Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings
Date: 2000-05-29
Institutions: Council of the European Union
Subjects: claim, cross-border cooperation, financial solvency, judicial cooperation in civil matters in the EU, judicial proceedings

30.6.2000

EN

Official Journal of the European Communities

L 160/1

I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 1346/2000

of 29 May 2000

on insolvency proceedings

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Articles 61(c) and 67(1) thereof,

Having regard to the initiative of the Federal Republic of
Germany and the Republic of 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 of establishing

an area of freedom, security and justice.

(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 Treaty.

(3) The activities of undertakings have more and more
cross-border effects and are therefore increasingly being
regulated by Community law. While the insolvency of
such undertakings also affects the proper functioning of
the internal market, there is a need for a Community act
requiring coordination of
the measures to be taken
regarding an insolvent debtor’s assets.

(4)

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, seeking to obtain a more favourable legal
position (forum shopping).

(5) These objectives cannot be achieved to a sufficient degree
is

level and action at Community level

at national
therefore justified.

(6)

(7)

(8)

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.

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
in Civil and Commercial Matters (3), as
Judgments
amended by the Conventions on Accession to this
Convention (4).

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.

(1) Opinion delivered on 2 March 2000 (not yet published in the

Official Journal).

(2) Opinion delivered on 26 January 2000 (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.

L 160/2

EN

Official Journal of the European Communities

30.6.2000

(9) This Regulation should apply to insolvency proceedings,
whether the debtor is a natural person or a legal person,
a trader or an individual. The insolvency proceedings to
which this Regulation applies are listed in the Annexes.
Insolvency proceedings concerning insurance undertak-
ings, credit institutions, investment undertakings holding
funds or securities for third parties and collective invest-
ment undertakings should be excluded from the scope of
this Regulation. Such undertakings should not be covered
by this Regulation since they are subject
to special
arrangements and, to some extent, the national supervis-
ory authorities have extremely wide-ranging powers of
intervention.

(10) Insolvency proceedings do not necessarily involve the
intervention of a judicial authority; the expression ‘court’
in this Regulation should be given a broad meaning and
include a person or body empowered by national law to
open insolvency proceedings. In order for this Regulation
to apply, proceedings (comprising acts and formalities set
down in law) should not only have to comply with the
provisions of this Regulation, but they should also be
officially recognised and legally effective in the Member
State in which the insolvency proceedings are opened
and should be collective insolvency proceedings which
entail the partial or total divestment of the debtor and the
appointment of a liquidator.

(11) This Regulation acknowledges the fact that as a result of
widely differing substantive laws it is not practical 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 this background, frequently lead to difficulties.
This applies, for example, to the widely differing laws
on security interests to be found in the Community.
Furthermore, the preferential rights enjoyed by some
creditors in the insolvency proceedings are, in some cases,
completely different. This Regulation should take account
of this in two different ways. On the one hand, provision
should be made for special rules on applicable law in the
case of particularly significant rights and legal relation-
ships (e.g. rights in rem and contracts of employment).
On the other hand, national proceedings covering only
assets situated in the State of opening should also be
allowed alongside main insolvency proceedings with
universal scope.

(12) This Regulation enables the main insolvency proceedings
to be opened in the Member State where the debtor has
the centre of his main interests. These proceedings have
universal scope and aim at encompassing all the debtor’s
assets. To protect the diversity of interests, this Regulation
permits secondary proceedings to be opened to run in
parallel with the main proceedings. Secondary proceed-
ings may be opened in the Member State where the

debtor has an establishment. The effects of secondary
proceedings are limited to the assets located in that
State. Mandatory rules of coordination with the main
proceedings satisfy the need for unity in the Community.

(13) The ‘centre of main interests’ should correspond to the
place where the debtor conducts the administration of
his interests on a regular basis and is therefore ascertain-
able by third parties.

(14) This Regulation applies only to proceedings where the
centre of the debtor’s main interests is located in the
Community.

(15) The rules of

jurisdiction set out

in this Regulation
establish only international jurisdiction, that is to say,
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.

