# C_2013156EN.01002301.xml

| 1.6.2013 | EN | Official Journal of the European Union | C 156/23 |
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1.6.2013

EN

Official Journal of the European Union

C 156/23

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Request for a preliminary ruling from the Lietuvos Aukščiausiasis Teismas (Lithuania) lodged on 26 March 2013 — Nickel & Goeldner Spedition GmbH v Kintra UAB, in liquidation

(Case C-157/13)

2013/C 156/36

Language of the case: Lithuanian

Referring court

Referring court

Lietuvos Aukščiausiasis Teismas

Parties to the main proceedings

Parties to the main proceedings

Appellant on a point of law: Nickel & Goeldner Spedition GmbH

Appellant on a point of law:

Respondent on a point of law: Kintra UAB, in liquidation

Respondent on a point of law:

Questions referred

Questions referred

| 1. | Where an action is brought by an insolvency administrator, acting in the interests of all the creditors of the undertaking and seeking to restore the undertaking’s solvency and to increase the amount of the assets of the insolvent undertaking so that as many creditors’ claims as possible may be satisfied — whilst it should be noted that the same effects are also sought, for instance, by an insolvency administrator’s actions to set transactions aside (actio Pauliana), which have been recognised as closely connected with the insolvency proceedings — and given the fact that in the case at issue payment of a sum owed is claimed under the CMR Convention and the Lithuanian Civil Code (general provisions of civil law) for the international carriage of goods that was performed, is that action to be considered to be connected closely (by direct link) with the claimant’s insolvency proceedings, must jurisdiction to hear it be determined in accordance with the rules of Regulation No 1346/2000 (1) and does it fall within the exception to application of Regulation No 44/2001? (2) |
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1.

Where an action is brought by an insolvency administrator, acting in the interests of all the creditors of the undertaking and seeking to restore the undertaking’s solvency and to increase the amount of the assets of the insolvent undertaking so that as many creditors’ claims as possible may be satisfied — whilst it should be noted that the same effects are also sought, for instance, by an insolvency administrator’s actions to set transactions aside (actio Pauliana), which have been recognised as closely connected with the insolvency proceedings — and given the fact that in the case at issue payment of a sum owed is claimed under the CMR Convention and the Lithuanian Civil Code (general provisions of civil law) for the international carriage of goods that was performed, is that action to be considered to be connected closely (by direct link) with the claimant’s insolvency proceedings, must jurisdiction to hear it be determined in accordance with the rules of Regulation No 1346/2000 (1) and does it fall within the exception to application of Regulation No 44/2001? (2)

actio Pauliana

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| 2. | In the event that the first question is answered in the affirmative, the Lietuvos Aukščiausiasis Teismas requests the Court to explain whether, where the obligation at issue (the defendant’s obligation, based on the improper performance of its contractual obligations, to pay the sum owed and default interest to the insolvent claimant for the international carriage of goods) has arisen prior to the opening of insolvency proceedings in respect of the claimant, Article 44(3)(a) of Regulation No 1346/2000 must be relied upon and this regulation is inapplicable because jurisdiction over the case is established in accordance with Article 31 of the CMR Convention, as provisions of a specialised convention. |
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2.

In the event that the first question is answered in the affirmative, the Lietuvos Aukščiausiasis Teismas requests the Court to explain whether, where the obligation at issue (the defendant’s obligation, based on the improper performance of its contractual obligations, to pay the sum owed and default interest to the insolvent claimant for the international carriage of goods) has arisen prior to the opening of insolvency proceedings in respect of the claimant, Article 44(3)(a) of Regulation No 1346/2000 must be relied upon and this regulation is inapplicable because jurisdiction over the case is established in accordance with Article 31 of the CMR Convention, as provisions of a specialised convention.

| 3. | In the event that the first question is answered in the negative and the dispute under consideration falls within the scope of Regulation No 44/2001, the Lietuvos Aukščiausiasis Teismas requests the Court to explain whether, in the present instance, inasmuch as Article 31(1) of the CMR Convention and Article 2(1) of Regulation No 44/2001 do not conflict with each other, it should be considered that, upon placing the relations at issue within the scope of the CMR Convention (the specialised convention), the legal rules in Article 31 of the CMR Convention are to be applied when establishing which State’s courts have jurisdiction over the action under consideration, if the legal rules in Article 31(1) of the CMR Convention do not run counter to the fundamental objectives of Regulation No 44/2001, do not lead to results which are less favourable for achieving sound operation of the internal market and are sufficiently clear and precise. |
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3.

In the event that the first question is answered in the negative and the dispute under consideration falls within the scope of Regulation No 44/2001, the Lietuvos Aukščiausiasis Teismas requests the Court to explain whether, in the present instance, inasmuch as Article 31(1) of the CMR Convention and Article 2(1) of Regulation No 44/2001 do not conflict with each other, it should be considered that, upon placing the relations at issue within the scope of the CMR Convention (the specialised convention), the legal rules in Article 31 of the CMR Convention are to be applied when establishing which State’s courts have jurisdiction over the action under consideration, if the legal rules in Article 31(1) of the CMR Convention do not run counter to the fundamental objectives of Regulation No 44/2001, do not lead to results which are less favourable for achieving sound operation of the internal market and are sufficiently clear and precise.

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

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(2)  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).

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