Provisional text

JUDGMENT OF THE COURT (Third Chamber)

13 January 2022 ( )

(Reference for a preliminary ruling – Freedom of establishment – Freedom to provide services – Business of insurance and reinsurance – Directive 2009/138/EC – Winding-up of insurance undertakings – Article 292 – Effects of winding-up proceedings on pending lawsuits – Exception to the application of the lex concursus – Lex processus)

In Case C‑724/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Cour de cassation (Court of Cassation, France), made by decision of 17 December 2020, received at the Court on 28 December 2020, in the proceedings

Paget Approbois SAS,

v

Depeyre entreprises SARL,

Alpha Insurance A/S,

THE COURT (Third Chamber),

composed of A. Prechal, President of the Second Chamber, acting as President of the Third Chamber, J. Passer, F. Biltgen, L.S. Rossi (Rapporteur), and N. Wahl, Judges,

Advocate General: M. Szpunar,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Alpha Insurance A/S, by F. Rocheteau, lawyer,

– the French Government, by E. Leclerc and A.-L. Desjonquères, acting as Agents,

– the European Commission, by D. Triantafyllou and H. Tserepa-Lacombe, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 292 of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1).

2 The request has been made in proceedings between Paget Approbois (‘Paget’), on the one hand, and Depeyre entreprises SARL (‘Depeyre’) and Alpha Insurance A/S (‘Alpha Insurance’), on the other, regarding the payment of insurance compensation for damage suffered by Paget following an incident.

Legal framework

European Union law

Directive 2009/138

3 Recitals 3, 117, 123 to 125 and 130 of Directive 2009/138 are worded as follows:

‘(3) It is in the interests of the proper functioning of the internal market that coordinated rules be established relating to the supervision of insurance groups and, with a view to the protection of creditors, to the reorganisation and winding-up proceedings in respect of insurance undertakings.

…

(117) Since national legislation concerning reorganisation measures and winding-up proceedings is not harmonised, it is appropriate, in the framework of the internal market, to ensure the mutual recognition of reorganisation measures and winding-up legislation of the Member States concerning insurance undertakings, as well as the necessary cooperation, taking into account the need for unity, universality, coordination and publicity for such measures and the equivalent treatment and protection of insurance creditors.

…

(123) Only the competent authorities of the home Member State should be empowered to take decisions on winding-up proceedings concerning insurance undertakings. The decisions should produce their effects throughout the Community and should be recognised by all Member States. The decisions should be published in accordance with the procedures of the home Member State and in the Official Journal of the European Union. Information should also be made available to known creditors who are resident in the Community, who should have the right to lodge claims and submit observations.

(124) All the assets and liabilities of the insurance undertaking should be taken into consideration in the winding-up proceedings.

(125) All the conditions for the opening, conduct and closure of winding-up proceedings should be governed by the law of the home Member State.

…

(130) In order to protect legitimate expectations and the certainty of certain transactions in Member States other than the home Member State, it is necessary to determine the law applicable to the effects of reorganisation measures and winding-up proceedings on pending lawsuits and on individual enforcement actions arising from lawsuits.’

4 Title IV of Directive 2009/138, entitled ‘Reorganisation and winding-up of insurance undertakings’, contains Articles 267 to 296.

5 Article 268 of that directive, entitled ‘Definitions’, provides:

‘1. For the purpose of this Title the following definitions shall apply:

(a) “competent authorities” means the administrative or judicial authorities of the Member States which are competent for the purposes of the reorganisation measures or the winding-up proceedings;

…

(c) “reorganisation measures” means measures involving any intervention by the competent authorities which are intended to preserve or restore the financial situation of an insurance undertaking and which affect pre-existing rights of parties other than the insurance undertaking itself, including but not limited to measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims;

(d) “winding-up proceedings” means collective proceedings involving the realisation of the assets of an insurance undertaking and the distribution of the proceeds among the creditors, shareholders or members as appropriate, which necessarily involve any intervention by the competent authorities, including where the collective proceedings are terminated by a composition or other analogous measure, whether or not they are founded on insolvency or are voluntary or compulsory;

…’

6 Article 273 of Directive 2009/138, entitled ‘Opening of winding-up proceedings information to the supervisory authorities’, provides, in paragraph 2:

‘A decision concerning the opening of winding-up proceedings of an insurance undertaking, including its branches in other Member States, adopted in accordance with the legislation of the home Member State shall be recognised without further formality throughout the Community and shall be effective there as soon as the decision is effective in the Member State in which the proceedings are opened.’

