Opinion of the Advocate General — ECLI:EU:C:2008:575
Date: 2008-10-16
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary 39. The rules governing insolvency proceedings have diverged significantly from the general provisions of civil law, to the extent that the traditional actio pauliana has become a very different action in the insolvency law of the Member States. The Court has given rulings on both types of action in cases concerning conflicts of jurisdiction at Community level, holding that civil actions are subject to the general rules of jurisdiction in the Brussels Convention (now Regulation No 44/2001) but that actions in the context of an insolvency to set a transaction aside are excluded from that convention. Since the rules on international jurisdiction do not apply to insolvency proceedings or to ‘analogous proceedings’, the Court has taken the view that, even though actions to set aside do not have an autonomous community definition, they are part of insolvency proceedings where they are closely connected with those proceedings. That connection is determined by reference to the nature of each action as it is defined in the relevant national legislation. 40. That legislative and case-law framework formed the applicable law before the entry into force of Regulation No 1346/2000 on insolvency proceedings. In my view, it is essential to determine next whether the adoption of that provision confirms or amends the points I have set out above. B – Actions in the context of an insolvency to set a transaction aside and Regulation No 1346/2000 41. The question referred for a preliminary ruling by the Bundesgerichtshof may be reduced simply to the following: does Article 3(1) of Regulation No 1346/2000, which lays down provisions on jurisdiction in the field of insolvency, apply to actions in the context of an insolvency to set a transaction aside, even though it does not expressly state as much? 42. Contrary to the assertions of the applicant and the defendant, I do not believe that in the present case there are any lacunae in the Community legislation. The analogy principle comes into play when the law does not provide a solution to the problem. Where there is no applicable provision, pursuant to the analogy principle, a legal practitioner may invoke another provision with an identical legal basis and identical subject-matter. (32) That may not occur in the present proceedings because there are applicable rules (Article 3(1) of Regulation No 1346/2000), in addition to other articles in the same legislation which assist with the resolution of the proceedings. 43. There is, however, a pitfall with regard to interpretation, which calls for an analysis of Article 3(1). That is where the uncertainties of the referring court lie. There is no lacuna and instead it is necessary to carry out an interpretation. 1. Regulation No 1346/2000 and its conflicts of laws rules 44. Regulation No 1346/2000 appears to remain silent on the matter of jurisdiction for bringing an action in the context of an insolvency to set a transaction aside, but Article 3(1) of the regulation contains a general rule of jurisdiction based on the jurisdiction of the State within the territory of which the centre of a debtor’s main interests is situated. (33) 45. That rule is capable of providing a straightforward solution, bolstered by another argument put forward by the defendant. Article 18(2) of Regulation No 1346/2000, which sets out the powers of the liquidator, confers on the liquidator the right to ‘bring any action to set aside which is in the interests of the creditors’, from which it may be inferred that, by providing that the liquidator may bring such actions without adopting a rule of jurisdiction in that regard, the Community legislature wished to exclude actions to set aside from the scope of the regulation. It follows from the same argument that international jurisdiction is provided for in Regulation No 44/2001 or in the separate rules of national law. 46. Notwithstanding the logic of that argument advanced by the defendant, to my mind, the reply of the applicant is more persuasive since, although, unlike Article 3(1), Article 18(2) of Regulation No 1346/2000 refers nominally to actions to set aside, such an a contrario interpretation must be applied with caution. (34) The wording of recital 6 in the preamble to Regulation No 1346/2000, which reflects the uncertainties of the institutions with regard to the issue of jurisdiction and actions in the context of an insolvency to set a transaction aside, is evidence of that need for caution. After stating that the provisions of the regulation are intended to comply with the principle of proportionality, the recital goes on to state that the Regulation ‘should be confined to provisions governing jurisdiction for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings’. The recital points out that the regulation goes further than that, since it also concerns ‘the recognition of those judgments and the applicable law which also satisfy that principle’. 