Judgment;Abstract — ECLI:EU:C:2022:209
Date: 2022-03-24
Language of the case: German
Court formation: Fifth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

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: 
29 December 2020 
Referring court: 
Bundesgerichtshof (Germany) 
Date of the decision to refer: 
17 December 2020 
Appellant on a point of law: 
Galapagos BidCo. S.a r.l. 
Respondents in the appeal on a point of law: 
DE, as insolvency administrator of Galapagos S. A. 
Hauck Aufhäuser Fund Services S. A. 
Prime Capital S. A. 
  
Subject matter of the main proceedings 
Interpretation of Regulation (EU) 2015/848 with regard to the jurisdiction to open 
the main insolvency proceedings and with regard to the centre of the main 
interests in a case where the place of central administration is moved within the 
European Union 
Subject matter and legal basis of the request 
Interpretation of EU law, Article 267 TFEU, in particular 
Regulation (EU) 2015/848 of the European Parliament and of the Council of 
20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19, corrigendum in 
OJ 2016 L 349, p. 9) (‘the Insolvency Regulation’) 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-723/20 
 
2  
Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency 
proceedings (OJ 2000 L 160, p. 1, repealed on 25 June 2017 by Regulation [EU] 
2015/848) (‘the 2000 Insolvency Regulation’) 
Questions referred 
1. Is Article 3(1) of Regulation (EU) 2015/848 to be interpreted as meaning 
that a debtor company the statutory seat of which is situated in a Member 
State does not have the centre of its main interests in a second Member State 
in which the place of its central administration is situated, as can be 
determined on the basis of objective factors ascertainable by third parties, in 
the case where, in circumstances such as those in the main proceedings, the 
debtor company has moved that place of central administration from a third 
Member State to the second Member State at a time when a request to have 
the main insolvency proceedings opened in respect of its assets has been 
lodged in the third Member State and a decision on that request has not yet 
been delivered? 
2. If Question 1 is answered in the negative: Is Article 3(1) of Regulation (EU) 
2015/848 to be interpreted as meaning that: 
(a) the courts of the Member State within the territory of which the centre 
of the debtor’s main interests is situated at the time when the debtor 
lodges the request to have insolvency proceedings opened retain 
international jurisdiction to open those proceedings if the debtor moves 
the centre of its main interests to the territory of another Member State 
after lodging the request but before the decision opening insolvency 
proceedings is delivered, and 
(b) such continuing international jurisdiction of the courts of one Member 
State excludes the jurisdiction of the courts of another Member State in 
respect of further requests to have the main insolvency proceedings 
opened received by a court of that other Member State after the debtor 
has moved its centre of main interests to that other Member State? 
Provisions of EU law cited 
Article 126 of the Agreement on the withdrawal of the United Kingdom of Great 
Britain and Northern Ireland from the European Union and the European Atomic 
Energy Community (OJ 2020 L 29, p. 7) (‘the Withdrawal Agreement’) 
Article 3(1) of Regulation (EU) 2015/848  
Provisions of national law cited 
Insolvenzordnung (Insolvency Code; ‘the InsO’) 
GALAPAGOS BIDCO. 
 
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Zivilprozessordnung (Code of Civil Procedure; ‘the ZPO’) 
Facts and procedure 
1 The present case concerns insolvency proceedings in respect of the assets of 
Galapagos S. A. (‘the debtor’), a holding company established in April 2014, 
entered in the Commercial and Companies Register in Luxembourg and having its 
registered office in Luxembourg (Grand Duchy of Luxembourg). The debtor does 
not have any employees.  
2 In June 2019, the debtor contemplated moving its actual centre of administration 
to England. On 22 August 2019, its directors lodged a request before a court in the 
United Kingdom (‘the High Court’) to have insolvency proceedings opened in 
respect of the debtor’s assets.  
3 The directors were replaced the following day by a new director, who set up an 
office for the debtor in Düsseldorf and started working there. The debtor did not 
withdraw the request to have insolvency proceedings opened before the High 
Court; rather, the proceedings were continued as a creditors’ process. A decision 
opening insolvency proceedings has not yet been delivered in that process. The 
request lodged with the High Court has not yet been adjudicated on by final 
decision. 
4 In response to a request for the opening of insolvency proceedings lodged by the 
debtor with the Amtsgericht Düsseldorf (Local Court, Düsseldorf) acting as an 
insolvency court (‘the insolvency court’) on 23 August 2019, the latter ordered 
preservation measures by order of the same date and appointed the respondent in 
the appeal on a point of law, DE, as temporary insolvency administrator. As of 
25 August 2019, the capital market and bondholders were informed that the centre 
of administration had been moved to Düsseldorf. Ruling on an appeal by creditors, 
the Amtsgericht Düsseldorf reversed its order on 6 September 2019 on grounds of 
a want of international jurisdiction and dismissed as inadmissible the debtor’s 
request to have insolvency proceedings opened. 
5 On 6 September 2019, the other respondents in the present appeal on a point of 
law, Hauck Aufhäuser Fund Services S. A. and Prime Capital S. A., lodged, in 
their capacity as creditors, a request with the insolvency court to have insolvency 
proceedings opened in respect of the debtor’s assets. Ruling on that request, the 
insolvency court ordered preservation measures by order of 9 September 2019 and 
appointed DE as temporary insolvency administrator. It based its international 
jurisdiction on the fact that the centre of the debtor’s main interests was situated in 
Düsseldorf at the time when the request was lodged.  
6 The appellant in the present appeal on a point of law, which is a subsidiary of the 
debtor, brought an appeal, as a creditor, against that order of the insolvency court 
before the competent Landgericht (‘Regional Court’). It contested the 
international jurisdiction, claiming that the debtor’s centre of administration had 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-723/20 
 
