OPINION OF ADVOCATE GENERAL

SZPUNAR

delivered on 2 March 2017 ( 1 )

Case C‑54/16

Vinyls Italia SpA, in liquidation

v

Mediterranea di Navigazione SpA

(Request for a preliminary ruling

from the Tribunale Ordinario di Venezia (Venice District Court, Italy))

‛Request for a preliminary ruling — Judicial cooperation in civil matters — Insolvency proceedings — Acts detrimental to all of the creditors — Circumstances in which an act may be challenged — Regulation (EC) No 593/2008 (Rome I) — Choice of law applicable to contractual obligations — Choice of law in the circumstances set out in Article 3(3) of the Rome I Regulation’

I. Introduction

1. The request for a preliminary ruling in the present case provides an opportunity for the Court to expand its case-law on the effect of the opening of insolvency proceedings on the ability to challenge legal acts detrimental to all of the creditors. In EU law this matter is covered by Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings. ( 2 ) As the present request for a preliminary ruling illustrates, this issue continues to give rise to much uncertainty despite the fact that it has recently formed the subject-matter of several Court judgments. ( 3 ) In addition, the answer given by the Court will certainly affect the practice of applying in future the new insolvency Regulation 2015/848 of 20 May 2015, ( 4 ) in which the rules governing the law applicable to legal acts detrimental to all creditors were laid down unchanged in Article 16 thereof.

2. At the same time the Court will have an opportunity to clarify matters of major importance not only in the context of international insolvency proceedings, but also general issues of private international law. Firstly, it will be necessary to interpret the phrase ‘conflict of laws’ which was used to define the substantive scope of 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). ( 5 ) Secondly, the request for a preliminary ruling will make it possible to rule on the effects of the choice of law made in relation to purely domestic situations, that is to say, those which involve no conflict of law.

II. Legal framework

A. EU law

3. Under Article 4(2)(m) of Regulation No 1346/2000: ‘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. It shall determine in particular: … (m) the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors’.

4. Article 13 of that regulation provides: ‘Article 4(2)(m) shall not apply where the person who benefited from an act detrimental to all the creditors provides proof that: — the said act is subject to the law of a Member State other than that of the State of the opening of proceedings, and — that law does not allow any means of challenging that act in the relevant case.’

5. Article 1 of the Rome I Regulation, entitled ‘Material scope’, provides: ‘This Regulation shall apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters. …’

6. However, under paragraphs 1 and 3 of Article 3 of the Rome I Regulation, entitled ‘Freedom of choice’: ‘1. A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract. … 3. Where all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement.’

B. Italian law

7. The relevant provision of Italian law, namely Article 67(2) of the Legge fallimentare (Law on insolvency), provides: ‘The following shall also be set aside if the insolvency administrator demonstrates that the other party was aware of the debtor’s insolvency: liquidated and payable debts, acts done for consideration and those conferring preferential creditor status in respect of debts, including of third parties, established at the same time, if they were completed within at least six months of the declaration of insolvency’.

8. Under Article 167 of the Codice de procedura civile (Code of civil procedure): ‘In its defence the defendant must put forward all its pleas of defence and, setting out its position with respect to the matters of fact raised by the applicant, state its contact details, tax identification number, the evidence on which it intends to rely and the documents which it is placing on the case file, and submit the forms of order sought. On pain of loss of the related right, the defendant must raise any counterclaims and procedural objections and objections of substance which the court cannot raise of its own motion’.

C. Law of the United Kingdom

9. Under section 239(2) and (3) of the Insolvency Act 1986, in force in England and Wales: ‘2. Where the company has at a relevant time [as defined by the Insolvency Act] given a preference to any person, the [insolvency administrator] may apply to the court for an order under this section. 3. Subject as follows, the court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if the company had not given that preference’.

III. The main proceedings

10. Vinyls Italia SpA, a company incorporated under Italian law (hereinafter: ‘Vinyls Italia’), having its head office in Venice (Italy), carries on activity in the chemicals sector.

11. For the purpose of transporting chemical substances Vinyls Italia concluded on 11 March 2008, with Mediterranea di Navigazione SpA (hereinafter: ‘Mediterranea’), a company having its head office in Ravenna (Italy), a maritime charter contract for a vessel sailing under the Italian flag.

12. Pursuant to the maritime charter contract, Vinyls Italia made to Mediterranea two payments totalling EUR 447740.27, which were made 17 and 9 days respectively after the deadlines laid down in the contract, which fell on 24 February 2009 and 24 March 2009.

13. Several months after those payments had been made, Vinyls Italia was placed under extraordinary administration, which was subsequently converted into insolvency.

14. Vinyls Italia later brought an action against Mediterranea, pursuant to Article 67(2) of the Italian Law on insolvency, requesting that the payments made to the defendant be declared void and that the defendant be ordered to repay to it the amount of EUR 447740.27, plus interest. Vinyls Italia pointed out that those payments had been made at a time when its situation of insolvency was known in the light of publicly available information.

15. Mediterranea requested application of Article 13 of Regulation No 1346/2000, arguing that the payments had been made pursuant to a maritime charter contract which the parties had elected should be governed by English law. That law, which is the one applicable to the assessment of the rights and obligations arising from the contract (hereinafter: the ‘lex contractus’ or the proper law of the contract) ( 6 ), does not allow — as the defendant claims — the payments made to it to be challenged. In order to prove that matter, Mediterranea submitted a document drawn up by an English lawyer stating that under English law it is not possible to challenge the payments made by Vinyls Italia in this case.

16. The referring court points out that the provisions of Italian law relevant to this case, which would allow the payments made to be challenged, cannot apply insofar as the defendant relies on the effectiveness of the derogation provided for in Article 13 of Regulation No 1346/2000.

17. Article 4(2)(m) of that regulation states that the question of the voidness, voidability or unenforceability of legal acts detrimental to all the creditors is governed by the law applicable to insolvency proceedings (‘the lex fori concursus’). However, Article 13 of that regulation allows the application of the lex fori concursus to be derogated from on condition that the party concerned provides proof that the law applicable to the act is the law of a Member State other than that of the State of the opening of proceedings and that that law does not allow any means of challenging that act in the relevant case.

18. The Tribunale Ordinario di Venezia (Venice District Court) notes that the defendant company requested the application of Article 13 of Regulation No 1346/2000 after the time-limit laid down in Italian law for raising procedural objections had passed.

19. The national court notes further that English law does not rule out, in general or in the abstract, the possibility of challenging acts carried out shortly before a declaration of insolvency. In the view of the referring court, the document submitted by the defendant shows that English law provides for the possibility of setting aside acts where the act concerned was carried out with ‘preference’ towards an individual creditor.

20. The referring court has also expressed uncertainty about the actual possibility of applying, in this case, the Rome I Regulation, which concerns, under Article 1(1) thereof, ‘contractual obligations’, ‘in situations involving a conflict of laws’.

21. The effect of the choice of law made in the circumstances set out in Article 3(3) of the Rome I Regulation on the possibility for a party to rely effectively on Article 13 of Regulation No 1346/2000 is also unclear to the Tribunale Ordinario di Venezia (Venice District Court).

IV. The questions referred and the procedure before the Court

22. It is in those circumstances that the Tribunale Ordinario di Venezia (Venice District Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Does the “proof” that Article 13 of Regulation No 1346/2000 requires of the person who benefited from an act detrimental to all the creditors, in order to prevent that act from being challenged in accordance with the rules of the lex fori concursus, include a requirement to raise a procedural objection in the strict sense of that term within the periods laid down by the procedural rules of the lex fori, when seeking to rely on the derogation provided in the regulation and to prove that the two conditions laid down by that provision have been met? or Does Article 13 of Regulation No 1346/2000 apply when the party concerned has requested its application during the proceedings, even when the time limits laid down by the procedural rules of the lex fori for lodging procedural objections have expired, or even where that provision is applied by the court of its own motion, provided that the party concerned has provided proof that the detrimental act is subject to the lex causae of another Member State whose law does not permit the act to be challenged by any means in the specific circumstances of the case? (2) Must the reference to the rules of the lex causae in Article 13 of Regulation No 1346/2000, for establishing whether “that law does not allow any means of challenging that act in the relevant case”, be interpreted as meaning that the party bearing the burden of proof must show that, in the specific circumstances of the case, the lex causae does not provide, in general or in the abstract, any means to challenge an act such as that which, in the present case, was considered detrimental — namely the payment of a contractual debt — or as meaning that the party bearing the burden of proof must show that, where the lex causae allows an act of that type to be challenged, the conditions to be met in order for such a challenge to be upheld in the relevant case, which differ from those of the lex fori concursus, have not actually been fulfilled? (3) Is the derogation provided for in Article 13 of Regulation No 1346/2000 — bearing in mind its objective of protecting the legitimate expectations of the parties concerning the stability of the act in accordance with the lex causae — applicable even when the parties to a contract have their head offices in a single Member State, whose law can therefore be expected to be intended to become the lex fori concursus in the event of insolvency on the part of one of those parties, and the parties, via a contractual clause designating the law of another Member State as the law applicable, exclude the setting aside of acts performed under the contract from the application of the mandatory rules of the lex fori concursus imposed in order to protect the principle that all creditors should be treated equally, to the detriment of all the creditors in the event of insolvency? (4) Must Article 1(1) of Regulation No 593/2008 be interpreted as meaning that “situations involving a conflict of laws” for the purposes of the application of that regulation also include a situation involving a charter contract concluded in a Member State between companies with their head offices in the same Member State, with a clause designating the law of another Member State as the law applicable? (5) If the answer to Question 4 is in the affirmative, must Article 3(3) of Regulation No 593/2008, read in conjunction with Article 13 of Regulation No 1346/2000, be interpreted as meaning that where the parties choose to subject a contract to the law of a Member State other than that in which “all the other elements relevant to the situation” are located, that does not affect the application of mandatory rules under the law of the latter Member State, which apply as the lex fori concursus, for the purpose of challenging acts performed before the insolvency to the detriment of all the creditors, thereby prevailing over the derogation provided for in Article 13 of Regulation No 1346/2000?’

