5.

If we now consider how the concepts ‘bankruptcy, proceedings relating to the winding-up of .insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings’ in Article 1 of the Convention on jurisdiction and enforcement are to be understood the starting point chosen by the respondent is, in my view the correct one. According to him the first thing to do is to determine the essential nature of the bankruptcy, winding-up or analogous proceedings with reference to the principles applicable in the legal systems of the Member States. In this way one comes to the conclusion that the purpose of such bankruptcy and winding-up proceedings is to get in and realize under the supervision of an officially appointed liquidator or trustee in bankruptcy the assets of the insolvent company or property of the person unable to meet his debts in order to pay off the creditors on a pro rata basis. The essential concern of such a proceeding is to get in the entire assets or property of the insolvent company or debtor by adopting a procedure specially designed for this purpose. The finding in the Jenard Report that individual proceedings connected with bankruptcy or winding-up are to be regarded as bankruptcy or winding-up proceedings if they arise directly out of the bankruptcy or winding-up is useful. Moreover Article 22 (4) of the relevant Benelux Treaty, which has not yet entered into force, uses such wording. In the corresponding bilateral treaties such as the Franco-Belgian Treaty of 8 July 1899 or the Belgo-Netherlands Treaty of 28 February 1925 the determinative question is whether the claim put forward is founded in bankruptcy or winding-up, whether the legal consequence of the claim put forward is provided for by the law of bankruptcy or winding-up (cf. Schlosser loc. cit., p. 406). So with individual actions the question is whether there is a very close material connexion with bankruptcy or winding-up proceedings so that those rules and special features as it were determine the nature of the proceedings. The latter undoubtedly applies to rights such as those arising out of the invalidation of certain assignments and payments prior to bankruptcy or winding-up which are peculiar to bankruptcy and winding-up and which are therefore granted under the law of bankruptcy and winding-up and are not merely general rights modified for the purpose of bankruptcy and winding-up. I draw the Court's attention to the Report on the Preliminary Draft of a Convention on bankruptcy and winding-up by Noël-Lemontey, which in this connexion contains the conclusion that the rights to invalidate certain assignments and payments prior to bankruptcy or winding-up have their origin in bankruptcy and winding-up. I also refer to comparative law research by Schlosser in his treatise (page 407), to which I again refer, and which shows that such an opportunity of invalidating pre-bankruptcy assignments and payments is known in the law of bankruptcy and winding-up of all six original Member States of the Community. However, the same must also be assumed to apply to rights, which, although they arise under the general law, are modified by the law of bankruptcy and winding-up to such a substantial extent as to suggest the conclusion that viewed as a whole their nature is entirely determined by the law of bankruptcy and winding-up. In my view this represents an intelligible formula enabling decisions to be given which is definitely supported by the conclusions of the Jenard Repon. This formula also includes the liability created in Article 99 of the relevant French Law in this case. That liability presupposes the winding-up of a company; the court which made the winding-up order also has jurisdiction to consider it. The ‘syndic’ may ask for a declaration of liability or the court may make the declaration of its own motion and the purpose of the declaration is to make the manager answerable for the company's debts and consequently not give compensation for specific damage. We also come across an unusual reversal of the burden of proof, which moreover is not limited to negligence and what is more is only discharged if it is proved that the person whom it is sought to make liable, has applied himself to the management of the business with the requisite energy and diligence. Last but not least it must also be borne in mind that if the company's debts are not paid the manager whom it is sought to make liable may himself be adjudicated bankrupt and penalties may be imposed upon him for specific bankruptcy offences. Viewed in this way the interpretation given by the applicant in the main action that the application is simply a special application for a declaration of liability based on a particular rule concerning liability of civil and commercial law according to which liability arises if particular conditions are fulfilled can certainly not be regarded as convincing. A comparison between Article 244 and Article 248 of the French ‘Code des Sociétés [Companies Act]’ surely refutes this interpretation. According to the first mentioned article the ‘administrateurs [directors]’ of a public company are liable for breaches of the provisions governing public companies, and of the Memorandum and Articles and for mistakes made in the management of the company and according to the commentaries they give rise to payment of compensation if ‘faute [negligence]’ is proved. On the other hand Article 248 provides : ‘En cas de règlement judiciaire ou de liquidation des biens de la société, les personnes visées par la législation sur le règlement judiciaire, la liquidation des biens, la faillite personelle et les banqueroutes, peuvent être rendues responsables du passif social dans les conditions prévues par ladite législation. [In the event of a “règlement judiciaire” or a “liquidation des biens” of a company the persons specified by the laws relating to the “règlement judiciaire”, the “liquidation des biens”, the “faillite personnelle” and “banqueroutes” may be declared liable for the company's liabilities in accordance with the conditions laid down by the said laws].’ On the contrary more convincing is the respondent's interpretation which stresses that the real purpose of the proceedings in question is to get in all the outstanding assets of a company, so that there is a sort of restitution in kind in that the situation which would exist had it not been for the mistakes in the management of the company has to be reestablished. If however the proceedings are for compensation for running down the assets it is in fact natural, having regard to the function of the proceedings under Article 99 of law No 67-563, to say that they are clearly part and parcel of the winding-up proceedings. In support of the view that the issue is whether a claim arises out of bankruptcy or winding-up the representative of the Federal Government has referred lastly, with justification, to Article 27 of the Convention on jurisdiction and enforcement. This article provides in connexion with the recognition of judgments for the court of the Member State in which recognition is sought to consider certain preliminary questions, for example status. Although however this only applies to the matters mentioned in subparagraph 1 of the second paragraph of Article 1 to which the Convention does not apply and does not relate to the law on bankruptcy and winding-up, there is surely every reason to define with caution the scope of the Convention as far as concerns rights which are conditional upon an adjudication or winding-up order.