OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 27 March 2019 ( 1 )

Case C‑716/17

A

(Request for a preliminary ruling from the Østre Landsret

(High Court of Eastern Denmark, Denmark))

(Reference for a preliminary ruling – Workers – Restrictions on freedom of movement – Opening debt relief proceedings – Condition of residence – Lawfulness)

I. Introduction

1. In Radziejewski, ( 2 ) the Court held that a requirement that a debtor must be resident in the Member State where the application for debt relief is submitted in order for debt relief to be granted constitutes a restriction on freedom of movement for workers, in principle prohibited by Article 45 TFEU.

2. The present case concerns the question of whether the Danish legislation on jurisdiction in debt relief proceedings is contrary to Article 45 TFEU. Unlike the referring court in the case which gave rise to Radziejewski, ( 3 ) the referring court in the present case considers that the legislation at issue does restrict freedom of movement for workers. However, by its first question, the Østre Landsret (High Court of Eastern Denmark, Denmark) asks whether that restriction may nevertheless be justified. By its second question, raised in the alternative, the referring court asks the Court to determine whether, in the circumstances of the case, Article 45 TFEU has direct effect on the private creditors of a debtor who has lodged an application for debt relief.

II. Legal framework

A. European Union law

1. Regulation (EC) No 44/2001

3. Article 1 of Regulation (EC) No 44/2001 ( 4 ) provides: ‘1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters. 2. This Regulation shall not apply to: …(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; …’

2. Regulation (EU) No 1215/2012

4. Article 1 of Regulation (EU) No 1215/2012 provides: ( 5 ) ‘1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). 2. This Regulation shall not apply to: … (b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; …’

3. Regulation (EU) 2015/848

5. Article 1 of Regulation (EU) 2015/848, ( 6 ) entitled ‘Scope’ provides: ‘1. This Regulation shall apply to public collective proceedings, including interim proceedings, which are based on laws relating to insolvency and in which, for the purpose of rescue, adjustment of debt, reorganisation or liquidation: … (b) the assets and affairs of a debtor are subject to control or supervision by a court; or …’

6. However, recital 88 of Regulation 2015/848 states that the Kingdom of Denmark is not bound by this regulation and is not subject to its application. Nor was the Kingdom of Denmark bound by this regulation’s predecessor, Regulation (EC) No 1346/2000. ( 7 )

B. Danish law

7. According to Paragraph 3 of the konkursloven (Bankruptcy Act): ‘1. Applications for debt restructuring, bankruptcy or debt relief shall be lodged with the bankruptcy court at the place from where the debtor’s business activity is pursued. 2. If the debtor does not pursue business activity in Denmark, the application shall be lodged with the bankruptcy court in the legal district in which the debtor is domiciled. …’

8. The concept of ‘domicile’ (hjemting) must be interpreted in accordance with, inter alia, Paragraph 235 of the retsplejeloven (Administration of Justice Act), which reads as follows: ‘1. Legal proceedings are to be instituted where the defendant is domiciled, unless otherwise provided for by legislation. 2. The domicile shall be in that legal district where defendant has a residence. If the defendant has a residence in more than one legal district, each of them shall constitute a domicile. 3. If the defendant has no residence, the domicile shall be in that legal district where he lives. 4. If the defendant has neither a residence nor a known place where he lives, the domicile shall be in that legal district where he most recently had a residence or place where he lived.’

III. Facts of the main proceedings

9. The applicant in the main proceedings, A, is a Danish national who is employed in Denmark, where he is also subject to unlimited tax liability. He is resident in Sweden.

10. On 8 February 2017, A lodged an application for debt relief with the Sø- og Handelsretten (Maritime and Commercial Court, Copenhagen, Denmark). The application concerned debts contracted with Danish creditors from 1999 onwards.

11. By order of 6 April 2017, the Sø- og Handelsret (Maritime and Commercial Court) dismissed the application on the ground that it lacked jurisdiction. According to it, the Danish courts did not have jurisdiction to hear proceedings brought by A since he did not pursue independent business activity in the country and was not domiciled there.

12. As the court of second instance, the Østre Landsret (High Court of Eastern Denmark) must therefore decide whether a Danish court has jurisdiction to hear A’s application for debt relief. That court considers that a Danish court could have jurisdiction if the Danish rules of jurisdiction in matters of debt relief were contrary to EU law.

IV. Questions referred and the procedure before the Court

13. In those circumstances, the Østre Landsret (High Court of Eastern Denmark) decided to stay the proceedings and to refer the following questions to the Court: ‘(1) Does Article 45 TFEU, as interpreted following the [judgment in Radziejewski ( 8 )] preclude a rule on jurisdiction such as the Danish one, the aim of which is to ensure that the court hearing a case involving debt relief has knowledge of and can take account in its assessment of the specific socio-economic situation in which the debtor and his or her family live and must be assumed will continue to live going forward, and that the assessment may be carried out according to previously determined criteria establishing what can be deemed to be an acceptably modest standard of living under the debt relief arrangement? If the answer to question 1 is that the restriction cannot be held to be justified, the Court is asked to answer the following question: (2) Must Article 45 TFEU be interpreted as also having direct effect as between private parties in a situation such as the present one, with the result that private creditors must accept reductions or total loss of amounts owed to them by a debtor who has moved to another country?’