23. The request for a preliminary ruling was received at the Registry of the Court on 29 January 2016.

24. Written observations have been submitted by the parties to the main proceedings, by the Italian and Greek Governments and by the European Commission. The parties, the Italian Government and the Commission also attended the hearing, which was held on 1 December 2016.

V. Analysis

A. The first question referred

25. The first question was broken down in two parts by the referring court and contains two alternative questions.

26. The initial part of the first question may imply that the referring court seeks clarification as to whether a person who benefited from a legal act detrimental to all the creditors, must, in order to have Article 13 of Regulation No 1346/2000 applied, raise a relevant objection and rely on that provision. However, the question is based on the assumption that that person is requesting application of Article 13 of Regulation No 1346/2000. I consider that the phrase ‘when seeking to rely on the derogation provided in the regulation’ further in the question should be interpreted thus.

27. The referring court seeks clarification as to whether a person who benefited from a legal act detrimental to all the creditors must — in order to prevent that act from being challenged on the basis of the lex fori concursus — rely on Article 13 of Regulation No 1346/2000 within the period laid down by the procedural rules of the State whose courts have jurisdiction to deal with the case.

28. The second alternative question, on the other hand, concerns two issues. The first seeks an answer to the question whether the party concerned can request application of Article 13 of Regulation No 1346/2000 without regard to the time limitations laid down in the lex fori processualis. Therefore, the first of the questions and the first option set out in the alternative question concern the same issue.

29. The second of the matters concerns the obligation on a court to apply Article 13 of the Regulation of its own motion.

30. A finding that it is for the court to apply Article 13 of Regulation No 1346/2000 of its own motion would remove the need to decide whether or not the party concerned must rely on that provision within the periods laid down by the procedural rules of the lex fori. Thus — contrary to the order proposed by the national court in the first part of the request — I would like first to address the obligation for a court to apply Article 13 of Regulation No 1346/2000 of its own motion.

31. Only if it is found that EU law does not impose such an obligation on the national court will it then be necessary to consider whether or not the party concerned must rely on Article 13 of Regulation No 1346/2000 within the period laid down by the procedural rules of the lex fori.

32. Therefore, in order to provide the referring court with a useful answer to the first question, it is necessary to determine whether or not EU law imposes on the national court an obligation to apply Article 13 of Regulation No 1346/2000 of its own motion in order to prevent an act detrimental to all the creditors from being challenged on the basis of the lex fori concursus, where the party concerned has provided evidence that the conditions laid down in that provision have been met.

33. If the answer to that question is in the negative, it will be necessary to consider the following question, namely whether the procedural rules of the lex fori specify whether and how the party concerned — in proving that the conditions laid down in Article 13 of Regulation No 1346/2000 are met — must rely on that provision in order to prevent that act from being challenged on the basis of the lex fori concursus.

1. Preliminary remarks on the derogation provided for in Article 13 of Regulation No 1346/2000

34. Under Article 4 of Regulation No 1346/2000, insolvency proceedings and their effects are subject to the law of the Member State within the territory of which proceedings are opened (lex fori concursus). That law lays down all the conditions on the opening of insolvency proceedings and also the rules on the conduct and conclusion thereof. Under Article 4(2)(m), that law is decisive in particular in the assessment of the rules relating to the voidness, voidability or unenforceability of legal acts detrimental to all the creditors.

35. However, the rule laid down in Article 4 of Regulation No 1346/2000 has its limits, which are dictated — as recital 24 of that regulation states — by the protection of economic operators’ legitimate expectations and the objective of providing legal certainty. To that end, the regulation lays down exceptions in Article 5 to 15 which permit derogations from the law of the Member State within the territory of which proceedings are opened.

36. Regulation No 1346/2000, which is generally favourable to uniformity of the lex fori concursus, is based on the principle of ‘attenuated universality’. This means that the entirety of the matters relating to the insolvency proceedings, with only certain exceptions, must be subject to the lex fori concursus.

37. Amongst those exceptions, an important role is played by Article 13 of Regulation No 1346/2000, under which, after specific conditions have been satisfied, the law of the State within the territory of which proceedings are opened is not to apply to the assessment of the matters detailed in Article 4(2)(m) of the regulation, that is to say the voidness, voidability or unenforceability of legal acts detrimental to all the creditors. That provision contains a particular derogation which allows the application of the lex fori concursus to be derogated from insofar as that law permits a challenge to be made against an act which is prejudicial to all of the creditors. However, a person who benefited from such an act must prove that that act is subject to the law of a Member State other than that of the State of the opening of proceedings, and that that law does not allow any means by which to challenge that act.

38. The purpose of Article 13 of Regulation 1346/2000 is to protect the legitimate expectations of the person who benefited from the act detrimental to all the creditors. That provision appears to be based on the assumption that that person has legitimate expectations concerning the stability of the act assessed in the light of the law to which it is subject and cannot be taken unawares by the operation of the lex fori concursus as a result of the opening of insolvency proceedings.

2. The obligation on a court to apply Article 13 of Regulation No 1346/2000 of its own motion

39. In replying to the first question, it is necessary to clarify whether — as a result of the party concerned proving that the two conditions laid down in Article 13 of Regulation No 1346/2000 are met — the national court is obliged to apply that provision of its own motion and derogate from the law of the State of the opening of insolvency proceedings (lex fori concursus) in so far as it permits an act detrimental to all the creditors to be challenged.

40. The referring court’s uncertainty in that respect may be explained by the wording of Article 13 of Regulation No 1346/2000, which, on the one hand, obliges the parties to ‘provide proof’ that the two conditions laid down in that provision are met and, on the other, that Article 4(2)(m) ‘shall not apply’ to that proof. The categorical wording used by the legislature may lead to the conclusion that the court is obliged to act of its own motion provided that the party concerned submits the evidence to show that both conditions laid down in Article 13 of the regulation are satisfied.

41. However, I do not consider that such a position is justified.

42. The observations made in the report by M. Virgós and E. Schmit ( 7 ), which, although it concerns the convention on insolvency proceedings, is nevertheless generally recognised as a source of valuable guidance in interpreting the provisions of the regulation, are very helpful in interpreting Regulation No 1346/2000. ( 8 )

43. That report stated that the mechanism laid down in Article 13 of Regulation No 1346/2000 is based on the ‘veto’ principle. The authors of the report point out that the party concerned must not only seek to avoid application of the law of the State of the opening of insolvency proceedings but must also ‘claim’ it (‘Article 13 represents a defence against the application of the law of the State of the opening, which must be pursued by the interested party, who must claim it’ — paragraph 136).

44. The Court also puts forward arguments to that effect in its judgment in Nike, which points out that the burden of proof that the conditions laid down in Article 13 of Regulation No 1346/2000 have been met lies with the party ‘relying on that article’. ( 9 )

45. In my view, EU law links the application of the exception laid down in Article 13 of Regulation No 1346/2000 to the judicial activity of the party which benefited from the detriment to the creditors.

46. I also note that the relevant part of the request for a preliminary ruling is based on the assumption that the party concerned proved that the conditions laid down in Article 13 of Regulation No 1346/2000 had been met but at the same time did not request application of that provision.

47. I doubt whether a clear distinction can be made between the two manifestations of the party’s procedural activity, which consists respectively in presenting evidence to establish the facts relevant to Article 13 of Regulation No 1346/2000 and requesting application of the exception laid down in that provision.

48. Those matters are closely connected. Where a party presents evidence in proceedings it does so to bring about a particular outcome. At this stage I do not wish to go into detail as regards the various approaches adopted in the procedural rules of the individual Member States. However, it seems to me that evidence taken at the request of the party concerned is generally intended to enable the facts relevant to a resolution of the case to be established. Therefore, I am not sure whether it is possible to take evidence at the request of the party concerned in order to establish that the conditions laid down in Article 13 of Regulation No 1346/2000 are met, whilst at the same time finding that the party concerned is not requesting application of that provision.

