Initiative of the Federal Republic of Germany and the Republic of Finland with a view to the adoption of a Council Regulation on insolvency proceedings, submitted to the Council on 26 May 1999
Date: 1999-05-26
Institutions: Finland, Germany
Subjects: Finland, Germany, civil procedure, claim, financial solvency, liquidation

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II

(Preparatory Acts)

COUNCIL

INITIATIVE

of the Federal Republic of Germany and the Republic of Finland with a view to the adoption of a
Council Regulation on insolvency proceedings, submitted to the Council on 26 May 1999

(1999/C 221/06)

THE COUNCIL OF THE EUROPEAN UNION,

seeking to obtain a more favourable legal position ((cid:145)forum
shopping(cid:146));

Having regard to the Treaty establishing the European
Community, and in particular Article 61(c) and Article 67(1)
thereof,

Having regard to the initiative of Germany and Finland,

Having regard to the opinion of the European Parliament (1),

Having regard to the Opinion of the Economic and Social
Committee (2),

whereas:

(1) The European Union has set out the aim to establish an

area of freedom, secuity and justice;

(2) The proper functioning of the internal market necessitates
an improvement
insolvency
proceedings with cross-border implications and this Regu-
to achieve this
lation needs to be adopted in order
objective;

to and speeding up of

(3) This objective comes within the scope of judicial coop-
eration in civil matters within the meaning of Article 65
of the Treaty;

(4) Undertakings’ activities have more and more cross-border
effects and are therefore increasingly being regulated by
Community law. While the failure of such undertakings
also affects the proper functioning of the internal market,
there is a need for a Community act which permits coor-
to be taken regarding an
dination of
insolvent debtor’s assets;

the measures

(6) These objectives cannot

sufficient
level
Community level is therefore justified;

at national

degree

therefore be achieved to a
action at
and

(7) In accordance with the principle of proportionality the
Regulation is confined to provisions governing jurisdiction
for opening insolvency proceedings and for judgments
which are delivered directly on the basis of the insolvency
connected with such
proceedings
closely
proceedings.
contains
provisions regarding the recognition of these judgments
and the law applicable, which also satisfy that principle;

and are
In

the Regulation

addition,

legal persons,

(8) Insolvency proceedings relating to the winding-up of
insolvent companies or other
judicial
arrangements, compositions and analogous proceedings
the 1968 Brussels
are excluded from the scope of
Convention on Jurisdiction and the Enforcement of
as
Judgments
amended by the Conventions on Accession to this
Convention (4);

and Commercial Matters (3),

in Civil

(9) To achieve

the aim of

improving and accelerating
insolvency proceedings having cross-border effects,
it is
necessary and appropriate that the provisions on juris-
diction, recognition and applicable law in this area be
contained in a Community law measure which is
binding and directly applicable in Member States;

(10) This Regulation applies

the debtor

equally to all proceedings,
whether
is a natural person or a legal
person, a trader or an individual. Insolvency proceedings
concerning insurance undertakings, credit
institutions,
investment undertakings holding funds or securities for
third parties and collective investment undertakings are
excluded from the scope of this Regulation. Such under-

(5) It is necessary for the proper functioning of the internal
market to avoid incentives for the parties to transfer assets
or judicial proceedings from one Member State to another,

(1) Opinion delivered on . . . (not yet published in the Official Journal)
(2) Opinion delivered on . . . (not yet published in the Official Journal)

(3) OJ L 299, 31.12.1972, p. 32.
(4) OJ L 204, 2.8.1975, p. 28.
OJ L 304, 30.10.1978, p. 1.
OJ L 388, 31.12.1982, p. 1.
OJ L 285, 3.10.1989, p. 1.
OJ C 15, 15.1.1997, p. 1.

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takings are not covered by the Regulation since they are
subject to special arrangements and, to some extent, the
national
supervisory authorities have extremely wide-
ranging powers of intervention;

this background,

(11) The Regulation acknowledges the fact that as a result of
widely differing laws on property it is scarcely possible to
introduce insolvency proceedings with universal scope in
the entire Community. The application without exception
of the law of the State of opening of proceedings would,
against
frequently lead to difficulties.
for example, to the widely differing laws
This applies,
on preservation to be
found in the Community.
Furthermore, the preferential claims made by individual
creditors in the insolvency proceedings are also, in some
cases, completely different. The Regulation tries to take
account of this in two different ways. On the one hand,
provision is made for special references in the case of
particularly significant rights and legal relationships (e.g.
rights in rem and contracts of employment). On the other
hand, national proceedings covering only assets situated in
the State of opening are also allowed alongside main
insolvency proceedings with universal scope;

(12) A parallelism between main insolvency proceedings (cid:151)
recognised in other Member States (cid:151) and secondary
proceedings (cid:151) enabling creditors in another Member
State to invoke a local instrument in order to safeguard
centralisation.
their
the main
Mandatory
in the
proceedings
Community;

coordination with
the need for unity

interests (cid:151) avoids

rules
of
guarantee

over-rigid

(13) Insolvency proceedings may be opened in the Member
the centre of his main
State where the debtor has
interests. Main insolvency proceedings have universal
scope, they aim at encompassing all the debtor’s assets
on a worldwide basis and at affecting all creditors,
wherever located. The centre of main interests is taken
as meaning a place with which a debtor regularly has
very close contacts,
in which his manifold commercial
interests are concentrated and in which the bulk of his
assets is for the most part situated. The creditor is also
very familiar with that place;