14. The request for a preliminary ruling was received at the Court Registry on 22 December 2017.

15. Written observations have been lodged by A, the Danish Government and the European Commission. Those parties attended the hearing held on 15 January 2019.

V. Analysis

16. For a complete understanding of the issues raised by the present case, it is first necessary to situate the matters raised by the questions referred in the context of EU private international law. To that end, I shall make some preliminary remarks on Danish debt relief proceedings. I shall then examine whether these proceedings fall within the scope of EU legal instruments. Lastly, I shall analyse the questions referred in light of these considerations.

A. Danish debt relief proceedings

17. The referring court explains that Danish debt relief proceedings are initiated by a debtor lodging an application with the bankruptcy court. That court meets the debtor and determines whether there are circumstances that prevent such proceedings from being brought. It is also at this stage that the jurisdiction of the Danish courts is considered and to which the proceedings giving rise to the questions referred for a preliminary ruling relate.

18. If the court has jurisdiction and there are no factors at this stage that preclude debt relief proceedings from being brought, the bankruptcy court opens those proceedings. In that connection the bankruptcy court appoints an assistant, who must be a lawyer, who examines the debtor’s financial situation in detail and draws up a budget for the debt relief. The budget contains a detailed review of the debtor’s assets and liabilities and the household’s overall financial situation, as well as a proposal for restructuring the debt.

19. This proposal is sent to the creditors, who become involved in the proceedings at that point. The creditors are given a time limit by which to express any objections to the proposal. The bankruptcy court then calls a meeting at which a decision is made on the application for debt relief.

20. The bankruptcy court may make an order for debt relief if, first, the debtor proves that he cannot pay his debts and will not be able to do so for several years and, second, if it is considered that debt relief will bring about a lasting improvement in the debtor’s financial situation. Debt relief orders cannot be issued, in particular, if the debtor’s financial situation has not been clarified. The bankruptcy court may also refuse to grant debt relief if there are other precluding factors.

21. It is clear from the referring court’s interpretation of the Danish legislation that the bankruptcy court must be able to carry out an assessment of the past, present and future socio-economic situation of the debtor, as well as that of his spouse/cohabiting partner and children, in order to determine whether he is eligible for debt relief. For the purpose of that assessment, in particular verifying the information submitted by the debtor, knowledge of the local context is often necessary. In the referring court’s view, it is hence essential that debt relief applications are heard by the court for the place in which the debtor resides or lives.

B. Preliminary remark on the applicability of EU private international law instruments

22. In the first place, the referring court states that the Kingdom of Denmark does not apply Regulation No 1346/2000 and submits that in light of Radziejewski, ( 9 ) even if that regulation were applicable in the country, Danish debt relief proceedings would not be covered by it. That court further points out that, like the Swedish debt relief proceedings referred to in that judgment, the Danish proceedings do not entail the debtor’s divestment.

23. I note that in Radziejewski ( 10 ) the Court observed that Swedish debt relief proceedings did not appear in Annex A to Regulation No 1346/2000 and that that regulation applied only to the proceedings listed therein. ( 11 ) By the same token, in Bank Handlowy and Adamiak ( 12 ) the Court held that French sauvegarde proceedings fell within the scope of Regulation No 1346/2000 on the ground that they were listed in Annex A thereto. However, some authors have expressed doubt about whether those proceedings fulfil the conditions laid down in Article 1(1) of that Regulation. ( 13 ) Those authors have hence concluded that by including proceedings in Annex A to Regulation No 1346/2000, Member States may make that regulation applicable to proceedings that do not fulfil the conditions determining its scope. ( 14 )

24. Nevertheless, in the present case, I do not deem it necessary to discuss whether proceedings that do not fulfil the conditions laid down in Article 1(1) of Regulation No 1346/2000 could be included in Annex A thereto. The Danish proceedings do not appear in that annex simply because the Kingdom of Denmark does not apply Regulation No 1346/2000.

25. Furthermore, it is true, as the Danish Government and the Commission point out, that Regulation 2015/848, which replaced Regulation No 1346/2000, appears to cover debt relief proceedings. It is clear from Article 1(1)(b) of Regulation 2015/848 that that regulation applies to public collective proceedings which are based on laws relating to insolvency and in which, for the purpose of adjustment of debt, the assets and affairs of a debtor are subject to control or supervision by a court, on the condition that, as the third subparagraph of Article 1(1) of that regulation provides, these proceedings are listed in Annex A to that same regulation. ( 15 ) However, it should be observed that, like Regulation No 1346/2000, Regulation 2015/848 does not bind the Kingdom of Denmark. Moreover, Regulation 2015/848 applies to proceedings opened after 26 June 2017, ( 16 ) whilst the application giving rise to the main proceedings was lodged on 7 February 2017.