7 Article 274 of that directive, entitled ‘Applicable law’, is worded as follows:

‘1. The decision to open winding-up proceedings with regard to an insurance undertaking, the winding-up proceedings and their effects shall be governed by the law applicable in the home Member State unless otherwise provided in Articles 285 to 292.

2. The law of the home Member State shall determine at least the following:

(a) the assets which form part of the estate and the treatment of assets acquired by, or devolving to, the insurance undertaking after the opening of the winding-up proceedings;

(b) the respective powers of the insurance undertaking and the liquidator;

(c) the conditions under which set-off may be invoked;

(d) the effects of the winding-up proceedings on current contracts to which the insurance undertaking is party;

(e) the effects of the winding-up proceedings on proceedings brought by individual creditors, with the exception of lawsuits pending referred to in Article 292;

(f) the claims which are to be lodged against the estate of the insurance undertaking and the treatment of claims arising after the opening of winding-up proceedings;

(g) the rules governing the lodging, verification and admission of claims;

(h) the rules governing the distribution of proceeds from the realisation of assets, the ranking of claims, and the rights of creditors who have obtained partial satisfaction after the opening of winding-up proceedings by virtue of a right in rem or through a set-off;

(i) the conditions for and the effects of closure of winding-up proceedings, in particular by composition;

(j) rights of the creditors after the closure of winding-up proceedings;

(k) the party who is to bear the cost and expenses incurred in the winding-up proceedings; and

(l) the rules relating to the nullity, voidability or unenforceability of legal acts detrimental to all the creditors.’

8 Article 280 of that directive, entitled ‘Publication of decisions on winding-up proceedings’, states, in paragraph 1:

‘The competent authority, the liquidator or any person appointed for that purpose by the competent authority shall publish the decision to open winding-up proceedings in accordance with the publication procedures provided for in the home Member State and also publish an extract from the winding-up decision in the Official Journal of the European Union.’

9 Article 282(1) of the same directive provides:

‘Any creditor, including public authorities of Member States, whose habitual residence, domicile or head office is situated in a Member State other than the home Member State shall have the right to lodge claims or to submit written observations relating to claims.’

10 Under Article 292 of Directive 2009/138, entitled ‘Lawsuits pending’:

‘The effects of reorganisation measures or winding-up proceedings on a pending lawsuit concerning an asset or a right of which the insurance undertaking has been divested shall be governed solely by the law of the Member State in which the lawsuit is pending.’

Regulation (EC) No 1346/2000

11 Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (OJ 2000 L 160, p. 1), which was repealed and replaced by Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19), stipulated, in Article 4 thereof, entitled ‘Law applicable’:

‘1. Save as otherwise provided in this Regulation, the law applicable to insolvency proceedings and their effects shall be that of the Member State within the territory of which such proceedings are opened, hereafter referred to as the “State of the opening of proceedings”.

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:

…

(f) the effects of the insolvency proceedings on proceedings brought by individual creditors, with the exception of lawsuits pending;

…’

12 Article 15 of Regulation No 1346/2000 provided:

‘The effects of insolvency proceedings on a lawsuit pending concerning an asset or a right of which the debtor has been divested shall be governed solely by the law of the Member State in which that lawsuit is pending.’

Directive 2001/24/EC

13 Under Article 32 of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions (OJ 2001 L 125, p. 15), entitled ‘Lawsuits pending’:

‘The effects of reorganisation measures or winding-up proceedings on a pending lawsuit concerning an asset or a right of which the credit institution has been divested shall be governed solely by the law of the Member State in which the lawsuit is pending.’

French law

The Insurance Code

14 The first and second subparagraphs of Article L. 326-20 of the code des assurances (Insurance Code) provide:

‘Subject to the provisions of Articles L. 326-21 to L. 326-29, the reorganisation measures provided for under Article L. 323-8 and decisions concerning the opening of winding-up proceedings taken by the competent authorities of a Member State of the European Union other than France with regard to an insurance undertaking having its head office in the territory of that Member State shall be fully effective throughout the French Republic without any further formalities, including against third parties, once they become effective in that Member State. These provisions shall also apply when reorganisation measures or decisions opening winding-up proceedings are taken with regard to the branch of an insurance undertaking with a head office outside the European Union.

