Judgment;Summary — ECLI:EU:C:2024:331
Date: 2024-04-18
Language of the case: Spanish
Court formation: Third Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Spain

Translation C-765/22 – 1 
Case C-765/22 
Request for a preliminary ruling 
Date lodged: 
16 December 2022 
Referring court: 
Juzgado de lo Mercantil de Palma de Mallorca (Spain) 
Date of the decision to refer: 
24 November 2022 
Applicants: 
Luis Carlos 
Severino 
Isidora 
Angélica 
Paula 
Luis Francisco 
Delfina 
Defendant: 
Air Berlín PLC & CO Luftverkehrs KG, Sucursal en España 
  
Court: Juzgado de lo Mercantil (Commercial Court) 
Sitting at: Palma de Mallorca (Spain) 
Section: 1 
Date: 24/11/2022 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 24.11.2022 – CASE C-765/22 
 
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Type of decision: Order 
[…] 
[Particulars of court, proceedings and parties] 
ORDER 
PALMA DE MALLORCA, 24 November 2022. 
[…] [procedural formalities] 
FACTUAL BACKGROUND 
ONE. Under Article 289(2) of Real Decreto-Ley 1/2020 por el que se aprueba el 
texto refundido de la Ley Concursal (Royal Legislative Decree 1/2020 approving 
the recast text of the Ley Concursal (Insolvency Law)) of 5 May 2020 (‘the 
Spanish Law on insolvency’), the applicants filed an interlocutory application in 
insolvency proceedings, challenging the inventory of assets and the list of 
creditors drawn up by the insolvency administrators. The insolvency 
administrators responded to the application in due time and form. 
The parties did not apply for a hearing and the court did not find it necessary to 
hold one. Under Article 540(2) of the Spanish Law on insolvency, the court is 
required to rule without further proceedings. 
TWO. By a procedural order made under Article 39 of the Ley de Enjuiciamiento 
Civil (Spanish Law on civil procedure) and Article 4bis of Ley Orgánica 6/1985 
del Poder Judicial (Organic Law on the judiciary) of 1 July 1985, the parties to the 
proceedings and the Office of the Public Prosecutor were granted a hearing to 
express their opinions on whether it was appropriate to refer a question to the 
Court of Justice of the European Union for a preliminary ruling on the issues of 
the interpretation of EU law set out, and on the scope of any referral. 
LEGAL BASIS 
ONE. Subject matter of the main proceedings and relevant facts. 
1 These proceedings concern a challenge to the inventory of assets and the list of 
creditors submitted by the insolvency administrators in the secondary insolvency 
proceedings relating to AIR BERLÍN PLC & CO LUFTVERKEHRS KG. 
2 The main insolvency proceedings relating to AIR BERLÍN PLC & CO 
LUFTVERKEHRS KG were opened by a decision of 1 November 2017 of the 
first instance court in Charlottenburg (Berlin, Germany) […]. 
3 By order of 6 November 2020 involuntary secondary insolvency proceedings were 
opened in respect of AIR BERLÍN PLC & CO LUFTVERKEHRS KG, having an 
AIR BERLÍN 
 
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establishment in Spain through AIR BERLÍN PLC & CO LUFTVERKEHRS KG, 
sucursal en España. 
4 The applicants, local creditors who were employees of the branch in Spain of AIR 
BERLÍN PLC & CO LUFTVERKEHRS KG, which ceased trading after the main 
proceedings had opened in Germany, filed a number of applications with the 
Spanish employment courts. 
In a judgment […] of 30 April 2017, the Sala de lo Social (Social Division) of the 
Audiencia Nacional (National High Court, Spain) […] held the dismissals to be 
void with effect from 24 November 2017. The judgment found the dismissals to 
be void because there was no record that the insolvency supervisor appointed by 
the German court, Mr [Lucas], had commenced local insolvency proceedings in 
Spain in order to obtain judicial authorisation from the court hearing the 
insolvency, and because the employees’ legal representatives had not been 
provided with the mandatory documents. 
Spanish employment courts have held that the employees’ dismissals are void and, 
since they cannot be reinstated, have ordered AIR BERLÍN PLC & CO 
LUFTVERKEHRS KG to pay them certain sums by way of compensation and 
post-dismissal remuneration during proceedings. 
5 Following the filing of the application to open secondary local insolvency 
proceedings, in accordance with Article 25(4) of Royal Decree 505/85 of 6 March 
1985 the insolvency administrators in the main proceedings issued the certificates 
whereby the employees’ claims were included on the list of creditors in respect of 
amounts the same as or more than those requested from the Fondo de Garantía 
Salarial (Wages Guarantee Fund, FOGASA). The employees were able to have 
part of their claims met within the statutory limits. 
6 In the secondary local insolvency proceedings taking place in Spain, the appointed 
insolvency administrators submitted a provisional report containing the list of 
creditors in accordance with Article 290 in conjunction with Article 293[(1), 
second paragraph] of the Spanish Law on insolvency. The list of creditors is the 
document in which, once the applications have been lodged and verified, the 
claims are admitted and ranked in the insolvency. 
The insolvency administrators took the view that the employees’ claims were 
insolvency claims (créditos concursales) and ranked them as general privileged 
claims (créditos con privilegio general) and non-privileged claims (créditos 
ordinarios).  
7 The employees have challenged the list of creditors in respect of the admission 
and ranking of their claims, under Article 297(1) of the Spanish Law on 
insolvency. They are of the view that their claims should be ranked as claims 
against the assets of the insolvent debtor (créditos contra la masa) and, therefore, 
payable as preferential debts according to the Spanish insolvency legislation. 
REQUEST FOR A PRELIMINARY RULING OF 24.11.2022 – CASE C-765/22 
 