26. In the second place, the referring court states that, unlike the insolvency regulations, Regulation No 44/2001 applies in the Kingdom of Denmark under the ‘Parallel Agreement’. ( 17 )

27. However, in the referring court’s view, the Danish debt relief proceedings do not fall within the scope of either Regulation No 44/2001 or its successor, Regulation No 1215/2012. Under Article 1(2)(b) of both regulations, they do not apply to bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings.

28. I share the referring court’s opinion in that regard.

29. Although the debt relief proceedings satisfy the conditions laid down in Article 1(1) of Regulation 2015/848 and are therefore capable of falling within the scope of that regulation, those proceedings cannot, in my view, fall within the scope of Regulation No 1215/2012. Regulation 1215/2012 and regulation 2015/848 are complementary and their respective scope should not overlap. ( 18 )

30. The fact that Regulation 2015/848 does not apply in Denmark is irrelevant. ( 19 ) The scope of Regulation No 1215/2012 cannot be determined by reference to whether Regulation 2015/848 is applicable in the Member State concerned.

31. Furthermore, as is apparent from points 23 and 24 above, whether Regulation 2015/848 applies depends on the inclusion of proceedings in Annex A thereto. ( 20 ) However, it is clear that proceedings which satisfy the conditions laid down in Article 1(1) of Regulation 2015/848 cannot fall within the scope of Regulation No 1215/2012 merely because they are not included in Annex A of Regulation 2015/848. ( 21 )

32. To summarise, the Danish debt relief proceedings to which the order for reference refers do not fall within the scope of Regulations Nos 1346/2000, 44/2001 or 1215/2012. Accordingly, those regulations will not be taken into account in the analysis of the questions referred in the present case. However, in my analysis of the first question, I shall consider the application of Regulation 2015/848 in circumstances such as those of the present case, as the Danish Government seems use that regulation to support its argument that Article 45 TFEU does not preclude the residence condition laid down in the Danish legislation.

C. The first question referred

33. By its first question, the referring court seeks to ascertain whether the residence condition laid down in the Danish legislation may be justified by the fact that it ensures that the court hearing the application for debt relief can rule on the basis of information on the past, present and future social and financial situation of the debtor and his family.

34. However, the referring court is not asking the Court to rule on whether the residence condition laid down in the Danish rules is a restriction on the freedom of movement of workers in principle prohibited by Article 45 TFEU. Referring to Radziejewski, ( 22 ) the referring court and all the parties consider that the Danish legislation at issue restricts the free movement of workers. However, their views diverge with regard to whether that restriction can be justified.

35. Before embarking on the substantive analysis, I shall make some remarks on potential barriers created by rules of jurisdiction in light of Radziejewski. ( 23 ) Next, in view of the arguments advanced by the referring court and the Danish Government, I shall examine whether the residence condition can be regarded as justified in the present case.

1. Existence of restrictions on free movement

36. The Court has emphasised in its case-law that a national provision which draws a distinction on the basis of residence is liable to operate mainly to the detriment of nationals of other Member States and may therefore constitute indirect discrimination on grounds of nationality, contrary to the free movement of workers. ( 24 )

37. However, the present case concerns national rules on international jurisdiction. By their nature, these rules require connecting factors which serve to designate the authorities of a State that have jurisdiction to hear a category of case. In addition, in the interests of the proper administration of justice, these rules are largely based on the premiss that there must be a connection between the particular case and the State whose courts have jurisdiction to hear it. ( 25 ) Thus, it is not surprising that the place of residence is often used as a connecting factor.

38. Adopting the approach that the introduction of a connecting factor of place of residence into a rule on jurisdiction constitutes indirect discrimination on the ground of nationality could lead to the conclusion that all rules on jurisdiction based on the existence of a connection between the place where the applicant resides or lives and the State concerned are inherently discriminatory and thereby in principle contrary to the freedoms enshrined in EU law.

39. However, it seems to me that such a result would be paradoxical given that the attribution of jurisdiction is nowadays achieved through rules of jurisdiction, which use connecting factors.

40. It should be borne in mind that the present case concerns a rule of special jurisdiction for debt relief proceedings. Such proceedings are not subject to the harmonised jurisdiction rules, at least not in the temporal context of the present case. Moreover, Member States are not obliged to introduce debt relief proceedings into their respective legal orders.

41. As a general rule, jurisdiction rules do not confer substantive rights, at least not directly. Their role is confined to designating the authorities which have jurisdiction to grant a right or not.

42. However, Member States are free to introduce specific proceedings, such as debt relief proceedings, into their national legal orders or not. Consequently, the role of a jurisdiction rule is not confined exclusively to dividing jurisdiction between the authorities of all Member States. In the case of such proceedings, the jurisdiction of the courts of a Member State may result in access to debt relief and hence an order granting debt relief which will be enforceable against a debtor’s creditors within the territory of the Member State concerned. Further, when introducing measures that pertain to subjects that are not harmonised by the rules on jurisdiction, Member States are bound to comply with their obligations deriving from primary law.

43. Consequently, it is not precluded that a national rule of jurisdiction whereby the legislature determines in practice who may bring certain proceedings could prevent or deter a national of a Member State from leaving his country of origin in order to exercise his right to freedom of movement as provided for by primary law.

