# C_2014395EN.01001702.xml

| 10.11.2014 | EN | Official Journal of the European Union | C 395/17 |
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10.11.2014

EN

Official Journal of the European Union

C 395/17

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Judgment of the Court (First Chamber) of 4 September 2014 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — Burgo Group SpA v Illochroma SA, in liquidation, Jérôme Theetten, acting in his capacity as liquidator of Illochroma SA

(Case C-327/13) (1)

((Request for a preliminary ruling - Judicial cooperation in civil matters - Insolvency proceedings - Definition of ‘establishment’ - Group of companies - Establishment - Right to request the opening of secondary insolvency proceedings - Criteria - Person empowered to request the opening of secondary insolvency proceedings))

(2014/C 395/21)

Language of the case: French

Referring court

Cour d’appel de Bruxelles

Parties to the main proceedings

Applicant: Burgo Group SpA

Defendants: Illochroma SA, in liquidation, Jérôme Theetten, acting in his capacity as liquidator of Illochroma SA

Operative part of the judgment

| 1) | Article 3(2) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted to the effect that, where winding-up proceedings are opened in respect of a company in a Member State other than that in which it has its registered office, secondary insolvency proceedings may also be opened in respect of that company in the other Member State in which its registered office is situated and in which it possesses legal personality. |
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1)

Article 3(2) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted to the effect that, where winding-up proceedings are opened in respect of a company in a Member State other than that in which it has its registered office, secondary insolvency proceedings may also be opened in respect of that company in the other Member State in which its registered office is situated and in which it possesses legal personality.

| 2) | Article 29(b) of Regulation No 1346/2000 must be interpreted to the effect that the question as to which person or authority is empowered to seek the opening of secondary proceedings must be determined on the basis of the national law of the Member State within the territory of which the opening of such proceedings is sought. The right to seek the opening of secondary proceedings cannot, however, be restricted to creditors who have their domicile or registered office within the Member State in whose territory the relevant establishment is situated, or to creditors whose claims arise from the operation of that establishment. |
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2)

Article 29(b) of Regulation No 1346/2000 must be interpreted to the effect that the question as to which person or authority is empowered to seek the opening of secondary proceedings must be determined on the basis of the national law of the Member State within the territory of which the opening of such proceedings is sought. The right to seek the opening of secondary proceedings cannot, however, be restricted to creditors who have their domicile or registered office within the Member State in whose territory the relevant establishment is situated, or to creditors whose claims arise from the operation of that establishment.

| 3) | Regulation No 1346/2000 must be interpreted to the effect that, where the main insolvency proceedings are winding-up proceedings, whether the court before which the action seeking the opening of secondary insolvency proceedings has been brought may take account of criteria as to appropriateness is governed by the national law of the Member State within the territory of which the opening of secondary proceedings is sought. However, when establishing the conditions for the opening of secondary proceedings, Member States must comply with EU law and, in particular, its general principles, as well as the provisions of that regulation. |
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3)

Regulation No 1346/2000 must be interpreted to the effect that, where the main insolvency proceedings are winding-up proceedings, whether the court before which the action seeking the opening of secondary insolvency proceedings has been brought may take account of criteria as to appropriateness is governed by the national law of the Member State within the territory of which the opening of secondary proceedings is sought. However, when establishing the conditions for the opening of secondary proceedings, Member States must comply with EU law and, in particular, its general principles, as well as the provisions of that regulation.

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(1)  OJ C 226, 3.8.2013.

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