Opinion of the Advocate General — ECLI:EU:C:2012:37
Date: 2012-01-26
Language of the case: Hungarian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Hungary

summary, if it is accepted, firstly, that the decision opening the insolvency proceedings adopted by an Austrian court had, at the date of accession of the Republic of Hungary to the European Union, to be automatically recognised in Hungary with effect from that date of accession and, secondly, that the action brought by ERSTE Bank followed directly from those insolvency proceedings and was closely connected to them, the Hungarian courts would not have had international jurisdiction to rule on that action. It follows that the Court’s answer to the question referred for a preliminary ruling is of no use to the referring court for the purpose of ruling on the action, given that that court has no international jurisdiction for that purpose and that the question referred for a preliminary ruling is therefore hypothetical. 44. It is, admittedly, true that, according to established case-law, in the context of the procedure instituted in Article 267 TFEU, it is for the national court seised of the dispute, which alone has direct knowledge of the facts giving rise to the dispute and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of European Union law, the Court is in principle bound to give a ruling. (8) 45. However, the Court has also stated that, in exceptional circumstances, it can examine the conditions in which the case was referred to it by the national court, in order to assess whether it has jurisdiction. The Court may refuse to rule on a question referred for a preliminary ruling by a national court only where it is quite obvious that the interpretation of European Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to enable it to give an answer. (9) 46. In the light of the case-law referred to above, and in view of the hypothetical nature of the question referred, I consider that the Court lacks jurisdiction to answer the question referred. 47. If, however, the Court were to consider that it does have jurisdiction to answer the question referred, my view is that it would be appropriate to answer that question in the negative, given that one of the conditions for application of Article 5(1) of the Regulation, namely the condition that an asset of the debtor be located within the territory of another Member State at the time of the opening of the insolvency proceedings, is not satisfied. That condition could not be regarded as having been satisfied if the asset in question was located at the relevant time within the territory of a State which acceded to the European Union only at a later date. Conclusion 48. In view of the foregoing considerations, I propose that the Court should declare that it lacks jurisdiction to answer the question referred by the Legfelsőbb Bíróság for a preliminary ruling. 1 – Original language: French. 2 – OJ 2000 L 160, p. 1. 3 – OJ 2003 L 236, p. 33. 4 – See, to that effect, Case C‑341/04 Eurofood IFSC [2006] ECR I‑3813, paragraph 28; Case C‑444/07 MG Probud Gdynia [2010] ECR I‑417, paragraph 22; and Case C‑112/10 Zaza Retail [2011] ECR I‑11525, paragraph 17. 5 – MG Probud Gdynia, cited in footnote 4 above, paragraph 28 and the case-law cited. 6 – Case C‑339/07 Seagon [2009] ECR I‑767, paragraph 21. The Court has repeated that interpretation even more recently in its judgment in Case C‑191/10 Rastelli Davide e C. [2011] ECR I‑13209, paragraph 20. 7 – See, to that effect, Seagon, cited in footnote 6, paragraph 27. 8 – Order of 15 April 2011 in Case C‑613/10 Debiasi, paragraph 20 and the case-law cited. 9 – Case C‑310/10 Agafiţei and Others [2011] ECR I‑5989, paragraph 27 and the case-law cited.