(14) The rules of

jurisdiction set out

in this Regulation
is to say,
establish only international
they designate the Member State the courts of which
may open insolvency proceedings. Territorial jurisdiction
within that Member State must be established by the
national law of the Member State concerned;

jurisdiction,

that

(15) The rule on international

jurisdiction in Article 3(1)
enables
the court having jurisdiction to open main
insolvency proceedings to order provisional and protective
measures
to open
time of
proceedings. Preservation measures both prior to and
after the commencement of the insolvency proceedings
are very important to guarantee the effectiveness of the
insolvency proceedings. In this connection the Regulation

from the

request

the

the court
affords two possibilities. On the one hand,
competent for the main insolvency proceedings can also
order provisional protective measures covering assets
situated outside the country. Such measures are enforced
in accordance with the third subparagraph of Article
temporarily
25(1). On the other hand, a liquidator
appointed prior to the opening of the main insolvency
proceedings may, in the States in which an establishment
belonging to the debtor is to be found and in which he
would like to introduce secondary insolvency proceedings,
apply for the preservation measures which are possible
under the law of those States (Article 38);

local

establishment or

(16) The right to request the opening of independent territorial
proceedings is limited to local creditors and creditors of
to cases where main
the
proceedings cannot be opened under the law of
the
Member State where the debtor has the centre of his
main interest. The reason for this restriction on inde-
pendent proceedings
are
that
intended to be limited to what is absolutely necessary;

such proceedings

is

(17) Cases may arise where the estate of the debtor is too
complex to administer as a unit, where differences in
the legal systems concerned are so great that difficulties
may arise from the extension of effects deriving from the
law of the State of the opening to the other States where
the assets are located. For this reason the liquidator in the
main proceedings may request the opening of secondary
proceedings when the efficient administration of the estate
so requires;

by

various

cooperate
sufficient

liquidators must
a
exchanging

(18) Main insolvency proceedings and independent insolvency
proceedings may, however, contribute to effective real-
isation of the total assets only if the parallel proceedings
pending are coordinated. The main condition here is that
in
the
particular
of
In order to ensure the dominant role of
information.
the main insolvency proceedings, the liquidator in such
proceedings is given several possibilities for intervening in
secondary insolvency proceedings which are pending at
the same time. For example, he may apply for
the
opening of such proceedings, propose a restructuring
plan or composition or apply for
the
assets in the secondary insolvency proceedings to be
suspended;

closely,
amount

realisation of

(19) Every creditor, wherever domiciled in the Community, has
the right to assert his claims in each of the insolvency
proceedings pending in the Community relating to the
debtor’s assets. This also applies to tax authorities and
social insurance institutions. However, in order to ensure
equal treatment of creditors, the distribution of proceeds
must be coordinated. Every creditor may keep what he
has received in the course of insolvency proceedings but
may only participate in the distribution of total assets in
other proceedings if creditors with the same standing have
obtained the
claims. A
consolidated proportion survey must therefore be estab-
lished for the Community;

same proportion of

their

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the

that

(20) The Regulation provides for immediate recognition of
judgments concerning the opening, conduct and closure
of insolvency proceedings which come within its scope
and of
judgments handed down in direct connection
with such insolvency proceedings. Automatic recognition
attributed to the
effects
therefore means
proceedings by the law of
the State in which the
proceedings were opened extend to all other Member
States. Recognition of judgments delivered by the courts
of the Member States must be based on the principle of
mutual trust; to that end, grounds for non-recognition are
reduced to the minimum necessary. This is also the basis
on which any dispute is to be resolved where the courts
of two Member States both claim competence to open
the first
main solvency proceedings. The decision of
to open proceedings is to be recognised in the
court
other Member States without
those Member States
having the power to scrutinise the court’s decision;

law. The term (cid:145)applicable law(cid:146)

(21) The Regulation sets out, for the matters covered by it,
uniform rules on conflict of
laws which replace (cid:151)
within their scope of application (cid:151) national rules of
private international
in
this Regulation refers to the internal law of the Member
State, excluding its rules of private international
law.
Unless otherwise stated, the law of the Member State of
the opening of the proceedings is applicable (lex concursus).
This rule on conflict of laws is valid both for the main
proceedings and for local proceedings. The lex concursus
determines all the effects of the insolveny proceedings,
both procedural and substantive, on the persons and
legal relations concerned;
it governs all the conditions
for the opening, conduct and closure of the insolvency
proceedings;

(22) Automatic recognition of insolvency proceedings to which
the opening State normally applies may
the law of
interfere with the rules under which transactions are
carried out in other Member States. To protect legitimate
expectations and the certainty of transactions in Member
States other than that in which proceedings are opened,
this Regulation provides for a number of exceptions to the
general rule referred to in Articles 5 to 15 of the Regu-
lation;

(23) There is a particular need for a special reference diverging
from the law of the opening State in the case of rights in
rem, since these are of considerable importance for the
granting of credit. The basis, validity and extent of such
a right in rem are therefore normally determined according
to the lex situs and are not affected by the opening of
insolvency proceedings. The proprietor of
in
rem can therefore continue to assert his right to segre-
gation or separate settlement of the collateral security.
Where rights in rem are also covered by insolvency
proceedings under
the liquidator may
the lex situs,
request the opening of secondary insolvency proceedings
If such inde-
if the debtor has an establishment there.

the right

insolvency proceedings are not opened,

the
pendent
security is covered by the universal insolvency seizure in
the main solvency proceedings so that supplementary sale
proceeds must be paid back into the total assets if the
collateral security is sold;

(24) If a set-off is not permitted under the law of the opening
State, a creditor is nevertheless entitled to the set-off if it
is possible under the law applicable to the claim of the
insolvent debtor. In this way, set-off acquires a kind of
guarantee function based on legal provisions on which the
creditor concerned can rely at the time when the claim
arises;

(25) There is also a need for special protection in the case of
payment systems and financial markets. This applies for
example to the position-closing agreements and netting
agreements to be found in such systems as well as to
the sale of securities and to the guarantees provided for
such transactions as governed in particular by Council
Directive 98/26/EC of 19 May 1998 on settlement
finality in payment and securities settlement systems (1).
the only law which is material
For such transactions,
should thus be that applicable to the system or market
concerned. This provision is intended to prevent
the
possibility of mechanisms for the payment and settlement
of transactions provided for in he payment and set-off
systems or on the regulated financial markets of
the
Member States being altered in the case of insolvency of
a business partner. For some of the cases involved here,
Directive 98/26/EC contains special provisions which take
precedence over the general rules in the Regulation;