(16) The court having jurisdiction to open the main insolvency
proceedings should be enabled to order provisional and
protective measures from the time of the request to open
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 that connection this
Regulation should afford different possibilities. On the
one hand, the court competent for the main insolvency
proceedings should be able also to order provisional
protective measures covering assets situated in the terri-
tory of other Member States. On the other hand, a
liquidator temporarily appointed prior to the opening of
the main insolvency proceedings should be able, in the
Member States in which an establishment belonging to
the debtor is to be found, to apply for the preservation
measures which are possible under the law of those
States.

(17) Prior to the opening of the main insolvency proceedings,
the right to request the opening of insolvency proceedings
in the Member State where the debtor has an establish-
ment should be limited to local creditors and creditors of
the local establishment or to cases where main proceed-
ings 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 is that cases where territorial
insolvency proceedings are requested before the main
insolvency proceedings are intended to be limited to
If the main insolvency
what is absolutely necessary.
proceedings are opened,
the territorial proceedings
become secondary.

30.6.2000

EN

Official Journal of the European Communities

L 160/3

(18) Following the opening of the main insolvency proceed-
ings, the right to request the opening of insolvency
proceedings in a Member State where the debtor has an
establishment is not restricted by this Regulation. The
liquidator in the main proceedings or any other person
empowered under the national
law of that Member
State may request the opening of secondary insolvency
proceedings.

(19) Secondary insolvency proceedings may serve different
purposes, besides the protection of local interests. Cases
may arise where the estate of the debtor is too complex
to administer as a unit or 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.

(20) Main insolvency proceedings and secondary proceedings
can, however, contribute to the effective realisation of the
total assets only if all the concurrent proceedings pending
are coordinated. The main condition here is that the
various liquidators must cooperate closely, in particular
by exchanging a sufficient amount of information. In
order to ensure the dominant role of the main insolvency
proceedings, the liquidator in such proceedings should be
given several possibilities for intervening in secondary
insolvency proceedings which are pending at the same
time. For example, he should be able to propose a
restructuring plan or composition or apply for realisation
of the assets in the secondary insolvency proceedings to
be suspended.

(21) Every creditor, who has his habitual residence, domicile
or registered office in the Community, should have the
right to lodge his claims in each of the insolvency
proceedings pending in the Community relating to the
debtor’s assets. This should also apply 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 should be
able to keep what he has received in the course of
insolvency proceedings but should be entitled only to
participate in the distribution of total assets in other
proceedings if creditors with the same standing have
obtained the same proportion of their claims.

(22) This Regulation should provide for immediate recog-
nition 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 should therefore mean that the effects attrib-
uted to the 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 should be based on the principle of
mutual trust. To that end, grounds for non-recognition
should be reduced to the minimum necessary. This is also
the basis on which any dispute should be resolved where
the courts of two Member States both claim competence
to open the main insolvency proceedings. The decision
of the first court to open proceedings should be recog-
nised in the other Member States without those Member
States having the power to scrutinise the court’s decision.

(23) This Regulation should set out, for the matters covered
by it, uniform rules on conflict of laws which replace,
within their scope of application, national rules of private
international law. Unless otherwise stated, the law of the
Member State of the opening of the proceedings should
be applicable (lex concursus). This rule on conflict of laws
should be valid both for the main proceedings and for
local proceedings; the lex concursus determines all the
effects of the insolvency 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.

(24) Automatic recognition of

insolvency proceedings to
which the law of the opening State normally applies may
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,
provisions should be made for a number of exceptions to
the general rule.

(25) 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 should therefore normally be determined
according to the lex situs and not be affected by the
opening of insolvency proceedings. The proprietor of the
right in rem should therefore be able to continue to assert
his right to segregation or separate settlement of the
collateral security. Where assets are subject to rights in
rem under the lex situs in one Member State but the main
proceedings are being carried out in another Member
State, the liquidator in the main proceedings should be
able to request the opening of secondary proceedings in
the jurisdiction where the rights in rem arise if the debtor
has an establishment there. If a secondary proceeding is
not opened, the surplus on sale of the asset covered by
rights in rem must be paid to the liquidator in the main
proceedings.

