Opinion of the Advocate General — ECLI:EU:C:2017:164
Date: 2017-03-02
Language of the case: Italian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary — Judgment of the Court (Fifth Chamber), 8 June 2017 1. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Detrimental acts — Applicable law — Exception to the general rule of applying the lex fori concursus — Procedural arrangements for raising an objection — Application of the procedural law of the Member State of the court hearing the action to set aside — Condition — Respect for the principles of equivalence and effectiveness (Council Regulation No 1346/2000, Art. 13) 2. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Detrimental acts — Applicable law — Exception to the general rule of applying the lex fori concursus — Conditions under which applicable — Act unchallengeable on the basis of the lex causae — Burden of proof borne by the defendant in an action relating to the voidness, voidability or unenforceability of an act — Obligation to plead that circumstances enabling the act in question to be challenged do not exist and to bear the burden of proof in that regard (Council Regulation No 1346/2000, Art. 13) 3. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Detrimental acts — Applicable law — Exception to the general rule of applying the lex fori concursus — Scope — Law applicable to a contract, chosen by the parties, being the law of a Member State other than the Member State of the location of all the other elements of the situation — Included — Non-applicability of Article 3(3) of Regulation No 593/2008 (European Parliament and Council Regulation No 593/2008, Art. 3(3); Council Regulation No 1346/2000, Art. 13) 4. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Detrimental acts — Applicable law — Exception to the general rule of applying the lex fori concursus — Scope — Law applicable to a contract, chosen by the parties, being the law of a Member State other than the Member State of the location of all the elements relevant to the situation — Included — Exception — Abusive or fraudulent choice of the applicable law — Verification a matter for the national court (Council Regulation No 1346/2000, Art. 13) 1. Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted to the effect that the form and the time-limit in which a person benefiting from an act that is detrimental to all the creditors must raise an objection under that article in order to challenge an action to have that act set aside in accordance with the lex fori concursus, and the question whether that article may also be applied by the competent court of its own motion, if necessary, after the time-limit allowed to the party concerned has expired, fall within the procedural law of the Member State on whose territory the dispute is pending. That law must not, however, be less favourable than the law governing similar domestic situations (principle of equivalence) and must not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness), that being a matter for the referring court to determine. (see para. 33, operative part 1) 2. Article 13 of Regulation No 1346/2000 must be interpreted to the effect that the party bearing the burden of proof must show that, where the lex causae makes it possible to challenge an act regarded as being detrimental, the conditions to be met in order for that challenge to be upheld, which differ from those of the lex fori concursus, have not actually been fulfilled. (see paragraph 39, operative part 2) 3. See the text of the decision. (see paras 48-50) 4. Article 13 of Regulation No 1346/2000 may be validly relied upon where the parties to a contract, who have their head offices in a single Member State on whose territory all the other elements relevant to the situation in question are located, have designated the law of another Member State as the law applicable to that contract, provided that those parties did not choose that law for abusive or fraudulent ends, that being a matter for the referring court to determine. (see para. 56, operative part 3)