44. This reasoning was followed by the Court in Radziejewski, ( 26 ) where it held that national legislation which makes the grant of debt relief subject to a condition of residence is capable of dissuading an insolvent worker, whose indebtedness is such that that he cannot be presumed to have the means to pay his or her debts within a foreseeable period, from exercising his right to freedom of movement.

45. For the same reasons, I therefore consider that the residence condition in the Danish legislation constitutes a restriction on the free movement of workers. It is now necessary to answer the question of whether this restriction could be considered justified.

2. Justification

46. The referring court considers that the residence condition in the Danish rules on jurisdiction should be regarded as justified. The parties’ positions diverge on this point. The Danish Government shares the view of the referring court, whilst A and the Commission consider that that condition cannot be justified in the light of Article 45 TFEU.

47. Whether a measure that is found to restrict the freedom of movement of workers can be justified depends on whether that measure, first, pursues a legitimate objective compatible with the Treaty and is justified by overriding reasons in the public interest., second, ensures the achievement of the said objective and, third, does not go beyond what is necessary for that purpose. ( 27 ) I shall begin by examining the first condition in respect of the existence of a legitimate objective and then the second and third conditions, which pertain respectively to the appropriacy of and necessity for the legislation in question.

(a) Ground of justification relied on

48. It is apparent from the phrasing of the first question referred and the content of the order for reference that the requirement for the debtor to be domiciled in Denmark aims to ensure that the decision on the application for debt relief is sufficiently well-informed and taken on the basis of information that makes it possible, first, to assess the debtor’s socio-economic situation in order to determine whether his indebtedness is due to a lack of ability or willingness, second, to ensure a lasting improvement in his situation and, third, to ensure that the debtor has an adequate – modest but sufficient – standard of living during the subsequent period when the debt is to be repaid in instalments.

49. According to the referring court, the residence condition hence aims to ensure that the social and financial circumstances of the debtor and his family and living conditions in the place where they subsist are taken into account when the application for debt relief is considered.

50. In Radziejewski, in response to the Swedish Government’s argument that the residence condition was necessary in order to establish satisfactorily the debtor’s financial and personal situation, the Court found that it is legitimate for a Member State to wish to monitor the debtor’s financial and personal situation before granting a measure that would relieve him or all or part of his debts. ( 28 )

51. It seems to me that the purpose of the residence condition laid down in the Danish legislation is no different from the residence condition in Radziejewski. ( 29 )

52. According to the referring court and the Danish Government, in that judgment the Court examined the residence condition in the light of the need to monitor the debtor’s financial and personal situation. However, the Court did not rule on whether restricting access to debt relief proceedings to persons who lived, or who at least had most recently resided, in the State where the application was made could be justified by the objective of ensuring that the court hearing such an application had knowledge of the debtor’s actual financial and social situation and could take account of this in its assessment.

53. Moreover, the Danish Government considers that the Swedish legislation referred to in the case which gave rise to Radziejewski ( 30 ) also involved ex post facto monitoring of the debtor, which allowed the Swedish authorities to keep track of the debtor’s efforts to meet his obligations. Accordingly, it argues that the residence condition was not capable of fulfilling the objective pursued since the debtor could simply move to a Member State after submitting his application for debt relief. By contrast, the Danish courts do not conduct ex post facto monitoring of the debtor in debt relief proceedings.

54. The referring court and the Danish Government thus appear to argue that the Danish legislation aims to ensure greater knowledge of the debtor’s situation than required under the Swedish legislation at issue in Radziejewski. ( 31 )

55. However, the objective of the residence condition is the same in both cases. Differences in the level of knowledge of a debtor’s situation could, in my view, be reflected in the assessment of the need for such legislation.

56. Moreover, it seems to me that the Danish Government’s submission that the Danish legislation does not provide for ex post facto monitoring is inconsistent with some of its other arguments. That Government argues in its observations that a debt relief order granted to a debtor who goes abroad may be cancelled in certain circumstances.

57. The referring court refers to this possibility more clearly, stating that a debt relief order may be cancelled if the debtor acted fraudulently during the debt relief proceedings or has failed to fulfil his obligations under the debt relief order. In any event, as is apparent from the order for reference and the Danish Government’s observations, a debt relief order is not automatically cancelled.

58. In my view, the assessment of a debtor’s conduct after such an order is granted, by means of which the Danish authorities seek to ascertain whether the debtor is complying with the conditions laid down in that order, constitutes a form of ex post facto monitoring. I am therefore unconvinced by the Danish Government’s argument that the present case differs from the case which gave rise to Radziejewski ( 32 ) since the Danish authorities do not carry out ex post facto monitoring.

59. In light of the foregoing, in view of the similarity between the objective of the Swedish legislation at issue in Radziejewski ( 33 ) and the legislation at issue in the present case, I consider that the residence condition provided for in the Danish legislation pursues a legitimate objective, namely ensuring that an informed decision – taken on the basis of information allowing the past, present and future social and financial situation of the debtor and his family and the living conditions in the place where they subsist to be determined – can be made on an application for debt relief.