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TWO. Relevant legal provisions 
However, the employees understand that the reference in Article 242(8) of the 
Spanish Law on insolvency to claims arising under employment contracts, 
including compensation for any dismissal or termination of an employment 
contract arising after the opening of insolvency proceedings, must be understood 
as relating to the date of the opening of the main insolvency proceedings rather 
than of the secondary proceedings. 
As recital 22 states, Regulation (EU) 2015/848 acknowledges the fact that as a 
result of widely differing substantive laws in the Member States it is not practical 
to configure international insolvency proceedings with universal scope throughout 
the Union. Alongside security in rem, it is precisely the disparity at European 
Union level in regulation of the ranking of claims arising under employment 
contracts that justifies the establishment of a qualified universal procedure in 
which it is permissible to open local proceedings that apply exclusively to assets 
situated in the State where the proceedings are opened. Recital 22 goes so far as to 
state that ‘at the next review of this Regulation, it will be necessary to identify 
further measures in order to improve the preferential rights of employees at 
European level.’ 
In this vein, Regulation (EU) 2015/848 contains provisions clearly intended to 
protect employees against the application of foreign insolvency provisions 
different from those governing employment contracts in their own State. 
As an exception to application of the lex fori concursus, Article 13 provides that 
the effects on employment contracts are to be governed solely by the law of the 
Member State applicable to them, and that the courts of the Member State in 
question rather than those of the State of the opening of proceedings are to retain 
jurisdiction to approve the termination or modification of employment contracts 
even if no local proceedings have been opened. 
Nevertheless, recital 72 contains the proviso that ‘any other questions relating to 
the law of insolvency, such as whether the employees’ claims are protected by 
preferential rights and the status such preferential rights may have, should be 
determined by the law of the Member State in which the insolvency proceedings 
(main or secondary) have been opened’.  
By virtue of the option available under Article 45 of Regulation (EU) 2015/848 – 
according to the insolvency administrator in the main proceedings –, the claims 
arising under employment contracts at issue here have been admitted in the main 
proceedings as preferential claims because they have been found to be claims 
against the assets of the insolvent debtor under the German legislation, which is 
the applicable law because Germany is the State of the opening of the main 
proceedings. 
In the secondary insolvency proceedings the decision adopted by the insolvency 
administrators is being challenged in so far as, in the list of creditors in their 
AIR BERLÍN 
 
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report, they treat the employees’ claims as insolvency claims and, therefore, not as 
preferential claims. They have made that decision because in their view the 
reference in Article 242(8) of the Spanish Law on insolvency to claims arising 
from employment contracts that come into being or are upheld by a court decision 
following the opening of insolvency proceedings relates to the opening of the 
secondary rather than of the main insolvency proceedings. 
The insolvency administrator’s interpretation is in fact compatible with a literal 
interpretation of Article 24[2](8) of the Spanish Law on insolvency which, 
ultimately, as emerges from Article 35 in conjunction with Article 7(1) [and] 
(2)(g) and (h) of Regulation (EU) 2015/848, is the law applicable when 
determining which claims are to be lodged against the debtor’s insolvency estate 
and the treatment of claims arising after the opening of insolvency proceedings. 
However, that interpretation may conflict with the contextual interpretation that 
should be given to Article 35 and Article 7(1) [and] (2)(g) and (h) in conjunction 
with recital 72 of Regulation (EU) 2015/848 as part of the qualified universal 
proceedings outlined by the regulation. That is especially so since, according to 
recital 40 in conjunction with recital 23, one of the reasons for allowing secondary 
insolvency proceedings to be opened is precisely the protection of local interests. 
It would also appear contradictory that the regulation should provide, in the 
interests of protecting employees, that the ranking of claims and the preferential 
rights attaching to them are determined in accordance with the law governing 
insolvency proceedings in the State of opening but that the application of that law 
nevertheless produces an outcome that is detrimental to the interests it is sought to 
protect. 
By reason of the foregoing the following request for a preliminary ruling should 
be made to the Court of Justice of the European Union as guarantor of the uniform 
interpretation and application of EU law. 
1. Article 35 of Regulation (EU) 2015/848 of the European Parliament and of 
the Council of 20 May 2015 on insolvency proceedings (‘Regulation (EU) 
2015/848’) provides that: 
‘save as otherwise provided for in this Regulation, the law applicable to secondary 
insolvency proceedings shall be that of the Member State within the territory of 
which the secondary insolvency proceedings are opened.’ 
2. Article 7 of Regulation (EU) 2015/848 provides that: 
1. ‘Save as otherwise provided in this Regulation, the law applicable to 
insolvency proceedings and their effects shall be that of the Member State within 
the territory of which such proceedings are opened (the “State of the opening of 
proceedings”). 
REQUEST FOR A PRELIMINARY RULING OF 24.11.2022 – CASE C-765/22 
 