49. In any event it will be for the national court to assess whether, under the procedural rules of the relevant Member State, the party presenting evidence to show that the conditions laid down in Article 13 of Regulation No 1346/2000 are met is at the same requesting application of that provision.

3. The provisions determining the way in which the party concerned relies on the exception laid down in Article 13 of Regulation No 1346/2000

50. As I stated above, Regulation No 1346/2000 links the application of the exception laid down in Article 13 to the activity of the person who benefited from the act detrimental to all the creditors. However, that regulation does not set out the way in which the party concerned can rely on that provision. Similarly, it contains no rules on the time-limits within which a request for application of Article 13 thereof is permitted.

51. The information which the national court provides in the request for a preliminary ruling leads to the conclusion that, in order for Article 13 of Regulation No 1346/2000 to be applied, Italian law requires that the party concerned raise a relevant procedural objection before the expiry of a specific period.

52. Therefore, by its first question — in so far as it does not concern the obligation to apply Article 13 of No 1346/2000 of a court’s own motion — the national court seeks to clarify whether a Member State is authorised to specify the way in which Article 13 of Regulation No 1346/2000 must be relied on in order to avoid an act detrimental to all the creditors being challenged on the basis of the lex fori concursus.

(a) The exception laid down in Article 13 of Regulation No 1346/2000 and the procedural autonomy of the Member States

53. In its judgment in Nike European Operations Netherlands, the Court expressed the view that Article 13 of Regulation No 1346/2000 does not set out, inter alia, detailed rules on how evidence is to be elicited, what evidence is to be admissible before the appropriate national court, or the principles governing the assessment of the probative value of the evidence adduced. The Member States are authorised to establish them in accordance with the principle of procedural autonomy. The rules introduced must not be less favourable than those governing similar domestic situations (principle of equivalence) and cannot make it impossible or excessively difficult to exercise the rights conferred by EU law (principle of effectiveness). ( 10 )

54. I note that, although in Nike European Operations Netherlands the Court’s attention was focused on the rules on the adduction of evidence — in the absence of appropriate arrangements in Regulation No 1346/2000 itself — the Member States determine, within their procedural autonomy, the entirety of the procedural issues concerning the application of Article 13 thereof.

55. As I have already mentioned at point 48 of this Opinion, these two forms of procedural activity (requesting that evidence be elicited to establish that the conditions laid down in Article 13 of Regulation No 1346/2000 are met and relying on that provision) are closely connected. Therefore, they must be subject to the rules derived from the same legal system.

56. Following on from what was stated above, I also wish to point out that the procedural rules of the Member State having jurisdiction in a particular case may set the time-limits for lodging evidence. Nor does that regulation lay down — apart from the time-limits for lodging objections to which the request for a preliminary ruling relates — the time-limits within which the party concerned is obliged to lodge all evidence. The concentration of evidence is so closely connected with ensuring that the proceedings are properly conducted that it is difficult to detach it from the entirety of the procedural rules in force in the Member State concerned. Thus, those time-limits must be subject to the procedural rules of the Member State whose courts have jurisdiction to hear a particular case (lex fori processualis).

57. Once the time-limits for the lodging of evidence have passed, the party concerned loses the possibility of proving that the conditions laid down in Article 13 of the regulation have been met and thus will not be able to rely on the protection arising from that provision. A similar function, at least in the context under consideration, can be performed by the provisions laying down the time-limits for lodging procedural objections to which this request for a preliminary ruling relates. I therefore have no doubt that the time-limits for lodging procedural objections must also be subject to the law of the State whose courts have jurisdiction in the case.

(b) The provisions laying down the time-limits for lodging procedural objections form part of the lex fori processualis

58. In addition, it seems to me necessary to delimit the scope of the lex fori processualis and the lex causae in order to clarify which of those laws determines in this case the way in which the party concerned must request application of the exception laid down in Article 13 of Regulation No 1346/2000.

59. In the light of Article 13 of Regulation No 1346/2000 the person who benefited from an act detrimental to the creditors can have legitimate expectations as to the law applicable to that act, but only in so far as it can expect the provisions thereof to operate and determine rights and obligations outside the insolvency proceedings. The law applicable to contractual obligations, identified by the provisions of the Rome I Regulation, determine, under Article 12(1)(d) thereof, inter alia the time limits for the ‘prescription and limitation of actions’, but only in the context of ‘the various ways of extinguishing obligations’. It is not decisive in the assessment of the time-limits for lodging procedural objections. Even where the exercise of a specific procedural right (for example, by raising an objection) has substantive effects, according to the principle of lex fori processualis, the way in which those rights are enforced continues to be determined by the procedural law of the State of the court seised. This is confirmed indirectly by Article 18(2) of the Rome I Regulation, under which a contract or an act intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws which lay down the formal provisions (Article 11), provided that such mode of proof can be administered by the forum.

60. Provisions placing a time limitation on the possibility of relying on Article 13 of Regulation No 1346/2000 are, furthermore, not covered by the term ‘rules’ relating to the voidness, voidability or unenforceability of legal acts referred to in Article 4(2)(m) of that regulation. Those provisions do not form part of the system for invalidating acts and only such legal rules can be included within the scope of the lex causae, as I indicated in my Opinion in Lutz. ( 11 ) They do not concern legal protection measures taken to challenge an act.

61. In the light of my analysis I have no doubt that, in accordance with the principle of procedural autonomy, the Member States determine the way in which the party concerned must rely on Article 13 of Regulation No 1346/2000 in order to avoid a challenge to an act detrimental to all the creditors.

62. It must be left to the national court to assess whether the procedural rule which sets the time limits for lodging procedural objections is consistent with the principles of effectiveness and equivalence. There is nothing in the information provided in the request for a preliminary ruling to indicate that there has been an infringement of those principles.

63. In the light of the foregoing, I propose that the Court’s answer to the national court’s first question should be as follows: Application of the exception laid down in Article 13 of Regulation No 1346/2000 requires procedural activity on the part of the party which benefited from the act detrimental to all the creditors. However, in accordance with the principle of procedural autonomy of the Member States, it is the procedural rules of the State whose courts have jurisdiction in a particular case which specifies the way in which the party concerned — in proving that the conditions laid down in Article 13 of the regulation are met — must rely on that provision in order to avoid an act detrimental to all the creditors being challenged on the basis of the lex fori concursus.

B. The second question referred

64. By its second question the referring court seeks to clarify whether satisfaction of the requirement laid down in the second indent of Article 13 of Regulation No 1346/2000 entails a need to prove that the act is not open to challenge in general or in the abstract or that evidence is required to show that, although in principle capable of being challenged, it cannot effectively be invalidated in view of all the circumstances of the case.

65. In answering that question it should be borne in mind that Article 13 of Regulation No 1346/2000 allows the application of the law of the State of the opening of proceedings to be derogated from in favour of the law applicable to the legal act to which it is subject, provided that ‘that law does not allow any means of challenging that act in the relevant case’.

66. Interpretation of the phrase ‘in the relevant case’ would appear to be of key relevance in answering the second question.

67. The authors of the abovementioned Virgós/Schmit Report pointed out that the expression ‘in the relevant case’ must be interpreted as a requirement to provide proof that the act cannot be challenged by any means in the circumstances of the case. Thus, it is not a question of relying solely, and purely in the abstract, on the unchallengeable character of the act on the basis of a provision of the lex causae (paragraph 137).

68. Applying those considerations to EU law, it should be noted that the expression ‘in the relevant case’ appears in the Italian-language (‘nella fattispecie’) and English-language (‘in the relevant case’) versions of the regulation. Nonetheless, the Court’s case-law has already highlighted that the individual language versions of the regulation display differences in this regard and Article 13 sometimes appears to contain no phrase ‘in the relevant case’ or similar expression. ( 12 ) The need for a uniform interpretation of a provision of EU law means that, where there is divergence, the provision must be interpreted by reference to the context and purpose of the rules of which it forms part. ( 13 )

69. On the basis of those interpretation guidelines, the Court clarified, in its judgment in Nike European Operations Netherlands, that application of Article 13 of Regulation No 1346/2000 is subject to the condition that, ‘after taking account of all the circumstances of the case’, the act at issue cannot be challenged on the basis of the law governing the act (‘lex causae’). ( 14 )

70. Following on from that, I would point out that the exception laid down in Article 13 of Regulation No 1346/2000 is intended to protect legitimate expectations concerning the stability of a legal act.

71. That consideration was based on the view that the person who benefited from an act detrimental to all the creditors may rely on the law applicable to that act in so far as it determines the permissibility of, and the conditions for, challenging that act. In the abovementioned Opinion in Lutz, I noted that lapse of time is one of the circumstances which often affect the possibility of challenging an act on the basis of the lex causae. ( 15 ) Sometimes it can be established whether it is possible to challenge the act only on the expiry of the specific periods. Only then can the person who benefited from that act have confidence in its stability. In my view, Article 13 of Regulation No 1346/2000 also protects expectations concerning the validity of the legal act which formed after those circumstances had arisen.