(b) Appropriacy of and need for the legislation at issue

60. The observations of the referring court and the Danish Government, in which they seek to justify the restriction at issue, are founded on the idea that geographical proximity between the debtor’s place of residence and the court hearing the application for debt relief ensures that the financial and social situation of the debtor and his family, as well as living conditions in the place where they subsist, will be taken into account when assessing that application.

61. In this connection, the referring court and the Danish Government submit that a court hearing applications for debt relief does not and cannot have knowledge of an applicant’s living conditions in another Member State. There are no rules requiring Member States to provide information about local circumstances in terms of resources, expenditure or other essential factors in assessing an application for debt relief. Nor is such a court able to verify information provided by the debtor himself.

62. The referring court further states that in the absence of harmonised rules there are no less invasive means of achieving that aim than limiting access to debt relief proceedings to debtors who live in Denmark. By contrast, in the Danish Government’s view, it would hamper the effective implementation of Regulation 2015/848 were Article 45 TFEU to be interpreted as precluding a rule of jurisdiction such as the Danish provision.

63. Like A and the Commission, I consider that it is illogical and inconsistent to apply the residence condition to workers in at least two respects. The Danish Government and referring court’s arguments relating respectively to the existence and absence of harmonised rules do not resolve these issues.

64. The first problem is that the residence condition seems to apply only to workers who are employed in Denmark and not to persons pursuing independent business activity there. However, non-residence in Denmark does not prevent the latter from applying for debt relief to the courts of that Member State.

65. The second issue concerns the fact that, as is apparent from the order for reference and the applicant’s written observations, under the Danish legislation, fulfilment of the residence condition is assessed only at the time when the application for debt relief is lodged.

(1) Consistency in the application of the residence condition and its implications for the answer to the question referred

66. The residence condition rests on the idea that geographical proximity between the debtor’s place of residence and the court seised allow that court to rule on his application for debt relief in the knowledge of his socio-economic situation. When assessing the debtor’s socio-economic situation, the bankruptcy court should, in principle, give equal weight to that situation, regardless of whether he is a self-employed or an employed worker. The arrangements allowing acquisition of information from another Member State and verification of information provided by the debtor are almost the same in both cases.

67. However, it seems to me that the residence condition is not applied consistently under the Danish legislation. Whilst a person who carries out independent business activity in Danish territory may lodge an application for debt relief with the Danish court for the place where this activity is performed even though he does not reside in Denmark, an employed person who is not resident in Danish territory may not lodge such an application with the courts of that Member State.

68. As regards the present case, it is common ground that the applicant in the main proceedings works in Denmark, where he has unlimited tax liability. Consequently, as the Danish Government acknowledges, the applicant’s socio-economic situation could be determined, at least in part, without having to take account of information from another Member State. ( 34 )

69. However, under the Danish legislation, the applicant cannot in any way rely on the factors referred to in the previous paragraph to bring proceedings before a Danish court, even if those factors demonstrate the existence of a connection with Denmark. However, if such a connection suffices to allow Danish courts to rule on an application for debt relief lodged by a person who pursues independent business activity in the territory of that Member State, that connection ought likewise to be sufficient to allow a ruling on an application lodged by an employed person.

70. This is all the more true since, as the examples submitted by A in his written observations illustrate, ( 35 ) the Danish legislation does not prevent the national courts from ruling on applications for debt relief even where they need to take into account information from another Member State.

71. Accordingly, this inconsistent application of the condition of residence in the Danish legislation demonstrates that residence in Denmark is not necessary for the courts of that Member State to rule on applications for debt relief. This is evidence that a condition of residence, such as that provided for by the Danish legislation, goes beyond what is necessary to attain the objective referred to in point 59 of this Opinion.

(2) The implications of the perpetuatio fori principle for the justification for the residence condition

72. In his written observations, A indicates that in Danish legal theory and case-law, an application starting debt relief proceedings must be lodged with the court with jurisdiction ratione loci in respect of the place of residence on the date of such an application. By contrast, the assessments made in the course of debt relief proceedings concern the applicant’s situation at the time when a decision is taken on that application.

73. It seems to me that in this respect the referring court construes the Danish provisions in the same manner. In the order for reference, it states that a Danish court assesses whether it has jurisdiction when an application for debt relief is lodged.

74. In point of fact, under the rule known as the ‘principle of perpetuatio fori’, once a competent court is seised, in principle it retains jurisdiction even if the connecting factor used to establish jurisdiction changes during the proceedings. ( 36 )

75. Thus, knowledge of information about a debtor’s situation and living conditions in his place of residence cannot be ensured by the residence condition since, under the principle of perpetuatio fori, a change in the connecting factor after the application for debt relief is lodged – namely, transfer of residence to a Member State – does not preclude a Danish court from ruling on that application.