(26) In order to protect employees and jobs, the effects of
insolvency proceedings on the continuation or termi-
nation of employment and on the rights and obligations
of all parties to such employment must be determined by
the law applicable to the agreement in accordance with
the general
law. Any other
insolvency-law questions, such as whether the employees’
claims are protected by prior right and what status such
prior right may have, are determined by the law of the
opening State;

rules on conflict of

(27) For business considerations,

the main content of

the
decision opening the proceedings must be notified in
the other Member States at the request of the liquidator.
If
in the Member State
there
there may be a ruling that notification is
concerned,
compulsory.
is notification a
In neither case, however,
prior condition for recognition of the foreign proceedings;

is an establishment

(1) OJ L 166, 11.6.1998, p. 45.

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(28) 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,
the Regulation provides that such a payment shall have a
debt-discharging effect;

(29) The Regulation includes Annexes relating to the organi-
sation of insolvency proceedings pursuant to the domestic
law of the Member States. The Council reserves the right
to amend these Annexes in order to take account of any
amendments to the domestic law of the Member States;

and

the Treaty

(30) In accordance with Articles 1 and 2 of the Protocols on
the position of the United Kingdom and Ireland annexed,
by the Treaty of Amsterdam, to the Treaty on European
Union
European
Community, these Member States will not participate in
adoption of this Regulation; therefore, this Regulation is
not binding on either the United Kingdom or Ireland and
is not applicable to them, unless these Member States
exercise their rights pursuant to Articles 3 and 4 of that
Protocol;

establishing

the

establishing

annexed, by

(31) In accordance with Articles 1 and 2 of the Protocol on the
position of Denmark
the Treaty of
Amsterdam, to the Treaty on European Union and the
this
Treaty
European Community,
Member State will not participate in adoption of
this
Regulation; therefore, this Regulation is not binding on
Denmark and is not applicable to it, unless this Member
State informs the Council pursuant to Article 7 of that
Protocol that it no longer wishes to avail itself of all or the
relevant part of that Protocol,

the

HAS ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Scope

This Regulation shall apply to collective insolvency
1.
proceedings which entail the partial or total divestment of a
debtor and the appointment of a liquidator.

insurance

This Regulation shall not apply to insolvency proceedings
2.
concerning
institutions,
undertakings,
investment undertakings which provide services involving the
holding of funds or securities for third parties, or to collective
investment undertakings.

credit

Article 2

Definitions

For the purposes of this Regulation:

(a) (cid:145)insolvency

proceedings(cid:146)

collective
proceedings referred to in Article 1(1). These proceedings
are listed in Annex A, which shall form an integral part of
this Regulation;

shall mean

the

(b) (cid:145)liquidator(cid:146) shall mean any person or body whose function
is to administer or liquidate assets of which the debtor has
been divested or to supervise the administration of his
affairs. Those persons and bodies are listed in Annex C,
which shall form an integral part of this Regulation;

the debtor,

(c) (cid:145)winding-up proceedings(cid:146) shall mean insolvency proceedings
involving realising the
within the meaning of point
assets of
including where the proceedings
have been closed by a composition or other measure termi-
nating the insolvency, or closed by reason of the insuffi-
ciency of the assets. Those procedures are listed in Annex
B, which shall form an integral part of this Regulation;

(a)

(d) (cid:145)court(cid:146) shall mean the judicial body or any other competent
body of a Member State empowered to open insolvency
proceedings or to take decisions in the course of such
proceedings;

(e) (cid:145)judgment(cid:146)

in relation to the opening of

insolvency
proceedings or
shall
include the decision of any court empowered to open
such proceedings or to appoint a liquidator;

the appointment of a liquidator

(f)

(cid:145)the time of the opening of proceedings(cid:146) shall mean the
opening proceedings
time
judgment
judgment or not;
becomes effective, whether is is a final

at which the

(g) (cid:145)the Member State in which assets are situated(cid:146) shall mean,

in the case of:

(cid:151) tangible property, the Member State within the territory

of which the property is situated,

(cid:151) property and rights ownership of or entitlement
which must be entered in a public register,
Member State under
register is kept,

to
the
the authority of which the

(cid:151) claims, the Member State within the territory of which
the third party required to meet them has the centre of
his main interests, as determined in Article 3(1);

(h) (cid:145)establishment(cid:146) shall mean any place of operations where
the debtor carries out a non-transitory economic activity
with human means and goods.

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Article 3

(c)

the respective powers of the debtor and the liquidator;

International jurisdiction

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 estab-
lishment 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.

3. Where insolvency proceedings have been opened under
paragraph 1, any proceedings opened subsequently under
paragraph 2 shall be secondary proceedings. These latter
proceedings must be winding-up proceedings.

Territorial

4.
in
paragraph 2 may be opened prior to the opening of main
insolvency proceedings in accordance with paragraph 1 only:

proceedings

insolvency

referred

to

(a) where insolvency proceedings under paragraph 1 cannot be
opened because of the conditions laid down by the law of
the Member State within the territory of which the centre
of the debtor’s main interests is situated; or

(b) where the opening of territorial insolvency proceedings is
requested by a creditor who has his domicile, habitual
residence or registered office in the Member State within
the teritory of which the establishment is situated, or whose
claim arises from the oepration of that establishment.

(d)

the conditions under which set-offs may be invoked;

(e)

the effects of insolvency proceedings on current contracts
to which the debtor is party;

(f)

(g)

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

the claims which are to be lodged against the debtor’s
the
estate and the treatment of claims arising after
opening of insolvency proceedings;

(h)

the rules governing the lodging, verification and admission
of claims;

(i)

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 insolvency proceedings by virtue of a right in
rem or through a set-off;

(j)

the conditions for and the effects of closure of insolvency
proceedings, in particular by composition;

(k) creditors’

rights

after

the

closure

of

insolvency

proceedings;

(l) who is to bear the costs and expenses incurred in the

insolvency proceedings;

(m) the rules relating to the voidness, voidability or unenforce-
ability of legal acts detrimental to all the creditors.

