context of insolvency proceedings, as is the case in the main proceedings.
Admittedly, the Court has already held that, in order to identify the area within which an action falls, it is necessary to determine whether the right or the obligation which forms the basis of the action finds its source in the common rules of civil and commercial law or in the derogating rules specific to insolvency proceedings (judgment in
Nickel & Goeldner Spedition
,
EU:C:2014:2145
, paragraph 27).
However, those considerations cannot be interpreted to the effect that an action based on a provision whose application does not require insolvency proceedings to have formally been opened but does require the actual insolvency of the debtor, and thus on a provision which, in contrast to the provisions at issue in the case which gave rise to the judgment in
Nickel & Goeldner Spedition
(
EU:C:2014:2145
), derogates from the common rules of civil and commercial law, does not derive directly from insolvency proceedings or is not closely connected with them.
Under Paragraph 64 of the GmbHG, the managing director of a debtor company must reimburse the payments which he made on behalf of that company after it became insolvent or after it was established that the company’s liabilities exceeded its assets. That provision therefore clearly derogates from the common rules of civil and commercial law, specifically because of the insolvency of the debtor company.
An interpretation of Article 3(1) of Regulation No 1346/2000 to the effect that an action based on Paragraph 64 of the GmbHG, brought in insolvency proceedings, is not an action deriving directly from insolvency proceedings and closely connected with them, would therefore create an artificial distinction between that action and comparable actions, such as the actions to set transactions aside at issue in the cases which gave rise to the judgments in
Seagon
(
EU:C:2009:83
) and
F-Tex
(
EU:C:2012:215
), on the sole ground that the action based on Paragraph 64 of the GmbHG could theoretically be brought even if there were no insolvency proceedings. Such an interpretation, which has no basis in the relevant provisions of Regulation No 1346/2000, cannot be accepted.
It must be stated, on the other hand, that an action based on Paragraph 64 of the GmbHG and brought outside the context of insolvency proceedings may fall within the scope of the Lugano II Convention or, as the case may be, that of Regulation No 44/2001. However, that is not the situation in the case in the main proceedings.
Accordingly, the answer to questions 1 and 3 is that Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction, on the basis of that provision, to hear and determine an action, such as that at issue in the main proceedings, brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets.
Question 2
By its second question, the referring court asks, in essence, whether Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction to hear and determine an action, such as that at issue in the main proceedings, brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets, where the managing director is domiciled, not in another Member State but, as is the situation in the main proceedings, in a contracting party to the Lugano II Convention.
The applicant in the main proceedings observes that the Court accepted in its judgment in
Schmid
(C‑328/12,
EU:C:2014:6
) that, in respect of actions falling within the scope of Article 3(1) of Regulation No 1346/2000, the court which opened the insolvency proceedings has jurisdiction also in the case in which the defendant is established in a non-member State. However, he submits that that provision is not applicable to the dispute in the main proceedings, which falls under the Lugano II Convention.
The Commission, by contrast, stresses that, in the case which gave rise to the judgment in
Schmid
(
EU:C:2014:6
), the defendant was domiciled, like the defendant in the main proceedings, in Switzerland. In addition, it maintains that the fact that the defendant is domiciled in a State party to the Lugano II Convention is irrelevant for the purposes of the interpretation of Article 3(1) of Regulation No 1346/2000.
In this connection, first, it is apparent from paragraph 26 above that the action at issue in the main proceedings, based on Paragraph 64 of the GmbHG and brought in the context of insolvency proceedings, falls within the scope of Article 3(1) of Regulation No 1346/2000.
Secondly, the Court, in a case concerning, inter alia, the exclusion of ‘bankruptcy, proceedings relating to the winding‑up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ from the scope of Regulation No 44/2001, provided for, in identical terms to those of Article 1(2)(b) of the Lugano II Convention, in Article 1(2)(b) of that regulation, has previously held that that exclusion, on the one hand, and the scope of Regulation No 1346/2000, on the other, must be interpreted in such a way as to avoid any overlapping of the rules of law laid down by those texts. Consequently, in so far as an action falls under Article 3(1) of Regulation No 1346/2000, it does not fall within the scope of Regulation No 44/2001 (see, to that effect,
Nickel & Goeldner Spedition
,
EU:C:2014:2145
, paragraph 21 and the case-law cited).
In the light, in particular, of the identical wording of the provisions concerned, the considerations set out in the preceding paragraph may be transposed to the interpretation of Article 1(2)(b) of the Lugano II Convention. Therefore, since the action in the main proceedings falls under Article 3(1) of Regulation No 1346/2000, it is excluded from the scope of that convention. Accordingly, the fact that the Swiss Confederation is a contracting party to the Lugano II Convention is irrelevant for the purposes of the outcome of the dispute in the main proceedings, the convention not being applicable to that dispute.
Thirdly, the Court has already ruled 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 the insolvency proceedings were opened have jurisdiction to hear and determine an action which derives directly from those proceedings and which is closely connected with them that is brought against a defendant whose place of residence is not within the territory of a Member State (see the judgment in
Schmid
,
EU:C:2014:6
, paragraphs 30 and 39 and the case-law cited).
Having regard to the foregoing, the answer to question 2 is that Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction to hear and determine an action, such as that at issue in the main proceedings, brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded assets, where the managing director is domiciled not in another Member State but, as is the situation in the main proceedings, in a contracting party to the Lugano II Convention.
Questions 4 and 5
Since the fourth and fifth questions were asked only in the event that the Court answer the first question in the negative, it is not necessary to answer them.
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 submitted observations to the Court, other than the costs of those parties, are not recoverable.

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

(1)
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 in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction, on the basis of that provision, to hear and determine an action, such as that at issue in the main proceedings, brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets.

(2)
Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State in the territory of which insolvency proceedings regarding a company’s assets have been opened have jurisdiction to hear and determine an action, such as that at issue in the main proceedings, brought by the liquidator in the insolvency proceedings against the managing director of that company for reimbursement of payments made after the company became insolvent or after it had been established that the company’s liabilities exceeded its assets, where the managing director is domiciled not in another Member State but, as is the situation in the main proceedings, in a contracting party to the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed on 30 October 2007, which was approved on behalf of the Community by Council Decision 2009/430/EC of 27 November 2008.

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