OPINION OF ADVOCATE GENERAL

WAHL

delivered on 28 June 2018 ( 1 )

Affaire C‑296/17

Wiemer & Trachte GmbH, in liquidation

v

Zhan Oved Tadzher

(Request for a preliminary ruling

from the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria))

(Reference for a preliminary ruling — Judicial cooperation in civil matters — Insolvency proceedings — Regulation (EC) No 1346/2000 — Article 3(1) — International jurisdiction — Article 21 — Publication — Article 24 — Failure to open insolvency proceedings — Honouring of an obligation to a debtor — Presumption of unawareness — Action to set aside)

Introduction

1. The present request for a preliminary ruling, submitted by the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria), concerns the interpretation of Article 3(1), Article 18(2) and Articles 21 and 24 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings. ( 2 )

2. The referring court requests the Court to provide certain clarification of the interpretation of (i) the rules attributing international jurisdiction for actions to set a transaction aside deriving directly from insolvency proceedings and (ii) the conditions governing the protection of persons who have honoured an obligation to the insolvent debtor when that obligation should have been honoured to the liquidator in the proceedings in another Member States. The Court is requested, in particular, to rule on the important and controversial question of the exclusive or non-exclusive nature of the international jurisdiction of the courts of the Member State in which the principal insolvency proceedings were opened to adjudicate in actions deriving from those proceedings.

Legal framework

3. Recitals 2, 6, 7, 8, 29 and 30 of Regulation No 1346/2000 state: ‘(2) The proper functioning of the internal market requires that cross-border insolvency proceedings should operate efficiently and effectively and this Regulation needs to be adopted in order to achieve this objective which comes within the scope of judicial cooperation in civil matters within the meaning of Article 65 of the [EC] Treaty. (6) In accordance with the principle of proportionality this Regulation should be confined to provisions governing jurisdiction for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings. In addition, this Regulation should contain provisions regarding the recognition of those judgments and the applicable law which also satisfy that principle. (7) Insolvency proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings are excluded from the scope of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Conventions on Accession to this Convention. (8) In order to achieve the aim of improving the efficiency and effectiveness of insolvency proceedings having cross-border effects, it is necessary, and appropriate, that the provisions on jurisdiction, recognition and applicable law in this area should be contained in a Community law measure which is binding and directly applicable in Member States. (29) For business considerations, the main content of the decision opening the proceedings should be published in the other Member States at the request of the liquidator. If there is an establishment in the Member State concerned, there may be a requirement that publication is compulsory. In neither case, however, should publication be a prior condition for recognition of the foreign proceedings. (30) It may be the case that some of the persons concerned are not in fact aware that proceedings have been opened and act in good faith in a way that conflicts with the new situation. In order to protect such persons who make a payment to the debtor because they are unaware that foreign proceedings have been opened when they should in fact have made the payment to the foreign liquidator, it should be provided that such a payment is to have a debt-discharging effect.’

4. Article 3, entitled ‘International jurisdiction’, of that regulation provides: ‘1. The courts of the Member State within the territory of which the centre of a debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings. In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. 2. Where the centre of a debtor’s main interests is situated within the territory of a Member State, the courts of another Member State shall have jurisdiction to open insolvency proceedings against that debtor only if he possesses an establishment within the territory of that other Member State. The effects of those proceedings shall be restricted to the assets of the debtor situated in the territory of the latter Member State. …’

5. Article 16(1) of that regulation provides that ‘any judgment opening insolvency proceedings handed down by a court of a Member State which has jurisdiction pursuant to Article 3 shall be recognised in all the other Member States from the time that it becomes effective in the State of the opening of proceedings’.

6. In accordance with Article 18 of that regulation, entitled ‘Powers of the liquidator’: ‘1. The liquidator appointed by a court which has jurisdiction pursuant to Article 3(1) may exercise all the powers conferred on him by the law of the State of the opening of proceedings in another Member State, as long as no other insolvency proceedings have been opened there nor any preservation measure to the contrary has been taken there further to a request for the opening of insolvency proceedings in that State. He may in particular remove the debtor’s assets from the territory of the Member State in which they are situated, subject to Articles 5 and 7. 2. The liquidator appointed by a court which has jurisdiction pursuant to Article 3(2) may in any other Member State claim through the courts or out of court that moveable property was removed from the territory of the State of the opening of proceedings to the territory of that other Member State after the opening of the insolvency proceedings. He may also bring any action to set aside which is in the interests of the creditors. …’

7. Article 21 of Regulation No 1346/2000, entitled ‘Publication’, provides: ‘1. The liquidator may request that notice of the judgment opening insolvency proceedings and, where appropriate, the decision appointing him, be published in any other Member State in accordance with the publication procedures provided for in that State. Such publication shall also specify the liquidator appointed and whether the jurisdiction rule applied is that pursuant to Article 3(1) or Article 3(2). 2. However, any Member State within the territory of which the debtor has an establishment may require mandatory publication. In such cases, the liquidator or any authority empowered to that effect in the Member State where the proceedings referred to in Article 3(1) are opened shall take all necessary measures to ensure such publication.’

8. Article 24 of that regulation, entitled ‘Honouring of an obligation to a debtor’, provides: ‘1. Where an obligation has been honoured in a Member State for the benefit of a debtor who is subject to insolvency proceedings opened in another Member State, when it should have been honoured for the benefit of the liquidator in those proceedings, the person honouring the obligation shall be deemed to have discharged it if he was unaware of the opening of proceedings. 2. Where such an obligation is honoured before the publication provided for in Article 21 has been effected, the person honouring the obligation shall be presumed, in the absence of proof to the contrary, to have been unaware of the opening of insolvency proceedings; where the obligation is honoured after such publication has been effected, the person honouring the obligation shall be presumed, in the absence of proof to the contrary, to have been aware of the opening of proceedings.’