The same shall apply to decisions taken in a Member State other than France in the context of the voluntary winding-up of an insurance undertaking involving any intervention by administrative bodies or judicial authorities.’

15 Under Article L. 326-28 of that code:

‘The effects of reorganisation measures or the opening of winding-up proceedings on a lawsuit pending in France concerning an asset or a right of which the insurance undertaking has been divested shall be governed solely by the provisions of the Code of Civil Procedure.’

Code of Civil Procedure

16 Article 369 of the code de procédure civile (Code of Civil Procedure) stipulates:

‘The proceedings shall be stayed by:

…

– a judgment ordering safeguarding, receivership or winding-up in cases where this involves assistance or divestment of the debtor;

…’

17 Article 371 of that code is worded as follows:

‘In no case shall the proceedings be interrupted if the event occurs or is notified after the oral proceedings have commenced.’

18 Article 372 of that code provides:

‘The acts performed and even the judgments which have become res judicata, obtained after the suspension of the proceedings, shall be deemed null and void except where they are expressly or tacitly confirmed by the party for whose benefit the proceedings are stayed.’

The Commercial Code

19 Under the first subparagraph of Article L. 622-22 of the code de commerce (Commercial Code):

‘Subject to Article L. 625-3, proceedings that are pending shall be stayed until the creditor who initiated the proceedings has filed its submission of claim. They shall be resumed ipso jure after having duly summoned the legal representative and, as the case may be, the administrator … for the sole purpose of verifying the claims and determining their amount.’

20 The first subparagraph of Article L. 641-3 of that code stipulates:

‘The judgment which opens the winding-up proceedings shall have the same effects as those provided in the case of safeguarding by the first and third subparagraphs of point I and by point III of Article L. 622-7, by Articles L. 622-21 and L. 622-22, by the first sentence of Article L. 622-28 and by Article L. 622-30.’

21 The first subparagraph of Article R. 622-20 of that code provides:

‘Proceedings stayed pursuant to Article L. 622-22 are resumed on the initiative of the applicant (creditor), as soon as it has submitted, to the court before which the case has been brought, a copy of its submission of claim or any other justification for including its claim in the list provided for in Article L. 624-1, and has involved the legal representative and, as the case may be, the administrator where the latter has a duty to assist the debtor or the administrator in implementing the plan.’

22 Article R. 641-23 of the same code provides:

‘Articles R. 622-19 and R. 622-20 shall apply to the winding-up proceedings.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

23 On 1 July 2011, Paget took out, with effect from that date, through the insurance broker Depeyre, a ‘multi-risk industrial’ insurance policy bearing the words ‘Compagnie : Alpha Insurance’ (Company: Alpha Insurance).

24 On 20 May 2012, two sites operated by Paget were hit by hailstorms. The following day, Paget submitted an insurance claim to Depeyre.

25 An informal appraisal was carried out to assess the material damage resulting from the incident.

26 By letter of 7 January 2013, Depeyre informed Paget that its insurance had been managed by Albic, a company incorporated in Belgium (‘Albic’), that its insurers had been, from 1 January 2012, United, a company incorporated in the United Kingdom and Euroins, a company incorporated in Romania, but that, since 1 January 2013, those companies had withdrawn their accreditation of Albic.

27 Paget brought an action for damages against Depeyre, which, in turn, brought an action to enforce a guarantee against Alpha Insurance, a company incorporated under Danish law, identified by the insurance broker as being the actual insurer at the material time. Before the cour d’appel de Besançon (Court of Appeal, Besançon, France), Paget requested that Depeyre and Alpha Insurance be ordered jointly and severally to pay it EUR 335 080.79 as compensation for the material damage sustained.

28 At the hearing on 16 October 2018, Alpha Insurance’s representative informed that court of appeal that the Sø- og Handelsretten i København (Maritime and Commercial Court, Copenhagen, Denmark) had declared Alpha Insurance to be bankrupt with effect from 8 May 2018 and produced, during the hearing, the corresponding judgment. The representative requested a finding that the opening of the Danish insolvency proceedings had automatically resulted in the suspension of the lawsuit.