47. The intention of the Council to resolve the difficulties inherent in cases such as the present one is clearly and unequivocally demonstrated, which moves me to minimise the importance of Article 18(2) when it comes to interpreting Article 3(1). 48. An analysis of the scheme of Regulation No 1346/2000 leads to an outcome which differs from the one proposed by the defendant, (35) since Article 4(2)(m) and the second subparagraph of Article 25(1) lay down rules on the law applicable and the recognition of judgments with regard to actions in the context of an insolvency to set a transaction aside. The fact that the second subparagraph of Article 25(1) contains such a rule is of particular significance, since, by referring to the provisions on recognition and enforcement laid down in Regulation No 44/2001, the article provides that those provisions ‘shall also apply to judgments deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by another court’. That is a clear reference to the Gourdain judgment, which bolsters the position of the applicant. (36) 49. Regulation No 1346/2000 does not differentiate between the rules on jurisdiction and the rules on recognition. In fact, the two sets of rules feed off one another, since the judgments which must be recognised under Article 25 concern the matters which come under the jurisdiction of the court seised of the insolvency proceedings. (37) 50. For the reasons set out, the intention of the Council in laying down the procedural rules governing actions in the context of an insolvency to set a transaction aside is clear. The analysis of Regulation No 1346/2000 demonstrates that there is not a total but rather a partial silence. That factor contributes to the solution which I will propose to the Court, but before that I must consider the role played by Regulation No 44/2001. 2. The interpretation of Regulations No 1346/2000 and No 44/2001 51. In order to ensure that Article 3(1) of Regulation No 1346/2000 confers overarching jurisdiction on the court seised of the insolvency proceedings, it is appropriate to establish whether, pursuant to the Gourdain case-law, Regulation No 44/2001 excludes actions in the context of an insolvency to set a transaction aside. 52. The defendant claims that the entry into force of Regulation No 1346/2000 brought about a substantial change in the legislative framework which modified the terms of the Gourdain judgment, discussed above, in that subparagraph 2 of the second paragraph of Article 1 of the 1968 Brussels Convention was interpreted broadly owing to the fact that there was only one Community instrument in the field and accordingly no risk of overlapping. The Gourdain judgment was, therefore, the final link in a chain the only pendant on which was a single piece of legislation in the field concerned. The defendant maintains that, following the adoption of Regulation No 1346/2000, the need to prevent lacunae in the rules on jurisdiction required a different interpretation of the aforementioned provision, now Article 1(2)(b) of Regulation No 44/2001. In the view of the defendant, since there is already a provision governing jurisdiction in the field of insolvency, it must be interpreted restrictively. That view would leave the determination of international jurisdiction to the autonomous national rules, in this case the rules of German law. 53. However, the defendant’s position is totally unconvincing, since it would be possible to accept such a position only if it were really the case that Article 3(1) of Regulation No 1346/2000 fails to lay down any rules on jurisdiction with regard to actions in the context of an insolvency to set a transaction aside. In line with the argument advanced by the Czech Government in its written observations, there is nothing to indicate that the Community legislation on insolvency is silent on the matter; moreover, the fact that the two regulations exist side by side strengthens the principle of the absence of lacunae, although not in the way claimed by the defendant. (38) 54. The consistency of Community law entails two