Article 4

Law applicable

Article 5

Third parties’ rights in rem

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 (cid:145)State of
the opening of proceedings(cid:146).

1.
The opening of insolvency proceedings shall not affect
the rights in rem of creditors or third parties in respect of
tangible
assets
belonging to the debtor which are situated within the
territory of another Member State at the time of the opening
of proceedings.

intangible, movable

immovable

or

or

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:

The rights referred to in paragraph 1 shall in particular

2.
mean:

(a)

against which debtors insolvency proceedings may be
brought on account of their capacity;

(a) the right to dispose of assets or have them disposed of and
to obtain satisfaction from the proceeds of or income from
those assets, in particular by virtue of a lien or a mortgage;

(b)

the assets which form part of the estate and the treatment
of assets acquired by or devolving on the debtor after the
opening of the insolvency proceedings;

(b) the exclusive right to have a claim met, in particular a right
the claim or by

guaranteed by a lien in respect of
assignment of the claim by way of a guarantee;

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(c) the right to demand the assets from, and/or to require
restitution by, anyone having possession or use of them
contrary to the wishes of the party so entitled;

Article 9

Payment systems and financial markets

(d) a right in rem to the beneficial use of assets.

3.
The right, recorded in a public register and enforceable
against third parties, under which a right in rem within the
meaning of paragraph 1 may be obtained, shall be considered
a right in rem.

Paragraph 1 shall not preclude the actions for voidness,

4.
voidability or unenforceability laid down in Article 4(2)(m).

1. Without prejudice to Article 5, the effects of insolvency
proceedings on the rights and obligations of the parties to a
payment or settlement system or to a financial market shall be
governed solely by the law of the Member State applicable to
that system or market.

2.
Paragraph 1 shall not preclude any action for voidness,
voidability or unenforceability which may be taken to set aside
payments or transactions under the law applicable to the
relevant payment system or financial market.

Article 6

Set-off

Article 10

Contracts of employment

1.
The opening of insolvency proceedings shall not affect
the right of creditors to demand the set-off of their claims
against
is
permitted by the law applicable to the insolvent debtor’s claim.

the debtor, where such a set-off

the claims of

Paragraph 1 shall not preclude the actions for voidness,

2.
voidability or unenforceability laid down in Article 4(2)(m).

Article 7

Reservation of title

The opening of

insolvency proceedings against

1.
the
purchaser of an asset shall not affect the seller’s rights based
on a reservation of title where at the time of the opening of
proceedings the asset
is situated within the territory of a
Member State other than the State in which the proceedings
were opened.

2.
The opening of insolvency proceedings against the seller
of an asset, after delivery of the asset, shall not constitute
grounds for rescinding or terminating the sale and shall not
prevent the purchaser from acquiring title where at the time of
the opening of proceedings the asset sold is situated within the
territory of a Member State other than the State of the opening
of proceedings.

3.
Paragraphs 1 and 2 shall not preclude the actions for
voidness, voidability or unenforceability laid down in Article
4(2)(m).

The effects of insolvency proceedings on employment contracts
and relationships shall be governed solely by the law of the
Member State applicable to the contract of employment.

Article 11

Effects on rights subject to registration

insolvency proceedings on the rights of

The effects of
the
debtor in immovable property, a ship or an aircraft subject
to registration in a public register shall be determind by the
law of the Member State under the authority of which the
register is kept.

Article 12

Community patents and trade marks

For the purposes of this Regulation, a Community patent, a
Community trade mark or any other similar right established
by Community law may be included only in the proceedings
referred to in Article 3(1).

Article 13

Detrimental acts

Article 4(2)(m) shall not apply where the person who benefited
from a legal act detrimental to all the creditors provides proof
that:

Article 8

Contracts relating to immovable property

The effects of insolvency proceedings on a contract conferring
the right to acquire or make use of immovable property shall
be governed solely by the law of the Member State within the
territory of which the immovable property is situated.

(cid:151) the said act is subject to the law of a Member State other
than that of the State of the opening of proceedings, and

(cid:151) that law does not allow any means of challenging that act

in the relevant case.

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Article 14

Protection of third-party purchasers

Where, by an act concluded after the opening of insolvency
proceedings, the debtor disposes, for consideration, of:

same effects in any other Member State as under the law of the
State of
the opening of proceedings, unless the Regulation
provides otherwise and as long as no proceedings referred to
in Article 3(2) are opened in that other Member State.

(cid:151) an immovable asset, or

(cid:151) a ship or an aircraft subject to registration in a public

register, or

(cid:151) securities whose existence presupposes registration in a

register laid down by law,

the validity of that act shall be governed by the law of the State
within the territory of which the immovable asset is situated or
under the authority of which the register is kept.

Article 15

Effects of insolvency proceedings on lawsuits pending

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.

CHAPTER II

RECOGNITION OF INSOLVENCY PROCEEDINGS

Article 16

Principle

1.
Any judgment opening insolvency proceedings handed
down by a court of a Member State which has jurisdiction
pursuant
the other
to Article 3 shall be recognised in all
Member States from the time that it becomes effective in the
State of the opening of proceedings.

This rule shall also apply where, on account of his capacity,
insolvency proceedings cannot be brought against the debtor in
other Member States.

2.
Recognition of the proceedings referred to in Article 3(1)
shall not preclude the opening of the proceedings referred to in
Article 3(2) by a court in another Member State. The latter
proceedings shall be secondary proceedings within the meaning
of Chapter III.

2.
The effects of the proceedings referred to in Article 3(2)
may not be challenged in other Member States. Any restriction
of the creditors’ rights, in particular a stay or discharge, shall
produce effects vis-(cid:224)-vis assets situated within the territory of
another Member State only in the case of those creditors who
have given their consent.