29 By judgment of 20 November 2018, the cour d’appel de Besançon (Court of Appeal, Besançon) inter alia ordered Alpha Insurance to pay a certain amount to Paget for material damage resulting from the incident of 20 May 2012 in accordance with the terms of the insurance contract.

30 In that regard, the cour d’appel de Besançon (Court of Appeal, Besançon) held that Alpha Insurance had failed to establish that the Danish insolvency proceedings had the same effects as insolvency proceedings under French law with regard to taking further steps in the proceedings and the admissibility of claims against it, with the result that the Danish insolvency proceedings had to be excluded from consideration.

31 Paget and Alpha Insurance brought an appeal on a point of law against the judgment of the cour d’appel de Besançon (Court of Appeal, Besançon).

32 The Cour de cassation (Court of Cassation, France) considers that examination of the appeals requires it to be determined which law governs the effects of the bankruptcy of Alpha Insurance, declared in Denmark, on the proceedings pending before the French courts, but points out that the answer to that question is not obvious.

33 In those circumstances, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Must Article 292 of Directive [2009/138] be interpreted as meaning that the pending lawsuit brought before the court of a Member State by the creditor of an insurance compensation claim to obtain the settlement of that claim by an insurance undertaking subject to winding-up proceedings pending in another Member State, concerns, within the meaning of that directive, an asset or a right of which the insurance undertaking has been divested?

(2) If the first question is answered in the affirmative, is the law of the Member State in which the proceedings are pending intended to govern all the effects of the winding-up proceedings on the pending lawsuit?

In particular, should it be applied in so far as it:

– provides that the opening of such proceedings results in the suspension of the pending lawsuit;

– subjects the resumption of the proceedings to the claim for insurance compensation being lodged against the estate of the insurance undertaking by the creditor and to the bodies responsible for the winding-up proceedings being summoned; and

– precludes an order to pay the insurance compensation, since such an order can only be the subject of a judgment relating to the determination and fixing the amount of the compensation?’

The questions referred for a preliminary ruling

The first question

34 By its first question, the referring court asks, in essence, whether Article 292 of Directive 2009/138 must be interpreted as meaning that the concept of a ‘pending lawsuit concerning an asset or a right of which the insurance undertaking has been divested’, referred to in that article, includes a pending lawsuit concerning a claim for insurance compensation made by a policyholder, in respect of damage sustained in one Member State, from an insurance undertaking subject to winding-up proceedings in another Member State.

35 As a preliminary point, it should be noted that, as is apparent from recitals 117 and 123 thereof, Directive 2009/138 is based, inter alia, on the need for unity and universality, and establishes as a principle the mutual recognition of reorganisation measures and winding-up proceedings concerning insurance undertakings and of their effects.

36 Thus, under Article 273(2) of that directive, a decision concerning the opening of winding-up proceedings of an insurance undertaking, adopted in accordance with the legislation of the home Member State, is to be recognised without further formality throughout the European Union and is to be effective there as soon as the decision is effective in the Member State in which the proceedings are opened.

37 Article 274(1) of Directive 2009/138 states that the decision to open winding-up proceedings with regard to an insurance undertaking, the winding-up proceedings and their effects are to be governed by the law applicable in the home Member State and Article 274(2)(e) states that that law must determine, inter alia, the effects of the winding-up proceedings on proceedings brought by individual creditors, to which the benefit of mutual recognition extends (see, to that effect, judgment of 12 November 2020, Bulstrad Vienna Insurance Group, C‑427/19, EU:C:2020:914, paragraph 39).

38 It follows from those provisions that, in principle, the lex concursus governs reorganisation measures and winding-up proceedings concerning insurance undertakings and their effects.

39 However, Article 274(1) of Directive 2009/138 lists a number of provisions which derogate from the application of the lex concursus, which include that referred to in Article 274(2)(e) and stated in Article 292 of that directive, under which ‘the effects of reorganisation measures or winding-up proceedings on a pending lawsuit concerning an asset or a right of which the insurance undertaking has been divested shall be governed solely by the law of the Member State in which the lawsuit is pending’.

40 It follows from the wording of Article 292 that three cumulative conditions must be met in order for the exception it provides to the application of the lex concursus to be implemented.