consequences. The first is that when the general provision is silent or refers, implicitly or explicitly, to another provision, it is necessary to look for the rule of jurisdiction in the special provisions. The second consequence is that the large number of Community provisions means that any reference to national law would be superfluous, not only because of the scheme of the relationship between provisions but also for reasons connected with the effectiveness of the rules on jurisdiction and recognition laid down in the Community rules on conflict of laws. (39) 55. Accordingly, the Gourdain judgment is in good health and provides useful guidance for resolving the present proceedings. (40) Rather than weakening the usefulness of that judgment, the adoption of Regulation No 1346/2000 increases it. Since there is no uniform action to set aside in Community law, the nature of the action and its subsequent connection with the insolvency proceedings is of particular importance. (41) Thus, an analysis of the action to set aside in German law offers sufficient reasons to rely on Gourdain and to establish which regulation contains the rule of jurisdiction. (42) 56. Paragraph 129 et seq. of the Insolvenzordnung, 1994 provides that the action in the context of an insolvency to set a transaction aside has the following features. The action is governed exclusively by insolvency law and may be brought only in the context of an insolvency, (43) and legal standing to bring the action rests solely with the liquidator who must be acting to protect the interests of the general body of creditors. (44) Further, in seeking to protect the assets of the debtor, the action is brought vis-à-vis dispositions preceding the opening of the insolvency proceedings, and there is a limitation period for that purpose. (45) 57. The fact that the proceedings are adversarial rather than collective, as is the case in the context of insolvency, is not sufficient for a finding that there is no connection between the action to set aside and the insolvency proceedings. (46) All the indications are that the action is closely linked to the judicial declaration of insolvency, which only the liquidator has legal standing to apply for, thereby demonstrating its undeniable connection with the insolvency proceedings. 58. Therefore, the joint interpretation of Regulations No 44/2001 and No 1346/2000 in the light of the Gourdain case-law leads me to agree that an action in the context of an insolvency to set a transaction aside does not come under the general Community provisions on jurisdiction. Accordingly, the connection must be found in the provisions of Regulation No 1346/2000, and specifically in Article 3(1) of that regulation. That view is bolstered by a number of considerations relating to the legislative policy underlying Community insolvency law. I will examine that point in the next section before finishing with an important qualification of the foregoing considerations. 3. The aims of the action in the context of an insolvency to set a transaction aside and the legislative policy underlying Regulation No 1346/2000 59. Community action in the field of insolvency is based on the need for effectiveness and legal certainty. In order to avoid a complicated legislative framework which discourages financial transactions within the European Union, Regulation No 1346/2000 sets out clear guidelines which provide stability and consistency in such important fields as jurisdiction, applicable law, and the recognition and enforcement of judgments. There have been other developments in the secondary legislation on the subject, all of which have the same aim and together form the body ofCommunity insolvency law. (47) In short, it is a body of law which is fully dedicated to the aim of ensuring that there is consistency in the adoption of judicial decisions. (48) 60. Recital 4 in the preamble to Regulation No 1346/2000 expresses that concern in the context of conflict of laws, stating that: ‘[i]t 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)’. With that aim in mind, the regulation provides for a universal international insolvency model based, on a single definition of all collective proceedings, regardless of the territory in which they were opened. (49) The advantages of that model are easily visible, since it provides for a predictable system, discourages forum shopping and reduces the costs of the proceedings. (50) Nevertheless, universalism has drawbacks, notably the situation in which it leaves certain local creditors, particularly when they are