9. In the words of Article 25(1) of that regulation: ‘Judgments handed down by a court whose judgment concerning the opening of proceedings is recognised in accordance with Article 16 and which concern the course and closure of insolvency proceedings, and compositions approved by that court shall also be recognised with no further formalities. … The first subparagraph shall also apply to judgments deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by another court. The first subparagraph shall also apply to judgments relating to preservation measures taken after the request for the opening of insolvency proceedings.’

The main proceedings, the questions for a preliminary ruling and the procedure before the Court

10. Wiemer & Trachte GmbH is a joint-stock company whose registered office is in Dortmund, in Germany. By decision of 10 May 2004, the Sofiyski gradski sad (Sofia City Court, Bulgaria) ordered that a branch of Wiemer & Trachte in Bulgaria be entered in the Bulgarian commercial register.

11. By order of 3 April 2007, the Amtsgericht Dortmund (Local Court, Dortmund, Germany) appointed a provisional liquidator for Wiemer & Trachte and decided that disposals by that company would be valid only with the consent of that liquidator. That first order was entered in the German register on 4 April 2007. By a second order, made on 21 May 2007 and entered in the register on 24 May 2007, that court placed Wiemer & Trachte under a general prohibition on the disposal of its assets. By a third order, made by that court on 1 June 2007, the company’s assets were made subject to insolvency proceedings. That third order was entered in the register on 5 June 2007.

12. On 18 and 20 April 2007 sums of EUR 2 149.30 and EUR 40000 respectively were transferred from Wiemer & Trachte’s account with Obedinena Balgarska banka AD by the manager of the Bulgarian branch to an account of Mr Zhan Oved Tadzher, for a ‘statement of travel expenses’ and an ‘advance payment for materials’, respectively.

13. Wiemer & Trachte brought an action before the Sofiyski gradski sad (Sofia City Court) against Mr Tadzher, claiming that those bank transactions were ineffective in so far as they occurred after the opening of the insolvency proceedings. It claimed that the abovementioned sums, plus statutory interest, should be returned to the insolvency assets.

14. Mr Tadzher contended that the Bulgarian court did not have jurisdiction to examine the case, that the amount corresponding to the advance payment for materials had not been used and that the sum of EUR 40000 had been repaid to Wiemer & Trachte on 25 April 2007.

15. The plea of lack of jurisdiction of the Bulgarian court was not upheld at first instance by the Sofiyski gradski sad (Sofia City Court) or on appeal by the Sofiyski apelativen sad (Court of Appeal, Sofia, Bulgaria). By order of 28 January 2013, a Chamber of the Varhoven kasatsionen sad (Supreme Court of Cassation) considered that the appeal on a point of law against the order made on appeal was not admissible and that that order, which recognised that the Bulgarian court had jurisdiction to determine the substance of the case, had the force of res judicata.

16. As regards the substance, as the Sofiyski gradski sad (Sofia City Court) had allowed the action brought by Wiemer & Trachte, Mr Tadzher appealed against that decision. On 26 July 2016 the Sofiyski apelativen sad (Court of Appeal, Sofia) set aside the decision delivered at first instance and rejected the claim for payment as unfounded and unsubstantiated by evidence.

17. Wiemer & Trachte therefore appealed on a point of law before the Varhoven kasatsionen sad (Supreme Court of Cassation) against the judgment of the Sofiyski apelativen sad (Court of Appeal, Sofia), maintaining that Article 24 of Regulation No 1346/2000 was not applicable to the dispute.

18. It was in those circumstances that the Varhoven kasatsionen sad (Supreme Court of Cassation) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is Article 3(1) of [Regulation No 1346/2000] to be interpreted as meaning that the jurisdiction of the courts of the Member State within the territory of which insolvency proceedings have been opened to hear and determine an action to set a transaction aside by virtue of the debtor’s insolvency which has been brought against a defendant whose registered office or habitual residence is in another Member State is exclusive, or, in the case of Article 18(2) of that regulation, is the liquidator empowered to bring an action to set aside before a court in the Member State within the territory of which the defendant has his registered office or habitual residence, where the action to set aside brought by the liquidator is based on a disposal of moveable assets carried out in the other Member State? (2) Is an obligation which was honoured for the benefit of the debtor in one Member State, via the managing director of an establishment of the debtor company registered in that Member State, deemed to have been discharged, in accordance with Article 24(2) in conjunction with Article 24(1) of Regulation No 1346/2000, where, at the time when that obligation was honoured, a request for the opening of insolvency proceedings in respect of the debtor’s assets had been made and a provisional liquidator had been appointed in another Member State, but no judgment opening insolvency proceedings had been delivered? (3) Does Article 24(1) of Regulation No 1346/2000, on the honouring of an obligation, apply to the payment of a sum of money to the debtor, where the original transfer of that sum from the debtor to the person honouring the obligation is regarded as being invalid under the national law of the insolvency court and that invalidity follows from the opening of the insolvency proceedings? (4) Does the presumption of a lack of awareness provided for in Article 24(2) of Regulation No 1346/2000 apply where the authorities referred to in the second sentence of Article 21(2) have not taken all necessary measures to ensure that the decisions by which the insolvency court appointed a provisional liquidator and ordered that disposals of assets effected by the company are to be valid only with the consent of the provisional liquidator are published in the register of the Member State within the territory of which the debtor has an establishment, where the Member State in which the establishment has its registered office provides for the mandatory publication of those decisions, even though it recognises them in accordance with Article 25 in conjunction with Article 16 of that regulation?’

19. Written observations were lodged by Wiemer & Trachte and by the European Commission. A hearing, in which those parties took part, was held on 3 May 2018.

Analysis

20. As the context that led the referring court to submit the present request for a preliminary ruling is not in my view wholly unambiguous, a few preliminary observations must be made about that context and, following on from those observations, about the relevance of the questions submitted.