72. However, the potential challengeability of the act concerned, assessed independently of the circumstances of a specific case, would not improve the protection of legitimate expectations. Outside of the insolvency proceedings the party concerned would have to rely on the effect of those circumstances on the possibility for challenging the act, whilst after the opening of proceedings they would be disregarded.

73. The requirement to prove that the act cannot be challenged on the basis of the law applicable to it relates — in addition to the insolvency provisions of the lex causae — also to all general provisions and principles of that law. ( 16 ) In the individual legal systems we find different and at times numerous instruments which concern the voidness or unenforceability of legal acts. It can be assumed that it is possible, at least theoretically, to challenge most acts detrimental to the creditors. Therefore, the question arises as to whether or not the requirement to present evidence of a general and abstract nature to show that the act cannot be challenged at all entails the imposition on the party concerned of excessively far-reaching obligations which remove the possibility of relying effectively on the exception laid down in Article 13 of Regulation No 1346/2000.

74. In the light of the foregoing, I propose that the Court’s answer to the national court’s second question should be as follows: In order to rely effectively on the exception laid down in Article 13 of Regulation No 1346/2000, it is sufficient for the person who benefited from an act detrimental to all the creditors to provide proof — where the lex causae permits an act of that kind to be challenged — that, although it is capable of being challenged in principle, it cannot be effectively invalidated on the basis of the lex causae after account has been taken of all the circumstances of the case.

C. The fourth question referred

75. Given that the third and fifth questions concern the effects of the choice of law made in the circumstances set out in Article 3(3) of the Rome I Regulation, I consider that it is first necessary to address the fourth question, which seeks to establish whether that regulation can itself apply in this case.

76. By its fourth question the referring court seeks guidance to enable it to define the material scope of the Rome I Regulation. It thus assumes that the regulation applies ratione temporis in this case. I consider that a number of preliminary remarks need to be made in that regard.

1. Scope ratione temporis of the Rome I Regulation

77. The temporal scope of the Rome I Regulation is determined by Article 28 thereof, under which the regulation is to apply to ‘contracts concluded as from 17 December 2009.’

78. However, the payments at issue were effected pursuant to a contract concluded on 11 March 2008, the duration of which — as Mediterranea has pointed out in its written pleadings — was subsequently extended by an addendum of 9 December 2009. This leads to the conclusion that the Rome I Regulation does not apply in the main proceedings. In both cases the events occurred prior to 17 December 2009.

79. The above assessment is not altered by the fact that the main proceedings concern supplies which were effected more than ten months after the date on which the contract was concluded. The payments were also made before 17 December 2009, that is to say, respectively 17 and 9 days after the due dates, which fell on 24 February 2009 and 24 March 2009.

80. However, I am of the view that making those payments on or after 17 December 2009 would still not have rendered the Rome I Regulation applicable.

81. The scope of the Rome I Regulation is determined by the time at which the contract was concluded, and not by the point in time at which the supplies arising from that contract were effected. In its previous case-law the Court of Justice has noted that the EU legislature ruled out the Rome I Regulation from having immediate application whereby the future effects of contracts concluded before 17 December 2009 would have been brought within its scope. ( 17 )

82. The foregoing leads me to the conclusion that the provisions of the Rome I Regulation do not apply to the assessment of the present case.

2. Jurisdiction of the Court to interpret Articles 1(1) and 3(3) of the Rome Convention

83. If the referring court were to decide that the Rome I Regulation did not apply in this case, recourse would have to be had to the system of conflict-of-law rules laid down in the Convention on the law applicable to contractual obligations, signed in Rome on 19 June 1980, ( 18 ) which was replaced by the Rome I Regulation.

84. The Rome Convention, however, is not an act of EU law. Under Articles 1(a) and 2(a) and (b) of the first protocol to that convention, the Court admittedly retains its jurisdiction to interpret it, but it can do so only at the request of certain courts of the Member State. These do not include courts acting as courts of first instance. It is clear from the request for a preliminary ruling that the Tribunale Ordinario di Venezia (Venice District Court) deals with cases at first instance.

85. I will, nonetheless, set out below my position on the interpretation of Article 3(3) of the Rome I Regulation in the context of the application of Article 13 of Regulation No 1346/2000.

86. It is for the national court to give a final ruling on whether the facts of this case justify the application of the Rome I Regulation. However, according to the settled case-law of the Court, questions referred by a national court enjoy a presumption of relevance.

87. Interpretation of EU law may also be useful to the national court. Note should be taken of the degree of convergence between the provisions of the Rome Convention and the Rome I Regulation, which — in relation to the Member States — is the successor to the convention.

3. Application ratione materiae of the Rome I Regulation arising from Article 1(1) thereof

88. By its fourth question the referring court seeks to establish whether the maritime charter contract concluded in the relevant Member State between companies having their head offices in that State, which contains a clause designating the law of another Member State, is covered by the scope ratione materiae of the Rome I Regulation.

89. I should point out that, both in its written pleadings concerning the fifth question and in its oral pleadings at the hearing, Mediterranea pointed to other circumstances — in addition to the choice of law — which, in its view, suggest that the contract entails a conflict of laws. Particular reference is made to the possibility of using a ship outside Italian territorial waters. Some of them were also identified by the court in its request for a preliminary ruling, where it indicated that part of the contract was drawn up in English and contained an arbitration clause designating the LMAA (London Maritime Arbitrators Association).

90. However, the referring court disregarded those circumstances in drawing up the third, fourth and fifth questions. In the third question it merely indicated its uncertainty as to the possibility of applying Article 13 of Regulation No 1346/2000 in relation to actions concerning a contract concluded between parties having their head offices in the same Member State in which the parties incorporated the clause designating the law of another Member State. In the fourth and fifth questions it supplemented those circumstances by specifying that the contract was concluded in the Member State in which both parties have their head offices.

91. Thus, in replying to the fourth question and without changing the essence thereof, it is necessary to clarify whether a contract concluded in the Member State in which both parties have their head offices, and in respect of which the choice of the law of another Member State was made, is covered by the scope of the Rome I Regulation.

(a) Preliminary remarks

92. Jumping ahead of my considerations below, I should like to make it clear that some of the subsequent sections of this Opinion are given over to an analysis which is highly theoretical and abstract in nature. However, as Advocate General, I consider it appropriate to set out my position on a matter which has long been a subject of dispute in academic legal writings on private international law. I am well aware — as will be clear from the conclusions below — that opting for one of the positions set out below does not determine definitively the answer to the third and fifth questions referred in this case. Nonetheless, in other cases that matter may be relevant to the interpretation of EU law. At the same time I am certain that setting out in-depth considerations will enable the Court to make a comprehensive assessment of the matter at issue.

93. The fourth question seeks to clarify whether a situation in which no factor defined as a ‘foreign element’ in the legal literature on conflict-of-law rules arises, and which therefore do not involve the law of two or more States, are covered by the scope of the Rome I Regulation.

94. This matter is one of the longest-standing and most widely discussed problems of conflict-of-law rules. ( 19 ) Harmonisation of the EU system of conflict-of-law rules has not dispelled the uncertainty which exists in that regard.

95. It is sometimes claimed that private international law applies solely to relations which involve the law of more than just one country. ( 20 ) That view is occasionally supplemented by the claim that the existence of any connection with foreign law is not sufficient. Instead, there have to be circumstances which are relevant from a conflict-of-law point of view, that is to say, circumstances which can lead to a conflict of laws in an area. ( 21 )

96. The opposite view is based on the belief that the rules of private international law cover all relations, including those which are purely domestic in nature. ( 22 ) In the latter case the decisive system of conflict-of-law rules inevitably results in the applicability of the law of the State with which it is entirely connected.

(b) Role of the foreign element in defining the material scope of the Rome I Regulation

97. In attempting to define the material scope of the Rome I Regulation, it is first necessary to have recourse to Article 1(1) thereof, under which that regulation is to apply to contractual obligations in situations involving a conflict of laws.

98. Article 1(1) of the Rome I Regulation refers to Article 1(1) of the Rome Convention, which defined the scope ratione materiae thereof. Under that provision, the convention was to apply to contractual obligations in any situation involving a choice between the laws of different countries (‘les situations comportant un conflit de lois’).

99. The report on the Rome Convention drawn up by M. Giuliano and P. Lagarde ( 23 ) clarifies the meaning of that provision by pointing out that the convention applies only in cases which entail a conflict of laws. Reference is made to situations in which one or more foreign elements arise in relation to the domestic social order (‘Il s'agit des situations qui comportent un ou plusieurs éléments d'extranéité par rapport à la vie sociale interne d'un pays’).

100. The wording of Article 1(1) of the Rome I Regulation — supported by the position of the authors of the Giuliano/Lagarde Report — may lead to the conclusion that that regulation does not relate to purely domestic situations.

101. However, it is possible to defend the contrary argument that the regulation also applies in purely domestic cases since Article 3(3) of the Rome I Regulation concerns such situations.