isolated and have fewer resources than other creditors to bring proceedings in a Member State where they do not reside. However, the overall benefits of the universal model speak for themselves, especially when regard is had to the true purpose of all insolvency proceedings, namely, the reorganisation of an undertaking and guaranteeing credit. The clear reduction of costs which results from the centralisation of all the proceedings is a decisive incentive when it comes to opting for universal international insolvency proceedings, which is what, in general terms, Regulation No 1346/2000 provides for. (51) 61. Some uncertainty has arisen concerning the financial sense of separating actions in the context of an insolvency to set a transaction aside. The Greek and Czech governments maintain (52) that there would be a significant distortion of the universal principle laid down in Regulation No 1346/2000, in that the liquidator would be required to bring actions in a number of Member States in accordance with the rules of international jurisdiction laid down in instruments other than the regulation. It would also foster legislative differences, and traders would seek the most favourable jurisdiction, thereby disrupting the normal course of insolvency proceedings. (53) Although it would give creditors residing in the State where the liquidator brings proceedings a certain advantage, it is important to remember the global interests which the insolvency proceedings seek to protect, which are not only the interests of individual creditors but also those of the general body of creditors and the total liabilities. (54) 62. However, there are circumstances in which the universal model is unsatisfactory. For example, I refer to cases where there is a connection outside the Community, in which the guarantee that the judgment handed down in the Member State of the opening of proceedings will be recognised in a non-Member country, where the debtor’s assets are situated, is reduced. Moreover, centralising jurisdiction for insolvency proceedings does not always lower the costs, and there are cases in which it would be more advantageous to bring actions in the Member State where the assets are situated in order not to waste time or money on recognition and enforcement proceedings. 63. For all of the foregoing reasons, it is appropriate to qualify the universalism of Regulation No 1346/2000 with regard to actions in the context of an insolvency to set a transaction aside. 4. Is the jurisdiction laid down in Regulation No 1346/2000 alternative or exclusive? 64. Community legislation on insolvency contains a number of different types of rules on jurisdiction. The provisions provide for exclusive jurisdiction for the opening, conduct and termination of the proceedings, and for actions deriving directly from those proceedings. By contrast, jurisdiction for preservation measures is alternative in nature. 65. The particular features of actions in the context of an insolvency to set a transaction aside mean that jurisdiction for deciding such actions is not always exclusive. As a number of writers have pointed out, jurisdiction for such actions is relatively exclusive, which is to be construed as meaning that it comes within the powers of the liquidator. (55) I agree with those who maintain that bringing an action to set a transaction aside is a right of action in the hands of the liquidator. Accordingly, it is for the liquidator alone to bring the most appropriate actions in the course of the proceedings for the purposes of protecting the assets as a whole. 66. That assertion is supported by Article 18(2) of Regulation No 1346/2000, which provides that the liquidator ‘may in any other Member State claim through the courts or out of court that moveable property was removed from the territory of the State of the opening of proceedings to the territory of that other Member State after the opening of the insolvency proceedings’. (56) The article goes on to provide that the liquidator may ‘bring any action to set aside which is in the interests of the creditors’. It may logically be presumed that such an action may be brought in any Member State, as stated in the first sentence of the article. (57) 67. The same approach may also be inferred from the second subparagraph of Article 25(1) of the regulation. With regard to the rules concerning the recognition and enforcement of judgments, that provision lays down an obligation to recognise judgments ‘deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by another court’. Thus the regulation