Opinion of the Advocate General — ECLI:EU:C:2011:132
Date: 2011-03-10
Language of the case: Italian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. Preliminary rulings – Jurisdiction of the Court – Act adopted on the basis of Title IV in Part Three of the EC Treaty (Art. 267 TFEU) 2. European Union law – Primacy – Contrary national law – Automatic inapplicability of existing provisions – Obligation to comply with the directions of a higher court inconsistent with European Union law – Not permissible (Art. 267 TFEU) 3. Judicial cooperation in civil matters – Insolvency proceedings – Regulation No 1346/2000 – International jurisdiction to open insolvency proceedings – The courts of the Member State in which the centre of a debtor’s main interests is situated (Council Regulation No 1346/2000, Art 3(1)) 4. Judicial cooperation in civil matters – Insolvency proceedings – Regulation No 1346/2000 – International jurisdiction to open insolvency proceedings – The courts of the Member State in which the centre of a debtor’s main interests is situated – Criteria for determining (Council Regulation No 1346/2000, Art 3(1), second sentence) 5. Judicial cooperation in civil matters – Insolvency proceedings – Regulation No 1346/2000 – International jurisdiction to open insolvency proceedings – Secondary proceedings (Council Regulation No 1346/2000, Art. 3(2)) 1. Pursuant to Article 267 TFEU, the courts and tribunals against whose decisions there is a judicial remedy under domestic law have enjoyed, since 1 December 2009, the right to refer questions to the Court where acts adopted on the basis of Title IV of the EC Treaty are concerned. In the light of the objective of establishing effective cooperation between the Court of Justice and the national courts pursued by Article 267 TFEU and the principle of procedural economy, since 1 December 2009 the Court has had jurisdiction to hear and determine a reference for a preliminary ruling from a court against whose decisions there is a judicial remedy under national law, even where the reference was lodged before that date. (see paras 19-20) 2. European Union law precludes a national court from being bound by a national procedural rule under which that court is bound by the rulings of a higher national court, when it is apparent that the rulings of the higher court are at variance with European Union law, as interpreted by the Court of Justice. First, the existence of a national procedural rule under which courts not ruling at final instance are bound by the rulings of a higher court cannot call into question the discretion of national courts not ruling at final instance to make a reference to the Court for a preliminary ruling when they have doubts as to the interpretation of European Union law. Second, a judgment in which the Court gives a preliminary ruling is binding on the national court, as regards the interpretation or the validity of the acts of the European Union institutions in question, for the purposes of the decision to be given in the main proceedings. Moreover, a national court which is called upon, within the exercise of its jurisdiction, to apply provisions of European Union law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of that national provision by legislative or other constitutional means. (see paras 35-36, 38-39, operative part 1) 3. The term ‘centre of a debtor’s main interests’ in Article 3(1) of Regulation No 1346/2000 on insolvency proceedings must be interpreted by reference to European Union law. That concept is peculiar to the Regulation and must therefore be interpreted in a uniform way, independently of national legislation. (see paras 43-44, operative part 2) 4. For the purposes of determining a debtor company’s main centre of interests, the second sentence of Article 3(1) of Regulation No 1346/2000 on insolvency proceedings must be interpreted as meaning that a debtor company’s main centre of interests must be determined by attaching greater importance to the place of the company’s central administration, as it may be established by objective factors ascertainable by third parties. If the bodies responsible for the management and supervision of a company are to be found in the same place as its registered office and the management decisions of the company are taken, in a manner ascertainable by third parties, in that place, the presumption in that provision cannot be rebutted. If a company’s central administration is not to be found in the same place as its registered office, the presence of company assets and the existence of contracts for the financial exploitation of those assets in a Member State other than that in which the registered office is situated cannot be regarded as sufficient factors to rebut the presumption unless a comprehensive assessment of all the relevant factors makes it possible to establish, in a manner ascertainable by third parties, that the company’s actual centre of management and supervision and of the management of its interests is located in that other Member State. When a debtor company’s registered office is transferred before a request to open insolvency proceedings is lodged, the company’s centre of main activities is presumed to be the place of its new registered office. (see para. 59, operative part 3) 5. The term ‘establishment’ within the meaning of Article 3(2) of Regulation No 1346/2000 on insolvency proceedings must be interpreted as requiring the presence of a structure consisting of a minimum level of organisation and a degree of stability necessary for the purpose of pursuing an economic activity. The presence alone of goods in isolation or bank accounts does not, in principle, meet that definition. (see para. 64, operative part 4)