L 160/4

EN

Official Journal of the European Communities

30.6.2000

(26) If a set-off is not permitted under the law of the opening
State, a creditor should nevertheless be 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 will acquire a
kind of guarantee function based on legal provisions on
which the creditor concerned can rely at the time when
the claim arises.

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.

(27) 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 Directive
98/26/EC of the European Parliament and of the Council
of 19 May 1998 on settlement finality in payment and
securities settlement systems (1). For such transactions,
the only law which is material should thus be that
applicable to the system or market concerned. This
provision is intended to prevent the possibility of mech-
anisms for the payment and settlement of transactions
provided for in the 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. Directive 98/26/EC contains special provisions
which should take precedence over the general rules in
this Regulation.

(28) In order to protect employees and jobs, the effects of
insolvency proceedings on the continuation or termin-
ation 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 rules on conflict of law. Any other insolvency-
law questions, such as whether the employees’ claims are
protected by preferential rights and what status such
preferential rights may have, should be determined by the
law of the opening State.

(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 con-
cerned, 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

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

(31) This Regulation should include Annexes relating to the
organisation of insolvency proceedings. As these Annexes
relate exclusively to the legislation of Member States,
there are specific and substantiated reasons for the
Council to reserve the right to amend these Annexes in
order to take account of any amendments to the domestic
law of the Member States.

(32) The United Kingdom and Ireland, in accordance with
Article 3 of the Protocol on the position of the United
Kingdom and Ireland annexed to the Treaty on European
Union and the Treaty establishing the European Com-
munity, have given notice of their wish to take part in the
adoption and application of this Regulation.

(33) Denmark, in accordance with Articles 1 and 2 of the
Protocol on the position of Denmark annexed to the
Treaty on European Union and the Treaty establishing
the European Community,
is not participating in the
adoption of this Regulation, and is therefore not bound
by it nor subject to its application,

HAS ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Scope

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

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

30.6.2000

EN

Official Journal of the European Communities

L 160/5

Article 2

Definitions

Article 3

International jurisdiction

For the purposes of this Regulation:

(a)

‘insolvency proceedings’ shall mean the collective proceed-
ings referred to in Article 1(1). These proceedings are listed
in Annex A;

(b) ‘liquidator’ 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;

(c)

‘winding-up proceedings’ shall mean insolvency proceed-
ings within the meaning of point (a) involving realising the
assets of the debtor, including where the proceedings have
been closed by a composition or other measure terminating
the insolvency, or closed by reason of the insufficiency of
the assets. Those proceedings are listed in Annex B;

(d) ‘court’ 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)

‘judgment’ in relation to the opening of insolvency pro-
ceedings or the appointment of a liquidator shall include
the decision of any court empowered to open such
proceedings or to appoint a liquidator;

(f)

‘the time of the opening of proceedings’ shall mean the
time at which the judgment opening proceedings becomes
effective, whether it is a final judgment or not;

(g) ‘the Member State in which assets are situated’ shall mean,

in the case of:

— tangible property, the Member State within the terri-

tory of which the property is situated,

— property and rights ownership of or entitlement to
which must be entered in a public register, the Member
State under the authority of which the register is kept,

— 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) ‘establishment’ shall mean any place of operations where
the debtor carries out a non-transitory economic activity
with human means and goods.

The courts of the Member State within the territory of
1.
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.

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.

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

(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 territory of which the establishment is situated, or
whose claim arises from the operation of that establish-
ment.

Article 4

Law applicable

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

L 160/6

EN

Official Journal of the European Communities

30.6.2000

2.
The law of the State of the opening of proceedings shall
determine the conditions for the opening of those proceedings,
their conduct and their closure. It shall determine in particular:

(a) against which debtors insolvency proceedings may be

brought on account of their capacity;

The rights referred to in paragraph 1 shall in particular

2.
mean:

(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;

(c) the respective powers of the debtor and the liquidator;

(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)

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

(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;

(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.

