Opinion of the Advocate General — ECLI:EU:C:2016:369
Date: 2016-05-26
Language of the case: German
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fifth Chamber), 26 October 2016 1. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Attenuated universality model — Applicability of the law of the State of the opening of the main insolvency proceedings, containing exceptions, including the one in Article 5 of the regulation (Council Regulation No 1346/2000, Art. 5(1)) 2. Judicial cooperation in civil matters — Insolvency proceedings — Regulation No 1346/2000 — Third parties’ rights in rem — Meaning — Security which, by operation of law, encumbers the real property of a person owing real property taxes with a public charge on real property — Property owner having to accept enforcement, against the property, of the instrument recording the tax debt — Included (Council Regulation No 1346/2000, Art. 5) 1. Regulation No 1346/2000 on insolvency proceedings is based on a so-called attenuated universality model, according to which, first, the law applicable to the main insolvency proceedings and its effects is that of the Member State within the territory of which those proceedings were opened, albeit that, secondly, that regulation lays down a number of exceptions to that rule. Article 5(1) of that regulation lays down one of those exceptions. That provision, by derogating from the rule of the law of the Member State of the opening of the proceedings, allows the law of the Member State on whose territory the asset concerned is situated to be applied to the right in rem of a creditor or a third party over certain assets belonging to the debtor. (see paras 17, 18) 2. Article 5 of Regulation No 1346/2000 on insolvency proceedings must be interpreted to the effect that security created by virtue of a provision of national law by which the real property of a person owing real property taxes is, by operation of law, to be subject to a public charge and that property owner must accept enforcement of the decision recording that tax debt against that property, constitutes a right in rem for the purposes of that article. In that regard, whilst Article 5(2) and (3) of Regulation No 1346/2000 does not define the notion of a right in rem, it does, however, explain, through a number of examples of rights described in that regulation as in rem, the scope and therefore the limits of the protection afforded by that provision to the privileges, guarantees or other rights under the national law of the Member States of the creditors of an insolvent debtor. A right satisfies the criteria laid down in Article 5(2) of Regulation No 1346/2000, in order not to render ineffective the limitation on the scope of Article 5 of that regulation to rights ‘in rem’, where, first, it is a charge which directly and immediately encumbers taxed real property and, secondly, the owner of the real property must accept enforcement against that property. Furthermore, during insolvency proceedings the tax authorities have the status of a preferential creditor on the basis of the charge over the property. Moreover, neither the wording of the provisions of Regulation No 1346/2000 nor its objectives make it possible to interpret Article 5 of that regulation to the effect that it does not cover rights in rem granted outside the context of a commercial transaction. In any event, an interpretation of Article 5 of Regulation No 1346/2000 to the effect that the exception which it makes provision for covers solely rights in rem created in the context of commercial or credit transactions would lead to unfavourable treatment of the owners of rights in rem granted in the context of transactions other than commercial transactions. (see paragraphs 21, 23, 26, 30, 32 and operative part)