Opinion of the Advocate General — ECLI:EU:C:2012:308
Date: 2012-05-24
Language of the case: Polish
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary — Judgment of the Court (First Chamber), 22 November 2012 1. Judicial procedure — Request to have the oral procedure reopened — Request to lodge observations on the points of law raised by the Advocate General’s opinion — Conditions for the reopening (Rules of Procedure of the Court of Justice, Art. 61) 2. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Scope — Proceedings included in Annex A to the Regulation (Council Regulation No 1346/2000, as amended by Regulation No 788/2008, Arts 1(1) and (2)(a)) 3. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Applicable law — Concept of ‘closure of insolvency proceedings’ — Matter governed by national law (Council Regulation No 1346/2000, as amended by Regulation No 788/2008, Art. 4(2)(j)) 4. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Secondary proceedings — Main proceedings having a protective purpose — Possibility of opening secondary proceedings (Council Regulation No 1346/2000, as amended by Regulation No 788/2008, Art. 27) 5. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Secondary proceedings — Impossibility in those proceedings of examining the debtor’s insolvency (Council Regulation No 1346/2000, as modified by Regulation No 788/2008, Art. 27) 1. See the text of the decision. (see paras 26-30) 2. Once proceedings are listed in Annex A to Regulation No 1346/2000 on insolvency proceedings, as amended by Regulation No 788/2008, it must be regarded as falling within the scope of the regulation. Inclusion in the list has the direct, binding effect attaching to the provisions of a regulation. (see para. 33) 3. Article 4(2)(j) of Regulation No 1346/2000 on insolvency proceedings, as amended by Regulation No 788/2008, must be interpreted as meaning that it is for the national law of the Member State in which insolvency proceedings have been opened to determine at which moment the closure of those proceedings occurs. Article 4 of Regulation No 1346/2000 appears to be a conflict of laws rule which replaces national rules of private international law. The defining characteristic of such a conflict of laws rule is that it does not answer a question of substantive laws itself, but simply determines the law that governs the answer to that question. Accordingly, questions such as the conditions for and effects of the closure of insolvency proceedings, about which Article 4(2)(j) of the Regulation makes an express reference to national law, cannot be given an autonomous interpretation, but must be decided under the lex concursus designated as applicable. (see paras 47, 48, 50, 52, operative part 1) 4. Article 27 of Regulation No 1346/2000 on insolvency proceedings, as amended by Regulation No 788/2008, must be interpreted as meaning that it permits the opening of secondary insolvency proceedings in the Member State in which the debtor has an establishment, where the main proceedings have a protective purpose. It is for the court having jurisdiction to open secondary proceedings to have regard to the objectives of the main proceedings and to take account of the scheme of the Regulation, in keeping with the principle of sincere cooperation. (see para. 63, operative part 2) 5. Article 27 of Regulation No 1346/2000 on insolvency proceedings, as amended by Regulation No 788/2008, must be interpreted as meaning that the court before which an application to have secondary insolvency proceedings opened has been made cannot examine the insolvency of a debtor against which main proceedings have been opened in another Member State, even where the latter proceedings have a protective purpose. Given that main insolvency proceedings opened in one Member State are to be recognised in all the other Member States from the time that it become effective in the State of the opening of proceedings, the examination of the debtor’s insolvency by the court having jurisdiction to open main proceedings is binding on any other courts before which an application to open insolvency proceedings is made. In addition, in accordance with Regulation No 1346/2000, a prerequisite for the opening of main proceedings is that the court having jurisdiction has established that the debtor is insolvent under national law. (see paras 68-70, 74, operative part 3)