Preliminary observations on the factual context and on the relevance of the questions submitted by the referring court

21. In this instance, there are valid reasons to doubt the relevance of the questions submitted by the referring court. First of all, it would appear that the problem of the jurisdiction of the Bulgarian courts (which is central to the first question) to determine the applicant’s action has already been settled by the national court. Next, the actual reality of the transaction at issue in the main proceedings is, according to the information to emerge from the case file submitted to the Court, and as confirmed at the hearing, still under discussion.

22. First, it is apparent from the information supplied by the referring court that one of its Chambers seems to have definitively settled ( 3 ) the dispute by determining that the Bulgarian courts have jurisdiction to determine Wiemer & Trachte’s action, which might render the question of international jurisdiction to determine the main proceedings superfluous. There is thus reasonable doubt as to the relevance of the first question for the purposes of determining the main proceedings.

23. However, and having regard in any event to the presumption that questions for a preliminary ruling are relevant, it cannot be precluded that it remains to determine in what capacity the Bulgarian courts have jurisdiction to hear and determine the action brought by the applicant. From that perspective, it seems necessary, as the first question suggests, to determine whether the main proceedings are illustrative of the possibilities for bringing actions provided for in Regulation No 1346/2000.

24. The answer to that question will potentially have significant consequences for the examination of the merits of the claim for repayment of the sums at issue. In particular, it will determine whether the defendant in the main proceedings may rely on the debt-discharging effect provided for in Article 24(1) of Regulation No 1346/2000.

25. Second, and as is apparent from the information provided by the applicant at the hearing, it seems that the actual payment at issue is still in dispute before the referring court.

26. It should be observed that, although, by order of 3 April 2007 of the Local Court of Dortmund, a provisional liquidator had been appointed to approve the disposal of the moveable assets of Wiemer & Trachte, a total amount of EUR 42 149.30 had been transferred shortly afterwards (on 18 and 20 April 2007) from the account of the latter’s Bulgarian branch to an account opened in the defendant’s name. That sum, according to the defendant’s assertions, was largely repaid on 25 April 2007 when he transferred a sum of EUR 40000 to the applicant’s branch in Bulgaria.

27. It was in those circumstances that Wiemer & Trachte decided to bring an action for a declaration that the first transfer was invalid and to seek repayment of that amount. Whereas the court to which application was made at first instance (the Sofyiski gradski sad (Sofia City Court)) had allowed that action, the appellate court (the Sofiyski apelativen sad (Court of Appeal, Sofia)) considered that the action was unfounded.

28. It should be observed that the applicant in the main proceedings, Wiemer & Trachte, disputes the referring court’s assertions that ‘it is common ground between the parties that the alleged payment by the defendant of the sum of EUR 40000 was made on 25 April 2007’ and that ‘the dispute concerns whether that payment constitutes the honouring of an obligation to the debtor and whether it has effects’.

29. According to the applicant, and as it stated at the hearing, the sum of EUR 40000 was never repaid. If that is the case, which it is for the referring court alone to confirm or to reject, ( 4 ) the second to the fourth questions would become largely irrelevant.

30. However, and having regard, once again, to the presumption that questions relating to the interpretation of EU law submitted by the national courts are relevant, the present request for a preliminary ruling may be declared admissible.

First question: the exclusive or optional nature of the jurisdiction of the courts within whose territory the main insolvency proceedings were opened to hear and determine actions to set aside based on the debtor’s insolvency

31. By its first question, the referring court seeks, in essence, to ascertain whether the courts of the Member State within whose territory the main insolvency proceedings were opened have exclusive jurisdiction in the actions to set aside based on the insolvency or whether, on the contrary, that jurisdiction is optional, in that the liquidator would still be able to bring such actions before the courts of other Member States.

32. In the present case there are two competing lines of interpretation.

33. According to the first line of interpretation, which is based, in particular, on the ‘vis attractiva concursus’ rule ( 5 ) and which has a certain historical basis, ( 6 ) only the courts of the Member State in which the insolvency proceedings were opened have jurisdiction to hear and determine actions linked with the insolvency if those actions derive directly from the insolvency and are closely linked with it. Since, as the Court has already held, ( 7 ) actions to set a transaction aside must be considered to be linked to the insolvency proceedings, the jurisdiction of the courts which were required to deal with the opening of the insolvency proceedings is exclusive of all other jurisdiction.

34. According to a second approach, which, according to the Commission, follows on from a systematic and teleological reading of Regulation No 1346/2000, that jurisdiction can be perceived only as optional. Not only may actions to set a transaction aside related to areas and obligations which are not necessarily linked with the main insolvency proceedings, but the possibilities for the liquidator to bring such actions in order to enhance the effectiveness of the insolvency proceedings must not be limited.

35. Before directly answering that question, I consider it appropriate, first of all, to make a number of general observations on the scope of Regulation No 1346/2000 and the principles which it sets out in relation to the jurisdiction of the courts.

General clarification of the scope of the specific rules arising from Regulation No 1346/2000

36. While it is unnecessary here to provide a detailed account of the historical origins and the precise content of Regulation No 1346/2000, ( 8 ) it is appropriate to emphasise that one of the priority objectives of that regulation is to ensure the effectiveness of insolvency proceedings while avoiding situations of ‘forum shopping’. ( 9 ) That regulation is thus intended to harmonise the rules of private international law (and not the substantive rules) applicable in ‘collective insolvency proceedings which entail the partial or total divestment of a debtor and the appointment of a liquidator’. ( 10 )

37. That regulation is designed to overcome, in particular, the legislative lacunae resulting from the fact that insolvency proceedings were explicitly excluded from the scope of the Brussels Convention ( 11 ) (and Council Regulation (EC) No 44/2001, ( 12 ) which succeeded it). More specifically, it is intended to unify the rules relating to the determination of the applicable law, international jurisdiction and the effect (recognition and enforcement) of foreign judgments. In doing so, Regulation No 1346/2000 replaces, in the field in which it applies, the solutions hitherto enshrined in the ordinary private international law of the Member States.