Article 18

Powers of the liquidator

1.
The liquidator appointed by a court which has juris-
diction 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 pres-
ervation 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
the Member State in which they are situated,
territory of
subject to Articles 5 and 7.

The liquidator appointed by a court which has juris-
2.
diction pursuant to Article 3(2) may in any other Member
State claim through the courts or out of court that movable
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.

3.
In exercising his powers, the liquidator shall comply with
the law of the Member State within the territory of which he
intends to take action, in particular with regard to procedures
for the realisation of assets. Those powers may not include
coercive measures or the right to rule on legal proceedings
or disputes.

Article 19

Proof of the liquidator’s appointment

The liquidator’s appointment shall be evidenced by a certified
copy of the original decision appointing him or by any other
certificate issued by the court which has jurisdiction.

Article 17

Effects of recognition

1.
The judgment opening the proceedings referred to in
Article 3(1) shall, with no further formalities, produce the

A translation into the official language or one of the official
languages of the Member State within the territory of which he
intends to act may be required. No legalisation or other similar
formality shall be required.

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Article 20

Article 24

Return and imputation

Honouring of an obligation to a debtor

1.
A creditor who, after the opening of the proceedings
referred to in Article 3(1) obtains by any means, in particular
through enforcement, total or partial satisfaction of his claim
on the assets belonging to the debtor situated within the
territory of another Member State, shall return what he has
obtained to the liquidator, subject to Articles 5 and 7.

2.
In order to ensure equal treatment of creditors a creditor
who has, in the course of insolvency proceedings, obtained a
dividend on his claim shall share in distributions made in other
proceedings only where creditors of
the same ranking or
category have,
in those other proceedings, obtained an
equivalent dividend.

Article 21

Publication

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
in that State. Such publication shall also specify the
for
liquidator appointed and whether the jurisdiction rule applied
is that pursuant to Article 3(1) or (2).

However, any Member State within the territory of which
2.
the debtor has an establishment may require mandatory publi-
cation.
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.

In such cases,

liquidator or

the

Article 22

Registration in a public register

1.
The liquidator may request that the judgment opening the
proceedings referred to in Article 3(1) be registered in the land
register, the trade register and any other public register kept in
the other Member States.

However, any Member State may require mandatory
2.
the liquidator or any authority
registration.
In such cases,
empowered to that effect
in the Member State where the
proceedings referred to in Article 3(1) have been opened
shall take all necessary measures to ensure such registration.

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
the person honouring the obligation shall be
proceedings,
deemed to have discharged it
the
opening of proceedings.

if he was unaware of

2. Where such an obligation is honoured before the publi-
cation 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.

Article 25

Recognition and enforceability of other judgments

is

Judgments handed down by a court whose judgment
1.
concerning the opening of proceedings
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
shall be enforced in
accordance with Articles 31 to 51 of the Brussels Convention
on Jurisdiction and the Enforcement of Judgments in Civil and
Commercial Matters, as amended by the Conventions of
Accession to this Convention, with the exception of Article
34(2).

formalities. Such judgments

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 recognition and enforcement of

2.
judgments other
than those referred to in paragraph 1 shall be governed by
the Convention referred to in paragraph 1, provided that that
Convention is applicable.

3.
The Member States shall not be obliged to recognise or
enforce a judgment referred to in paragraph 1 which might
result in a limitation of personal freedom or postal secrecy.

Article 23

Costs

Article 26

Public policy

The costs of the publication and registration provided for in
Articles 21 and 22 shall be regarded as costs and expenses
incurred in the proceedings.

Any Member State may refuse
insolvency
proceedings opened in another Member State or to enforce a
judgment handed down in the context of such proceedings

to recognise

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where the effects of such recognition or enforcement would be
manifestly contrary to that State’s public policy, in particular its
fundamental principles or the constitutional rights and liberties
of the individual.

CHAPTER III

SECONDARY INSOLVENCY PROCEEDINGS

Article 27

Opening of proceedings

The opening of the proceedings referred to in Article 3(1) by a
court of a Member State and which is recognised in another
Member State (main proceedings) shall permit the opening, in
that other Member State a court of which has jurisdiction
pursuant to Article 3(2), of secondary insolvency proceedings
without the debtor’s insolvency being examined in that other
State. These latter proceedings must be among the proceedings
listed in Annex B. Their effects shall be restricted to the assets
of the debtor situated within the territory of that other Member
State.

Article 31

Duty to cooperate and communicate information

Subject

1.
to the rules restricting the communication of
information, the liquidator in the main proceedings and the
liquidators in the secondary proceedings shall be duty bound
to communicate
information to each other. They shall
immediately communicate any information which may be
relevant to the other proceedings,
in particular the progress
made in lodging and verifying claims and all measures aimed
at terminating the proceedings.

Subject to the rules applicable to each of the proceedings,
2.
the liquidator in the main proceedings and the liquidators in
the secondary proceedings shall be duty bound to cooperate
with each other.

3.
The liquidator in secondary proceedings shall give the
liquidator in the main proceedings an early opportunity of
submitting proposals on the liquidation or use of the assets
in the secondary proceedings.

Article 28

Applicable law

the law
Save as otherwise provided in this Regulation,
applicable to secondary proceedings
the
Member State within the territory of which the secondary
proceedings are opened.

shall be that of

Article 32

Exercise of creditors’ rights

Any creditor may lodge his claim in the main proceedings

1.
and in any secondary proceedings.

Article 29

Right to request the opening of proceedings

The opening of secondary proceedings may be requested by:

(a) the liquidator in the main proceedings;

(b) any other person or authority empowered to request the
opening of insolvency proceedings under the law of the
Member State within the territory of which the opening
of secondary proceedings is requested.