provides that judgments arising from an action in the context of the insolvency to set a transaction aside may be adopted by the court seised of the insolvency proceedings or by another court which is situated either in the same Member State or in a different one. 68. That power of the liquidator is consistent with the tasks he carries out during the insolvency proceedings. Article 2(b) of Regulation No 1346/2000 defines liquidator as a person or body whose function is to ‘administer or liquidate assets of which the debtor has been divested or to supervise the administration of his affairs’. The powers and obligations of liquidators vary between the Member States but have the general feature of exclusive responsibility for the principal formalities in any insolvency proceedings. The liquidator protects the assets and the par conditio creditorum, and he instigates the compositions and reorganisation plans which enable an undertaking to overcome the crisis. In line with the strategic decisions which the liquidator must take, he must choose between different jurisdictions when it comes to bringing actions to protect the assets. C – Corollary 69. In those circumstances, it is my view that, in accordance with Article 3(1) of Regulation No 1346/2000, a national court which is seised of insolvency proceedings has jurisdiction to hear an action in the context of the insolvency to set a transaction aside brought against a defendant whose registered office is in another Member State. Since that jurisdiction is relatively exclusive, it is for the liquidator to choose the forum which, having regard to the connections of the contested disposition, is most suitable for protecting the assets. VI – The second question 70. The second question from the referring court is framed in such a way that it is subject to the Court giving a negative reply to the first question. Accordingly, in the light of the reply I propose to the first question, it is not necessary to analyse the second question. 71. However, should the Court disagree with the view put forward in this Opinion, it would be necessary to rely on the principle of the absence of lacunae between Regulation No 44/2001 and Regulation No 1346/2000. Pursuant to that principle and to the principle of the consistency of Community law, the rules of jurisdiction applicable to actions in the context of an insolvency to set a transaction aside with a Community dimension are contained in those regulations. If the Court finds that Article 3(1) of Regulation No 1346/2000 does not apply to such actions, they would come under Regulation No 44/2001 and the rules of international jurisdiction laid down therein. 72. That is not the most desirable outcome because it would be tantamount to ruling that the Gourdain case-law has become obsolete following the adoption of Regulation No 1346/2000. In those circumstances, the Court would be required to provide a consistent and full statement of the law offering a convincing alternative to the one it laid down in that case. (58) 73. The other solution, namely, the determination of international jurisdiction in accordance with national rules on conflicts of jurisdiction, would be contrary to the effectiveness sought by both regulations, as I have explained in paragraph 53 of this Opinion. 74. My proposal is bolstered by the unfortunate consequences which would result from a negative reply to the first question, in accordance with the reductio ad absurdum theory. I am therefore moved to stress more forcefully the arguments I have put forward in relation to the first question from the referring court. VII – Conclusion 75. In the light of the foregoing considerations, I propose that the Court should reply to the questions referred for a preliminary ruling by the Bundesverwaltungsgericht, declaring that: Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that a national court which is seised of insolvency proceedings has jurisdiction to hear an action in the context of the insolvency to set a transaction aside brought against a defendant whose registered office is in another Member State. 1 – Original language: Spanish. 2 – H. de Balzac, Père Goriot, translated by A.J. Krailsheimer, Oxford University Press, Oxford, 1991. 3 – Council Regulation of 29 May 2000 (OJ 2000 L 160, p. 1). 4 – Council Regulation of 22 December 2000 (OJ 2001 L 12, p. 1). 5 – Judgment of the Bundesgerichtshof of 11 January 1990 (IX ZR 27/89). 6 – The Spanish Roman law specialist Xavier D'Ors began a work by describing the setting aside of fraudulent acts as one of the most difficult and disputed areas in the whole of Roman law (El interdicto fraudatorio en el derecho romano clásico, Rome-Madrid, 1974, p. 1). 