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2. The law of the State of the opening of proceedings shall determine the 
conditions for the opening of those proceedings, their conduct and their closure. In 
particular, it shall determine the following: 
… 
(g) the claims which are to be lodged against the debtor’s insolvency estate and 
the treatment of claims arising after the opening of insolvency proceedings;  
(h) the rules governing the lodging, verification and admission of claims’. 
3. Royal Legislative Decree 1/2020 approving the recast text of the Ley 
Concursal (Insolvency Law), of 5 May 2020, provides as follows in respect of 
claims to be admitted against the debtor’s insolvency estate: 
Article 280(1): ‘The following are general privileged claims: 
Claims in respect of wages that do not have the status of special privileged claims, 
calculated by multiplying three times the statutory minimum wage (salario 
mínimo interprofesional) by the number of days for which wages are outstanding; 
compensation arising from the termination of contracts, corresponding to the legal 
minimum calculated on the basis of an amount not exceeding three times the 
statutory minimum wage; compensation arising from accidents at work and 
occupational diseases that have accrued before the opening of insolvency 
proceedings; the social security contributions for which the insolvent debtor is 
legally liable, and supplementary benefits payable on the grounds of failure to 
comply with occupational health obligations and accruing before the opening of 
insolvency proceedings.’ 
Article 269(3) 
‘Claims that do not have the status of privileged or subordinate claims under this 
Law shall be ranked as non-privileged claims.’ 
4. Royal Legislative Decree 1/2020 approving the recast text of the Ley 
Concursal (Insolvency Law), of 5 May 2020, provides as follows in respect of the 
treatment of claims arising after the opening of insolvency proceedings: 
Article 242 
‘The following shall be claims against the assets of the insolvent debtor:  
… 
(8) Claims generated by the exercise of the debtor’s professional or business 
activity after the opening of insolvency proceedings. This paragraph shall include 
claims arising from employment contracts corresponding to that period, including 
compensation for dismissal or termination of an employment contract occurring 
after the opening of insolvency proceedings’. 
AIR BERLÍN 
 
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Article 429. ‘Deduction for the payment of claims against the assets of the 
insolvent debtor’. 
‘Before paying the insolvency claims, the insolvency administrators shall deduct 
from the total assets of the insolvent debtor the assets and rights required to pay 
the claims against those assets.’ 
THREE: Grounds of the decision. 
As can be seen, the parties’ opposing positions and the national court’s questions 
of interpretation centre on which date of the opening of insolvency proceedings 
should be taken into consideration for the purpose of ranking the employees’ 
claims as claims against the assets of the insolvent debtor or as insolvency claims, 
and specifically whether regard should be had to the date of the opening of the 
main insolvency proceedings or of the secondary proceedings. 
The insolvency administrators take the view that it should be the date of the 
decision opening the secondary insolvency proceedings. Since the judgments of 
the Spanish employment courts were delivered after the date on which the main 
insolvency proceedings were opened but before that on which the secondary 
proceedings were opened, the claims are accordingly, in their view, insolvency 
claims. 
OPERATIVE PART 
By reason of the foregoing, this court hereby makes the following request for a 
preliminary ruling to the Court of Justice of the European Union: 
(1) In the qualified universal proceedings outlined by Regulation (EU) 2015/848 
of the European Parliament and of the Council of 20 May 2015 on insolvency 
proceedings, in which it is permissible to open secondary proceedings that apply 
exclusively to assets situated in the State where the proceedings are opened, can 
Article 35 and Article 7(1) [and] (2)(g) and (h) in conjunction with recital 72 be 
interpreted as meaning that application of the law of the State of the opening of 
the secondary proceedings ‘to the treatment of claims arising after the opening of 
insolvency proceedings’ relates to claims arising after the opening of the main 
proceedings rather than of the secondary proceedings? 
The proceedings are stayed until the Court of Justice of the European Union rules 
on the request for a preliminary ruling. 
[…] 
[Final procedural formalities and signature by the court]