41 First, there must be reorganisation measures or winding-up proceedings, within the meaning of Article 268(1)(c) and (d) of Directive 2009/138 respectively.

42 In that regard, the concept of ‘winding-up proceedings’ as defined in Article 268(1)(d) of that directive means collective proceedings involving the realisation of the assets of an insurance undertaking and the distribution of the proceeds among the creditors, shareholders or members, as appropriate, which necessarily involves intervention by the competent authorities, namely, in accordance with Article 268(1)(a) thereof, the administrative or judicial authorities of the Member States which are competent, in particular, for the purposes of the reorganisation measures or the winding-up proceedings (see, to that effect, judgment of 12 November 2020, Bulstrad Vienna Insurance Group, C‑427/19, EU:C:2020:914, paragraph 29).

43 In the present case, that first condition laid down in Article 292 of Directive 2009/138 appears to be met in the case in the main proceedings, since it is apparent from the information contained in the order for reference that winding-up proceedings were opened in the Kingdom of Denmark in respect of Alpha Insurance and that the latter was declared bankrupt with effect from 8 May 2018. Moreover, that factor is also clear from the publication, made in accordance with Article 280 of that directive, in the Official Journal of the European Union (OJ 2018 C 196, p. 28).

44 Secondly, the applicability of Article 292 of Directive 2009/138 presupposes the existence of a ‘pending lawsuit’.

45 In that regard, although the lawsuits pending, within the meaning of Article 292, fall within the scope of proceedings brought by individual creditors – since Article 274(2)(e) of Directive 2009/138 states that the effects of winding-up proceedings on such proceedings are to be determined, in principle, by the lex concursus, with the exception of such lawsuits pending – such proceedings are different from individual enforcement actions arising from pending lawsuits, as is apparent from recital 130 thereof.

46 It follows that the ‘lawsuits pending’, within the meaning of Article 292 of Directive 2009/138, cover actions which are limited to determining the rights and obligations of the insurance undertaking placed in liquidation, without involving their realisation, that is to say, to the exclusion of proceedings brought by individual creditors by means of enforcement proceedings.

47 That interpretation is consistent with that adopted by the Court of the identical concept of ‘pending lawsuit’ in Article 15 of Regulation No 1346/2000 and Article 32 of Directive 2001/24. The Court has held that only proceedings on the merits fall within the scope of a ‘pending lawsuit’ and therefore the exception to the lex concursus provided for by those two articles, to the exclusion of individual enforcement actions (see, respectively, to that effect, judgments of 6 June 2018, Tarragó da Silveira, C‑250/17, EU:C:2018:398, paragraphs 30 to 33 and the case-law cited, and of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 39 and the case-law cited).

48 In the case in the main proceedings, that condition also appears to be satisfied. It is clear from the information in the documents before the Court that the sole purpose of the lawsuit pending before the French civil courts is a claim for compensation by an insured person against his or her insurer, the latter having been placed in liquidation by the Danish authorities at a time when those substantive proceedings were pending.

49 Thirdly, the pending lawsuit must, according to the very wording of Article 292 of Directive 2009/138, concern ‘an asset or a right of which the insurance undertaking has been divested’.

50 As regards the scope of that expression, as the French Government and the Commission have pointed out, it must be noted that the various language versions of Article 292 of Directive 2009/138 are not unambiguous.

51 While some language versions suggest that the pending lawsuit must concern ‘un actif ou un droit’ as in the French-language version, ‘an asset or a right’, as in the English-language version, or an ‘asset’, as in the Italian (‘a un bene’) or Spanish (‘a un bien’) versions, other language versions are worded more broadly. Thus, the Portuguese language version (‘bens o direitos’) refers to a number of assets or rights, the Finnish version (‘omaisuuta’) refers to the ownership or assets of the entity in question and the German (‘einen Vermögensgegenstand oder ein Recht der Masse’) and Danish (‘eller en rettighed i massen’) versions refer to any element having an asset value or to any right belonging to the insurance undertaking’s liquidation estate.

52 Where such disparities exist in relation to the wording of Article 292 of Directive 2009/138, that provision must be interpreted having regard, inter alia, to the context and purpose of the rules of which it forms part (see, to that effect, judgment of 9 September 2020, TMD Friction and TMD Friction EsCo, C‑674/18 and C‑675/18, EU:C:2020:682, paragraph 89 and the case-law cited).

