# C_2016156EN.01002201.xml

| 2.5.2016 | EN | Official Journal of the European Union | C 156/22 |
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2.5.2016

EN

Official Journal of the European Union

C 156/22

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Request for a preliminary ruling from the Tribunale Ordinario di Venezia (Italy) lodged on 29 January 2016 — Vinyls Italia SpA, in liquidation v Mediterranea di Navigazione SpA

(Case C-54/16)

(2016/C 156/31)

Language of the case: Italian

Referring court

Referring court

Tribunale Ordinario di Venezia

Parties to the main proceedings

Parties to the main proceedings

Applicant: Vinyls Italia SpA, in liquidation

Applicant:

Defendant: Mediterranea di Navigazione SpA

Defendant:

Questions referred

Questions referred

| 1. | Does the ‘proof’ that Article 13 of Regulation No 1346/2000 (1) requires of the person who benefited from an act detrimental to all the creditors, in order to prevent that act from being challenged in accordance with the rules of the lex fori concursus, include a requirement to raise a procedural objection in the strict sense of that term within the periods laid down by the procedural rules of the lex fori, when seeking to rely on the derogation provided in the regulation and to prove that the two conditions laid down by that provision have been met?
  or
  Does Article 13 of Regulation No 1346/2000 apply when the party concerned has requested its application during the proceedings, even when the time limits laid down by the procedural rules of the lex fori for lodging procedural objections have expired, or even where that provision is applied by the court of its own motion, provided that the party concerned has provided proof that the detrimental act is subject to the lex causae of another Member State whose law does not permit the act to be challenged by any means in the specific circumstances of the case? |
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1.

Does the ‘proof’ that Article 13 of Regulation No 1346/2000 (1) requires of the person who benefited from an act detrimental to all the creditors, in order to prevent that act from being challenged in accordance with the rules of the lex fori concursus, include a requirement to raise a procedural objection in the strict sense of that term within the periods laid down by the procedural rules of the lex fori, when seeking to rely on the derogation provided in the regulation and to prove that the two conditions laid down by that provision have been met?

1

lex fori concursus

lex fori

or

Does Article 13 of Regulation No 1346/2000 apply when the party concerned has requested its application during the proceedings, even when the time limits laid down by the procedural rules of the lex fori for lodging procedural objections have expired, or even where that provision is applied by the court of its own motion, provided that the party concerned has provided proof that the detrimental act is subject to the lex causae of another Member State whose law does not permit the act to be challenged by any means in the specific circumstances of the case?

lex fori

lex causae

| 2. | Must the reference to the rules of the lex causae in Article 13 of Regulation No 1346/2000, for establishing whether ‘that law does not allow any means of challenging that act in the relevant case’, be interpreted as meaning that the party bearing the burden of proof must show that, in the specific circumstances of the case, the lex causae does not provide, in general or in the abstract, any means to challenge an act such as that which, in the present case, was considered detrimental — namely the payment of a contractual debt — or as meaning that the party bearing the burden of proof must show that, where the lex causae allows an act of that type to be challenged, the conditions to be met in order for such a challenge to be upheld in the relevant case, which differ from those of the lex fori concursus, have not actually been fulfilled? |
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2.

Must the reference to the rules of the lex causae in Article 13 of Regulation No 1346/2000, for establishing whether ‘that law does not allow any means of challenging that act in the relevant case’, be interpreted as meaning that the party bearing the burden of proof must show that, in the specific circumstances of the case, the lex causae does not provide, in general or in the abstract, any means to challenge an act such as that which, in the present case, was considered detrimental — namely the payment of a contractual debt — or as meaning that the party bearing the burden of proof must show that, where the lex causae allows an act of that type to be challenged, the conditions to be met in order for such a challenge to be upheld in the relevant case, which differ from those of the lex fori concursus, have not actually been fulfilled?

lex causae

lex causae

lex causae

lex fori concursus

| 3. | Is the derogation provided for in Article 13 of Regulation 1346/2000 — bearing in mind its objective of protecting the legitimate expectations of the parties concerning the stability of the act in accordance with the lex causae — applicable even when the parties to a contract have their head offices in a single Member State, whose law can therefore be expected to be intended to become the lex fori concursus in the event of insolvency on the part of one of those parties, and the parties, via a contractual clause designating the law of another Member State as the law applicable, exclude the setting aside of acts performed under the contract from the application of the mandatory rules of the lex fori concursus imposed in order to protect the principle that all creditors should be treated equally, to the detriment of all the creditors in the event of insolvency? |
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3.

Is the derogation provided for in Article 13 of Regulation 1346/2000 — bearing in mind its objective of protecting the legitimate expectations of the parties concerning the stability of the act in accordance with the lex causae — applicable even when the parties to a contract have their head offices in a single Member State, whose law can therefore be expected to be intended to become the lex fori concursus in the event of insolvency on the part of one of those parties, and the parties, via a contractual clause designating the law of another Member State as the law applicable, exclude the setting aside of acts performed under the contract from the application of the mandatory rules of the lex fori concursus imposed in order to protect the principle that all creditors should be treated equally, to the detriment of all the creditors in the event of insolvency?

lex causae

lex fori concursus

lex fori concursus

| 4. | Must Article 1(1) of Regulation No 593/2008 (2) be interpreted as meaning that ‘situations involving a conflict of laws’ for the purposes of the application of that regulation also include a situation involving a charter contract concluded in a Member State between companies with their head offices in the same Member State, with a clause designating the law of another Member State as the law applicable? |
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4.

Must Article 1(1) of Regulation No 593/2008 (2) be interpreted as meaning that ‘situations involving a conflict of laws’ for the purposes of the application of that regulation also include a situation involving a charter contract concluded in a Member State between companies with their head offices in the same Member State, with a clause designating the law of another Member State as the law applicable?

2

| 5. | If the answer to Question 4 is in the affirmative, must Article 3(3) of Regulation No 593/2008, read in conjunction with Article 13 of Regulation No 1346/2000, be interpreted as meaning that where the parties choose to subject a contract to the law of a Member State other than that in which ‘all the other elements relevant to the situation’ are located, that does not affect the application of mandatory rules under the law of the latter Member State, which apply as the lex fori concursus, for the purpose of challenging acts performed before the insolvency to the detriment of all the creditors, thereby prevailing over the derogation provided for in Article 13 of Regulation No 1346/2000? |
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5.

If the answer to Question 4 is in the affirmative, must Article 3(3) of Regulation No 593/2008, read in conjunction with Article 13 of Regulation No 1346/2000, be interpreted as meaning that where the parties choose to subject a contract to the law of a Member State other than that in which ‘all the other elements relevant to the situation’ are located, that does not affect the application of mandatory rules under the law of the latter Member State, which apply as the lex fori concursus, for the purpose of challenging acts performed before the insolvency to the detriment of all the creditors, thereby prevailing over the derogation provided for in Article 13 of Regulation No 1346/2000?

lex fori concursus

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(1)  Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1).

1

(2)  Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6).

2

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