Judgment — ECLI:EU:C:2011:743
Date: 2011-11-17
Language of the case: Dutch
Court formation: First Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the Judgment 1. Judicial cooperation in civil matters – Insolvency proceedings – Regulation No 1346/2000 – International jurisdiction to open insolvency proceedings – Opening of territorial proceedings before the opening of the main proceedings – Conditions (Council Regulation No 1346/2000, Art. 3(4)(a)) Judicial cooperation in civil matters – Insolvency proceedings – Regulation No 1346/2000 – International jurisdiction to open insolvency proceedings – Opening of territorial proceedings before the opening of the main proceedings – Conditions (Council Regulation No 1346/2000, Art. 3(4)(b)) 1. The impossibility of opening main insolvency proceedings under Article 3(4)(a) of Regulation No 1346/2000 on insolvency proceedings must be objective and cannot vary according to the specific circumstances in which the opening of such proceedings is requested. Although that impossibility may arise from characteristics relating to the capacity of the debtor, it cannot however be the result purely of the fact that a given person, such as the representative of the public prosecution service of a Member State within the territory in which the debtor has an establishment, does not, in accordance with the law of the Member State in which the debtor has the centre of its main interests, have capacity to request the opening of main proceedings in that Member State. (see paras 21, 23-24, 26, operative part 1) 2. Consequently, the expression ‘conditions laid down’ in Article 3(4)(a), which refers to conditions which, under the law of the Member State in which the debtor has the centre of its main interests, prevent the opening of main insolvency proceedings in that State, must be interpreted as not referring to conditions excluding particular persons from the category of persons empowered to request the opening of such proceedings. 3. The objective pursued by Regulation No 1346/2000 on insolvency proceedings is, as is apparent from recital 17 thereto, that cases in which the opening of secondary proceedings may be requested before that of the main insolvency proceedings are limited to what is absolutely necessary. Therefore, the conditions for opening territorial insolvency proceedings under Article 3(4)(b) of the regulation must be interpreted strictly. Thus the term ‘creditor’ in that provision, which is used to designate the persons empowered to request the opening of territorial insolvency proceedings, must be interpreted as not including an authority of a Member State whose task under the national law of that State is to act in the public interest, but which does not intervene as a creditor, or in the name or on behalf of those creditors. (see paras 22, 29, 34, operative part 2)