53 As regards the context of Article 292 of Directive 2009/138, it must be observed that the assets or rights in question are those of which the insurance undertaking has been divested on account of the opening of winding-up proceedings. In accordance with Article 273(2) thereof, any decision concerning the opening of such winding-up proceedings is to be recognised in all the other Member States as soon as it is effective in the Member State in which the proceedings are opened. It follows that the term ‘asset’, ‘property’ or ‘right of which the insurance undertaking has been divested’ designates not only a specific asset, property or right of that undertaking, but rather its assets and liabilities, which are the subject of the winding-up proceedings. Moreover, that interpretation is supported by recital 124 of that directive, according to which all the assets and liabilities of the insurance undertaking should be taken into consideration in the winding-up proceedings.

54 As to the purpose of Directive 2009/138, it follows from recital 130 thereof that the exception established in Article 292 of that directive to the application of the lex concursus to the effects of the winding-up proceedings seeks to protect legitimate expectations and the certainty of certain transactions in Member States other than the home Member State. Such objectives would not be fully achieved if all the assets of the insurance undertaking which are the subject of the winding-up proceedings and of which that undertaking has been divested did not fall within the scope of Article 292 of Directive 2009/138.

55 Furthermore, that solution is fully consistent with that arising from the judgment of 29 April 2021, Banco de Portugal and Others (C‑504/19, EU:C:2021:335, paragraph 43), in which the Court held that the expression ‘an asset or a right of which the credit institution has been divested’, set out in Article 32 of Directive 2001/24, applies to pending lawsuits concerning one or more of the assets and liabilities of the credit institution of which that institution has been divested.

56 In the light of all of those considerations, it must be held, in line with the submissions of the interested parties which participated in the proceedings before the Court, that the compensation sought by a policyholder, in respect of damage suffered during an incident, from its insurer which has been placed in liquidation in the course of the proceedings, falls within the scope ratione materiae of Article 292 of Directive 2009/138.

57 Accordingly, the answer to the first question is that Article 292 of Directive 2009/138 must be interpreted as meaning that the concept of a ‘pending lawsuit concerning an asset or a right of which the insurance undertaking has been divested’, referred to in that article, includes a pending lawsuit concerning a claim for insurance compensation made by a policyholder, in respect of damage sustained in one Member State, from an insurance undertaking subject to winding-up proceedings in another Member State.

The second question

58 By its second question, the referring court asks, in essence, whether Article 292 of Directive 2009/138 must be interpreted as meaning that the law of the Member State in which the lawsuit is pending, within the meaning of that article, is intended to govern all the effects of the winding-up proceedings on that lawsuit. In particular, the referring court asks whether the provisions of the law of the Member State in which the lawsuit is pending should be applied where, first, they state that the opening of such winding-up proceedings results in the suspension of the pending lawsuit, secondly, they make the resumption of the proceedings subject to the claim for insurance compensation being lodged against the estate of the insurance undertaking by the creditor and to the bodies responsible for the winding-up proceedings being summoned and, thirdly, they preclude an order to pay the insurance compensation, since such an order can no longer be the subject of a judgment except relating to the determination and fixing the amount of the compensation.

59 It is clear from the wording of Article 292 of Directive 2009/138, read in the light of recital 130 thereof, that the effects of winding-up proceedings on a pending lawsuit are governed solely by the law of the Member State in which that lawsuit is taking place.

60 It follows that the EU legislature did not intend to limit the application of that article solely to the procedural effects of winding-up proceedings.

61 Therefore, the effects, both procedural and substantive, of winding-up proceedings on a pending lawsuit, within the meaning of Article 292 of Directive 2009/138, are exclusively those determined by the law of the Member State in which that lawsuit is pending (see, by analogy, judgment of 29 April 2021, Banco de Portugal and Others, C‑504/19, EU:C:2021:335, paragraph 49).

62 It is true that, as the French Government and the Commission stated in their written observations, the application of the law of the Member State in which that lawsuit is pending is limited by the application, in principle, of the lex concursus, as set out in Article 274(2) of Directive 2009/138.