38. As stated in the Virgós-Schmit Explanatory Report, ( 13 ) which provides useful guidance when interpreting that regulation, ( 14 ) insolvency proceedings, which are a collective action, need clearly determined legal positions.

39. Furthermore, the effectiveness of such proceedings means that the States concerned recognise the jurisdiction of the courts of the Member State in which the proceedings were opened, the powers of their liquidators and the legal effects of their judgments. ( 15 )

40. As regards international jurisdiction, the system established in Regulation No 1346/2000 is based on the distinction, set out in Article 3 of that regulation, between the main (universal) proceedings and the secondary (territorial) proceedings. ( 16 ) Whereas the ordinary law of the Member States generally accepted that the national courts might recognise that they had jurisdiction to open collective proceedings on various bases (such as, for example, the nationality of one of the parties involved or the presence in the country concerned of interests of the debtor), Regulation No 1346/2000 authorises the courts of the Member States to declare that they have jurisdiction only on the basis of two criteria: the centre of the debtor’s main interests and the presence of an establishment within the territory of the State concerned.

41. As regards actions ‘to set a transaction aside’ based on the insolvency, the Virgós-Schmit Report states, in paragraph 77, referring to the direction taken in the judgment in Gourdain, ( 17 ) that ‘there is an element of attraction where the actions derive directly from the insolvency and are closely linked with the insolvency proceedings’.

42. The Court adopted that approach and indicated, in its judgment in Seagon, ( 18 ) that Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the courts of the Member State within whose territory insolvency proceedings have been opened have jurisdiction to determine an action to set aside based on insolvency that is brought against a person whose registered office is in another Member State.

43. It should be pointed out that that solution was confirmed when the applicable rules were recast by Regulation (EU) 2015/848. ( 19 ) Article 6 of that regulation provides that ‘the courts of the Member State within the territory of which insolvency proceedings have been opened in accordance with Article 3 shall have jurisdiction for any action which derives directly from the insolvency proceedings and is closely linked with them, such as avoidance actions’. ( 20 )

44. Consequently, an action to set a transaction aside whereby the liquidator of the debtor claims repayment of a sum unduly paid to a third party after the insolvency proceedings were opened, such as the action brought by Wiemer & Trachte at issue in the main proceedings, is apt to come within the actions referred to in Regulation No 1346/2000.

45. But does that mean that that jurisdiction is exclusive in the sense that the ‘vis attractiva concursus’ rule of the Member State within whose territory the main insolvency proceedings were opened excludes other actions (in particular actions to set transactions aside) being brought before the courts of other Member States?

46. As I shall explain in what follows, I think that that question can only be answered in the affirmative.

Exclusive or optional nature of an action to set aside?

47. In accordance with Article 3(1) of Regulation No 1346/2000, the centre of a debtor’s main interests is the cornerstone of the system of international jurisdiction established by Regulation No 1346/2000.

48. In application of the ‘vis attractiva concursus’ rule, the purpose of which is to avoid the ‘dilution’ of the dispute, in a desire for proximity and foreseeability, it is appropriate that not only the jurisdiction of the courts but also the applicable law and the enforcement of the judicial decisions adopted in that context should generally be concentrated in the State in which the insolvency proceedings were opened.

49. However, if only the wording of Article 3(1) of Regulation No 1346/2000 is taken into consideration, the ‘vis attractiva concursus’ rule is not clearly expressed in that provision, in that it does not expressly state that the courts declared to have jurisdiction at the stage of the opening of the insolvency proceedings are also the only ones permitted to hear and determine actions deriving from those proceedings or closely connected with them. In fact, Article 3(1) provides merely, with regard to main insolvency proceedings, that the courts of the Member State within whose territory the centre of a debtor’s main interests is situated are to have jurisdiction to open insolvency proceedings.

50. The fact that that provision makes no reference to hearing and determining actions relating to insolvency proceedings and closely linked to those proceedings, which is most certainly to be explained by the fact that the laws of the Member States interpret the ‘vis attractiva concursus’ rule in different ways, has given rise to very different interpretations in relation to the possibility for courts other than those of the Member State in which the proceedings were opened to hear and determine actions linked with those proceedings.

51. As regards, in particular, what are known as ‘actions to set transactions aside’, which extend to all actions which, on the basis of the debtor’s insolvency, seek to have transactions and operations carried out by and in favour of the debtor declared invalid, it is quite conceivable that, apart from transactions and operations linked with any contracts entered into by the entities in question, they may have their basis in other civil or commercial obligations. Thus, on a literal reading of Article 3(1) of Regulation No 1346/2000, it cannot be precluded a priori that the courts of other Member States may, under the rules of territorial jurisdiction which they are required to define, be declared to have jurisdiction to hear and determine actions to set aside brought by the liquidator.

52. Those who advocate the ‘optional’ approach put forward two sets of arguments.

53. In the first place, they maintain that, while Regulation No 1346/2000 is intended to limit ‘forum shopping’, it is not, on the other hand, intended to limit the powers of the liquidator appointed pursuant to Article 3(1) of that regulation. As Advocate General Ruiz-Jarabo Colomer stated in his Opinion in Seagon (C‑339/07, EU:C:2008:575, point 64 et seq.), since the exercise by the liquidator of an action to set a transaction aside on the basis of the insolvency constitutes one of his powers, it might be considered that the jurisdiction to hear and determine such an action is not always exclusive.

54. In the second place, the possibility for the liquidator to bring actions before courts other than those designated under Article 3(1) of Regulation No 1346/2000, apart from the fact that it may serve to enhance the effectiveness of the actions brought by the liquidator to protect the assets, may show greater respect for the right to a fair trial. In fact, the criteria governing the designation of the court with jurisdiction to hear and determine an action under that provision, which depart from the criteria governing such designation which the Member States had hitherto been required to define, may result in actions being brought against persons not having their domicile in the forum concursus and thus undermine their procedural rights.

