Opinion of the Advocate General — ECLI:EU:C:2015:44
Date: 2015-01-29
Language of the case: French
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: France

Summary — Judgment of the Court (First Chamber), 11 June 2015 1. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Scope — Actions concerning allocation of the proceeds from sale of the assets of a company in liquidation between the main insolvency proceedings and secondary insolvency proceedings — Included — Regulation No 44/2001 not applicable (Council Regulations No 1346/2000 and No 44/2001, Art. 1(2)(b)) 2. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — International jurisdiction to open insolvency proceedings — Secondary proceedings — Action to determine the debtor’s assets falling within the scope of the effects of secondary proceedings — Included — Concurrent jurisdiction with the courts of the Member State in which the main proceedings have been opened (Council Regulation No 1346/2000, Arts 3(1) and (2), 25(1), first subpara., and 27) 3. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Secondary proceedings — Action to determine the debtor’s assets falling within the scope of the effects of secondary proceedings — Member State where assets are situated — Concept (Council Regulation No 1346/2000, Arts 2(g), 3(2) and 27) 1. Jurisdiction to rule on a dispute may be governed by the provisions of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, even though that dispute is between the liquidators in two sets of insolvency proceedings, one main and the other secondary, each of which falls within Regulation No 1346/2000 on insolvency proceedings. In that regard, it has already been held (i) that Regulations No 44/2001 and No 1346/2000 must be interpreted in such a way as to avoid any overlap between the rules of law that those instruments lay down and any legal vacuum and (ii) that the scope of Regulation No 1346/2000 must not be interpreted broadly and that only actions which derive directly from insolvency proceedings and are closely connected with them fall within the scope of Regulation No 1346/2000. Furthermore, the decisive criterion which has been adopted for identifying the area within which an action falls is not the procedural context of that action, but its legal basis. According to that approach, it must be determined whether the right or the obligation which forms the basis of the action has its source in the ordinary rules of civil and commercial law or in derogating rules specific to insolvency proceedings. In the case of allocation of the proceeds from sale of the assets of a company in liquidation between the main insolvency proceedings and secondary insolvency proceedings, provided that the proceeds must in essence be allocated by applying Regulation No 1346/2000 that regulation is applicable. (see paras 25-28, 30) 2. Articles 3(2) and 27 of Regulation No 1346/2000 on insolvency proceedings must be interpreted as meaning that the courts of the Member State in which secondary insolvency proceedings have been opened have jurisdiction, concurrently with the courts of the Member State in which the main proceedings have been opened, to rule on the determination of the debtor’s assets falling within the scope of the effects of those secondary proceedings. In the light of the scheme and practical effect of Regulation No 1346/2000, Article 3(2) thereof must be regarded as conferring international jurisdiction to hear and determine actions which derive directly from insolvency proceedings and are closely connected with them (‘related’ actions) on the courts of the Member State within the territory of which secondary insolvency proceedings have been opened, in so far as those actions relate to the debtor’s assets that are situated within the territory of that State. In imposing, pursuant to the first subparagraph of Article 25(1) of Regulation No 1346/2000, an obligation to recognise ‘related’ judgments delivered by courts which have jurisdiction under Article 3(2) of that regulation, the latter appears to confer at least implicitly on those courts jurisdiction to deliver such judgments. Furthermore, the protection of local interests, which is one of the fundamental objectives of the possibility, provided for in Article 27 of the regulation, of opening secondary insolvency proceedings, and, therefore, the practical effect, in particular, of that article would be appreciably weakened if a related action seeking a declaration that specified assets fall within secondary insolvency proceedings could not be brought before the courts of the Member State within the territory of which the secondary proceedings have been opened. Therefore, the courts of the Member State in which secondary insolvency proceedings have been opened have jurisdiction, on the basis of Article 3(2) of Regulation No 1346/2000, to rule on the determination of the debtor’s assets falling within the scope of the effects of those proceedings. In addition, exclusive jurisdiction of the courts of the Member State in which secondary insolvency proceedings have been opened to rule on the determination of the debtor’s assets falling within the scope of the effects of those proceedings would deprive Article 3(1) of Regulation No 1346/2000 of its practical effect in so far as that provision confers international jurisdiction to rule on ‘related’ actions and, therefore, cannot be upheld. (see paras 27, 33, 35-38, 42, 46, operative part) 3. The debtor’s assets that fall within the scope of the effects of secondary insolvency proceedings must be determined in accordance with Article 2(g) of Regulation No 1346/2000 on insolvency proceedings. As follows from Articles 3(2) and 27 of Regulation No 1346/2000, the effects of secondary insolvency proceedings are restricted to the assets of the debtor which, on the date of the opening of the insolvency proceedings, were situated within the territory of the Member State in which the secondary proceedings were opened. That regulation lays down uniform rules concerning whether assets must be regarded as situated within the territory of a Member State on the date of the opening of the insolvency proceedings, excluding, to that extent, any recourse to national law. Furthermore, although Article 2(g) of the regulation refers expressly only to property, rights and claims situated in a Member State, that provides no ground for inferring that that provision is not applicable if the property, right or claim in question must be regarded as situated in a third State. Accordingly, in order to identify the assets falling within secondary insolvency proceedings, it is sufficient to establish whether, on the date of the opening of the insolvency proceedings, the assets were situated, within the meaning of Article 2(g), within the territory of the Member State in which those proceedings were opened, and it is not relevant in that regard to determine, as the case may be, in what other State those assets were situated at a subsequent stage. (see paras 48, 50, 52, 53, 55, operative part)