The

liquidators

in the main and any

secondary
2.
proceedings shall
lodge in other proceedings claims which
have already been lodged in the proceedings for which they
were appointed, provided that the interests of creditors in the
latter proceedings are served thereby, subject to the right of
creditors to oppose that or to withdraw the lodgement of their
claims where the law applicable so provides.

The liquidator in the main or secondary proceedings shall
3.
be empowered to participate in other proceedings on the same
basis as a creditor,
in particular by attending creditors’
meetings.

Article 30

Advance payment of costs and expenses

Where the law of the Member State in which the opening of
secondary proceedings is requested requires that the debtor’s
assets be sufficient to cover in whole or in part the costs and
expenses of the proceedings, the court may, when it receives
such a request, require the applicant
to make an advance
payment of costs or to provide appropriate security.

Article 33

Stay of liquidation

1.
The court, which opened the secondary proceedings, shall
stay the process of liquidation in whole or in part on receipt of
a request from the liquidator in the main proceedings, provided
that in that event it may require the liquidator in the main
proceedings to take any suitable measure to guarantee the
interests of the creditors in the secondary proceedings and of
individual classes of creditors. Such a request
from the
is manifestly of no
liquidator may be rejected only if

it

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interest to the creditors in the main proceedings. Such a stay of
the process of
liquidation may be ordered for up to three
months. It may be continued or renewed for similar periods.

Article 36

Subsequent opening of the main proceedings

The court referred to in paragraph 1 shall terminate the

2.
stay of the process of liquidation:

(cid:151) at the request of the liquidator in the main proceedings,

(cid:151) of its own motion, at the request of a creditor or at the
request of the liquidator in the secondary proceedings if
that measure no longer appears justified, in particular, by
the interests of creditors in the main proceedings or in the
secondary proceedings.

Article 34

Measures ending secondary insolvency proceedings

1. Where the law applicable to secondary proceedings
allows for such proceedings to be closed without liquidation
by a rescue plan, a composition or a comparable measure, the
liquidator in the main proceedings shall be empowered to
propose such a measure himself.

Closure of the secondary proceedings by a measure referred to
in the first subparagraph shall not become final without the
consent of the liquidator in the main proceedings; failing his
agreement, however,
the financial
interests of
the creditors in the main proceedings are not
affected by the measure proposed.

it may become final

if

2.
Any restriction of creditors’ rights arising from a measure
referred to in paragraph 1 which is proposed in secondary
proceedings, such as a stay of payment or discharge of debt,
may not have effect
the debtor’s assets not
in respect of
covered by those proceedings without the consent of all the
creditors having an interest.

the process of

During a stay of

to Article 33, only the liquidator

liquidation ordered
3.
pursuant
in the main
proceedings or the debtor, with the former’s consent, may
propose measures laid down in paragraph 1 of this Article
in the secondary proceedings; no other proposal for such a
measure shall be put to the vote or approved.

Where the proceedings referred to in Article 3(1) are opened
following the opening of the proceedings referred to in Article
3(2) in another Member State, Articles 31 to 35 shall apply to
those opened first,
those
proceedings so permits.

the progress of

in so far as

Article 37

Closure and conversion of earlier proceedings

The liquidator in the main proceedings may request
that
proceedings listed in Annex A previously opened in another
Member State be converted into winding-up proceedings if this
the creditors in the main
proves to be in the interests of
proceedings.

The court with jurisdiction pursuant to Article 3(2) shall order
conversion into one of the proceedings listed in Annex B.

Article 38

Preservation measures

Where the court of a Member State which has jurisdiction
pursuant to Article 3(1) appoints a temporary administrator
the debtor’s assets,
in order to ensure the preservation of
that temporary administrator shall be empowered to request
any measures to secure and preserve any of
the debtor’s
assets situated in another Member State provided for under
the law of that State, for the period between the request for
the opening of
insolvency proceedings and the judgment
opening the proceedings.

CHAPTER IV

PROVISION OF INFORMATION FOR CREDITORS AND LODGEMENT
OF THEIR CLAIMS

Article 39

Right to lodge claims

Any creditor who has his habitual residence, domicile or
registered office in a Member State other than the State of
the opening of proceedings, including the tax authorities and
social security authorities of Member States, shall have the
right to lodge claims in the insolvency proceedings in writing.

Article 35

Assets remaining in the secondary proceedings

If by the liquidation of assets in the secondary proceedings it is
possible to meet all claims allowed under those proceedings,
the liquidator appointed in those proceedings shall immediately
transfer any assets remaining to the liquidator in the main
proceedings.

Article 40

Duty to inform creditors

1.
As soon as insolvency proceedings are opened in a
Member State, the court of that State having jurisdiction or
the liquidator appointed by it shall immediately inform known

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creditors who have their habitual residences, domiciles or
registered offices in the other Member States.

Article 44

Relationshsip to Conventions

That information, provided by an individual notice, shall
2.
in particular include time limits, the penalties laid down in
regard to those time limits, the body or authority empowered
to accept the lodgement of claims and the other measures laid
down. Such notice shall also indicate whether creditors whose
claims are preferential or secured in rem need lodge their
claims.

Article 41

Content of the lodgement of a claim

A creditor shall send copies of supporting documents, if any,
and shall indicate the nature of the claim, the date on which it
arose and its amount, as well as whether he alleges preference,
security in rem or a reservation of title in respect of the claim
and what assets are covered by the guarantee he is invoking.