7 – The manus iniectio procedure was carried out as follows. If 30 days had passed since the declaratory judgment was handed down and the debtor had not paid, the creditor would take the debtor, by force if necessary, before the judge and state ‘you were ordered to pay me 10 000 sesterces and you have not paid them and I therefore take possession of you under judgment for 10 000 sesterces’ (Gaius 4, 21). 8 – Some commentators are of the opinion that this statement proves the existence of a rule to the effect that there was no limitation period for personal debts. Others take the view that the term ‘enemy’ refers to individuals who did not have Roman citizenship, against whom a creditor was entitled to take action at any time. Whatever the correct interpretation is, whether the rule was disproportionate or discriminatory, Roman law developed along more subtle lines. 9 – The mysterious praetor Paulus has been the source of great debate between Roman law specialists. Some argue that he was the jurist Paul, a praetorian prefect in 222 BC, while others maintain that the name comes from a procedure which was developed in the Byzantine period. Those views are described by Planiol, M., Traité élémentaire de droit civil, 8th ed., LGDJ, Paris, 1920-1921, No 1413, and, in more detail, by Collinet, P., ‘L’origine byzantine du nom de la Paulienne’, Nouvelle revue historique de droit français et étranger, 43, 1919. 10 – Ankum, J.A., De geschiedenis der ‘actio pauliana’, Zwolle Tjeenk Willink, 1962; Coing, H., ‘Simulatio und Fraus in der Lehre des Bartolus und Baldus’, Festschrift P. Koschaker, volume III, 1939, p. 402 et seq.; D'Ors, X., op. cit., p. 203; Gutiérrez, F., Diccionario de Derecho Romano, Editorial Reus, Madrid, 1982, p. 25; and Torrent, A., Manual de Derecho Privado Romano, Librería General, Zaragoza, 1995, p. 381. 11 – Digest, Book XXII, Volume I, 38.4: ‘The proceeds of the actio fabiana must also be restored and therefore, in the actio pauliana, whereby the alienation of property effected in fraud of the creditors is revoked, the praetor intervenes to ensure that everything is left as if nothing was alienated, which is just, because the term ‘you will restore’, which the praetor uses in this edict, has a sufficiently broad meaning to include the restoration of the proceeds’ (Paulo 6 ad Plaut.). 12 – A principle which the Latin maxim defines as res inter alios acta aliis neque nocere, neque prodesse potest. 13 – Forner Delaygua, J.J. (ed.), La protección del crédito en Europa: la acción pauliana, Bosch, Barcelona, 2000, carries out a comparative analysis of the actio pauliana in the sphere of both civil law and insolvency law. 14 – Also called a revocatory action, a term which comprises other specific actions for the restitution of assets. 15 – The principle has a number of names and different definitions, as pointed out by Beltrán, E., ‘Artículo 49’, Rojo, A. and Beltrán, E., Comentario a la Ley Concursal, Thomson-Civitas, Pamplona, 2004, p. 990: equal treatment of creditors, pooling of losses, creditors’ settlement or proportionality. With regard to German law, see Balz, M. and Landfermann, H.-G., Die neuen Insolvenzgesetze, 2nd ed., Dusseldorf, 1999. 16 – On French law, see Terré, F., Simler, P. and Lequette, Y., Droit Civil. Les obligations, Dalloz, 7th ed., Paris, 1999, pp. 969 to 970. 17 – Goode, R., Principles of Corporate Insolvency Law, Sweet & Maxwell, London, 2005, pp. 411 to 413. 18 – In Italian law, for example, Royal Decree 267/1942 amended article 708 et seq. of the Commercial Code of 1885 in order to remove the subjective requirements from insolvency proceedings. The need to prove fraud was also removed from Spanish law by Article 71 of Law 22/2003 of 9 July on insolvency. 19 – With regard to French law, it is pertinent to cite the judgment of the Cour de cassation (commercial chamber) of 8 October 1996. Spanish law provides for the same solution and, according to academic opinion, the ordinary civil action is secondary to the action in the context of an insolvency to set a transaction aside. That is the view of León, F., ‘Artículo 71. Acciones de reintegración’, Rojo, A. And Beltrán, E., op. cit., pp. 1319 and 1320. 20 – Case C-115/88 Reichert and Kockler [1990] ECR I-27. 21 – Ibid, paragraph 12. 