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

4.
Paragraph 1 shall not preclude actions for voidness,
voidability or unenforceability as referred to in Article 4(2)(m).

(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;

Article 6

Set-off

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

(k) creditors’ rights after the closure of insolvency proceedings;

2.
Paragraph 1 shall not preclude actions for voidness,
voidability or unenforceability as referred to in Article 4(2)(m).

(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 7

Reservation of title

Article 5

Third parties’ rights in rem

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 of opening of proceedings.

The opening of insolvency proceedings shall not affect
1.
the rights in rem of creditors or third parties in respect of
tangible or intangible, moveable or immoveable assets — both
specific assets and collections of indefinite assets as a whole
which change from time to time — belonging to the debtor
which are situated within the territory of another Member
State at the time of the opening of proceedings.

The opening of insolvency proceedings against the seller
2.
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.

30.6.2000

EN

Official Journal of the European Communities

L 160/7

3.
Paragraphs 1 and 2 shall not preclude actions for
voidness, voidability or unenforceability as referred to in
Article 4(2)(m).

Article 13

Detrimental acts

Article 8

Contracts relating to immoveable property

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

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

— the said act is subject to the law of a Member State other
than that of the State of the opening of proceedings, and

— that law does not allow any means of challenging that act

in the relevant case.

Article 9

Article 14

Payment systems and financial markets

Protection of third-party purchasers

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 10

Contracts of employment

The effects of insolvency proceedings on employment con-
tracts 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

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

— an immoveable asset, or

— a ship or an aircraft subject to registration in a public

register, or

— 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 immoveable 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.

The effects of insolvency proceedings on the rights of the
debtor in immoveable property, a ship or an aircraft subject to
registration in a public register shall be determined by the law
of the Member State under the authority of which the register
is kept.

CHAPTER II

RECOGNITION OF INSOLVENCY PROCEEDINGS

Article 12

Community patents and trade marks

Article 16

Principle

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).

1.
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.

L 160/8

EN

Official Journal of the European Communities

30.6.2000

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 insolvency proceedings within
the meaning of Chapter III.

Article 17

Effects of recognition

1.
The judgment opening the proceedings referred to in
Article 3(1) shall, with no further formalities, produce the
same effects in any other Member State as under this law of
the State of the opening of proceedings, unless this Regulation
provides otherwise and as long as no proceedings referred to
in Article 3(2) are opened in that other Member State.

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-à-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 jurisdic-
tion 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.

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.

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.

Article 20

Return and imputation

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 equiva-
lent dividend.

Article 21

Publication

2.
The liquidator appointed by a court which has jurisdic-
tion 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.

The liquidator may request that notice of the judgment
1.
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).

30.6.2000

EN

Official Journal of the European Communities

L 160/9

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.

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.

2.
However, any Member State may require mandatory
registration. 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) have been opened shall
take all necessary measures to ensure such registration.

Article 23

Costs

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. Such judgments shall be enforced in accordance
with Articles 31 to 51, with the exception of Article 34(2), 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.

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.

2.
The recognition and enforcement of 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.

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.

Article 26 (1)

Public policy

Article 24

Honouring of an obligation to a debtor

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.

Article 25

Recognition and enforceability of other judgments

Any Member State may refuse to recognise insolvency proceed-
ings opened in another Member State or to enforce a judgment
handed down in the context of such proceedings where the
effects of such recognition or enforcement would be manifestly
contrary to that State’s public policy, in particular its funda-
mental 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.

1.
Judgments handed down by a court whose judgment
concerning the opening of proceedings is recognised in

(1) Note the Declaration by Portugal concerning the application of

Articles 26 and 37 (OJ C 183, 30.6.2000, p. 1).

L 160/10

EN

Official Journal of the European Communities

30.6.2000

Article 28

Applicable law

Article 32

Exercise of creditors’ rights

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

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.

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 31

Duty to cooperate and communicate information

1.
Subject 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 immedi-
ately 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.

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

Any creditor may lodge his claim in the main proceedings

1.
and in any secondary proceedings.