After its entry into force,

in
1.
in the relations
respect of
between Member States, the Conventions concluded between
two or more Member States, in particular:

the matters referred to therein,

this Regulation replaces,

(cid:151) the Convention between Belgium and France on Juris-
diction and the Validity and Enforcement of Judgements,
Arbitration Awards and Authentic Instruments, signed at
Paris on 8 July 1899,

(cid:151) the Convention between Belgium and Austria on Bank-
ruptcy, Winding-up, Arrangements, Compositions
and
Suspension of Payments (with Additional Protocol of 13
June 1973), signed at Brussels on 16 July 1969,

(cid:151) the Convention between Belgium and the Netherlands on
Jurisdiction, Bankruptcy and the Validity and
Territorial
and
Judgments, Arbitration Awards
Enforcement of
Authentic Instruments, signed at Brussels on 28 March
1925,

Article 42

Languages

(cid:151) the Treaty between Germany and Austria on Bankruptcy,
Winding-up, Arrangements and Compositions, signed at
Vienna on 25 May 1979,

The information provided for in Article 40 shall be
1.
the official
language or one of
provided in the official
languages of
the opening of proceedings. For
that purpose a form shall be used bearing the heading
(cid:145)Invitation to lodge a claim. Time limits to be observed(cid:146) in all
the official languages of the European Union.

the State of

2.
Any creditor who has his habitual residence, domicile or
registered office in a Member State other than the State of the
opening of proceedings may lodge his claim in the official
language or one of the official languages of that other State.
In that event, however, the lodgement of his claim shall bear
the heading (cid:145)Lodgement of claim(cid:146) in the official
language or
languages of the State of the opening of
one of the official
proceedings.
In addition, he may be required to provide a
translation, into that language, of the lodgement of claim.

CHAPTER V

TRANSITIONAL AND FINAL PROVISIONS

Article 43

Applicability in time

The provisions of this Regulation shall apply only to insolvency
proceedings opened after its entry into force. Acts done by a
debtor before the entry into force of
the Regulation shall
continue to be governed by the law which was applicable to
them at the time they were done.

(cid:151) the Convention between France and Austria on Jurisdiction,
Recognition and Enforcement of Judgments on Bankruptcy,
signed at Vienna on 27 February 1979,

(cid:151) the Convention between France

and

Enforcement of
Matters, signed at Rome on 3 June 1930,

Judgmens

in Civil

Italy on the
and Commercial

(cid:151) the Convention between Italy and Austria on Bankruptcy,
Winding-up, Arrangements and Compositions, signed at
Rome on 12 July 1977,

(cid:151) the Convention between the Kingdom of the Netherlands
and the Federal Republic of Germany on the Mutual Recog-
nition and Enforcement of Judgments and other Enforceable
Instruments in Civil and Commercial Matters, signed at The
Hague on 30 August 1962,

(cid:151) the Convention between Denmark,

Finland, Norway,
Sweden and Iceland on Bankruptcy, signed at Copenhagen
on 11 November 1933,

(cid:151) the European Convention on Certain International Aspects

of Bankruptcy, signed at Instanbul on 5 June 1990.

The Conventions

2.
referred to in paragraph 1 shall
continue to have effect with regard to proceedings opened
before the entry into force of this Regulation.

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3.

This Regulation shall not apply:

(cid:151) in any Member State, to the extent that it is irreconcilable
with the obligations arising in relation to bankruptcy from
a convention concluded by that State with one or more
third countries before the entry into force of this Regu-
lation.

Article 46

Entry into force

This Regulation shall enter into force on . . .

This Regulation shall be binding in its entirety and directly
applicable in the Member States
in accordance with the
Treaty establishing the European Community.

Article 45

Amendment of the Annexes

Done at Brussels, . . .

The Annexes to this Regulation may be amended by decision
of the Council.

For the Council

The President

ANNEX A

BELGIQUE (cid:151) BELGI¸

(cid:151) La faillite/Het faillissement

(cid:151) Concordat judiciaire/Het gerechtelijk akkoord

DEUTSCHLAND

(cid:151) Das Konkursverfahren

(cid:151) Das gerichtliche Vergleichsverfahren

(cid:151) Das Gesamtvollstreckungsverfahren

(cid:151) Das Insolvenzverfahren

ELLAS

(cid:151) —(cid:244)(cid:254)(cid:247)(cid:229)ı(cid:243)(cid:231)

(cid:151) ˙ (cid:229)Ø(cid:228)ØŒ(cid:222) (cid:229)ŒŒÆŁ(cid:220)æØ(cid:243)(cid:231)

(cid:151) ˙ (cid:240)æ(cid:239)(cid:243)øæØ(cid:237)(cid:222) (cid:228)ØÆ(cid:247)(cid:229)(cid:223)æØ(cid:243)(cid:231) (cid:229)(cid:244)ÆØæ(cid:223)Æ(cid:242). ˙ (cid:228)Ø(cid:239)(cid:223)Œ(cid:231)(cid:243)(cid:231) ŒÆØ (cid:231) (cid:228)ØÆ(cid:247)(cid:229)(cid:223)æØ(cid:243)(cid:231) (cid:244)ø(cid:237) (cid:240)Ø(cid:243)(cid:244)ø(cid:244)(cid:254)(cid:237)

(cid:151) ˙ ı(cid:240)Æªøª(cid:222) (cid:229)(cid:240)Ø(cid:247)(cid:229)(cid:223)æ(cid:231)(cid:243)(cid:231)(cid:242) ı(cid:240)(cid:252) (cid:229)(cid:240)(cid:223)(cid:244)æ(cid:239)(cid:240)(cid:239) (cid:236)(cid:229) (cid:243)Œ(cid:239)(cid:240)(cid:252) (cid:244)(cid:231) (cid:243)ı·(cid:237)Æł(cid:231) (cid:243)ı(cid:236)(cid:246)ø(cid:237)(cid:223)Æ(cid:242) (cid:236)(cid:229) (cid:244)(cid:239)ı(cid:242) (cid:240)Ø(cid:243)(cid:244)ø(cid:244)(cid:221)(cid:242)

ESPA(cid:209)A

(cid:151) Concurso de acreedores

(cid:151) Quiebra

(cid:151) Suspensi(cid:243)n de pagos

FRANCE

(cid:151) Liquidation judiciaire

(cid:151) Redressement judiciaire avec nomination d’un administrateur

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ITALIA

(cid:151) Fallimento

(cid:151) Concordato preventivo

(cid:151) Liquidazione coatta amministrativa

(cid:151) Amministrazione straordinaria

(cid:151) Amministrazione controllata

LUXEMBOURG

(cid:151) Faillite

(cid:151) Gestion contr(cid:244)lØe

(cid:151) Concordat prØventif de faillite (par abandon d’actif)