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been moved to England in June 2019. The Landgericht dismissed that appeal by 
order of 30 October 2019.  
7 By the present appeal on a point of law, the appellant seeks to have the order of 
the insolvency court set aside and the request to have insolvency proceedings 
opened dismissed.  
Grounds for the request 
8 The success of the appeal on a point of law turns on a decision of the Court of 
Justice of the European Union (‘the Court’) on the interpretation of the Treaties.  
First question referred 
9 The success of the appeal on a point of law depends on the interpretation of 
Article 3(1) of the Insolvency Regulation.  
10 The appeal on a point of law is admissible.  
11 The insolvency court stated that it has jurisdiction because the debtor’s centre of 
main interests (‘COMI’) was situated in Germany. Pursuant to the first sentence of 
the first subparagraph of Article 3(1) of the Insolvency Regulation, the courts of 
the Member State within the territory of which the centre of a debtor’s main 
interests is situated have jurisdiction to open insolvency proceedings. As 
confirmed by the Landgericht, that centre was situated in Germany on 
9 September 2019. 
12 If either of the questions referred were to be answered in the affirmative, the 
present appeal on a point of law would have to be allowed. The decisive factor in 
answering the first question referred is whether the facts established justify the 
assumption that the centre of the debtor’s main interests is situated in Germany.  
13 Pursuant to the second sentence of the first subparagraph of Article 3(1) of the 
Insolvency Regulation, the centre of the debtor’s main interests is the place where 
the debtor conducts the administration of its interests on a regular basis and which 
is ascertainable by third parties. According to that standard, the centre of the 
debtor’s main interests was situated in Germany at the beginning of September 
2019.  
14 The question that arises is whether, in the determination of the centre of a debtor 
company’s main interests, specific requirements must be imposed in order to 
prevent abusive conduct in circumstances such as those in the main proceedings.  
15 Recitals 4, 5, 29 and 30 of the Insolvency Regulation which is now applicable 
contain statements regarding the prevention of abusive ‘forum shopping’. 
Article 3(1) of the Insolvency Regulation contains an express definition of the 
centre of main interests and corresponding presumption rules.  
GALAPAGOS BIDCO. 
 
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16 In accordance with the case-law of the Court of Justice, a transfer of jurisdiction 
from the court originally seised to a court of another Member State would be 
contrary to the objectives pursued by the Insolvency Regulation if the debtor 
moves the centre of his main interests after submitting the request to have 
proceedings opened but before the decision to open them is delivered (see 
judgment of 17 January 2006, Staubitz-Schreiber, C-1/04, EU:C:2006:39, 
paragraph 22 et seq.).  
17 It is not clear from the case-law of the Court of Justice whether specific 
requirements for preventing abusive forum shopping, which must be fulfilled in 
order for the moving of the place of central administration to be recognised as 
being determinative for the moving of the centre of main interests, can also be 
derived from the provisions of Article 3(1) of the Insolvency Regulation. 
18 The appellant on a point of law takes the view that, owing to the element ‘on a 
regular basis’ in the second sentence of the first subparagraph of Article 3(1) of 
the Insolvency Regulation, only a place where the debtor company has either had 
its registered office or conducted the administration of its interests for more than 
three months prior to the request to have insolvency proceedings opened can enter 
into consideration as the centre of main interests. It submits that the element 
‘administration … on a regular basis’ presupposes an adequate degree of 
permanence and is not present if the establishment of a centre of administration is 
pursued at the same time as a request to have insolvency proceedings opened. 
Against this, the respondents in the appeal on a point of law contend that the 
requirement of administration on a regular basis is fulfilled if the administration is 
permanent. 
19 If the Court of Justice were to answer the first question referred in the affirmative, 
it would have to be assumed in the present case that the debtor could not move the 
centre of its main interests to Germany after 22 August 2019.  
20 For the purposes of the present proceedings, it is to be assumed that the debtor’s 
place of central administration was situated in England on 22 August 2019. In 
accordance with the Court’s case-law, this would mean that the centre of the 
debtor’s main interests was situated in England at the time when it lodged a 
request to have insolvency proceedings opened in respect of its assets with the 
English High Court, with the result that the latter court had international 
jurisdiction to open the main insolvency proceedings pursuant to the first sentence 
of the first subparagraph of Article 3(1) of the Insolvency Regulation. 
– Second question referred 
21 The answer to the second question referred will determine whether the fact that 
the centre of the debtor’s main interests was situated in Germany at the beginning 
of September 2019 results in the German courts having international jurisdiction 
to open the main insolvency proceedings pursuant to the first sentence of the first 
subparagraph of Article 3(1) of the Insolvency Regulation. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-723/20 
 
