# C_2023329EN.01000601.xml

| 18.9.2023 | EN | Official Journal of the European Union | C 329/6 |
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18.9.2023

EN

Official Journal of the European Union

C 329/6

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Request for a preliminary ruling from the Juzgado de lo Mercantil n.o 1 de Alicante (Spain) lodged on 25 April 2023 — Agencia Estatal de la Administración Tributaria v A

(Case C-289/23, Corván (1))

(2023/C 329/08)

Language of the case: Spanish

Referring court

Juzgado de lo Mercantil n.o 1 de Alicante

Parties to the main proceedings

Applicant: Agencia Estatal de la Administración Tributaria

Defendant: A

Questions referred

| 1. | Doubts as to the interpretation of Article 23(2) of Directive (EU) 2019/1023. (2)







  1.1. | Must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt as provided for in point 2 of Article 487(1) of the Texto refundido de la Ley Concursal (Consolidated text of the Insolvency Law; ‘the TRLC’), in so far as that limitation was not included in the legislation in force prior to the transposition of the directive conferring the entitlement to discharge of debt and was introduced ex novo by the legislature? In particular, may the national legislature, when transposing the directive, establish more stringent restrictions on access to discharge of debt than those laid down in the previous legislation, especially where that limitation does not correspond to any of the circumstances listed in Article 23(2) of the directive? |
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1.

Doubts as to the interpretation of Article 23(2) of Directive (EU) 2019/1023. (2)

1.1.

Must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt as provided for in point 2 of Article 487(1) of the Texto refundido de la Ley Concursal (Consolidated text of the Insolvency Law; ‘the TRLC’), in so far as that limitation was not included in the legislation in force prior to the transposition of the directive conferring the entitlement to discharge of debt and was introduced ex novo by the legislature? In particular, may the national legislature, when transposing the directive, establish more stringent restrictions on access to discharge of debt than those laid down in the previous legislation, especially where that limitation does not correspond to any of the circumstances listed in Article 23(2) of the directive?

| 1.2. | If the Court’s answer to the previous question is in the negative, must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt where, in the 10 years preceding the application for a discharge, [the debtor] has been penalised by final administrative decision for very serious tax offences, for social security offences or for labour offences, or where, in the same period, a final decision to enforce secondary liability has been handed down against the debtor, unless, on the date on which the application for a discharge is made, he or she has met his or her liability in full (point 2 of Article 487(1) of the TRLC), in so far as that ground for preventing access to discharge of debt alters the rules on the classification of insolvency claims? |
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1.2.

If the Court’s answer to the previous question is in the negative, must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt where, in the 10 years preceding the application for a discharge, [the debtor] has been penalised by final administrative decision for very serious tax offences, for social security offences or for labour offences, or where, in the same period, a final decision to enforce secondary liability has been handed down against the debtor, unless, on the date on which the application for a discharge is made, he or she has met his or her liability in full (point 2 of Article 487(1) of the TRLC), in so far as that ground for preventing access to discharge of debt alters the rules on the classification of insolvency claims?

| 1.3. | If the Court’s answer to the previous question is in the negative, must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt as provided for in point 2 of Article 487(1) of the TRLC where ... a final decision to enforce secondary liability has been handed down against the debtor, unless, on the date on which the application for a discharge is made, he or she has met his or her liability in full, in so far as that circumstance is not such as to establish bad faith on the part of the debtor? Is it relevant in that regard that the insolvency was not found to be fault based? |
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1.3.

If the Court’s answer to the previous question is in the negative, must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt as provided for in point 2 of Article 487(1) of the TRLC where ... a final decision to enforce secondary liability has been handed down against the debtor, unless, on the date on which the application for a discharge is made, he or she has met his or her liability in full, in so far as that circumstance is not such as to establish bad faith on the part of the debtor? Is it relevant in that regard that the insolvency was not found to be fault based?

| 1.4. | If the Court’s answer to the previous question is in the negative, must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt as provided for in point 2 of Article 487(1) of the TRLC where decisions on offences or on enforcement of secondary liability have been handed down or issued in the 10 years preceding the application for discharge, without taking account of the date of the event giving rise to liability or the possible delay in the adoption of the decision to enforce secondary liability? |
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1.4.

If the Court’s answer to the previous question is in the negative, must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt as provided for in point 2 of Article 487(1) of the TRLC where decisions on offences or on enforcement of secondary liability have been handed down or issued in the 10 years preceding the application for discharge, without taking account of the date of the event giving rise to liability or the possible delay in the adoption of the decision to enforce secondary liability?

| 1.5. | If the Court’s answer to the previous questions is in the negative, must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt as provided for in point 2 of Article 487(1) of the TRLC in so far as the national legislature did not state proper reasons for that limitation? |
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1.5.