55. From a teleological viewpoint, all of those arguments seem to me to be largely convincing. The objectives of effectiveness and rapidity of cross-border insolvency proceedings argue in favour of the designated liquidator being able to choose the courts in which he wishes to bring his actions. That possibility also presents the advantage of making it easier to bring actions to set a transaction aside in the court of the defendant entity concerned, which generally shows greater respect for the rights of the defence.

56. However, while I admit to being amenable to those arguments, it seems to me that the Court’s case-law favours the establishment of the ‘vis attractiva concursus’ rule. On that point, the lessons that can be drawn from two lines of case-law deserve mention.

57. The first line of case-law deals with the limitation of the scope of the different instruments that govern jurisdiction, as initiated by the judgment in Gourdain. ( 21 )

58. By that judgment, the Court, ruling on the scope of the Brussels Convention, held that an action to set a transaction aside, the purpose of which was to increase the assets of the undertaking subject to insolvency proceedings, was linked to the bankruptcy proceedings, since it derived directly from the liquidation proceedings or the judicial administration of the assets. Such an action therefore did not come within the scope of the Brussels Convention and was not subject to the rules on jurisdiction defined therein.

59. The subsequent case-law, ( 22 ) which relates to the interaction between the rules set out in the Brussels I Regulation and those set out in Regulation No 1346/2000, states quite clearly that all civil or commercial actions must be covered by uniform European rules on international jurisdiction, which must be defined by one or other of those instruments. In fact, it is necessary to avoid national rules on conflicts of jurisdiction being adopted to the detriment of legal certainty. ( 23 )

60. In fact, and as the Court observed in its judgment in Seagon, ( 24 ) it is precisely that criterion that is used in recital 6 of Regulation No 1346/2000 in order to define the purpose of that regulation. According to that recital, that regulation governs ‘jurisdiction for opening insolvency proceedings and judgments which are delivered directly on the basis of the insolvency proceedings and are closely connected with such proceedings’.

61. The second line of case-law, which is decisive, is the one that specifically follows from the judgment in Seagon. ( 25 ) According to that judgment, Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that it also confers international jurisdiction on the Member State within whose territory insolvency proceedings were opened to hear and determine actions which derive directly from those proceedings and which are closely connected to them. In stating, in that judgment, that ‘concentrating all the actions directly related to the insolvency of an undertaking before the courts of the Member State with jurisdiction to open the insolvency proceedings also appears consistent with the objective of improving the effectiveness and efficiency of insolvency proceedings having cross-border effects’, the Court ruled, when the judgment is read as a whole, in favour of the exclusive jurisdiction of the courts declared to have jurisdiction at the stage of the opening of the main insolvency proceedings. ( 26 )

62. To my mind that conclusion cannot be undermined by the arguments based on the wording of certain provisions of Regulation No 1346/2000.

63. As regards, in the first place, the argument that under Article 18(2) of that regulation, which deals with the ‘Powers of the liquidator’, the liquidator appointed pursuant to Article 3(2) of that regulation may bring actions to set aside in other Member States, that argument relates to the particular situation in which the liquidator was appointed in the context of secondary proceedings coming under Article 3(2) of that regulation.

64. Since in the context of such proceedings the liquidator’s powers are territorially limited, he must be able, in particular, to bring in any Member State, by judicial or extra-judicial means, any action to set aside which is in the interest of the creditors. It should be pointed out, on the other hand, that Article 18(1) of Regulation No 1346/2000, which concerns the situation in which, as in the main proceedings, the liquidator was appointed in the context of main proceedings on the basis of Article 3(1), of that regulation, mentions only the possibility that the liquidator may ‘exercise all the powers ( 27 ) conferred on him by the law of the State of the opening of proceedings’. That difference in wording is not fortuitous. It is explained precisely by the fact that the liquidator appointed in the context of main proceedings is supposed to bring the actions to set aside relating to those proceedings before the courts of the Member State in which those proceedings were opened. There is thus no requirement that he be able to rely on the possibility of bringing actions before the courts of other Member States.

65. Nor, in the second place, can an argument be derived from the second paragraph of Article 25(1) of that regulation. That provision refers only to the recognition and enforceability of ‘judgments deriving directly from the insolvency proceedings and which are closely linked with them, even if they were handed down by another court’. It merely accepts the possibility that courts of a Member State within whose territory insolvency proceedings have been opened, pursuant to Article 3(1) of that regulation, may also hear and determine an action of the type at issue in the main proceedings. ( 28 )

66. Last, I would emphasise that the new Regulation 2015/848 seems to have established more directly, in Article 6(1), the ‘vis attractiva concursus’ rule for actions deriving directly from the insolvency proceedings and which are closely linked with them.

67. Recital 35 of that regulation clearly tends towards the exclusivity of the jurisdiction of the courts of the Member State within whose territory insolvency proceedings were opened to hear and determine actions deriving directly from the insolvency proceedings and which are closely linked with them. The only situation in which that exclusivity does not apply is where an action is linked with another action based on the general provisions of civil and commercial law (Article 6(2) of Regulation 2015/848) or again in the case of actions intended to penalise a debtor’s directors for violation of their duties, provided that those courts have jurisdiction to address such disputes under their national law (see also recital 47 of Regulation 2015/848).

68. It follows from all of those considerations that Article 3(1) of Regulation No 1346/2000 must be interpreted as meaning that the jurisdiction of the courts of the Member State within whose territory the main insolvency proceedings were opened to hear and determine actions to set aside based on the debtor’s insolvency is exclusive.

69. Having regard to the answer which I propose should be given to the first question, it no longer seems strictly necessary to answer the other questions, which are based on the premiss that the Bulgarian courts might be declared to have jurisdiction to hear and determine the action to set aside at issue in the main proceedings. ( 29 ) In fact, in order to be able to rely on the provisions in Chapter II of Regulation No 1346/2000, entitled ‘Recognition of insolvency proceedings’, it is necessary to be in a situation in which the international jurisdiction of the courts before which the proceedings have been brought, in this case the Bulgarian courts, is established for the purposes of Article 3 of that regulation.

