Opinion of the Advocate General — ECLI:EU:C:2024:330
Date: 2024-04-18
Language of the case: Dutch
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
15 June 2022 
Referring court:  
Hof van beroep te Antwerpen (Belgium) 
Date of the decision to refer:  
7 June 2022 
Appellant:  
Oilchart International NV 
Respondents:  
O.W. Bunker (Netherlands) BV 
ING Bank NV 
  
Subject matter of the main proceedings 
The proceedings concern a claim by the appellant, the Dutch company, Oilchart 
International NV, for the payment of an invoice for the bunkering of an ocean-
going vessel in the port of Sluiskil (the Netherlands). That invoice was still unpaid 
when the debtor became insolvent. Due to the provisions contained in bank 
guarantees, a claim for payment is being brought before a Belgian court.  
Subject matter and legal basis of the request for a preliminary ruling 
This request under Article 267 TFEU concerns the question whether the Belgian 
court has jurisdiction in a case where it is necessary, first, to determine whether a 
claim is governed by provisions specific to Dutch insolvency law which allow it 
to be brought outside of the insolvency and, second, to determine whether such a 
claim may be brought at the same time as a claim for payment from the estate 
submitted to the liquidator in the Netherlands. The referring court also questions 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-394/22 
 
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whether the Dutch provisions referred to are contrary to Article 3(1) of Regulation 
No 1346/2000 (‘the Insolvency Regulation’).  
Questions referred for a preliminary ruling 
(a) 
Must Article 1(2)(b) of the Brussels Ia Regulation (Regulation No 1215/2012) in 
conjunction with Article 3(1) of the Insolvency Regulation (Regulation 
No 1346/2000) be interpreted as meaning that the term ‘bankruptcy, proceedings 
relating to the winding-up of insolvent companies or other legal persons, judicial 
arrangements, compositions and analogous proceedings’ in Article 1(2)(b) of the 
Brussels Ia Regulation includes also proceedings in which the claim is described 
in the summons as a pure trade receivable, without any mention of the 
respondent’s previously declared bankruptcy, whereas the actual legal basis of 
that claim is the specific derogating provisions of Netherlands bankruptcy law 
(Article 25(2) of the Wet van 30 september 1893, op het faillissement en de 
surséance van betaling (Law of 30 September 1893 on bankruptcy and suspension 
of payment; ‘NFW’)) and whereby:  
- it must be determined whether such a claim must be considered a verifiable 
claim (Article 26 NFW in conjunction with Article 110 thereof) or an unverifiable 
claim (Article 25(2) NFW),  
- it appears that the question whether both claims can be brought 
simultaneously and whether one claim does not appear to exclude the other, taking 
into account the specific legal consequences of each of those claims (inter alia, in 
terms of the possibilities of calling for a bank guarantee deferred after the 
bankruptcy), may be determined in accordance with the rules specific to 
Netherlands bankruptcy law?  
And further 
(b) 
Can the provisions of Article 25(2) [NFW] be regarded as compatible with 
Article 3(1) of the Insolvency Regulation, in so far as that legislative provision 
would allow such a claim (Article 25(2) NFW) to be brought before the court of 
another Member State instead of before the insolvency court of the Member State 
in which the bankruptcy was declared? 
Provisions of European Union law relied on 
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 
12 December 2012 on jurisdiction and the recognition and enforcement of 
judgments in civil and commercial matters (recast), Article 1(2)(b).  
OILCHART INTERNATIONAL 
 
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Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency 
proceedings, Article 3(1). 
Provisions of national law relied on 
Wet van 30 september 1893, op het faillissement en de surséance van betaling 
(Law of 30 September 1893, on insolvency and the suspension of payments; ‘the 
Nederlandse faillissementswet’), Articles 25, 26 and 110. 