76. Consequently, since the connection with Danish territory is assessed only at the time when an application for debt relief is lodged whilst a bankruptcy court must, when considering that application, take account of circumstances preceding and subsequent to that time, a residence condition such as that provided for by the Danish legislation goes beyond what is necessary to ensure that condition’s objective. This reasoning is followed by the Court in Radziejewski ( 37 ) according to which the setting of a residence condition relating solely to the date on which the application is submitted goes beyond what is necessary for the purposes of monitoring the debtor’s situation and having knowledge of the situation in the place where he resides.

77. That finding cannot be called into question by the arguments of the Danish government relating to the existence of harmonised jurisdiction rules or by those of the referring court relating to their non-existence.

(3) Harmonisation of the rules of jurisdiction concerning debt relief proceedings

78. According to the referring court, given the lack of harmonised rules on debt relief, there are no less invasive means available to achieve that result than restricting access to debt relief proceedings to debtors living in Denmark.

79. By contrast, the Danish government points out that there are harmonised rules on international jurisdiction in debt adjustment cases. It submits that to interpret Article 45 TFEU as precluding a rule of jurisdiction such as the Danish rule would hamper the effective implementation of Regulation 2015/848. Under Article 3(1) of Regulation 2015/848, in the circumstances of the present case, the Swedish courts have jurisdiction to deal with the situation of a debtor who resides and lives in Sweden. The Danish rule of jurisdiction is not materially different from the rule of international jurisdiction under that regulation.

80. Those arguments cannot succeed.

81. As I stated in point 25 of this Opinion, Regulation 2015/848 is not applicable ratione temporis to the main proceedings. Nonetheless, regard should be had to the fact that the Danish rules providing for the residence condition continue to be applied in that Member State whilst other Member States have applied the rules laid down in Regulation 2015/848 since 26 June 2017.

82. Under the fourth subparagraph of Article 3(1) of Regulation 2015/848, the centre of main interests of an individual, other than someone exercising independent business or professional activity, is presumed to be that person’s place of habitual residence until proven otherwise. Regardless of the fact that the concept of ‘habitual residence’ under the fourth subparagraph of Article 3(1) of Regulation 2015/848 does not correspond to the concept of ‘residence’ under the Danish legislation, this provision of Regulation 2015/848 does not automatically refer the debtor to the courts of his place of residence. It is merely a rebuttable presumption.

83. Thus, on the one hand, the solution provided for by Regulation 2015/848 constitutes, in the words of the referring court, an illustration of ‘a less invasive means’ to achieve the objective of the residence condition, as defined by the referring court and the Danish Government.

84. On the other hand, legislation specifying a residence condition, such as the Danish legislation at issue, might affect the operation of Regulation 2015/848 in the Member States bound by it should it transpire that, where appropriate, the presumption laid down in the fourth subparagraph of Article 3(1) of Regulation 2015/848 could be rebutted, for example, in favour of the place where the work is carried out. In that case, the Danish legislation would ignore the rebuttal of that presumption. ( 38 )

85. To sum up this part of my analysis on the harmonisation of the rules of jurisdiction, in the first place, I do not share the referring court’s view that there are no less invasive means of achieving the objective specified for the residence condition. In the second place, contrary to what the Danish Government claims, the existence of the rules of jurisdiction laid down by Regulation 2015/848 cannot be used to support the argument that the Danish legislation complies with EU law.

(4) Final conclusions

86. To summarise the considerations that I have laid down so far, I observe that the residence condition laid down in the Danish legislation does not seem to be applied consistently, which may indicate that this condition goes beyond what is necessary for the purposes of monitoring the debtor’s situation and having knowledge of the situation in the place where he resides. This is confirmed by the fact that the residence condition relates solely to the date of submission of the application. Lastly, those considerations are not called into question by the arguments relating to Regulation 2015/848.

87. In light of all the foregoing considerations, I propose that the Court’s answer to the first question referred is that Article 45 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which an employed person who is not resident in the territory of a Member State may not submit an application for debt relief to the courts of that Member State even if he has a sufficient connection with that Member State, comparable to that which arises from residing in that territory.

D. The second question referred

88. By its second question, which is posed in the event that the first question is answered in the affirmative, the referring court asks whether a worker who does not fulfil the residence condition should nevertheless be able to obtain a debt adjustment where the other substantive conditions are satisfied, which would oblige private creditors to challenge a reduction or total loss of the debt owed to them by a debtor who has moved abroad.

89. It must be said that the second question gives rise to some uncertainty as to the true purpose of the referring court’s question. It appears from the way this question is phrased that the referring court has doubts about the effect of Article 45 TFEU in circumstances such as those of the present case.

90. In that regard, the Commission submits that the main proceedings do not directly concern relations between individuals and therefore the question of whether Article 45 TFEU has direct effect on those relations is irrelevant. The Danish government considers that, in the circumstances of the case, the application of Article 45 TFEU would give rise to an incidental horizontal effect.

91. I observe that, in the present case, it is national provisions which are being assessed in the light of Article 45 TFEU and not individuals’ actions to enforce obligations against other individuals. ( 39 ) Furthermore, it is plain that national provisions such as those at issue in the present case fall within the scope of Article 45 TFEU. Where such national provisions are not in accordance with the Treaty, they should not apply, whether in a dispute between individuals or between an individual and an emanation of the State.