102. This view is supported by an interpretation, by analogy, of the provision similar to Article 3(3) of the Rome I Regulation, which appears in the twin regulation on the law applicable to non-contractual obligations (Rome II). ( 24 )

103. Article 1(1) of the Rome II Regulation — like Article 1(1) of the Rome I Regulation — provides that it is to apply ‘in situations involving a conflict of laws, to non-contractual obligations’. ( 25 )

104. Under Article 14(2) of the Rome II Regulation, which is the equivalent of Article 3(3) of the Rome I Regulation, ‘[w]here all the elements relevant to the situation at the time when the event giving rise to the damage occurs are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement’. ( 26 ) Therefore, under Article 14(2) of the Rome II Regulation the choice of law is not a circumstance which determines whether an obligation involves a conflict of laws. ( 27 ) Unlike the choice to which Article 3(3) of the Rome I Regulation relates, here the choice is not regarded as ‘another’ element of the situation. Therefore, in my view, the Rome II Regulation, including Article 14(2) thereof in particular, also concerns purely domestic situations which do not go beyond the jurisdiction of one country.

105. However, the scope of the Rome I Regulation must coincide with the scope of the regulation on the law applicable to non-contractual obligations, as is evident from the consistency requirement expressed in recital 7 of both regulations. ( 28 )

106. I therefore concur with the view that the conflict-of-law rules apply even where the situation concerned is purely domestic in nature. ( 29 )

107. I also consider that attempts to define the scope of the Rome I Regulation by reference to the criterion of the ‘internationalisation’ of a specific situation — and thus in the spirit of the former concept to which the authors of the Giuliano/Lagarde Report refer — are undermined by the vagueness of that concept, which may be the source of intractable complications.

108. Allow me to illustrate the source of those difficulties by means of the following example: Does the Rome I Regulation apply in a situation where a lessor demands from a lessee payment of rent pursuant to a lease contract concluded in the country in which the parties to that contract are habitually resident but the lessee is a national of another Member State? Let us also assume that the parties have not designated the law applicable to the contract.

109. The question arises whether in that event — because a foreign element involving the nationality of one of the parties to the contract arises in the case — there is a need to apply the Rome I Regulation in order to establish which law is applicable to the assessment of a dispute over the payment of rent.

110. In having recourse to the Rome I Regulation, it would first be necessary to establish which of its provisions is appropriate to identify the law applicable to the contract concluded between the parties. However, the actual regulation contains no provision which expressly concerns the leasing of movable property.

111. Thus, it will be necessary to interpret the terms used in the individual provisions of the regulation in order to define the conditions governing their application. In the legal literature on conflict-of-law rules of this kind the efforts at interpretation are termed ‘qualification’ (kwalifikacja, Qualifikation, characterisation). ( 30 )

112. On the basis of those efforts the national court would have certainly concluded that the lease contract should be regarded as a ‘contract for the provision of services’, which is covered by Article 4(1)(b) of the Rome I Regulation. Only at that stage would it transpire that the nationality of the lessee is irrelevant in the dispute over payment of rent because — in the absence of a choice of law — a contract for the provision of services is subject to the law of the country where the service provider (lessor) is habitually resident. However, I should note that the nationality factor could have significant relevance if the dispute concerned the lack of legal capacity of the lessee. ( 31 )

113. In my view, the abovementioned uncertainties justify the conclusion that attempts to draw a distinction between contractual obligations of a purely domestic nature and those which involve the law of several States are unfounded. Those criteria could be applied only to specific issues relating to the creation, enforcement and extinguishment of a contractual obligation.

114. Therefore, I consider that the ‘internationalisation’ of a specific dispute, which may arise in connection with a contract that has been concluded, cannot determine whether the regulation applies to the contract per se. That would necessitate a case-by-case assessment as to whether — regardless of the circumstances of the case — there exist, in relation to other disputes which could potentially arise, elements of the situation which could justify the applicability of the law of another country. Therefore, the actual decision on applying the regulation would have to be preceded by a detailed analysis of its provisions and a number of efforts at interpretation. This may give rise to a large number of uncertainties whose level of complexity will go further than merely seeking to identify the law applicable under the Rome I Regulation.

115. In the light of the foregoing, I take the view that the Rome I Regulation applies also in purely domestic situations which do not involve a choice between the laws of more than just one State. Thus, the actual choice of the law of another Member State does not affect whether or not a given situation is covered by the scope ratione materiae of the Rome I Regulation. There is therefore no need to decide whether the choice of law results in the contractual obligation involving a choice of laws as that is not a condition for application of the regulation.

116. I therefore propose that the Court should give the following affirmative answer to the fourth question and make it clear that: Article 1(1) of the Rome I Regulation, read in conjunction with Article 3(3) thereof, must be interpreted as meaning that a maritime charter contract concluded in the relevant Member State between companies with their head offices in the same Member State comes within the material scope of the Rome I Regulation regardless of whether or not that contract contains a clause designating the law of another Member State as being the applicable law.

117. None the less, if the Court does not share the position set out above, in this case an identical answer will result from taking the view, based on the belief that, although the Rome I Regulation itself does not relate to purely domestic situations, the inclusion in the contract of a clause designating the law of another Member State allows a connection to be established with another legal system which is so strong as to justify the application of the provisions of the Rome I Regulation.

D. The third and fifth questions referred

118. By its third question the referring court is asking the Court to clarify whether Article 13 of Regulation No 1346/2000 can apply where the parties to a contract have their head offices in the same Member State and through a clause in a contract have chosen the law of another Member State. In that part of its request for a preliminary ruling the national court does not yet refer directly to Article 3(3) of the Rome I Regulation. However, I consider that the punctum saliens of the third question concerns the effects of the choice of law made in the circumstances set out in that provision.

119. By its fifth question the referring court seeks an answer to the question of whether the choice of the law applicable in the situation defined in Article 3(3) of the Rome I Regulation deprives the party concerned of the possibility of relying effectively on the exception laid down in Article 13 of Regulation No 1346/2000.

120. The third and fifth questions essentially concern the same question of how the choice of law made in the circumstances set out in Article 3(3) of the Rome I Regulation may affect the possibility of relying on Article 13 of Regulation No 1346/2000. I therefore consider that those two questions should be analysed together.

121. I will first set out my view regarding the relationship between Article 3(3) of the Rome I Regulation and Article 13 of Regulation No 1346/2000. I will then discuss the effects of incorporating into the contract a clause designating the law applicable in the circumstances set out in Article 3(3) of the Rome I Regulation.

1. Relationship between Article 13 of Regulation No 1346/2000 and Article 3(3) of the Rome I Regulation

(a) Does Article 3 of the Rome I Regulation determine the effects of the choice of law for the purposes of applying Article 13 of Regulation No 1346/2000?

122. Under the first indent of Article 13 of Regulation No 1346/2000, the party concerned is required to provide proof that an act detrimental to all the creditors is subject to the law of a Member State other than that of the State of the opening of proceedings.

123. Recital 23 of Regulation No 1346/2000 states that the regulation itself should set out uniform rules on conflict of laws which replace, within their scope of application, national rules of private international law. However, the regulation contains no conflict-of-law rules designed to show which law is applicable to the contested act to which Article 13 of the regulation relates. I therefore consider that the law applicable to that act is determined by the conflict-of-law rules under which it would be necessary to seek the lex causae outside insolvency proceedings. Regulation No 1346/2000 was adopted at a time when the law applicable to contractual obligations — in relation to Member States — was identified through the Rome Convention. However, in the light of my remarks on the fourth question, I will address the provisions of the Rome I Regulation below. I assume that for the purposes of applying Article 13 of Regulation No 1346/2000 — in this case — the law applicable to the contested act is determined by the Rome I Regulation, including Article 3 thereof, which permits the choice of law applicable to contractual obligations.

124. Some uncertainty in this regard is caused by the reservation in the Virgós/Schmit Report that the aim of the convention equivalent of Article 13 of Regulation No 1346/2000 was to uphold legitimate expectations of creditors and third parties who have acted in accordance with the ‘normally applicable national law’. This may be an indication that only the law identified through the conflict-of-law rules based on objective links, disregarding the law chosen by the parties, can be relevant for the purposes of Article 13 of Regulation No 1346/2000 (in so far as that provision requires proof that a legal act is subject to ‘the law of a Member State other than that of the State of the opening of proceedings’).

125. This point of view may be supported by the conclusions arising from recital 24 of Regulation No 1346/2000, which states that the aim of the exceptions laid down in the regulation is to protect — in addition to legitimate expectations — ‘the certainty of transactions in Member States other than that in which proceedings are opened’. That phrase may lead to the conclusion that only elements of the situation are relevant for the purposes of Article 13 of Regulation No 1346/2000 because it is those elements — to use the terminology used in Article 3(3) of the Rome I Regulation — which ‘locate’ the legal act concerned in the State (or States) other than that of the State of the opening of proceedings.