Succinct presentation of the facts and procedure in the main proceedings 
1 OW Bunker (Netherlands) BV (‘OWB NL’) is one of the companies of the Danish 
OWB Group. On the instructions of OWB NL, the appellant supplied fuel to the 
ocean-going vessel Ms Evita K in the port of Sluiskil (the Netherlands). The 
appellant issued an invoice for this in the amount of USD 116 471.45, which 
remained unpaid due to the insolvency of OWB NL.  
2 As the appellant, following the insolvency of OWB NL, had had a number of 
vessels attached in an effort to obtain payment for the fuel supplied, the appellant 
had obtained bank guarantees from the ship owners concerned in order to effect a 
release of that attachment. Those guarantees provided that they could be invoked 
on the basis of ‘a court ruling or an arbitral award handed down in Belgium 
against either OWB NL’ or the ship owner.  
3 It is alleged that, prior to the insolvency, ING Bank NV (‘ING’), together with 
others, had granted a loan. As security, the various entities of the OWB group, 
including OWB NL, had allegedly assigned their current and future claims on end 
customers to ING. ING intervened in the proceedings and sought to prohibit the 
invocation of the bank guarantees or other securities relating to the bunkered 
vessel before the conclusion of the insolvency proceedings relating to OWB NL.  
4 The court at first instance declared the appellant’s claim against OWB NL 
inadmissible. With regard to ING’s claim, the court declared that it lacked 
international jurisdiction. On appeal, the referring court finds that, by not entering 
an appearance on the first day of the hearing, as was the case at first instance, the 
respondent OWB NL is deemed to have challenged the court’s international 
jurisdiction under Article 28(1) of Regulation No 1215/2012 (‘the Brussels I bis 
Regulation’). That article provides that, in the absence of the respondent, the court 
must first examine whether it has jurisdiction under that regulation.  
Essential arguments of the parties in the main proceedings 
5 The appellant is claiming payment of the outstanding invoice for fuel supplied. 
The summons contained nothing about OWB NL’s insolvency proceedings, which 
by then had already lasted for four months, with the claim being described as an 
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ordinary civil trade receivable. However, in its pleadings it stated that its claim 
was based on Article 25(2) of the Nederlandse Faillissementswet (‘the NFW’). 
6 This article 25 NFW concerns non-verifiable claims. These stand in contrast to 
ordinary verifiable claims, also known as insolvency claims, which the creditor 
submits to the liquidator in order to obtain payment from the estate (in Dutch 
insolvency law, these are claims under Article 26 in conjunction with Article 110 
NFW). The referring court also refers to these as claims ‘from the estate’. The 
unverifiable claims referred to in Article 25(1) of the NFW concern claims in 
which the estate is directly involved, such as claims relating to property. These 
claims are submitted to the liquidator. However, under Article 25(2) of the NFW, 
it is also possible to bypass the liquidator and to bring unverifiable claims directly 
against the insolvent legal person. In the case of such a claim ‘outside of the 
estate’, a ruling pursuant to the second paragraph of that article does not operate 
against the estate. These claims therefore only concern the insolvent person 
personally.  
7 The referring court explained that, by its claim ‘outside of the estate’, the manifest 
aim of the appellant is to be able to invoke the bank guarantees issued after the 
insolvency of OWB NL. Meanwhile, at the same time as the present case in the 
Netherlands, the appellant submitted an ordinary verifiable claim for payment 
‘from the estate’ to the liquidator.  
Succinct presentation of the reasoning in the request for a preliminary ruling 
8 In the questions referred for a preliminary ruling, the referring court raises the 
issue of whether it has jurisdiction. That is the case only if the claim is not 
connected to insolvency. Indeed, Article 1(2)(b) of the Brussels I bis Regulation 
provides that that regulation does not apply to ‘bankruptcy, proceedings relating to 
the winding-up of insolvent companies or other legal persons, judicial 
arrangements, compositions and analogous proceedings’. In addition, according to 
Article 3(1) of the Insolvency Regulation, the Member State within the territory of 
which insolvency proceedings were opened, in this case the Netherlands, also has 
international jurisdiction to hear and determine actions which derive directly from 
those proceedings and which are closely connected to them (see also the judgment 
of 12 February 2009, Seagon, C-339/07, EU:C:2009:83).  