2.
The liquidators in the main and any secondary proceed-
ings 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.

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

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 proceed-
ings, 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 liquidator may be rejected only if it is
manifestly of no interest to the creditors in the main proceed-
ings. 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.

The court referred to in paragraph 1 shall terminate the

2.
stay of the process of liquidation:

— at the request of the liquidator in the main proceedings,

3.
The liquidator in the 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.

— 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.

30.6.2000

EN

Official Journal of the European Communities

L 160/11

Article 34

Article 37 (1)

Measures ending secondary insolvency proceedings

Conversion of earlier 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
if the financial
agreement, however,
interests of the creditors in the main proceedings are not
affected by the measure proposed.

it may become final

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 in respect of the debtor’s assets not
covered by those proceedings without the consent of all the
creditors having an interest.

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 proves to be in the interests of the creditors in the main
proceedings.

The court with jurisdiction under 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
in order to ensure the preservation of the debtor’s assets, 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.

During a stay of the process of liquidation ordered
3.
pursuant
to Article 33, only the liquidator 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.

CHAPTER IV

PROVISION OF INFORMATION FOR CREDITORS AND
LODGEMENT OF THEIR CLAIMS

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 immedi-
ately transfer any assets remaining to the liquidator in the
main proceedings.

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 36

Article 40

Duty to inform creditors

Subsequent opening of the main proceedings

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, in so far as the progress of those
proceedings so permits.

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

(1) Note the Declaration by Portugal concerning the application of

Articles 26 and 37 (OJ C 183, 30.6.2000, p. 1).

L 160/12

EN

Official Journal of the European Communities

30.6.2000

2.
That information, provided by an individual notice, shall
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.

Article 42

Languages

1.
The information provided for in Article 40 shall be
provided in the official language or one of the official languages
of the State of the opening of proceedings. For that purpose a
form shall be used bearing the heading ‘Invitation to lodge a
claim. Time limits to be observed’ in all the official languages
of the institutions of the European Union.

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 ‘Lodgement of claim’ in the official language or one
of the official
languages of the State of the opening of
proceedings. In addition, he may be required to provide a
translation into the official language or one of the official
languages of the State of the opening of proceedings.

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 this Regulation shall
continue to be governed by the law which was applicable to
them at the time they were done.

Article 44

Relationship to Conventions

1.
After its entry into force, this Regulation replaces, in
respect of the matters referred to therein, in the relations
between Member States, the Conventions concluded between
two or more Member States, in particular:

(a) the Convention between Belgium and France on Jurisdic-
tion and the Validity and Enforcement of Judgments,
Arbitration Awards and Authentic Instruments, signed at
Paris on 8 July 1899;

(b) 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;

(c) the Convention between Belgium and the Netherlands on
Territorial Jurisdiction, Bankruptcy and the Validity and
Enforcement of Judgments, Arbitration Awards and Auth-
entic Instruments, signed at Brussels on 28 March 1925;

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

(e) the Convention between France and Austria on Jurisdic-
Judgments on

tion, Recognition and Enforcement of
Bankruptcy, signed at Vienna on 27 February 1979;

(f)

the Convention between France and Italy on the Enforce-
ment of Judgments in Civil and Commercial Matters,
signed at Rome on 3 June 1930;

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

(h) the Convention between the Kingdom of the Netherlands
and the Federal Republic of Germany on the Mutual
Recognition and Enforcement of Judgments and other
Enforceable Instruments in Civil and Commercial Matters,
signed at The Hague on 30 August 1962;

(i)

(j)

the Convention between the United Kingdom and the
Kingdom of Belgium providing for the Reciprocal Enforce-
ment of Judgments in Civil and Commercial Matters, with
Protocol, signed at Brussels on 2 May 1934;

the Convention between Denmark, Finland, Norway,
Sweden and Iceland on Bankruptcy, signed at Copenhagen
on 7 November 1933;

(k) the European Convention on Certain International Aspects

of Bankruptcy, signed at Istanbul on 5 June 1990.

