Case C-294/02

Commission of the European Communities

v

AMI Semiconductor Belgium BVBA and Others

(Arbitration clause – Designation of the Court of First Instance – Jurisdiction of the Court of Justice – Parties in liquidation – Capacity to be parties to legal proceedings – Regulation (EC) No 1346/2000 – Insolvency proceedings – Recovery of advances – Reimbursement under a clause of the contract – Joint and several liability – Recovery of sums paid but not due)

Opinion of Advocate General Kokott delivered on 23 September 2004

Judgment of the Court (First Chamber), 17 March 2005.

Summary of the Judgment

1. Procedure – Action brought before the Court on the basis of an arbitration clause – Jurisdiction of the Court of Justice as an institution comprising both the Court of Justice and the Court of First Instance – No requirement that the arbitration clause should indicate the Community Court having jurisdiction

(Art. 238 CE)

2. Procedure – Action brought before the Court on the basis of an arbitration clause – Action brought by a Community institution against an undertaking subject to insolvency proceedings – No Community provisions on the matter – Reference to principles common to the procedural laws of the Member States – Principles laying down the circumstances in which such an action is inadmissible

(Art. 238 EC; Council Regulation No 1346/2000, Arts 4(2)( f), 16 and 17)

3. Procedure – Application initiating proceedings – Subject-matter of the dispute – Definition – Amendment during the proceedings – Not permitted

(Rules of Procedure of the Court, Arts 38 and 42)

1. Since the term ‘Court of Justice’, as used in the Treaty, does not refer to one Community court or the other but to the Community institution comprising both the Court of Justice and the Court of First Instance, the reference to the ‘Court of Justice’ in Article 238 EC must be taken to be a reference to that institution, and it is to the latter that a contract must refer in order for it to be possible for jurisdiction to be conferred on either of the Community courts.

Since the Treaty does not lay down any particular wording to be used in an arbitration clause, any wording which indicates that the parties intend to remove any dispute between them from the purview of the national courts and to submit them to the Community courts must be regarded as sufficient to give the latter jurisdiction under Article 238 EC.

(see paras 49-50)

2. An action brought by the Commission before the Community courts against undertakings subject to insolvency proceedings in a Member State is inadmissible.

It follows from the principles common to the procedural laws of the Member States, from which it is necessary to deduce the rules to be applied in the absence of Community provisions in the matter, that a creditor is not entitled to pursue his claims before the courts on an individual basis against a person who is the subject of insolvency proceedings but is required to observe the specific rules of the applicable procedure.

Moreover, it is clear from Regulation No 1346/2000 on insolvency proceedings that the Member States are required, on a mutual basis, to respect proceedings commenced in any one of them and that the opening of insolvency proceedings in a Member State is to be recognised in all the other Member States and is to produce the effects attributed thereto by the law of the State in which the proceedings are opened.

Consequently, the Community institutions would enjoy an unjustifiable advantage over the other creditors if they were allowed to pursue their claims in proceedings brought before the Community judicature when any action before national courts was impossible.

(see paras 68-70)

3. In accordance with Article 38 of the Rules of Procedure, parties are required to state the subject-matter of the proceedings in their originating application. It follows that, even though Article 42 of the Rules of Procedure allows new pleas in law to be introduced in certain circumstances, a party may not alter the actual subject-matter of the action in the course of the proceedings. New claims put forward for the first time at the hearing could not be allowed without depriving defendants of an opportunity to prepare a response and thereby breaching the rights of the defence.

(see para. 75)