92. In the alternative, even if it is considered that the second question should be analysed in light of the obligations imposed on the creditors of a debtor who successfully brings debt relief proceedings, account should be taken of the fact that the residence condition, such as that at issue in the main proceedings, constitutes a connecting factor specified by a rule of jurisdiction. As I stated in my previous considerations, rules on jurisdiction do not, at least directly, confer substantive rights or impose substantive obligations on individuals. In the present case, the national rule on jurisdiction only allows an application to be made for debt relief proceedings to be opened before a Danish court. It is the order of that court which confers rights or imposes obligations on individuals.

93. Lastly, I cannot rule out that the referring court seeks essentially by its second question to ascertain what consequences it should draw from the Court’s forthcoming judgment in the present case should the first question be answered in the affirmative.

94. It is true that, in the context of the preliminary ruling procedure, it is not for the Court to interpret the national law of a Member State, nor to decide how that Member State should comply with its interpretation of EU law. However, in order to provide a useful answer to the referring court, I shall make some observations on this point.

95. In that regard, I would point out that the non-compliance of a residence condition with Article 45 TFEU does not necessarily mean that that condition is invalid. That non-compliance is merely due to the fact that under a national provision, in the particular case, a debtor cannot obtain a debt relief order even if he has a sufficient connection with the territory of that Member State.

96. In this and other similar cases, a national court is not obliged to dismiss outright the residence condition and apply the national legislation in question without requiring any connection to exist between the debtor and Danish territory.

97. On the other hand, it could consider a more nuanced approach, consisting, where appropriate, in relaxing the residence condition so that Danish courts could rule on debt relief applications where there is a sufficient connection between the debtor and Danish territory. In fact, as I stated in point 37 of this Opinion, in particular in the interests of the proper administration of justice, the vast majority of rules of jurisdiction are based on the idea that a connection must exist between the competent forum and the situation in question. All that is hence needed is simply for the rigidity of the residence condition specified in the Danish legislation to be relaxed, allowing greater scope for the proximity principle thus defined.

98. In the light of this reasoning, I propose that the Court’s answer to the second question should be that Article 45 TFEU must be interpreted as meaning that, in circumstances such as those in the main proceedings, it precludes the application of the national legislation at issue, irrespective of whether debt relief proceedings could lead to obligations being imposed on individuals.

99. I note in this regard that the fact that those individuals must bear the reduction or extinction of claims they hold against a debtor who has moved abroad results from a decision by the Danish court ruling on the application for debt relief.

VI. Conclusion

100. In the light of all the foregoing considerations, I propose that the Court give the following answer to the questions referred by the Østre Landsret (High Court of Eastern Denmark, Denmark): (1) Article 45 TFEU must be interpreted as precluding national legislation, such as that at issue in the main proceedings, under which an employed person who is not resident in the territory of a Member State may not submit an application for debt relief to the courts of that Member State, even if he has a sufficiently close connection with that Member State, comparable to that which results from residing in that territory. (2) Article 45 TFEU must be interpreted, in circumstances such as those in the main proceedings, as precluding the application of the national legislation at issue, irrespective of whether debt relief proceedings may lead to obligations being imposed on individuals.

( 1 ) Original language: French.

( 2 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704, paragraph 32).

( 3 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704).

( 4 ) Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

( 5 ) Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

( 6 ) Regulation of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19).

( 7 ) Council Regulation of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1). See recital 33 of this regulation.

( 8 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704, paragraph 32).

( 9 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704, paragraph 23).

( 10 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704).

( 11 ) Judgment of 8 November 2012, Radziejewski (C‑461/11, EU:C:2012:704, paragraph 24).

( 12 ) Judgment of 22 November 2012 (C‑116/11, EU:C:2012:739).

( 13 ) See, inter alia, Jault-Seseke, F., Robine, D., ‘Le règlement 2015/848: vin nouveau et vieilles outres’, Revue critique de droit international privé, 2016, p. 21, paragraph 18; Hess, B., Oberhammer, P., Bariatti, S., Koller, C., Laukemann, B., Requejo Isidro, M., Villata, F.C. (eds.), The Implementation of the New Insolvency Regulation: Improving Cooperation and Mutual Trust, Nomos, 2018, p. 65.

( 14 ) See the legal writings quoted in footnote 13. See also Van Calster, G., ‘COMIng, and Here to Stay: The Review of The European Insolvency Regulation’, European Business Law Review, 2016, p. 739.

( 15 ) See also recital 10 of Regulation 2015/848, according to which ‘the scope of this Regulation should also extend to proceedings providing for a debt discharge or a debt adjustment in relation to consumers and self-employed persons, for example by reducing the amount to be paid by the debtor or by extending the payment period granted to the debtor. Since such proceedings do not necessarily entail the appointment of an insolvency practitioner, they should be covered by this Regulation if they take place under the control or supervision of a court. In this context, the term “control” should include situations where the court only intervenes on appeal by a creditor or other interested parties.’

( 16 ) See Article 84 of Regulation 2015/848.