22 – That view was confirmed in Case C-261/90 Reichert and Kockler [1992] ECR I-2149. Borrás, A., Revista Jurídica de Catalunya, 1990, p. 1133 et seq., and 1992, p. 2149, discussed both judgments. See also Forner Delaygua, J.J., ‘La acción pauliana ante el TJCE’, Revista de Instituciones Europeas, Centro de Estudios Políticos y Constitucionales, 1991, pp. 635 to 637. 23 – Case 133/78 Gourdain [1979] ECR 733. 24 – Ibid, paragraph 4. 25 – Bermejo Gutiérrez, N. and Rodríguez Pineau, E., ‘Normas de protección de acreedores: entre el derecho de sociedades y el derecho concursal’, InDret, No 4, 2006, pp. 22 to 23, and Enriques, L. and Gelter, M., ‘Regulatory Competition in European Company Law and Creditor Protection’, European Business Organization Law Review, No 7, 2006, p. 440. 26 – That has resulted in the Gourdain case-law being applied by national courts, which adapt it to each type of action in the context of an insolvency to set a transaction aside, as demonstrated by the judgments of inter alia the Tribunal de Bari, Italy, of 27 January 2004, RDIPP, 2004, pp. 1386 to 1390; the Arrondissementsrechtbank Leeuwarden of 31 May 1979; the High Court, Chancery Division (Manchester) of 5 May 2005, ILP, 2005-9, p. 552 et seq.; and the Cour de Cassation (Chambre commercial) of 24 May 2005, RCDIP, vol. 94, 2005, p. 489 et seq. In that connection, see Bermejo Gutiérrez, N. and Rodríguez Pineau, E., op. cit., pp. 22 to 23. 27 – Judgment in Gourdain, paragraph 5. 28 – The Convention, opened for signature in Brussels on 22 November 1995, was signed on that day by the plenipotentiaries of Belgium, Denmark, Germany, Greece, Spain, France, Italy, Luxembourg, Austria, Portugal, Finland and Sweden. 29 – Council document No 6500/1/96 REV1 DRS (CFC). 30 – The names of the authors of the report explains why it is usually referred to as the Virgós-Schmit Report. 31 – Emphasis added. 32 – On the definition of a lacuna and the use of analogy in the theory of legal argument, see Perelman Ch., (ed.), Le problème des lacunes en droit, Bruylant, Brussels, 1968, and Díez-Picazo, L., Experiencias jurídicas y teoría del derecho, Ariel, Barcelona, 1973, pp. 280 to 283. 33 – That rule does not mean that Regulation 1346/2000 has adopted the principle of vis atractiva concursus. Paragraph 77 of the Virgós-Schmit Report confirms this, stating that: ‘Certain Contracting States recognise a “vis attractiva concursus” in their national law, by virtue of which the Court which opens the insolvency proceedings has within its jurisdiction not only the actual insolvency proceedings but also all the actions arising from the insolvency. Although the projection of this principle in the international domain is controversial, the 1982 Community Draft Convention contained a provision in Article 15 which ... was inspired by the “vis attractiva” theory. This Article conferred on the courts of the State of the opening of insolvency proceedings jurisdiction over a wide series of actions resulting from the insolvency. Neither this precept nor this philosophy has been adopted in this Convention’. 34 – The interpretation of Article 18(2) advanced by the defendant is severely criticised by Pannen, K. (ed.), European Insolvency Regulation, De Gruyter, Berlin, 2007, p. 125. In the latter’s opinion, the draftsmen of the regulation were fully aware of the difficulties raised by actions connected with insolvency proceedings. 35 – The defendant is supported by the Greek and Czech governments. 36 – That view is shared by Duursma-Kepplinger, H.-C., Duursma, D. and Chalupsky, E., Europäische Insolvenzverordnung, Springer, Vienna – New York, 2002, p. 441. 37 – In that connection, it is appropriate to cite the authoritative opinions of Virgós, M. and Garcimartín, F., Comentario al Reglamento Europeo de Insolvencia, Thomson-Civitas, Pamplona, 2003, p. 66: ‘suffice it to state that the Insolvency Regulation does not differentiate between the rules on jurisdiction and the rules on recognition/enforcement with regard to their material scope, since they were drafted as parallel rules. As a result, the range of judgments referred to in Article 25 serves to specify the matters or disputes which fall within the jurisdiction of the court seised of the insolvency proceedings’. 38 – On the principle of the absence of lacunae, see Sánchez Lorenzo, S. and Fernández Rozas, J.C., Derecho Internacional Privado, 3rd ed., Thomson-Civitas, Pamplona, 2004, pp. 64 to 67, and Virgós, M. y Garcimartín, F., op. cit., pp. 62 and 63. 39 – Virgós, M. and Garcimartín, F., op. cit., p. 63, cite by way of example the absurd consequences of such an approach. 