The Conventions referred to in paragraph 1 shall con-
2.
tinue to have effect with regard to proceedings opened before
the entry into force of this Regulation.

30.6.2000

EN

Official Journal of the European Communities

L 160/13

3.

This Regulation shall not apply:

(a)

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;

to the extent

(b) in the United Kingdom of Great Britain and Northern
Ireland,
is irreconcilable with the
that
obligations arising in relation to bankruptcy and the
winding-up of insolvent companies from any arrange-
ments with the Commonwealth existing at the time this
Regulation enters into force.

Article 45

Amendment of the Annexes

The Council, acting by qualified majority on the initiative of
one of its members or on a proposal from the Commission,
may amend the Annexes.

Article 46

Reports

No later than 1 June 2012, and every five years thereafter, the
Commission shall present to the European Parliament, the
Council and the Economic and Social Committee a report
on the application of this Regulation. The report shall be
accompanied if need be by a proposal for adaptation of this
Regulation.

Article 47

Entry into force

This Regulation shall enter into force on 31 May 2002.

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

Done at Brussels, 29 May 2000.

For the Council

The President

A. COSTA

L 160/14

EN

Official Journal of the European Communities

30.6.2000

ANNEX A

Insolvency proceedings referred to in Article 2(a)

BELGIE¨ —BELGIQUE

— Het faillissement/La faillite

— Arrangements under the control of the court which involve the
vesting of all or part of the property of the debtor in the Official
Assignee for realisation and distribution

— Het gerechtelijk akkoord/Le concordat judiciaire

— Company examinership

— De collectieve schuldenregeling/Le règlement collectif de dettes

DEUTSCHLAND

— Das Konkursverfahren

ITALIA

— Fallimento

— Concordato preventivo

— Das gerichtliche Vergleichsverfahren

— Liquidazione coatta amministrativa

— Das Gesamtvollstreckungsverfahren

— Amministrazione straordinaria

— Das Insolvenzverfahren

— Amministrazione controllata

ΕΛΛΑΣ

— Πτω΄χευση

— Η ειδικη΄ εκκαθα΄ριση

LUXEMBOURG

— Faillite

— Gestion contrôlée

— Η προσωρινη΄ διαχει΄ριση εταιρι΄ας. Η διοι΄κηση και η διαχει΄ριση των

πιστωτω΄ν

— Concordat préventif de faillite (par abandon d’actif)

— Η υπαγωγη΄ επιχει΄ρησης υπο΄ επι΄τροπο µε σκοπο΄ τη συ΄ναψη

συµβιβασµου΄ µε τους πιστωτε΄ς

— Régime spécial de liquidation du notariat

ESPAN˜ A

— Concurso de acreedores

— Quiebra

— Suspensio´ n de pagos

FRANCE

— Liquidation judiciaire

— Redressement judiciaire avec nomination d’un administrateur

IRELAND

— Compulsory winding up by the court

— Bankruptcy

NEDERLAND

— Het faillissement

— De surséance van betaling

— De schuldsaneringsregeling natuurlijke personen

O¨ STERREICH

— Das Konkursverfahren

— Das Ausgleichsverfahren

PORTUGAL

— O processo de falência

— Os processos especiais de recuperaça˜o de empresa, ou seja:

— The administration in bankruptcy of the estate of persons dying

insolvent

— A concordata

— A reconstituiça˜o empresarial

— Winding-up in bankruptcy of partnerships

— A reestruturaça˜o financeira

— Creditors’ voluntary winding up (with confirmation of a Court)

— A gesta˜o controlada

30.6.2000

EN

Official Journal of the European Communities

L 160/15

SUOMI—FINLAND

— Konkurssi/konkurs

— Yrityssaneeraus/företagssanering

SVERIGE

— Konkurs

UNITED KINGDOM

— Winding up by or subject to the supervision of the court

— Creditors’ voluntary winding up (with confirmation by the court)

— Administration

— Voluntary arrangements under insolvency legislation

— Företagsrekonstruktion

— Bankruptcy or sequestration

L 160/16

EN

Official Journal of the European Communities

30.6.2000

ANNEX B

Winding up proceedings referred to in Article 2(c)