70. However, and in case the Court should not agree with my conclusion, I shall briefly examine below the second, third and fourth questions.

Second, third and fourth questions: the scope of Article 24 of Regulation No 1346/2000

71. As the Virgós-Schmit Report explains concerning Article 24 of Regulation No 1346/2000, the automatic recognition of insolvency proceedings opened in another Contracting State, provided for in Article 16 of that regulation, means that in some cases a number of the persons concerned may be unaware of the opening of proceedings and may act in good faith ‘in contradiction with these new circumstances’.

72. Article 24 is thus intended to govern the situation in which an obligation was honoured in good faith for the benefit of the debtor when it should have been honoured for the benefit of the liquidator appointed in insolvency proceedings opened in another Member State. It recognises the debt-discharging nature of the honouring of that obligation or that payment if the person concerned was unaware of the opening of the proceedings and acted in good faith.

73. Still according to the Virgós-Schmit Report, there is a presumption of unawareness of the opening of insolvency proceedings if the publication provided for in Article 21 of Regulation No 1346/2000 has not taken place according to the procedures laid down in the State concerned.

74. As the Commission has observed, the Virgós-Schmit Report explains the connection between Articles 16, 21 and 24 of Regulation No 1346/2000. Whereas Article 16 of that regulation provides for the automatic recognition of any judgment handed down by a court of a Member State which has jurisdiction pursuant to Article 3 of that regulation, Article 24 of that regulation relaxes that rule in favour of parties who have honoured an obligation in good faith, good faith being assessed in the light of the fact that the person concerned was not aware that the proceedings had been opened. That lack of awareness is presumed if the obligation was honoured before notice of the opening of the proceedings in the Member State concerned had been published.

75. Those provisions must be appreciated as a whole, having regard to the system of automatic recognition entailed by Regulation No 1346/2000 and, at the same time, the desire to protect third parties who have honoured obligations in good faith.

76. As the Court solemnly observed in its judgment in Eurofood, ( 30 ) as is shown by recital 22 of Regulation No 1346/2000, the rule of priority laid down in Article 16(1) of that regulation, which provides that insolvency proceedings opened in one Member State are to be recognised in all the Member States from the time that they produce their effects in the State of the opening of proceedings, is based on the principle of mutual trust, which requires, in particular, that the court of a Member State hearing an application for the opening of main insolvency proceedings check that it has jurisdiction having regard to Article 3(1) of that regulation, that is to say, examine whether the centre of the debtor’s main interests is situated in that Member State. In return, as recital 22 of that regulation makes clear, the principle of mutual trust requires that the courts of the other Member States recognise the decision opening main insolvency proceedings, without being able to review the assessment made by the first court as to its jurisdiction. ( 31 )

77. That is an important parameter of interpretation, which must be kept in mind in the examination of the second, third and fourth questions, which I shall set out in the following developments.

Second question: the stage of discharge from liability within the meaning of Article 24 of Regulation No 1346/2000

78. By its second question, the referring court seeks to ascertain the stage at which a person may, if appropriate, rely on the debt-discharging effect provided for in Article 24(1) of Regulation No 1346/2000.

79. In other words, it is appropriate to determine the point at which it may be considered that insolvency proceedings have been opened with respect to a debtor within the meaning of that provision.

80. On that point, the judgment in Eurofood ( 32 ) undeniably provides some extremely helpful indicators.

81. I recall that in that case the Court was asked, in particular, whether a decision of a court of a Member State presented with a petition for the liquidation of a company — and whereby a liquidator is appointed and whose powers have the legal effect of preventing the company’s directors from exercising the same powers — must be described as a ‘decision opening insolvency proceedings’ for the purposes of Regulation No 1346/2000.

82. Observing that the conditions and formalities required for opening insolvency proceedings are a matter for national law, and vary considerably from one Member State to another, ( 33 ) the Court held that it was necessary, in order to ensure the effectiveness of the system established by the regulation, that the mutual recognition principle laid down in the first subparagraph of Article 16(1) of Regulation No 1346/2000 be capable of being applied ‘as soon as possible’ in the course of the proceedings. ( 34 ) In those circumstances, a ‘decision to open insolvency proceedings’ for the purposes of the Regulation must be considered to include not only a decision which is formally described as an opening decision by the legislation of the Member State of the court that handed it down, but also a decision handed down following an application, based on the debtor’s insolvency, seeking the opening of proceedings referred to in Annex A to that regulation, where that decision involves divestment of the debtor and the appointment of a liquidator referred to in Annex C to that regulation. ( 35 )

83. It seems to me that that conclusion must be applied, mutatis mutandis, when interpreting Article 24 of Regulation No 1346/2000.

84. As explained in the Virgós-Schmit Report (paragraph 187), it is apparent that that provision — like Article 16 of that regulation — was introduced in order to offset the undesirable effects that might result for transactions effected in good faith by third parties from the automatic recognition of decisions opening insolvency proceedings, in the very broad sense.

85. Article 24 of Regulation No 1346/2000 is specifically designed to protect third parties who, acting in good faith and after the insolvency proceedings have been opened, have honoured an obligation for the benefit of the insolvent debtor, when that obligation should have been honoured for the benefit of the liquidator. Good faith is presumed in the absence of proof to the contrary if the obligation was honoured before the adoption of the publication measures referred to in Article 21 of that regulation. ( 36 ) However, it is always possible for the opposing party to establish that an obligation was honoured in bad faith and therefore that the debt-discharging effect cannot be produced.

86. That, moreover, is the solution explicitly adopted in the new Regulation 2015/848. Article 2(7)(ii) of that regulation characterises as a ‘judgment opening insolvency proceedings’, for the purposes of that regulation, the decision of a court to appoint an insolvency practitioner, including, according to Annex B, a provisional liquidator.