126. However, that view does not appear convincing. Article 13 of Regulation No 1346/2000 requires that legitimate expectations be protected. It cannot readily be assumed that parties which act in accordance with the law chosen, within the bounds of the autonomy conferred on them by private international law, do not warrant protection. Choice of law is a legitimate method of identifying the law applicable in conflict-of-law rules. The principle of party autonomy occupies a prominent place in the EU system of rules of private international law. ( 32 )

127. I am thus convinced that, for the purposes of the first indent of Article 13 of Regulation No 1346/2000, the effects of the choice of law made by parties which have their head offices in the State of the opening of insolvency proceedings continue to be determined by the provisions of the Rome I Regulation, including Article 3 thereof.

(b) At the time when the choice of law applicable to contractual obligations is made, can the parties stipulate the law of which State will become the lex fori concursus after insolvency proceedings have been opened?

128. I should point out that the third question — as the Commission notes in its written observations — is based on the assumption that parties to a contract having their head offices in the same Member State can stipulate, at the time when the choice of law is made, the law of which State will become the lex fori concursus after insolvency proceedings against either of them have been opened.

129. However, I consider that that view is based on a certain simplification. At the time when the legal act is made the parties still do not know in principle whether and against which one of them insolvency proceedings will be opened.

130. A fortiori at that stage the parties cannot know to which law any insolvency proceedings will be subject.

131. The law applicable to insolvency proceedings and their effects is to be that of the Member State within the territory of which such proceedings are opened (Article 4(1) of Regulation No 1346/2000). The courts of the Member State within the territory of which the centre of a debtor’s main interests is situated is to have jurisdiction to open insolvency proceedings (Article 3(1) of that regulation).

132. The law of the State which will ultimately be applicable to the entirety of the issues involving insolvency proceedings is therefore determined by the rules on jurisdiction laid down in Article 3 of Regulation No 1346/2000. The circumstances which determine the jurisdiction of the courts of the Member State concerned may change after the act has been made with the future insolvent party.

133. If the future insolvent party moves its head offices to another Member State before a request to open insolvency proceedings is lodged, the courts of that State will generally have jurisdiction to deal with those involving insolvency proceedings. The time at which the request to open insolvency proceedings is lodged defines the decisive moment as regards investigation of the jurisdictional link arising from Article 3 of Regulation No 1346/2000. ( 33 )

134. Therefore, the effects of the choice of law must not be limited as it were by the assumption that — by providing for the operation of a specific law as the lex fori concursus — the parties are seeking to avoid the application thereof since at the stage at which the law is chosen they do generally not know whether and against which of the parties insolvency proceedings will be opened and a fortiori to which law they will be subject.

(c) In choosing the applicable law, are the parties seeking to evade the law designated by the conflict-of-law rules (fraude à la loi)?

135. Nor do I consider that in each case the sole aim of choosing the law is to avoid the operation of a provision of a specific law, which the Commission noted in its written observations, and which the third question appears to suggest to a certain degree.

136. In the legal literature on conflict-of-law rules the concept has been developed of evasion of law (obejście prawa, fraude à la loi, Gesetzesumgehung). ( 34 ) This term is used to define the action by a party (parties) to a legal relationship taken to evade the effects of application of the normally applicable law by having another law applied as applicable in its place. It is sometimes argued that, in order to protect the public interest and legal certainty, it is necessary to counter such efforts and at the stage of searching for the applicable law to disregard the circumstances resulting from action taken by the parties (inter alia arising from the parties’ choice of the applicable law).

137. At present, on account of the increase in party autonomy in the conflict-of-law rules, the relevance of that concept must be questioned in relation to situations where choice of applicable law is permitted. ( 35 )

138. In the context of the Rome I Regulation, the concept of unrestricted choice was adopted under Article 2 thereof, which means that the parties can make the relationships between them subject to the law of their choice, which need not have any connection with the facts of the case concerned. In any event this approach is consistent with the trend prevailing in contemporary conflict-of-law rules. ( 36 ) This leads to the conclusion that any concern about whether the choice of law is reasonable remains with the parties making the choice themselves. ( 37 )

139. Since the parties can choose the law applicable to the contract between them and that choice is unlimited in nature, it is difficult to conclude that the actual aim of subjecting a contractual obligation to the chosen law of a State is an action which must be countered.

140. The extensive party autonomy is limited by a number of instruments laid down in the Rome I Regulation, such as the overriding mandatory provisions (Article 9), the public policy clause (Article 21), the rules on protection of the rights of third parties (second sentence of Article 3(2)) and the protection of the weaker party to a contractual relationship (Articles 6(2) and 8(1)) and the provision attaching specific effects to the choice of applicable law where all elements relevant to the situation, other than the actual choice, are located within one country (Article 3(3)). Evidence of fraude à la loi can be sought in particular in the latter. However, other than the arrangements set out above, the regulation contains no general rule to prevent evasion of the law. Nor do I consider that Article 13 of Regulation No 1346/2000 is intended to perform that function in relation to the choice of law made in respect of a contract concluded between parties with their head offices in the same country. The effects of that choice are in any event determined by Article 3(3) of the Rome I Regulation.

2. Choice of law made in the circumstances set out in Article 3(3) of the Rome I Regulation

(a) Scope of Article 3(3) of the Rome I Regulation

141. The central issue in the fifth — and at least indirectly in the third — question concerns the effects of the choice of law on a contractual obligation which involves the law of one country in its entirety.

142. Article 3(3) of the Rome I Regulation, to which the national court refers in the request for a preliminary ruling, provides that ‘[w]here all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement’.

143. It should be noted that the fifth question is based on the assumption that in the circumstances of the present case ‘all other elements relevant to the situation’ — other than the choice itself — are located in the State of the opening of insolvency proceedings.

144. In any event it is for the national court to assess whether in this case the choice was made in the circumstances set out in Article 3(3) of the Rome I Regulation.

145. In particular, the referring court will be able to decide whether the very incorporation into a contract of a clause allowing use of a ship in the territorial waters of a country other than that in whose territory the contract was concluded and in which the parties have their head offices is sufficient to find that an obligation involves a conflict of laws. Mediterranea highlighted this fact in its written pleadings.

146. I should note merely in passing that that view is not supported by the wording of Article 3(3) of the Rome I Regulation, which deems the elements relevant to the situation at the time of the choice of applicable law to be authoritative.

147. Furthermore, I do not consider that the actual provision of a contract which provides for the possibility of an item being used outside one Member State makes possible a conflict of laws and consequently a derogation from Article 3(3) of the Rome I Regulation. Most contracts concluded in trade do not contain such a proviso. That does not mean that it is possible to use the item concerned in the jurisdiction of only one country. I consider that the potential possibility of using an item made available within the territorial boundaries of one country is not sufficient to internationalise that situation, the effect of which would be to remove the possibility of limiting the effects of the choice of law under Article 3(3) of the Rome I Regulation. I consider that that would restrict excessively the role of that provision, which is designed to prevent the possibility of evading the law normally applicable in purely domestic situations.

148. It is all the more difficult to conclude that the mere incorporation into a contract of a provision providing for the possibility of an item being used within another jurisdiction prevents application of Article 3(3) of the Rome I Regulation. Such an approach would open up the way to evasion of Article 3(3) of that regulation merely by placing appropriate terms in the contract. In my view, a similar assessment must be made of the use by the parties of the language of another country in drawing up the content of the contract and also the designation of courts of another country as having jurisdiction to deal with disputes which may arise in connection with it.

149. In assessing, for the purposes of Article 3(3) of the Rome I Regulation, whether ‘all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen’ it is not necessary, in my view, to take account of all the circumstances, but only of those which are relevant from a conflict-of-law point of view.

(b) Consequences of the choice of law made in the circumstances set out in Article 3(3) of the Rome I Regulation

150. However, no uniform position on the effects of the choice of law made in the circumstances set out in Article 3(3) of the Rome I Regulation has yet been developed in the case-law of the Court and academic legal writings.

151. In the legal literature on conflict-of-law rules it is possible to distinguish two concepts concerning the effect of the choice of law in purely domestic situations, the proponents of which define differently the bounds of party autonomy in private international law.

(1) Choice of law and conflict of law

152. Sometimes the view is expressed that in purely domestic situations the choice of law produces effects involving a conflict of law. That means that the choice leads to the contractual obligation being subject to the chosen law.

153. However, the choice of law has its limits, which are intended to counteract efforts to evade the effects of the application of the normally applicable law. Mandatory provisions derived from the law of the country with which a particular relationship is exclusively connected then operate alongside the law chosen. ( 38 )

(2) Incorporation of foreign law

154. Another view is based on the belief that in purely domestic situations the ‘choice’ has no effects involving a conflict of laws but is in the nature of an ‘incorporation of foreign law’ ( 39 ) (incorporation au contrat de règles de droit matériel, materiellrechtliche Verweisung, materialnoprawne wskazanie regulacji prawnej). ( 40 ) Incorporation of foreign law is a manifestation of the exercise by the parties of the freedom of contract, the bounds of which are defined by the law applicable to the relevant contractual relationship. ( 41 ) When relying on another legal system the parties shape the substance of the legal relationship between them in a manner which corresponds to the approaches adopted in that legal system in so far as the default rules of the applicable law allow. Those mandatory provisions of the lex causae, from which — under Article 3(3) of the Rome I Regulation — the parties cannot derogate by agreement, continue to apply.

