Opinion of the Advocate General — ECLI:EU:C:2014:2404
Date: 2014-11-27
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (First Chamber), 16 April 2015 1. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Detrimental acts — Applicable law — Exception to the general rule of applying the lex fori concursus — Scope — Transaction challenged by the action made on the basis of a right in rem established before the opening of the insolvency proceedings — Possibility to exercise that right after the opening of such proceedings — Application of the lex causae (Council Regulation No 1346/2000, Arts 5(1) and 13) 2. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Detrimental acts — Applicable law — Exception to the general rule of applying the lex fori concursus — Scope — Procedural periods — Included (Council Regulation No 1346/2000, Art. 13) 3. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Detrimental acts — Applicable law — Exception to the general rule of applying the lex fori concursus — Scope — Procedural requirements for the action to set a transaction aside — Included (Council Regulation No 1346/2000, Art. 13) 1. Article 13 of Regulation No 1346/2000 on insolvency proceedings must be interpreted as applying to a situation in which a payment, challenged by an insolvency administrator, of a sum of money attached before the opening of the insolvency proceedings was made only after the opening of those proceedings. The exception to the general rule that the law applicable to insolvency proceedings and their effects is to be the lex fori concursus, provided for in Article 13 of Regulation No 1346/2000, must be interpreted strictly, and its scope cannot go beyond what is necessary to achieve that objective. To interpret that article as also applying to acts which took place after the opening of insolvency proceedings would go beyond what is necessary to protect legitimate expectations and the certainty of transactions in Member States other than that in which proceedings are opened. It must therefore be held that Article 13 of Regulation No 1346/2000 is not, in principle, applicable to acts which take place after the opening of insolvency proceedings. However, notwithstanding that conclusion, that payment took place on the basis of a right in rem and, since that right was established before the opening of the insolvency proceedings against the debtor company, that payment could benefit, according in particular to Article 5(1) of Regulation No 1346/2000, from special protection. However, in order to enable a creditor to assert his right in rem effectively, that creditor must be able to exercise that right after the opening of the insolvency proceedings, in principle under the lex causae. (see paras 34-37, 40, 43, operative part 1) 2. Article 13 of Regulation No 1346/2000 on insolvency proceedings must be interpreted as meaning that the defence which it establishes also applies to limitation periods or other time-bars relating to actions to set aside transactions under the law governing the act challenged by the liquidator. Since Article 13 of Regulation No 1346/2000 draws no distinction between substantive and procedural provisions and does not contain, in particular, any criterion for identifying periods of a procedural nature, the classification of a period as procedural or substantive should necessarily be made under the lex causae. To interpret Article 13 of Regulation No 1346/2000 as meaning that periods classified by the lex causae as procedural periods are excluded from the scope of that article would lead to arbitrary discrimination according to the legal-theory models adopted by the Member States and would clearly prevent a uniform application of that article. (see paras 47-49, operative part 2) 3. The relevant procedural requirements for the exercise of an action to set a transaction aside are to be determined, for the purposes of the application of Article 13 of Regulation No 1346/2000 on insolvency proceedings, according to the law governing the act challenged by the liquidator. Nothing in the wording of Article 13 of Regulation No 1346/2000 indicates that procedural requirements are excluded from the scope of that provision. In addition, that article draws no distinction between substantive and procedural provisions. To interpret Article 13 as meaning that requirements classified as procedural requirements by the lex causae must be excluded from the scope of that article would lead to arbitrary discrimination on the basis of the legal-theory models adopted by the Member States and would prevent a uniform application of that article. (see paras 51, 53, 55, 56, operative part 3)