If the Court’s answer to the previous questions is in the negative, must Article 23(2) of the directive be interpreted as precluding national legislation which prevents access to discharge of debt as provided for in point 2 of Article 487(1) of the TRLC in so far as the national legislature did not state proper reasons for that limitation?

| 2. | Doubts as to the interpretation of Article 23(4) of Directive 2019/[1023].






  2.1. | Must Article 23(4) of the directive be interpreted as precluding a provision such as that laid down in point 2 of Article 487(1) of the TRLC establishing grounds preventing access to discharge of debt which are not included in the list set out in Article 23(4)? In particular, must the list of grounds in Article 23(4) be interpreted as a numerus clausus or, by contrast, is it a numerus apertus? |
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2.

Doubts as to the interpretation of Article 23(4) of Directive 2019/[1023].

2.1.

Must Article 23(4) of the directive be interpreted as precluding a provision such as that laid down in point 2 of Article 487(1) of the TRLC establishing grounds preventing access to discharge of debt which are not included in the list set out in Article 23(4)? In particular, must the list of grounds in Article 23(4) be interpreted as a numerus clausus or, by contrast, is it a numerus apertus?

| 2.2. | In so far as the list is a numerus apertus and it is open to the national legislature to establish exceptions other than those provided for in the directive, does Article 23(4) of the directive preclude national legislation which lays down a general rule that claims governed by public law are excluded from discharge except in very limited circumstances and for very limited amounts, irrespective of the nature and circumstances of specific debts governed by public law? In particular, is it relevant in the present case that the previous legislation, as interpreted by the Tribunal Supremo (Supreme Court, Spain) in its case-law, allowed the discharge of public claims to some extent and that the transposing provisions restricted the scope of discharge? |
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2.2.

In so far as the list is a numerus apertus and it is open to the national legislature to establish exceptions other than those provided for in the directive, does Article 23(4) of the directive preclude national legislation which lays down a general rule that claims governed by public law are excluded from discharge except in very limited circumstances and for very limited amounts, irrespective of the nature and circumstances of specific debts governed by public law? In particular, is it relevant in the present case that the previous legislation, as interpreted by the Tribunal Supremo (Supreme Court, Spain) in its case-law, allowed the discharge of public claims to some extent and that the transposing provisions restricted the scope of discharge?

| 2.3. | If the Court’s answer to the previous question is in the negative, must Article 23(4) of the directive be interpreted as precluding a national provision such as that laid down in point 5 of Article 489(1) of the TRLC which lays down a general rule that public claims are excluded from discharge (subject to certain exceptions considered in the next question), in so far as it treats public creditors more favourably than other creditors? |
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2.3.

If the Court’s answer to the previous question is in the negative, must Article 23(4) of the directive be interpreted as precluding a national provision such as that laid down in point 5 of Article 489(1) of the TRLC which lays down a general rule that public claims are excluded from discharge (subject to certain exceptions considered in the next question), in so far as it treats public creditors more favourably than other creditors?

| 2.4. | In particular, and in connection with the previous question, is it relevant that the legislation makes some provision for the discharge of public claims, but only for certain debts and within specific limits which are unrelated to the actual amount of the debt? |
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2.4.

In particular, and in connection with the previous question, is it relevant that the legislation makes some provision for the discharge of public claims, but only for certain debts and within specific limits which are unrelated to the actual amount of the debt?

| 2.5. | Finally, must Article 23(4) of Directive (EU) 2019/[1023] be interpreted as precluding a provision such as that laid down in point 5 of Article 489(1) of the TRLC, in so far as discharge (as envisaged in that article) is justified by the particular importance of meeting those claims in achieving a fair and mutually supportive society founded on the rule of law, and refers generally to public claims without taking account of the specific nature of the claim? In particular, is it relevant in that regard that the generic justification is used for the debts listed in Article 23(4) of the directive and for circumstances or debts which do not appear in those lists? |
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2.5.

Finally, must Article 23(4) of Directive (EU) 2019/[1023] be interpreted as precluding a provision such as that laid down in point 5 of Article 489(1) of the TRLC, in so far as discharge (as envisaged in that article) is justified by the particular importance of meeting those claims in achieving a fair and mutually supportive society founded on the rule of law, and refers generally to public claims without taking account of the specific nature of the claim? In particular, is it relevant in that regard that the generic justification is used for the debts listed in Article 23(4) of the directive and for circumstances or debts which do not appear in those lists?

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(1)  The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

(2)  Directive (EU) 2019/1023 of the European Parliament and of the Council of 20 June 2019 on preventive restructuring frameworks, on discharge of debt and disqualifications, and on measures to increase the efficiency of procedures concerning restructuring, insolvency and discharge of debt, and amending Directive (EU) 2017/1132 (Directive on restructuring and insolvency) (OJ 2019 L 172, p. 18).

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