BELGIE¨ —BELGIQUE

— Het faillissement/La faillite

DEUTSCHLAND

— Das Konkursverfahren

— Das Gesamtvollstreckungsverfahren

— Das Insolvenzverfahren

ΕΛΛΑΣ

— Πτω΄χευση

— Η ειδικη΄ εκκαθα΄ριση

ESPAN˜ A

— Concurso de acreedores

— Quiebra

— Suspensio´ n de pagos basada en la insolvencia definitiva

FRANCE

— Liquidation judiciaire

IRELAND

— Compulsory winding up

— Bankruptcy

— Arrangements under the control of the court which involve the
vesting of all or part of the property of the debtor in the Official
Assignee for realisation and distribution

ITALIA

— Fallimento

— Liquidazione coatta amministrativa

LUXEMBOURG

— Faillite

— Régime spécial de liquidation du notariat

NEDERLAND

— Het faillissement

— De schuldsaneringsregeling natuurlijke personen

O¨ STERREICH

— Das Konkursverfahren

PORTUGAL

— O processo de falência

SUOMI—FINLAND

— Konkurssi/konkurs

SVERIGE

— Konkurs

— The administration in bankruptcy of the estate of persons dying

UNITED KINGDOM

insolvent

— Winding up by or subject to the supervision of the court

— Winding-up in bankruptcy of partnerships

— Creditors’ voluntary winding up (with confirmation by the court)

— Creditors’ voluntary winding up (with confirmation of a court)

— Bankruptcy or sequestration

30.6.2000

EN

Official Journal of the European Communities

L 160/17

ANNEX C

Liquidators referred to in Article 2(b)

BELGIE¨ —BELGIQUE

— De curator/Le curateur

IRELAND

— Liquidator

— De commissaris inzake opschorting/Le commissaire au sursis

— Official Assignee

— De schuldbemiddelaar/Le médiateur de dettes

DEUTSCHLAND

— Konkursverwalter

— Vergleichsverwalter

— Sachwalter (nach der Vergleichsordnung)

— Verwalter

— Insolvenzverwalter

— Sachwalter (nach der Insolvenzordnung)

— Treuhänder

— Vorläufiger Insolvenzverwalter

ΕΛΛΑΣ

— Ο συ΄νδικο

— Ο προσωρινο΄ς διαχειριστη΄ς. Η διοικου΄σα επιτροπη΄ των πιστωτω΄ν

— Ο ειδικο΄ς εκκαθαριστη΄ς

— Ο επι΄τροπος

ESPAN˜ A

— Depositario-administrador

— Interventor o Interventores

— Sı´ndicos

— Comisario

FRANCE

— Représentant des créanciers

— Mandataire liquidateur

— Administrateur judiciaire

— Trustee in bankruptcy

— Provisional Liquidator

— Examiner

ITALIA

— Curatore

— Commissario

LUXEMBOURG

— Le curateur

— Le commissaire

— Le liquidateur

— Le conseil de gérance de la section d’assainissement du notariat

NEDERLAND

— De curator in het faillissement

— De bewindvoerder in de surséance van betaling

— De bewindvoerder in de schuldsaneringsregeling natuurlijke

personen

O¨ STERREICH

— Masseverwalter

— Ausgleichsverwalter

— Sachwalter

— Treuhänder

— Besondere Verwalter

— Vorläufiger Verwalter

— Commissaire à l’exécution de plan

— Konkursgericht

L 160/18

EN

Official Journal of the European Communities

30.6.2000

PORTUGAL

— Gestor judicial

— Liquidata´rio judicial

— Comissa˜o de credores

SUOMI—FINLAND

— Pesänhoitaja/boförvaltare

— Selvittäjä/utredare

SVERIGE

— Förvaltare

— God man

— Rekonstruktör

UNITED KINGDOM

— Liquidator

— Supervisor of a voluntary arrangement

— Administrator

— Official Receiver

— Trustee

— Judicial factor