9 In order to determine jurisdiction, it is not the procedural context of an action that 
is decisive, but its legal basis. It must be determined whether the right or 
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 (judgment of 6 February 2019, NK, C-535/17, EU:C:2019:96, 
paragraph 28). In addition, according to the case-law of the Court, it is the 
closeness of the link between a court action and the insolvency proceedings that is 
decisive for the purposes of deciding whether the exclusion provided for in 
Article 1(2)(b) of Regulation No 44/2001 is applicable (judgment of 9 November 
OILCHART INTERNATIONAL 
 
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2017, Tünkers France and Tünkers Maschinenbau, C-641/16, EU:C:2017:847, 
paragraph 28 and the case-law cited therein).  
10 In the light of that case-law, it is relevant to the jurisdiction of the referring court 
whether the claim at issue is in fact a claim ‘outside of the estate’ under 
Article 25(2) NFW, as the appellant contends, or whether it must be regarded as 
an ordinary, verifiable claim ‘from the estate’ under Article 26 in conjunction with 
Article 110 NFW (with regard to that distinction, see paragraph 6 above). Indeed, 
as stated in paragraph 8 above, under Article 1(2)(b) of the Brussels I bis 
Regulation and Article 3(1) of the Insolvency Regulation, the referring court has 
jurisdiction only in respect of claims that are unrelated to insolvency. That might 
be the case for a claim ‘outside of the estate’, but certainly not for a claim ‘from 
the estate’ such as the claim submitted to the liquidator in the Netherlands. 
Moreover, if the claim at issue is a claim ‘outside of the estate’, it is unclear 
whether both claims could possibly be brought simultaneously, one in Belgium 
and the other in the Netherlands.  
11 Before anything else, the court must determine whether it has jurisdiction, so that 
it is not clear whether the referring court may decide on the classification of the 
claim.  
12 The bank guarantees which the appellant seeks to invoke by means of the court 
ruling to be obtained through its appeal (see paragraph 2 above) make no mention 
of the type of claim that may form the basis thereof. It is therefore not clear 
whether the required ruling regarding OWB NL is a ruling pertaining to an 
ordinary verifiable claim ‘from the estate’ under Article 26 in conjunction with 
Article 110 NFW, or whether it may be a ruling on proceedings ‘outside of the 
estate’ within the meaning of Article 25(2) NFW which concern the insolvent 
directly. However, it appears from the legal opinions filed by the parties that these 
guarantees would not be able to be invoked on the basis of a ruling deeming the 
claims to be ‘from the estate’.  
13 At the same time, the question of whether it is possible to bring a claim ‘outside of 
the estate’ if an ordinary verifiable claim ‘from the estate’ has already been lodged 
with the liquidator, can only be answered on the basis of the rules of Dutch 
insolvency law and not on the basis of the rules of ordinary civil and commercial 
law. The ultimate purpose of the claim is, after all, to obtain payment of the 
unpaid invoice outside of the insolvency proceedings by invoking the bank 
guarantee. In that regard, the referring court also refers to recital 4 of the 
Insolvency Regulation. That recital states that ‘it is necessary for the proper 
functioning of the internal market to avoid incentives for the parties to transfer 
assets or judicial proceedings from one Member State to another, seeking to 
obtain a more favourable legal position (forum shopping)’.  
14 That raises the question whether Article 1(2)(b) of the Brussels I bis Regulation 
should be interpreted as meaning that only the Dutch court of the place where the 
insolvency proceedings were opened has jurisdiction to determine whether, in the 
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present proceedings, there is a claim ‘from the estate’ or ‘outside of the estate’ and 
whether both types of claim can be brought simultaneously.  
15 In addition, the referring court raises the question whether Article 25(2) of the 
NFW is compatible with the Insolvency Regulation if it allows such a claim to be 
brought before a court other than that of the Member State where the insolvency 
was declared.