40 – However, the Gourdain judgment does not apply only to actions in the context of an insolvency to set a transaction aside. The rule laid down by the Court in Gourdain is also satisfied in disputes between the liquidator and the debtor concerning whether an asset is part of the estate in bankruptcy; disputes about the powers of the liquidator to take decisions regarding the fulfilment of contractual relationships in force; and actions for liability against liquidators. 41 – See in that regard, Pannen, K. (ed.), op. cit., pp. 122 and 123. 42 – Ibid., p. 124. 43 – Paragraph 129 et seq. of the Insolvenzordnung. 44 – Paragraph 129(1) of the Insolvenzordnung. 45 – Paragraphs 130, 132 and 133 of the Insolvenzordnung. 46 – That argument is capable of giving rise to quite ridiculous outcomes, since the insolvency proceedings must, without any exceptions, comply with the adversarial principle, which is an integral guarantee of the fundamental right to effective legal protection. It might be possible to argue that insolvency proceedings are different from ordinary civil proceedings, but to my mind that claim is excessively concerned with procedural matters. Insolvency proceedings are required to comply with all the legal safeguards, including the principle of the universal nature of the proceedings laid down in Regulation 1346/2000. 47 – In addition to Regulation 1346/2000, that body of law includes Directive 2001/17/EC of the European Parliament and of the Council of 19 March 2001 on the reorganisation and winding-up of insurance undertakings (OJ 2001 L 110, p. 28); Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (OJ 1998 L 166, p. 45); Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding-up of credit institutions (OJ 2001 L 125, p. 15); and Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements (OJ 2002 L 168, p. 43). 48 – Recital 8 in the preamble to Regulation 1346/2000 states that it is necessary ‘to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects’. That aim is repeated in recital 16. 49 – As the regulation intimates, forum shopping, is not a completely unlawful practice. The Community legislation counters the opportunistic and fraudulent use of the right to choose a forum, which is very different to the demonisation for the sake of it of a practice which on occasions it is appropriate to encourage. I argued as much in my opinion in Case C-1/04 Staubitz-Schreiber [2006] ECR I-701, paragraphs 70 to 77. 50 – Westbrook, J.L., ‘A Global Solution to Multinational Default’, Michigan Law Review, vol. 98, 2000, p. 2313 et seq.; and, in the same volume, Guzmán, A., ‘International Bankruptcy: in Defence of Universalism’, p. 2186 et seq. 51 – In the judgment in Case C-1/04 Staubitz-Schreiber, paragraphs 25 and 26, a case concerning the universal nature of the rules on international jurisdiction in Regulation 1346/2000, the Court confirmed that view, holding that the regulation seeks ‘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. That objective would not be achieved if the debtor could move the centre of his main interests to another Member State between the time when the request to open insolvency proceedings was lodged and the time when the judgment opening the proceedings was delivered and thus determine the court having jurisdiction and the applicable law. Such a transfer of jurisdiction would also be contrary to the objective, stated in the second and eighth recitals in the preamble to the Regulation, of efficient and effective cross-border proceedings, as it would oblige creditors to be in continual pursuit of the debtor wherever he chose to establish himself more or less permanently and would often mean in practice that the proceedings would be prolonged’. 52 – Section IV, paragraphs 2 and 3 of the Greek Government’s observations, and Section 4.2, paragraph 16 of the Czech Government’s observations. 53 – Judgment in Staubitz-Schreiber, paragraph 28. 54 – Although there are conflicting definitions of insolvency proceedings, some of which refer to the realisation of assets and others to the preservation of assets, I agree with certain academic legal writers who argue that the two types of proceedings have a common denominator, namely, ‘the attainment of an ideal of justice’ as Bermejo Gutiérrez, N. Créditos y quiebra, Civitas, Madrid, 2002, pp. 467 to 468, suggests. 55 – Virgós, M. y Garcimartín, F., op. cit., pp. 69 to 71. 56 – Emphasis added. 57 – Pannen, K., op. cit., pp. 329 and 330, and the Virgós-Schmit Report, paragraph 167 et seq. 58 – Needless to say, should the Court overturn the Gourdain case-law, it follows that when it gives judgment in these proceedings it must sit as the Grand Chamber.