63 However, in the present case, it does not appear, subject to verification by the referring court, that the three sets of provisions of the national law of the Member State in which the lawsuit is pending, as mentioned by that court and summarised in paragraph 58 of the present judgment, encroach on the application of the lex concursus provided for in Article 274(2) of Directive 2009/138.

64 First, as regards a provision of national law such as Article 369 of the Code of Civil Procedure, which provides that the pending lawsuit is to be stayed, inter alia, by the effect of the judgment resulting from the opening of winding-up proceedings in respect of an insurance undertaking in another Member State, such a provision appears to concern the procedural effects, attached to that opening of proceedings, on that lawsuit and, therefore, falls within the scope of the law designated by Article 292 of Directive 2009/138.

65 Secondly, the same applies, in principle, to a provision of the law of the Member State in which the lawsuit is pending, such as Article R. 622-20 of the Commercial Code, which applies to the winding-up proceedings under Article R. 641-23 thereof, which makes the resumption of the proceedings subject to the claim for insurance compensation being lodged against the estate of the insurance undertaking by the creditor and to the bodies responsible for the winding-up proceedings being summoned. Subject to verification by the referring court, such a provision appears to govern the procedural consequences for the pending lawsuit of events occurring in the context of the winding-up proceedings opened in another Member State, without, inter alia, prejudging the respective powers of the insurance undertaking and the liquidator, which are determined by the law of the home Member State, in accordance with Article 274(2)(b) of Directive 2009/138.

66 Thirdly, as regards a rule of national law, such as Article L. 622-22 of the Commercial Code, which applies to the winding-up proceedings under Article L. 641-3 thereof, in accordance with which, on the resumption of the previously interrupted pending lawsuit, its subject matter may no longer relate to anything other than verifying the claims and determining their amount, it should be noted that no provision of Directive 2009/138 appears to preclude such a limitation of the subject matter of the pending lawsuit. In particular, the effects of such a rule of national law on the pending lawsuit appear only to confirm the power reserved to the law of the home Member State, in particular that referred to in Article 274(2)(g) and (h) of that directive, of determining, respectively, the rules governing the lodging, verification and admission of claims and, inter alia, the rules governing the distribution of proceeds from the realisation of assets and the ranking of claims, which it is for the national court to determine.

67 In the light of the foregoing considerations, the answer to the second question is that Article 292 of Directive 2009/138 must be interpreted as meaning that the law of the Member State within the territory of which the lawsuit is pending, within the meaning of that article, is intended to govern all the effects of the winding-up proceedings on that lawsuit. In particular, the provisions of the law of that Member State should be applied which, first, provide that the opening of such liquidation proceedings results in the suspension of the pending lawsuit, secondly, make the resumption of the proceedings subject to the claim for insurance compensation being lodged against the estate of the insurance undertaking by the creditor and to the bodies responsible for the winding-up proceedings being summoned and, thirdly, preclude an order to pay the insurance compensation, since such an order can no longer be the subject of a judgment except relating to the determination and fixing the amount of the compensation, since, in principle, those provisions do not encroach on the power reserved to the law of the home Member State, in accordance with Article 274(2) of that directive.

Costs

68 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

1. Article 292 of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) must be interpreted as meaning that the concept of a ‘pending lawsuit concerning an asset or a right of which the insurance undertaking has been divested’, referred to in that article, includes a pending lawsuit concerning a claim for insurance compensation made by a policyholder, in respect of damage sustained in one Member State, from an insurance undertaking subject to winding-up proceedings in another Member State.

2. Article 292 of Directive 2009/138/EC must be interpreted as meaning that the law of the Member State within the territory of which the lawsuit is pending, within the meaning of that article, is intended to govern all the effects of the winding-up proceedings on that lawsuit. In particular, the provisions of the law of that Member State should be applied which, first, provide that the opening of such liquidation proceedings results in the suspension of the pending lawsuit, secondly, make the resumption of the proceedings subject to the claim for insurance compensation being lodged against the estate of the insurance undertaking by the creditor and to the bodies responsible for the winding-up proceedings being summoned and, thirdly, preclude an order to pay the insurance compensation, since such an order can no longer be the subject of a judgment except relating to the determination and fixing the amount of the compensation, since, in principle, those provisions do not encroach on the power reserved to the law of the home Member State, in accordance with Article 274(2) of that directive.

[Signatures]