(3) Consequences of the choice of law made in the circumstances set out in Article 3(3) of the Rome I Regulation

155. I concur with the proponents of the second of the two views set out above, which attaches only the effects of incorporating foreign law to the choice made in the circumstances set out in Article 3(3) of the Rome I Regulation.

156. In the regulation itself, there is no clear indication which would make it possible to adopt one of the solutions proposed.

157. However, recital 13 of the Rome I Regulation states that that regulation ‘does not preclude parties from incorporating by reference into their contract a non-State body of law or an international convention’. ( 42 )

158. In relation to Article 3(3) of the Rome I Regulation it is also possible, in my view, to conclude that the ‘choice’ of law merely produces the effects of the incorporation of foreign law. Recital 13 of the regulation shows that the EU legislature attaches those effects to the clause designating the applicable law, which goes beyond party autonomy in respect of conflict-of-law rules.

159. That position is taken by most academic legal writings on private international law, albeit for different reasons. ( 43 )

(4) Consequences of the choice of law made in the circumstances set out in Article 3(3) of the Rome I Regulation and the possibility of relying on Article 13 of Regulation No 1346/2000

160. Regardless of whether the choice of law applicable to a purely domestic situation has conflict-of-law effects or is regarded as the incorporation of foreign law, the mandatory provisions of normally applicable national law (lex fori concursus) continue to apply.

161. However, I do not consider that opting for one of those approaches is devoid of all practical relevance. The concept of incorporation of foreign law has its virtues in particular where it is necessary to assess whether the conditions laid down by the derogation provided for in Article 13 of Regulation No 1346/2000 have been met.

162. Parties who rely on Article 13 of that regulation must provide proof that the act detrimental to all the creditors is subject to the law of a Member State other than that of the State of the opening of proceedings.

163. Opting for the concept of incorporation of foreign law would remove the possibility of the party concerned relying on the exception laid down in Article 13 of Regulation No 1346/2000. Since the choice produces no conflict-of-law effects, the party concerned does not have the possibility of providing proof that the contested act is subject to the law of a Member State other than the lex fori concursus.

164. Adopting a concept which attaches conflict-of-law effects to the choice of law would, by contrast, allow the party concerned to prove that the conditions laid down by Article 13 of that regulation are met in purely domestic situations. That would not be precluded by the fact that provisions of normally applicable law ‘which cannot be derogated from by agreement’ operate.

165. The provisions ‘which cannot be derogated from by agreement’ do not include provisions of insolvency law. The choice of law applicable to a contractual obligation results in only those matters covered by the scope of the proper law of the contract being subject to the chosen law. This must be defined in accordance with the guidance contained in Article 12 of the Rome I Regulation. Although that provision contains no list of matters which come within the scope of the proper law of the contract, it supports the view in the legal literature on conflict-of-law rules that the proper law of the contract determines the content of the contract and the results arising from it and — with certain exceptions laid down in Articles 11 and 1(2)(a) and (f) — the conditions governing its validity. Therefore, the law applicable to a contractual obligation is decisive to the assessment of the rights and obligations of the parties. However, it does not, in my view, go as far as to cover the specific instruments of insolvency law.

166. The derogation provided for in Article 13 of Regulation No 1346/2000 is therefore based on a simplification. It protects legitimate expectations as to the law applicable to the act detrimental to all the creditors more broadly than follows from the application of the lex causae.

167. The proof required by Article 13 of the Rome I Regulation that the law applicable to it does not allow ‘any’ means of challenging the act therefore concerns matters not covered by the proper law of the contract. It is intended to prove that there is no possibility of the act being challenged either pursuant to rules of ordinary law or by ordinary actions under civil and commercial law, which outside insolvency proceedings are subject to the lex contractus, or pursuant to specific instruments of insolvency law which are not included in the proper law of the contract.

168. That mechanism is justified by the effects which, in accordance with Article 4(1) of Regulation No 1346/2000, arise from the opening of insolvency proceedings. That provision subjects all matters involving insolvency proceedings to the law of one country, even though at the stage at which the act is made with the future insolvent party the law of which country will become the lex fori concursus after the opening of insolvency proceedings may not be known. ( 44 )

169. The above considerations are a further argument in support of the position which only the incorporation of foreign law identifies in the choice made pursuant to Article 3(3) of the Rome I Regulation.

170. In the light of the foregoing, I propose that the Court’s answer to the third and fifth questions should be as follows: Article 13 of Regulation No 1346/2000 may apply where the parties to the contract have their head offices in the same Member State and choose the law applicable to that contract. However, the effects of that choice are determined by Article 3 of the Rome I Regulation. The parties’ choice of the law of a Member State other than that of the State of the opening of insolvency proceedings, in which ‘all the elements relevant to the situation’ are located, does not, in the light of Article 3(3) of the Rome I Regulation, result in the contract being subject to the law chosen by the parties and consequently does not allow the requirement laid down in Article 13 of Regulation No 1346/2000, that the contract be subject to the law of a Member State other than that of the State of the opening of proceedings, to be satisfied.

VI. Conclusions

171. In the light of all the foregoing considerations, I propose that the Court should answer the question from the Tribunale Ordinario di Venezia (Venice District Court) as follows: (1) Application of the exception laid down in Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings requires procedural activity on the part of the party which benefited from the act detrimental to all the creditors. (H)wever, in accordance with the principle of procedural autonomy of the Member States, it is the procedural rules of the State whose courts have jurisdiction in a particular case which specifies the way in which the party concerned — in proving that the conditions laid down in Article 13 of the regulation are met — must rely on that provision in order to avoid an act detrimental to all the creditors being challenged on the basis of the lex fori concursus. (2) In order to rely effectively on the exception laid down in Article 13 of Regulation No 1346/2000, it is sufficient for the person who benefited from an act detrimental to all the creditors to provide proof — where the lex causae permits an act of that kind to be challenged — that, although it is capable of being challenged in principle, it cannot be effectively invalidated on the basis of the lex causae after account has been taken of all the circumstances of the case. (3) Article 1(1) of 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), read in conjunction with Article 3(3) thereof, must be interpreted as meaning that a maritime charter contract concluded in the relevant Member State between companies with their head offices in the same Member State comes within the material scope of the Rome I Regulation regardless of whether or not that contract contains a clause designating the law of another Member State as being the applicable law. (4) Article 13 of Regulation No 1346/2000 may apply where the parties to the contract have their head offices in the same Member State and choose the law applicable to that contract. However, the effects of that choice are determined by Article 3 of the Rome I Regulation. The parties’ choice of the law of a Member State other than that of the State of the opening of insolvency proceedings, in which ‘all the elements relevant to the situation’ are located, does not, in the light of Article 3(3) of the Rome I Regulation, result in the contract being subject to the law chosen by the parties and consequently does not allow the requirement laid down in Article 13 of Regulation No 1346/2000, that the contract be subject to the law of a Member State other than that of the State of the opening of proceedings, to be satisfied.

( 1 ) Original language: Polish.

( 2 ) OJ 2000 L 160, p. 1, hereinafter: ‘Regulation No 1346/2000’.

( 3 ) See judgments of 16 April 2015, Lutz (C‑557/13, EU:C:2015:227), and of 15 October 2015, Nike European Operations Netherlands (C‑310/14, EU:C:2015:690).

( 4 ) Regulation No 1346/2000 was repealed pursuant to Article 91 of Council Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19), which, with limited exceptions, will apply to proceedings opened after 26 June 2017.

( 5 ) OJ 2008 L 177, p. 6; hereinafter: ‘the Rome I Regulation’.

( 6 ) Here I would like to point out that the academic legal writings on private international law often use the more general term ‘lex causae’ to define the law applicable to the assessment of this matter. In the present case I assume that the ‘lex causae’ is the lex contractus, although that is a broader term which does not necessarily denote the law applicable to a contractual obligation.

( 7 ) Report by M. Virgós and E. Schmit on the convention on insolvency proceedings was published in G. Moss, I.F. Fletcher and S. Isaacs, The EC Regulation on Insolvency proceedings. A Commentary and Annotated Guide, 2nd edition, Oxford, Oxford University Press 2009, p. 381 et seq. (‘the Virgós/Schmit Report’).

( 8 ) See the Opinion of Advocate General Jacobs in Eurofood IFSC (C‑341/04, EU:C:2005:579, point 2). See also my Opinion in Lutz (C‑557/13, EU:C:2014:2404, point 48) and in SCI Senior Home (C‑195/15, EU:C:2016:369, points 41, 42, and 44).

( 9 ) Judgment of 15 October 2015, Nike European Operations Netherlands (C‑310/14, EU:C:2015:690, paragraph 26).

( 10 ) Judgment of 15 October 2015, Nike European Operations Netherlands (C‑310/14, EU:C:2015:690, paragraphs 27 and 28).

( 11 ) My Opinion in Lutz (C‑557/13, EU:C:2014:2404, point 78).