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22 The international jurisdiction of the courts of a Member State to decide on the 
opening of main insolvency proceedings could continue to exist (‘perpetuatio 
fori’) if the debtor moves the centre of its main interests to the territory of another 
Member State after lodging the request but before the decision opening insolvency 
proceedings is delivered. This aspect is the subject matter of part (a) of the second 
question referred. 
23 With regard to Article 3(1) of the 2000 Insolvency Regulation, the Court of 
Justice has answered that part of the question and ruled that the provision is to be 
interpreted as meaning that there is continuing jurisdiction, which is intended to 
prevent, inter alia, abusive forum shopping (see judgment of 17 January 2006, 
Staubitz-Schreiber, C-1/04, EU:C:2006:39, paragraph 25). In view of the new 
recast Insolvency Regulation, the question arises as to whether, with regard to 
Article 3(1) of the Insolvency Regulation also, the Court of Justice will adhere to 
its previous case-law.  
24 The continuing international jurisdiction of the courts of one Member State to 
open the main insolvency proceedings could exclude the jurisdiction of the courts 
of another Member State. That is the subject matter of part (b) of the second 
question referred. 
25 The Insolvency Regulation proceeds on the assumption that there is only one set 
of main insolvency proceedings (see Article 3(3) and (4) of the Insolvency 
Regulation). Article 19 of the Insolvency Regulation binds all other Member 
States to the decision to open those proceedings. International jurisdiction to open 
the main insolvency proceedings pursuant to Article 3(1) of the Insolvency 
Regulation is therefore exclusive.  
26 According to the case-law of the Court of Justice, the court of a Member State 
within the territory of which the centre of the debtor’s main interests is situated at 
the time when the request to have insolvency proceedings opened is lodged retains 
jurisdiction to open those proceedings pursuant to Article 3(1) of the 2000 
Insolvency Regulation if the debtor moves the centre of its main interests to the 
territory of another Member State after lodging the request but before the decision 
opening proceedings is delivered. A transfer of jurisdiction from the court 
originally seised to a court of another Member State would be contrary to the 
objectives pursued by the Regulation (see judgment of 17 January 2006, Staubitz-
Schreiber, C-1/04, EU:C:2006:39, paragraph 29). 
27 In that context, the question arises as to whether the continuing jurisdiction of the 
court originally seised excludes the international jurisdiction of the courts of 
another Member State in respect of further requests. If that is not the case, a court 
seised at a later stage could open main insolvency proceedings, by which the court 
originally seised would be bound, with the result that the latter could no longer 
open the main insolvency proceedings. This could deprive continuing exclusive 
international jurisdiction of its practical effectiveness.  
GALAPAGOS BIDCO. 
 
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28 In the present case, a request to have insolvency proceedings opened was lodged 
with the English High Court earlier than that lodged with the Amtsgericht 
Düsseldorf. As the centre of the debtor’s main interests was situated in England at 
the time when the request was lodged, the Bundesgerichtshof (Federal Supreme 
Court, Germany) proceeds on the assumption that the High Court had 
international jurisdiction to open the main insolvency proceedings pursuant to 
Article 3(1) of the Insolvency Regulation.  
29 The withdrawal of the United Kingdom from the European Union does not alter 
this. Article 126 of the Withdrawal Agreement provides for a transition period 
ending on 31 December 2020. It follows from the first subparagraph of 
Article 127(1) of the Withdrawal Agreement that the Insolvency Regulation 
continues to apply to and in the United Kingdom during the transition period.