Opinion of the Advocate General — ECLI:EU:C:2016:427
Date: 2016-06-09
Language of the case: Romanian
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary — Judgment of the Court (Fifth Chamber), 9 November 2016 1. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Applicable law — Concept — Legislation of the state of the opening of proceedings prescribing effects on claims which were not pursued by means of insolvency proceedings — Fiscal nature of the claim — No effect (Council Regulation No 1346/2000, Art. 4) 2. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Procedural arrangements — Applicable time limit for the lodging of claims — Application of national law — Conditions — Respect for the principles of equivalence and effectiveness (Council Regulation No 1346/2000) 3. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Effects of insolvency proceedings on lawsuits pending — Concept of lawsuits pending — Enforcement proceedings — Exclusion (Council Regulation No 1346/2000, Arts 4(2)(f) and 15) 1. Article 4 of Regulation No 1346/2000 on insolvency proceedings must be interpreted as meaning that provisions of domestic law of the Member State on the territory of which insolvency proceedings are opened which provide, in relation to a creditor who has not taken part in those proceedings, for the forfeiture of its right to pursue its claim or for the suspension of the enforcement of such a claim in another Member State come within its scope of application. It is clear from Article 4(1) of Regulation No 1346/2000 that, save as otherwise provided in that regulation, the law applicable to insolvency proceedings and their effects is that of the State of the opening of proceedings (‘lex fori concursus’). In that regard, while it is true that Article 4(2) of Regulation No 1346/2000, which contains a list of the matters falling under the lex fori concursus, makes no specific reference to creditors who have not participated in the insolvency proceedings and, consequently, the effects of those proceedings, or of its closure, on the rights of those creditors, there can, however, be no doubt that those effects must also be assessed on the basis of that lex fori concursus. An interpretation to the effect that the lex fori concursus determines the effects of the closure of the insolvency proceedings, in particular by composition, and the rights of creditors after that closure, but not the effects on the rights of creditors who did not participate in those proceedings, would risk seriously undermining the effectiveness of those proceedings. Since the forfeiture of unregistered claims is, in principle, allowed, Regulation No 1346/2000 must, a fortiori, also allow a rule of the lex fori concursus which merely suspends enforcement proceedings relating to those claims. The fact that a claim pursued by means of enforcement in a Member State other than the State in which the proceedings were opened is a fiscal claim does not have any bearing. The provisions of Regulation No 1346/2000 do not give the claims of tax authorities of a Member State other than the State of the opening of proceedings any preferential status, in that they should be capable of being subject to enforcement proceedings even after the opening of insolvency proceedings. (see paras 17, 20, 22, 29, 36, 40, 41, operative part 1 and 2) 2. Due to the fact that Regulation No 1346/2000 on insolvency proceedings does not bring about harmonisation of the time limits for the lodging of claims in cases of insolvency coming within the scope of its application, it is for the national legal order of each Member State to establish them in accordance with the principle of procedural autonomy, provided, however, that the rules relating thereto are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not make it excessively difficult or impossible in practice to exercise the rights conferred by EU law (principle of effectiveness). (see para. 30) 3. Enforcement proceedings do not come within the scope of application of Article 15 of Regulation No 1346/2000 on insolvency proceedings. That provision must be read in conjunction with Article 4(2)(f) of that regulation, which distinguishes lawsuits pending from other proceedings brought by individual creditors. Thus, the effects of insolvency proceedings on proceedings brought by individual creditors other than lawsuits pending are in any event governed by the single lex fori concursus. Proceedings seeking the enforcement of a claim come within the latter category. (see paras 32, 35)