87. Having regard to all of those considerations, I propose that the answer to the second question be that Article 24 of Regulation No 1346/2000 is applicable to the honouring of an obligation to the debtor in a Member State effected at the stage where an application to open insolvency proceedings relating to the debtor’s assets has been submitted and a provisional liquidator has been appointed in another Member State, but where no court decision to open insolvency proceedings has yet been delivered in the Member State within whose territory the centre of the defendant’s main interests is situated.

Third question: relevance of the nature of the legal obligation and its legal basis for the purposes of the application of Article 24 of Regulation No 1346/2000

88. By its third question, the referring court asks the Court whether Article 24 of Regulation No 1346/2000 is to apply where the initial disposal by the insolvent debtor is considered to be ineffective according to the national law of the court with jurisdiction in insolvency matters and where that lack of effect follows specifically from the insolvency proceedings.

89. It should be borne in mind that Article 24 of Regulation No 1346/2000, read in the light of recital 30 of that regulation, introduces a general rule for the protection of disposals made in good faith by third parties where they honour their obligation to the debtor at a time when foreign insolvency proceedings have already been opened, but where the third party could not be aware of that situation.

90. As the Court has made clear, that article does not count among the conflict of law rules, but is a provision of substantive law which applies in each Member State independently of the lex concursus. ( 37 )

91. Neither the wording of Article 24 of Regulation No 1346/2000 nor the objective of protecting third-party debtors acting in good faith pursued by that provision can limit its application solely to obligations that arose outside any relationship with the insolvency proceedings. Consequently, neither the nature of the third party’s obligation to the debtor nor the legal basis of that obligation should be relevant for the application of Article 24 of Regulation No 1346/2000.

92. However, it must be made clear that that provision applies only where it can still be presumed, having regard to all the circumstances of the case, that the third party concerned was in fact unaware that insolvency proceedings had been opened, as the opening of such proceedings would normally have obliged him to make the payment in question to the liquidator appointed in the context of those proceedings.

93. Also, and as I have already stated, it is in any event still possible for the opposing party to establish that, notwithstanding the non-publication of the decision to open insolvency proceedings in a Member State, the third party concerned was actually aware that such proceedings had been opened, that an obligation was honoured in bad faith and, therefore, that the debt-discharging effect referred to in Article 24(1) of Regulation No 1346/2000 cannot apply.

94. Consequently, the legal basis of the third-party obligation to the insolvent debtor is irrelevant for the purposes of the application of Article 24 of Regulation No 1346/2000. It is still possible for the opposing party to establish that, notwithstanding the non-publication of the decision to open insolvency proceedings in a Member State, the third party concerned was actually aware that such proceedings had been opened, that an obligation was honoured in bad faith and, therefore, that the debt-discharging effect referred to in Article 24(1) of Regulation No 1346/2000 cannot apply.

Fourth question: applicability of the presumption of unawareness provided for in Article 24(2) of Regulation No 1346/2000

95. By its fourth question, the referring court seeks to ascertain whether the presumption of unawareness provided for in the second sentence of Article 24(2) of Regulation No 1346/2000 applies when the acts appointing a provisional liquidator and those relating to the disposals by the insolvent debtor were not published in the Member State in which the debtor is domiciled, when that State provides for the compulsory publication of those acts, in accordance with Article 21(2) of that regulation.

96. The doubts raised by the referring court concern the applicability of that presumption to the facts of the present case when Article 16(1) and the third sentence of Article 25(1) of Regulation No 1346/2000 provide for the automatic recognition of the judgments of the court which has jurisdiction in insolvency matters relating to preservation measures by the courts of any other Member State.

97. According to the information provided by the referring court, Bulgarian law provides for the compulsory publication of foreign decisions on the opening of insolvency proceedings.

98. It should be borne in mind that Article 21(1) of Regulation No 1346/2000 establishes the general rule that the liquidator is free to request publication of the judgment opening the insolvency proceedings and, where appropriate, the decision appointing him, in any Member State other than that in which the proceedings were opened. Article 21(2), of that regulation, by way of derogation, permits the mandatory publication of those decisions by the Member State within whose territory the debtor has an establishment. In such cases, the liquidator or any authority empowered to that effect in the Member State in which the proceedings were opened is to take all necessary measures to ensure such publication.

99. To my mind, the principle of mutual recognition put in place by Regulation No 1346/2000 necessarily requires that the presumption of unawareness provided for in Article 24(2) of that regulation is to apply even where the authorities referred to in Article 21(2) of that regulation have not taken all the necessary measures to ensure publication of a foreign decision opening insolvency proceedings in the register of the Member State within whose territory the registered office of the defendant’s branch is situated.

100. That conclusion follows, moreover, from the actual wording of the first sentence of Article 24(2) of Regulation No 1346/2000. The presumption of unawareness of the opening of the insolvency proceedings provided for in that provision is to apply where the third-party debtor has honoured the obligation in favour of the insolvent debtor before the publication provided for in Article 21 of that regulation took place. No other condition is laid down in that respect and the wording of the provision does not preclude the mandatory publication referred to in Article 21(2) of Regulation No 1346/2000.

Conclusion

101. Having regard to all of the foregoing considerations, I propose that the Court should answer the questions referred by the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) as follows: (1) Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings must be interpreted as meaning that the jurisdiction of the courts of the Member States within whose territory the main insolvency proceedings were opened to hear and determine actions to set aside based on the debtor’s insolvency is exclusive. (2) Article 24 of Regulation No 1346/2000 applies to the honouring of an obligation to the debtor in a Member State effected at the stage where an application to open insolvency proceedings relating to the debtor’s assets has been submitted and a provisional liquidator has been appointed in another Member State, but where no court decision to open insolvency proceedings has yet been delivered in the Member State within whose territory the centre of the defendant’s main interests is situated. (3) The legal basis of the third-party obligation to the insolvent debtor is irrelevant for the purposes of the application of Article 24 of Regulation No 1346/2000. (4) The presumption of unawareness provided for in Article 24(2) of Regulation No 1346/2000 is to apply even where the authorities referred to in the second sentence of Article 21(2) of that regulation have not taken all the necessary measures to ensure publication of a foreign decision opening the insolvency proceedings in the register of the Member States within whose territory the registered office of the debtor’s branch is situated, when the law of that Member State provides for the compulsory publication of that decision.