( 12 ) For example, in the second indent of Article 13 of the Estonian-language version of the regulation (‘kõnealuse seaduse alusel ei ole võimalik tema tegevust mingil viisil vaidlustada’) there is no express reference to the circumstances of a specific case. It should be noted, however, that the condition laid down in the second indent of Article 13 of Regulation No 1346/2000 in practice remained unchanged in Article 16(b) of the new insolvency Regulation No 2015/848. The requirement laid down in Article 13 of Regulation No 1346/2000 that proof of unchallengeability be provided in a specific manner is not abandoned in that respect. This is confirmed by an analysis of the different language versions of Regulation No 2015/848, in which proof taking account of the circumstances of the relevant case is still expected. The expression ‘in the relevant case’ continues to appear in the English version, as does ‘en l’espèce’ in the French. Only a slight change was made to the German-language version where the expression ‘in diesem Fall’ is replaced by ‘im vorliegenden Fall’. Although the Polish-language version of Regulation No 2015/848 does not require that proof be provided that the act can be challenged ‘in that case’ (w takim przypadku), that phrase is replaced by ‘in the relevant case’ (w odnośnej sprawie).

( 13 ) Judgment of 15 October 2015, Nike European Operations Netherlands (C‑310/14, EU:C:2015:690, paragraph 17).

( 14 ) Judgment of 15 October 2015, Nike European Operations Netherlands (C‑310/14, EU:C:2015:690, paragraph 22).

( 15 ) See my Opinion in Lutz (C‑557/13, EU:C:2014:2404, point 73).

( 16 ) See judgment of 15 October 2015, Nike European Operations Netherlands (C‑310/14, EU:C:2015:690, paragraph 39).

( 17 ) See judgment of 18 October 2016, Nikiforidis (C‑135/15, EU:C:2016:774, paragraphs 33 to 37).

( 18 ) OJ 1980 L 266, p. 1; hereinafter: ‘the Rome Convention’.

( 19 ) See P. Lalive, Tendances et méthodes en droit international privé: cours général, Recueil des cours de l’Académie de la Haye, vol. 155, 1977, pp. 16 to 33; Th.M. de Boer, Facultative Choice of Law. The Procedural Status of Choice-of-Law Rules and Foreign Law, Recueil des Cours de l’Académie de la Haye, vol. 257, 1996, pp. 239 to 250.

( 20 ) V. Behr, Rome I Regulation. A — Mostly — Unified Private International Law of Contractual Relationships Within — Most — of the European Union, Journal of Law and Commerce, vol. 29, 2011, p. 238.

( 21 ) J. Pazdan, Rozporządzenie Rzym I: nowa wspólnotowa kolizyjnoprawna regulacja zobowiązań umownych, Problemy Prawa Prywatnego Międzynarodowego, No 5, 2009, p. 14.

( 22 ) J. D. Lüttringhaus, Article 1, in: F. Ferrari (ed.), Rome I Regulation. Pocket Commentary, Munich, Sellier European law publisher, 2015, p. 41.

( 23 ) OJ 1980 C 282, p. 1; hereinafter referred to as the ‘Giuliano/Lagarde Report’.

( 24 ) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. 40).

( 25 ) Emphasis added.

( 26 ) Emphasis added.

( 27 ) I should point out that it is not possible to explain the omission of choice as a circumstance which determines whether there is a situation involving a choice between the laws of different States by the fact that Article 14(2) of the Rome II Regulation concerns the situation which exists ‘at the time when the event giving rise to the damage occurs’, whilst Article 3(3) of the Rome I Regulation concerns the circumstances which arise at the time when the decision is made. Under Article 14(1)(b) of the Rome II Regulation, prior choice of law is also permitted.

( 28 ) Recital 7 of the chronologically earlier Rome II Regulation states that ‘[t]he substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) and the instruments dealing with the law applicable to contractual obligations’. The similarly worded recital 7 of the Rome I Regulation points directly to the desire to maintain consistency with the Rome II Regulation.

( 29 ) That position also prevails in Polish academic legal writings on private international law. M. Pazdan, Prawo prywatne międzynarodowe, Warsaw, LexisNexis Polska, 2017, p. 26. Polish academic writers have put forward that position in relation to the provisions of the Rome Convention. See W. Popiołek, Konwencja EWG o prawie właściwym dla zobowiązań, Państwo i Prawo, col. 2, 1982, p. 106; M. Wojewoda, Zakres prawa właściwego dla zobowiązań umownych, Warsaw, Wolters Kluwer SA, 2007, p. 73.

( 30 ) M. Pazdan, Prawo prywatne międzynarodowe, Warsaw, LexisNexis Polska 2017, p. 76.

( 31 ) The issue of legal capacity was excluded from the scope of the Rome I Regulation (Article 1(2)(a)). Therefore, capacity is determined by the law, identified using the national rules of private international law in force in the place where the court having jurisdiction in the relevant case is situated. Therefore, the nationality of the lessee could be relevant if such an approach is provided for in the national system of conflict-of-law rules. However, in that situation the Rome I Regulation can continue to apply ratione materiae. Article 13 of that regulation provides that ‘[i]n a contract concluded between persons who are in the same country, a natural person who would have capacity under the law of that country may invoke his incapacity resulting from the law of another country, only if the other party to the contract was aware of that incapacity at the time of the conclusion of the contract or was not aware thereof as a result of negligence’.

( 32 ) Recital 11 of the Rome I Regulation states that the freedom to choose the law should be one of the ‘cornerstones of the system of conflict-of-law rules in matters of contractual obligations’. In recital 31 of the Rome II Regulation party autonomy is raised to the rank of a principle, at least in the English-language (‘principle of party autonomy’) and French-language (‘le principe de l’autonomie’) versions of the regulation, which also confirms its significance in EU law.

( 33 ) See judgment of 20 October 2011, Interedil (C‑396/09, EU:C:2011:671, paragraphs 55 and 56).

( 34 ) R.H. Graveson, Comparative Aspects of the General Principles of Private International Law, Recueil des Cours de l’Académie de la Haye, vol. 109, 1963, p. 48; M. Bogdan, Private International Law as Component of the Law of the Forum: General Course on Private International Law, Recueil des Cours de l’Académie de la Haye, vol. 348, 2011, p. 196.

( 35 ) M. Bogdan, Private International Law as Component of the Law of the Forum: General Course on Private International Law, Recueil des Cours de l’Académie de la Haye, vol. 348, 2011, p. 200.

( 36 ) S. Leible, Rechtswahl im IPR der außervertraglichen Schuldverhältnisse nach der Rom II-Verordnung, Recht der Internationalen Wirtschaft, vol. 257, section 5, 2008, p. 261; J. Von Hein, Europäisches Internationales Deliktsrecht nach der Rom II-Verordnung, Zeitschrift für Europäisches Privatrecht, 2009, p. 22.

( 37 ) M. Pazdan, Autonomia woli w prawie prywatnym międzynarodowym — aktualne tendencje, in Europeizacja prawa prywatnego, vol. II, ed. M. Pazdan, W. Popiołek, E. Rott-Pietrzyk, M. Szpunar, Warsaw, Wolters Kluwer Business 2008, p. 144.

( 38 ) P. Piroddi, International Subcontracting in EC Private International Law, Yearbook of Private International Law, vol. 7, 2005, p. 307.

( 39 ) The term ‘materialnoprawne wskazanie prawa’ is sometimes used in Polish academic legal writings. However, I propose replacing it with the expression ‘materialnoprawne wskazanie regulacji prawnej’, noting that the parties may designate not only the law in force in a particular country but also any other collection of rules which are not of such a nature. M. Pazdan, Materialnoprawne wskazanie a kolizyjnoprawny wybór prawa, Problemy Prawne Handlu Zagranicznego, vol. 18, 1995, p. 107.

( 40 ) F. Rigaux, Les situations juridiques individuelles dans un système de relativité générale: cours générale de droit international privé, Recueil des Cours de l’Académie de la Haye, vol. 213, 1989, p. 192.

( 41 ) M. Pazdan, Materialnoprawne wskazanie a kolizyjnoprawny wybór prawa, Problemu Prawne Handlu Zagranicznego, vol. 18, 1995, p. 107.

( 42 ) The adoption of that approach was dictated inter alia by a concern that by choosing a collection of non-State rules it would be possible to evade the effects of the application of mandatory provisions of the law in force in a particular country. See H. Heiss, Party Autonomy, in: Rome I Regulation: The Law Applicable to Contractual Obligations in Europe, ed. F. Ferrari, S. Leible, Munich, Sellier European law publisher 2009, p. 11. A similar function is performed by Article 3(3) of the Rome I Regulation, which prevents evasion of the provisions of ius cogens derived from normally applicable law.

( 43 ) F.J. Garcimartín Alférez, The Rome I Regulation: Much ado about nothing?, The European Legal Forum, issue 2, 2008, p. 64; F. Ragno, Article 3, in: Rome I Regulation. Pocket Commentary, ed. F. Ferrari, Munich, Sellier European law publisher 2015, pp. 113 and 114.

( 44 ) See points 128 to 134 of this Opinion.