( 17 ) Council Decision 2005/790/EC of 20 September 2005 on the signing, on behalf of the Community, of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2005 L 299, p. 61).

( 18 ) As is apparent from recital 7 of Regulation 2015/848, proceedings excluded from the scope of Regulation No 1215/2012 pursuant to Article 1(2)(b) thereof should be covered by Regulation 2015/848. In this vein, with regard to the relationship between the predecessor of Regulation 2015/848 (Regulation No 1346/2000) and Regulation No 44/2001, see judgment of 4 September 2014, Nickel & Goeldner Spedition (C‑157/13, EU:C:2014:2145, paragraph 21). The Court has followed the same reasoning in other contexts. See, by analogy, judgments of 6 October 2015, Matoušková (C‑404/14, EU:C:2015:653, paragraph 34), and of 1 March 2018, Mahnkopf, C‑558/16, EU:C:2018:138, paragraph 41).

( 19 ) See, by analogy, my Opinion in Mahnkopf (C‑558/16, EU:C:2017:965, point 73).

( 20 ) See the third subparagraph of Article 1(1) of Regulation 2015/848. See also recital 9 thereof.

( 21 ) See the last sentence of recital 7 of Regulation 2015/848, according to which the mere fact that national proceedings are not listed in Annex A to that Regulation does not imply that these proceedings are covered by Regulation No 1215/2012.

( 22 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704, paragraphs 52 and 53).

( 23 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704).

( 24 ) See, inter alia, judgment of 7 May 1998, Clean Car Autoservice (C‑350/96, EU:C:1998:205, paragraphs 29 and 30).

( 25 ) As an illustration, see my Opinion in KP (C‑83/17, EU:C:2018:46, point 56).

( 26 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704, paragraphs 30 and 31).

( 27 ) Judgment of 8 November 2012, Radziejewski (C‑461/11, EU:C:2012:704, paragraph 33). See also judgments of 16 March 2010, Olympique Lyonnais, (C‑325/08, EU:C:2010:143, paragraph 38), and of 5 December 2013, Zentralbetriebsrat der gemeinnützigen Salzburger Landeskliniken (C‑514/12, EU:C:2013:799, paragraph 36).

( 28 ) Judgment of 8 November 2012, Radziejewski (C‑461/11, EU:C:2012:704, paragraph 44). In her Opinion in that case, having explained the position of the Swedish Government, Advocate General Sharpston stated: ‘A debt relief decision must clearly be based on a proper and detailed assessment of the actual personal and financial position of the debtor.’ Advocate General Sharpston likewise recognised that ‘the competent authority of a Member State must be in a position to collect, examine and verify information submitted so as to make an informed decision about whether the debtor is eligible for debt relief. That is fully consistent with the principle of sound administration. Measures taken for that purpose thus have a legitimate objective’. See her Opinion in Radziejewski (C‑461/11, EU:C:2012:570, point 59).

( 29 ) Judgment of 8 November 2012, C‑461/11, EU:C:2012:704.

( 30 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704).

( 31 ) Judgment of 8 November 2012, Radziejewski (C‑461/11, EU:C:2012:704).

( 32 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704).

( 33 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704).

( 34 ) In this respect, these circumstances partly mirror those in the case which gave rise to Radziejewski. In that case, the applicant’s employer was Swedish and the applicant was subject to ‘unlimited income tax liability’ in Sweden, a factor emphasised by the Court in its finding that the condition of residence went beyond what was necessary in order to establish the debtor’s financial and personal situation satisfactorily. See judgment of 8 November 2012, Radziejewski (C‑461/11, EU:C:2012:704, paragraph 48).

( 35 ) A gives the example of an applicant who lives in Denmark but works in another Member State, a case in which a Danish court has to rule on an application for debt relief on the basis of information from that other Member State, relating, in particular, to the applicant’s outgoings and tax situation. In the same vein, A refers to the situation of an applicant who has worked abroad.

( 36 ) See my Opinion in the case of C (C‑376/14 PPU, EU:C:2014:2275, footnote 37).

( 37 ) Judgment of 8 November 2012 (C‑461/11, EU:C:2012:704, paragraph 47).

( 38 ) Such a situation could lead to deadlock provided that the term ‘Member State’ in Article 3(1) of Regulation 2015/848 should not be understood as referring to all Member States to which that regulation applies. In that case, the employed person would not be able to submit an application for debt relief proceedings to be opened either before the Danish courts or those of another Member State. In this regard I note that unlike, inter alia, Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6), Regulation 2015/848 does not specify that the term ‘Member State’ means Member States to which this operative part applies. However, it seems to me that such an interpretation of the term ‘Member States’ was proposed by some authors when the interpretation of Article 39 of Regulation No 1346/2000, which provided that any creditor who has his habitual residence, domicile or registered office in a Member State other than the State of the opening of proceedings had the right to lodge claims in the insolvency proceedings in writing. See Herchen, A., in: Pannen, K. (ed.), European Insolvency Regulation, De Gruyter, Berlin, 2007, p. 465.

( 39 ) See, a contrario, judgment of 6 June 2000, Angonese (C-281/98, EU:C:2000:296).