( 1 ) Original language: French.

( 2 ) OJ 2000 L 160, p. 1.

( 3 ) It should be pointed out that, by order of 28 January 2013, a bench of the Varhoven kasatsionen sad (Supreme Court of Cassation) ruled in favour of the jurisdiction of the Bulgarian courts, relying on the judgment of 12 February 2009, Seagon (C‑339/07, EU:C:2009:83).

( 4 ) The applicant in the main proceedings stated that the question of proof of that payment constitutes a significant aspect of its appeal before the referring court.

( 5 ) According to that rule, the court that opened the insolvency proceedings has within its jurisdiction not only the insolvency proceedings in the proper sense but also all the actions deriving from the insolvency. Although, as the Commission stated in its observations, an expression of that rule may be found in the judgment of 22 February 1979, Gourdain (133/78, EU:C:1979:49), it must be noted that the question whether or not the rule has been established is by no means settled.

( 6 ) See, in particular, Opinion of Advocate General Ruiz-Jarabo Colomer in Seagon (C‑339/07, EU:C:2008:575, footnote 33).

( 7 ) See judgment of 12 February 2009, Seagon (C‑339/07, EU:C:2009:83).

( 8 ) See, in particular, in that regard, Opinion of Advocate General Ruiz-Jarabo Colomer in Staubitz-Schreiber (C‑1/04, EU:C:2005:500, points 6 to 26).

( 9 ) See in particular recitals 2, 4 and 8 of Regulation No 1346/2000.

( 10 ) See article 1(1) of Regulation No 1346/2000.

( 11 ) Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1998 C 27, p. 1, ‘the Brussels Convention’).

( 12 ) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

( 13 ) Explanatory report of M. Virgós and E. Schmit on the Convention on Insolvency Proceedings of 3 May 1996, document of the Council of the European Union, 6500/96, DRS 8 (CFC), paragraph 3 (‘the Virgós-Schmit Report’).

( 14 ) See Opinion of Advocate General Jacobs in EurofoodIFSC (C‑341/04, EU:C:2005:579, point 2).

( 15 ) See the Virgós-Schmit Report, paragraphs 7 to 9.

( 16 ) The insolvency proceedings opened, in accordance with Article 3(1), by the competent court of the Member State within whose territory the centre of a debtor’s main interests is situated, described as the ‘main proceedings’ (or ‘universal proceedings’), produce universal effects in that they apply to the assets of the debtor situated in all the Member States in which the regulation applies. Although, subsequently, proceedings under Article 3(2) may be opened by the competent court of the Member State where the debtor has an establishment, those proceedings, described as ‘secondary proceedings’ (or ‘territorial proceedings’), are restricted to the assets of the debtor situated in the territory of the latter State (see judgment of 2 May 2006, Eurofood IFSC, C‑341/04, EU:C:2006:281, paragraph 28).

( 17 ) Judgment of 22 February 1979, Gourdain (133/78, EU:C:1979:49).

( 18 ) Judgment of 12 February 2009, Seagon (C‑339/07, EU:C:2009:83, paragraph 28).

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

( 20 ) See also recital 35 of Regulation 2015/848.

( 21 ) Judgment of 22 February 1979, Gourdain (133/78, EU:C:1979:49, paragraph 4).

( 22 ) See, in particular, judgment of 19 April 2012, F-Tex (C‑213/10, EU:C:2012:215), which related to the question whether an action brought against a third party by the creditor of a debtor who is the subject of insolvency proceedings, in circumstances where that creditor was acting on the basis of an assignment of claims which had been granted by the liquidator appointed in those proceedings, is covered by Regulation No 1346/2000, in so far as such an action derives directly from those proceedings and is closely connected with them, or is covered by Regulation No 44/2001, in so far as that action falls within the concept of a civil or commercial matter.

( 23 ) See also, in that regard, the new Regulation 2015/848, which states that ‘the interpretation of this Regulation should as much as possible avoid regulatory loopholes between the two instruments’.

( 24 ) Judgment of 12 February 2009, Seagon (C‑339/07, EU:C:2009:83, paragraph 20).

( 25 ) Judgment of 12 February 2009, Seagon (C‑339/07, EU:C:2009:83, paragraphs 22, 24 and 28).

( 26 ) See also point 4.2.6 of the report ‘External Evaluation of Regulation No 1346/2000/EC on Insolvency Proceedings’, available, in particular, at https://publications.europa.eu/en/publication-detail/-/publication/4d756fa7-b860-4e36-b1f8-c6640dced486/language-en

( 27 ) Emphasis added.

( 28 ) Judgment of 12 February 2009, Seagon (C‑339/07, EU:C:2009:83, paragraph 26).

( 29 ) See also points 22 to 24 above.

( 30 ) Judgment of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281, paragraphs 39 and 41).

( 31 ) Judgment of 2 May 2006, EurofoodIFSC (C‑341/04, EU:C:2006:281, paragraph 42).

( 32 ) Judgment of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281).

( 33 ) Judgment of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281, paragraph 51).

( 34 ) Judgment of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281, paragraph 52).

( 35 ) Judgment of 2 May 2006, Eurofood IFSC (C‑341/04, EU:C:2006:281, paragraph 54).

( 36 ) See the Virgós-Schmit Report, paragraph 187. See also, to that effect, Opinion of Advocate General Kokott in van Buggenhout and van de Mierop (C‑251/12, EU:C:2013:295, points 17 and 18).

( 37 ) Judgment of 19 September 2013, van Buggenhout and van de Mierop (C‑251/12, EU:C:2013:566, paragraph 23).