(cid:151) RØgime spØcial de liquidation du notariat

NEDERLAND

(cid:151) Het faillissement

(cid:151) De sursØance van betaling

(cid:214)STERREICH

(cid:151) Das Konkursverfahren

(cid:151) Das Ausgleichsverfahren

(cid:151) Das Vorverfahren

PORTUGAL

(cid:151) O processo de falŒncia

(cid:151) Os processos especiais de recupera(cid:231)ªo de empresa, ou seja:

(cid:151) A concordata

(cid:151) O acordo de credores

(cid:151) A reestrutura(cid:231)ªo financeira

(cid:151) A gestªo controlada

SUOMI (cid:151) FINLAND

(cid:151) Konkurssi/konkurs

(cid:151) Yrityssaneeraus/f(cid:246)retagssanering

SVERIGE

(cid:151) Konkurs

(cid:151) Offentligt ackord

(cid:151) F(cid:246)retagsrekonstruktion

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ANNEX B

BELGIQUE (cid:151) BELGI¸

(cid:151) La faillite/Het faillissement

DEUTSCHLAND

(cid:151) Das Konkursverfahren

(cid:151) Das Gesamtvollstreckungsverfahren

(cid:151) Das Insolvenzverfahren

ELLAS

(cid:151) —(cid:244)(cid:254)(cid:247)(cid:229)ı(cid:243)(cid:231)

(cid:151) ˙ (cid:229)Ø(cid:228)ØŒ(cid:222) (cid:229)ŒŒÆŁ(cid:220)æØ(cid:243)(cid:231)

ESPA(cid:209)A

(cid:151) Concurso de acreedores

(cid:151) Quiebra

(cid:151) Suspensi(cid:243)n de pagos basada en la insolvencia definitiva

FRANCE

(cid:151) Liquidation judiciaire

ITALIA

(cid:151) Fallimento

(cid:151) Liquidazione coatta amministrativa

LUXEMBOURG

(cid:151) Faillite

(cid:151) RØgime spØcial de liquidation du notariat

NEDERLAND

(cid:151) Het faillissement

(cid:214)STERREICH

(cid:151) Das Konkursverfahren

PORTUGAL

(cid:151) O processo de falŒncia

SUOMI (cid:151) FINLAND

(cid:151) Konkurssi/konkurs

SVERIGE

(cid:151) Konkurs

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ANNEX C

BELGIQUE (cid:151) BELGI¸

(cid:151) Le curateur/de curator

(cid:151) Le juge dØlØguØ/de rechter-commissaris

DEUTSCHLAND

(cid:151) Konkursverwalter

(cid:151) Vergleichsverwalter

(cid:151) Sachwalter (nach der Vergleichsordnung)

(cid:151) Verwalter

(cid:151) Insolvenzverwalter

(cid:151) Sachwalter (nach der Insolvenzordnung)

(cid:151) Treuh(cid:228)nder

ELLAS

(cid:151) (cid:211)ı·(cid:237)(cid:228)ØŒ(cid:239)(cid:242)

(cid:151) ˇ (cid:240)æ(cid:239)(cid:243)øæØ(cid:237)(cid:252)(cid:242) (cid:228)ØÆ(cid:247)(cid:229)ØæØ(cid:243)(cid:244)(cid:222)(cid:242). ˙ (cid:228)Ø(cid:239)ØŒ(cid:239)ı·(cid:243)Æ (cid:229)(cid:240)Ø(cid:244)æ(cid:239)(cid:240)(cid:222) (cid:244)ø(cid:237) (cid:240)Ø(cid:243)(cid:244)ø(cid:244)(cid:254)(cid:237)

(cid:151) ˇ (cid:229)Ø(cid:228)ØŒ(cid:252)(cid:242) (cid:229)ŒŒÆŁÆæØ(cid:243)(cid:244)(cid:222)(cid:242)

(cid:151) ˇ (cid:229)(cid:240)(cid:223)(cid:244)æ(cid:239)(cid:240)(cid:239)(cid:242)

ESPA(cid:209)A

(cid:151) Depositario-administrador

(cid:151) Interventor o interventores

(cid:151) S(cid:237)ndicos

(cid:151) Comisario

FRANCE

(cid:151) ReprØsentant des crØanciers

(cid:151) Mandataire liquidateur

(cid:151) Administrateur judiciaire

(cid:151) Commissaire (cid:224) l’exØcution de plan

ITALIA

(cid:151) Curatore

(cid:151) Commissario liquidatore

LUXEMBOURG

(cid:151) Le curateur

(cid:151) Le commissaire

(cid:151) Le liquidateur

(cid:151) Le conseil de gØrance de la section d’assainissement du notariat

NEDERLAND

(cid:151) De curator in het faillissement

(cid:151) De bewindvoerder in de sursØance van betaling

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(cid:214)STERREICH

(cid:151) Masseverwalter

(cid:151) Ausgleichsverwalter

(cid:151) Sachwalter

(cid:151) Treuh(cid:228)nder

(cid:151) Besonderer Verwalter

(cid:151) Vorl(cid:228)ufiger Verwalter

(cid:151) das Konkursgericht

PORTUGAL

(cid:151) Gestor judicial

(cid:151) LiquidatÆrio judicial

(cid:151) Comissªo de Credores

SUOMI (cid:151) FINLAND

(cid:151) Pes(cid:228)nhoitaja/bof(cid:246)rvaltare

(cid:151) Selvitt(cid:228)j(cid:228)/utredare

SVERIGE

(cid:151) F(cid:246)rvaltare

(cid:151) God man

(cid:151) Rekonstrukt(cid:246)r